WT/DS553/R/Add.1  
 
30 November 2020  
(20-8569) Page: 1/113 
  Original: English  
 
  
KOREA – SUNSET REVIEW OF ANTI -DUMPING DUTIES  
ON STAINLESS STEEL BARS  
REPORT OF THE PANEL  
Addendum  
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This addendum  contains Annexes A to C to the Report of the Panel to be found in document  
WT/DS5 53/R. 
 
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  WT/DS553/R/Add.1  
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  LIST OF ANNEXES  
ANNEX  A 
PANEL DOCUMENTS  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures on Business Confidential Information  11 
Annex A -3 Interim Review  13 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 First integrated executive summary of the arguments of Japan  63 
Annex  B-2 First integrated executive summary of the arguments of Korea  74 
Annex  B-3 Second integrated executive summary of the arguments of Japan  84 
Annex  B-4 Second integrated executive summary of the arguments of Korea  94 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of the European Union  106 
Annex  C-2 Integrated executive summary of the arguments of the United States  110 
 
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  ANNEX  A 
PANEL DOCUMENTS  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures on Business Confidential Information  11 
Annex A -3 Interim Review  13 
 
 WT/DS553/R/Add.1  
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  ANNEX  A-1 
WORKING PROCEDURES OF THE PANEL  
Adopted on 23  April  2019  
 
General  
 
1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding 
on Rules an d Procedures Governing the Settlement of Disputes ( "DSU"). In addition, the 
following Working Procedures apply.  
(2) The Panel reserves the right to modify these procedures as necessary, after consultation 
with the parties.  
Confidentiality  
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept 
confidential. Members shall treat as confidential information that is submitted to the Panel 
which the submitting Member has designated as confidential.  
(2) Nothing in the DSU or in these Working Procedures shall preclude a party or third party 
from disclosing statements of its own positions to the public.  
(3) If a party submits a confidential version of its written submissions to the Panel, it shall 
also, upon request of a Mem ber, provide a non -confidential summary of the information 
contained in its submissions that could be disclosed to the public.  
(4)  Parties and third parties shall treat business confidential information in accordance with 
the procedures set forth in the Additional Working Procedures of the Panel Concerning 
Business Confidential Information.  
Submissions  
 
3. (1) Before the first substantive meeting of the Panel with the parties, each party shall 
submit a written submission in which it presents the facts of  the case and its arguments, in 
accordance with the timetable adopted by the Panel.  
(2) Each party shall also submit to the Panel, before the second substantive meeting of the 
Panel, a written rebuttal, in accordance with the timetable adopted by the Pane l.  
(3) Each third party that chooses to make a written submission before the first substantive 
meeting of the Panel with the parties shall do so in accordance with the timetable adopted by 
the Panel.  
(4) The Panel may invite the parties or third parties to make  additional submissions during 
the proceeding, including with respect to requests for preliminary rulings in accordance with 
paragraph 4 below.  
Preliminary rulings  
4. (1) If Korea considers that the Panel should make a ruling before the issuance of  the Report 
that certain measures or claims in the panel request or the complainant 's first written 
submission are not properly before the Panel, the following procedure applies. Exceptions to 
this procedure shall be granted upon a showing of good cause.  
a. Korea shall submit any such request for a preliminary ruling at the earliest possible 
opportunity and in any event no later than in its  first written  submission to the Panel. WT/DS553/R/Add.1  
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  Japan shall submit its  response to  the request before the first substantive me eting of the 
Panel, at a time to be determined by the Panel in light of the request.  
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary ruling 
request before, during or after the first substantive meeting, or the Panel m ay defer a 
ruling on the issues raised by a preliminary ruling request until it issues its Report to the 
parties.  
c. If the Panel finds it appropriate to issue a preliminary ruling before the issuance of its 
Report, the Panel may provide reasons for the r uling at the time that the ruling is made, 
or subsequently in its Report .  
d. Any request for such a preliminary ruling by the respondent before the first meeting, and 
any subsequent submissions of the parties in relation thereto before the first meeting, 
shall be served on all third parties. The Panel may provide all third parties with an 
opportunity to provide  comments on  any such request, either in their submissions as 
provided for in the timetable or separately. Any preliminary ruling issued by the Pane l 
before the first substantive meeting on whether certain measures or claims are properly 
before the Panel shall be shared with all third parties.  
(2) This procedure is without prejudice to the parties ' right to request other types of 
preliminary or proce dural rulings during the proceeding, and to the procedures that the Panel 
may follow with respect to such requests.  
Evidence  
5. (1) Each party shall submit all evidence to the Panel no later than during the first 
substantive meeting, except evidence necessary for purposes of rebuttal, or evidence 
necessary for answers to questions or  comments on  answers provided by the other party. 
Additional exceptions may be granted upon a showing of good cause.  
(2) If any new evidence has been admitted up on a showing of good cause, the Panel shall 
accord the other party an appropriate period of time to comment on the new evidence 
submitted.  
6. (1) If the original language of an exhibit or portion thereof is not a WTO working language, 
the submitting party or third party shall simultaneously submit a translation of the exhibit or 
relevant portion or parts thereof into the WTO working language of the submission. The Panel 
may grant reasonable extensions of time for the translation of exhibits upon a showing o f 
good cause.  
(2) Any objection as to the accuracy of a translation should be raised promptly in writing, 
preferably no later than the next submission or meeting (whichever occurs earlier) following 
the submission which contains the translation in questio n. Any objection shall be accompanied 
by an explanation of the grounds for the objection and an alternative translation.  
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute, indicating the submitting Member and the number of each exhibit on its 
cover page. Exhibits submitted by Japan should be numbered JPN -1, JPN -2, etc. Exhibits 
submitted by Korea sh ould be numbered KOR -1, KOR -2, etc. If the last exhibit in connection 
with the first submission was numbered JPN -5, the first exhibit in connection with the next 
submission thus would be numbered JPN -6.  
(2) Each party shall provide an updated list of exhi bits (in Word or Excel format) together 
with each of its submissions, oral statements, and responses to questions.  
(3) If a party submits a document that has already been submitted as an exhibit by the 
other party, it should explain why it is submitting th at document again.  WT/DS553/R/Add.1  
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  (4) If a party includes a hyperlink to the content of a website in a submission, and intends 
that the cited content form part of the official record, the cited content of the website shall be 
provided in the form of an exhibit.  
Editorial  Guide  
8. In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in accordance with the WTO Editorial Guide for Panel Submissions (electronic copy 
provided).  
Questions  
 
9. The Panel may pose questions to  the parties and third parties at any time, including :  
a. Before any meeting, the Panel may send written questions, or a list of topics it intends 
to pursue in questioning orally during a meeting. The Panel may ask different or additional 
questions at the  meeting .  
b. The Panel may put questions to the parties and third parties orally during a meeting, 
and in writing following the meeting, as provided for in paragraphs 15 and 21 below.  
Substantive meetings  
 
10. The Panel shall meet in closed session.  
11. The parties shall be present at the meetings only when invited by the Panel to appear before 
it.  
12. (1) Each party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each party shall have the responsibili ty for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties.  
13. Each party shall provide to the Panel the list of members of its delegation no later than 
5.00 p.m. (Geneva time) three working days before the first day of each meeting with the Panel.  
14. A request for interpretation by any party should be made to the P anel as early as possible, 
preferably at the organizational stage, to allow sufficient time to ensure availability of interpreters.  
15. The first substantive meeting of the Panel with the parties shall be conducted as follows :  
a. The Panel shall invite Ja pan to make an  opening statement  to present its case first. 
Subsequently, the Panel shall invite Korea to present its point of view. Before each party takes 
the floor, it shall provide the Panel and other participants at the meeting with a provisional 
written version of its statement. If  interpretation is needed, each party shall provide additional 
copies for the interpreters before taking the floor.  
b. Each party should avoid lengthy repetition of the arguments in its submissions. Each 
party is invited to limit the duration of its  openi ng statement  to not more than 75 minutes. If 
either party considers that it requires more time for its  opening statement , it should inform 
the Panel and the other party at least 10 days before the meeting, together with an estimate 
of the expected duration  of its statement. The Panel will accord equal time to the other party .  
c. After the conclusion of the  opening statement s, the Panel shall give each party the 
opportunity to make comments or ask the other party questions.  
d. The Panel may subsequently pos e questions to the parties.  WT/DS553/R/Add.1  
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  e. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief  closing statement , with Japan presenting its statement first. Before each party 
takes the floor, it shall provide the Pa nel and other participants at the meeting with a 
provisional written version of its  closing statement , if available.  
f. Following the meeting : 
i. Each party shall submit a final written version of its  opening statement  no later than 
5.00 p.m. (Geneva time)  on the first working day following the meeting. At the same 
time, each party should also submit a final written version of any prepared  closing 
statement  that it delivered at the meeting.  
ii. Each party shall send in writing, within the timeframe establi shed by the Panel before 
the end of the meeting, any questions to the other party to which it wishes to receive 
a response in writing.  
iii. The Panel shall send in writing, within the timeframe established by the Panel before 
the end of the meeting, any q uestions to the parties to which it wishes to receive a 
response in writing.  
iv. Each party shall respond in writing to the questions from the Panel, and to any 
questions posed by the other party, within the time -frame established by the Panel 
before the end of the meeting.  
16. The second substantive meeting of the Panel with the parties shall be conducted in the same 
manner as the first substantive meeting with the Panel, except that Korea shall be given the 
opportunity to present its oral statement first . If Korea chooses not to avail itself of that right, it 
shall inform the Panel and the other party no later than 5.00  p.m. (Geneva time) three working days 
before the meeting. In that case, Japan shall present its  opening statement  first, followed by Kore a. 
The party that presented its  opening statement  first shall present its  closing statement  first. 
Third party session  
 
17. Each third party may present its views orally during a session of the first substantive meeting 
with the parties set aside for that  purpose.  
18. Each third party shall indicate to the Panel whether it intends to make an oral statement during 
the third -party session, along with the list of members of its delegation, in advance of this session 
and no later than 5.00  p.m. (Geneva time) three working days before the third -party session of the 
meeting with the Panel.  
19. (1) Each third party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each third party shall have the responsibility for  all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties.  
20. A request for interpretation by any third party should be made to the Panel as early as 
possible, preferably upon receiving the working procedures and timetable for the proceeding, to 
allow sufficient time to ensure availability of interprete rs. 
21. The third -party session shall be conducted as follows :  
a. All parties and third parties may be present during the entirety of this session.  
b. The Panel shall first hear the oral statements of the third parties. Each third party making 
an oral statement at the third -party session shall provide the Panel and other participants 
with a provisional written version of its statement before it takes the floor. If interpretation WT/DS553/R/Add.1  
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  of a third party 's oral statement is needed, that third party shall pr ovide additional copies 
for the interpreters before taking the floor.  
c. Each third party should limit the duration of its statement to 15 minutes, and avoid 
repetition of the arguments already in its submission. If a third party considers that it 
require s more time for its  opening statement , it should inform the Panel and the parties 
at least 10 days before the meeting, together with an estimate of the expected duration 
of its statement. The Panel will accord equal time to all third parties for their stat ements .  
d. After the third parties have made their statements, the parties shall be given the 
opportunity to pose questions to any third party for clarification on any matter raised in 
that third party 's submission or statement.  
e. The Panel may subseque ntly pose questions to any third party.  
f. Following the third -party session :  
i. Each third party shall submit the final written version of its oral statement, no later 
than 5.00  p.m. (Geneva time) on the first working day following the meeting.  
ii. Each party may send in writing, within the timeframe to be established by the Panel 
before the end of the meeting, any questions to a third party or parties to which it 
wishes to receive a response in writing.  
iii. The Panel may send in writing, within the timeframe to be established by the Panel 
before the end of the meeting, any question s to a third party or parties to which it 
wishes to receive a response in writing.  
iv. Each third party choosing to do so shall respond in writing to written questions from 
the Panel or a party, within a timeframe established by the Panel before the end o f the 
meeting.  
Descriptive part and executive summaries  
 
22. The description of the arguments of the parties and third parties in the descriptive part of the 
Panel report shall consist of executive summaries provided by the parties and third parties, which  
shall be annexed as addenda to the report. These executive summaries shall not in any way serve 
as a substitute for the submissions of the parties and third parties in the Panel 's examination of the 
case.  
23. Each party shall submit two integrated execut ive summaries. The first integrated executive 
summary shall summarize the facts and arguments as presented to the Panel in the 
party 's first written submission, its first oral statement, and if possible, its responses to questions 
following the first subst antive meeting. The second integrated executive summary shall summarize 
its second  written submission, its second oral statement, and if possible, its responses to the second 
set of questions and comments thereon following the second substantive meeting. T he timing of the 
submission of these two integrated executive summaries shall be indicated in the timetable adopted 
by the Panel.  
24. Each integrated executive summary shall be limited to no more than 15 pages.  
25. The Panel may request the parties and t hird parties to provide executive summaries of facts 
and arguments presented in any other submissions to the Panel for which a deadline may not be 
specified in the timetable.  
26. Each third party shall submit an integrated executive summary of its argument s as presented 
in its written submission and statement in accordance with the timetable adopted by the Panel. This 
integrated executive summary may also include a summary of responses to questions, if relevant. 
The executive summary to be provided by each third party shall not exceed six  pages. If the 
document(s) comprising a third -party submission and/or oral statement does not exceed six pages 
in total, this will serve as the executive summary of that third party 's arguments unless the WT/DS553/R/Add.1  
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  third party submits  a separate integrated executive summary or otherwise indicates that it does not 
wish those document(s) to serve as its executive summary.  
Interim review  
 
27. Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no 
later than at the time the written request for review is submitt ed.  
28. If no further meeting with the Panel is requested, each party may submit written  comments 
on the other party 's written request for review, in accordance with the timetable adopted by the 
Panel. Such comments shall be limited to commenting on the o ther party 's written request for 
review.  
Interim and Final Report  
29. The interim report, as well as the final report before its official circulation, shall be kept strictly 
confidential and shall not be disclosed.  
Service of documents  
 
30. The following procedures regarding service of documents apply to all documents submitted by 
parties and third parties during the proceeding :  
a. Each party and third party shall submit all documents to the Panel by submitting them 
with the DS  Registry (office No. 2047).  
b. Each party and third party shall submit 1 paper copy of its submissions and 1 paper copy 
of its Exhibits to the Panel by 5.00 p.m. (Geneva time) on the due dates established by 
the Panel. The DS  Registrar shall stamp the documents with the d ate and time of 
submission. The paper version submitted to the DS Registry shall constitute the official 
version for the purposes of submission deadlines and the record of the dispute. If any 
documents are in a format that is impractical to submit as a pap er copy, then the party 
may submit such documents to the DS Registrar by email or on a CD -ROM, DVD or 
USB key only.  
c. Each party and third party shall also send an email to the DS Registry, at the same time 
that it submits the paper versions, attaching an  electronic copy of all documents that it 
submits to the Panel, preferably in both Microsoft Word and PDF format. All such emails  to 
the Panel shall be addressed to DSRegistry@wto.org, and copied to other WTO  Secretariat 
staff whose email addresses have be en provided to the parties during the proceeding. If 
it is not possible to attach all the Exhibits to one email, the submitting party or third party 
shall provide the DS Registry with 1 copies of the Exhibits on USB keys, CD -ROMs or DVDs.  
d. In addition, e ach party and third party is invited to submit all documents through the 
Digital Dispute Settlement Registry (DDSR) within 24 hours following the deadline for the 
submission of the paper versions. If the parties or third parties have any questions or 
techn ical difficulties relating to the DDSR, they are invited to consult the DDSR User Guide 
(electronic copy provided) or contact the DS Registry at DSRegistry@wto.org.  
e. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall, in addition, serve any submissions in advance of the first substantive 
meeting with the Panel directly on the third parties. Each third party shall serve any 
document submitted to the Panel directly on the parties and on all other third p arties. A 
party or third party may serve its documents on another party or third party by email or 
other electronic format acceptable to the recipient without having to serve a paper copy, 
unless the recipient party or third party has previously requested a paper copy in writing. 
Each party and third party shall confirm, in writing, that copies have been served on the 
parties and third parties, as appropriate, at the time it provides each document to the 
Panel.  WT/DS553/R/Add.1  
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  f. Each party and third party shall submit its  documents with the DS Registry and serve 
copies on the other party (and third parties if appropriate) by 5.00  p.m. (Geneva time) on 
the due dates established by the Panel.  
g. As a general rule, all communications from the Panel to the parties and third p arties will 
be via email. In addition to transmitting them to the parties by email, the Panel shall 
provide the parties with a paper copy of the Interim Report and the Final Report.  
Correction of clerical errors in submissions  
31. The Panel may grant leav e to a party or third party to correct clerical errors in any of its 
submissions (including paragraph numbering and typographical mistakes). Any such request should 
identify the nature of the errors to be corrected, and should be made promptly.  WT/DS553/R/Add.1  
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  ANNEX A -2 
ADDITIONAL WORKING PROCEDURES ON BUSINESS CONFIDENTIAL INFORMATION  
Adopted on 23 April  2019  
The following procedures apply to any business confidential information (BCI) submitted in the 
course of the Panel proceedings in DS553.  
1. For the purposes of these Panel proceedings, BCI includes :  
a. any information designated as such by the party submitting it that was previously treated 
as confidential by the investigating authority in the anti -dumping investigati on at issue in 
this dispute unless the Panel decides it should not be treated as BCI for purposes of these 
Panel proceedings based on an objection by a party pursuant to paragraph 3 below.  
b. any other information designated as such by the party submitting  it, unless the Panel 
decides it should not be treated as BCI for purposes of these Panel proceedings based on 
an objection by a party pursuant to paragraph 3 below.  
2. Any information that is available in the public domain may not be designated as BCI. 
In addition, information previously treated as confidential by the investigating authority in the 
anti-dumping investigation at issue in this dispute may not be designated as BCI if the person 
who provided the information in the course of that investigation agrees in writing to make the 
information publicly available.  
3. If a party or third party considers that information submitted by the other party or a third  party 
should have been designated as BCI and objects to its submission without such designation, it shall 
forthwith bring this objection to the attention of the Panel, the other party, and, where relevant, the 
third parties, together with the reasons for the objection. Similarly, if a party or third  party considers 
that the other party or a third part y designated information as BCI which should not be so 
designated, it shall forthwith bring this objection to the attention of the Panel, the other party, and, 
where relevant, the third parties, together with the reasons for the objection. The Panel, in de ciding 
whether information subject to an objection should be treated as BCI for purposes of these Panel 
proceedings, will consider whether disclosure of the information in question could cause serious 
harm to the interests of the originator(s) of the infor mation.  
4. No person may have access to BCI except a member of the Secretariat assisting the Panel or 
the Panel, an employee of a party or third party, or an outside advisor to a party or third party for 
the purposes of this dispute.   
5. A party or third party having access to BCI in these Panel proceedings shall not disclose that 
information other than to persons authorized to have access to it pursuant to these procedures. Any 
information designated as BCI under these procedures shall only be used for th e purposes of this 
dispute. Each party and third party is responsible for ensuring that its employees and/or outside 
advisors comply with these procedures to protect BCI.  
6. An outside advisor of a party or third party is not permitted access to BCI if tha t advisor is an 
officer or employee of an enterprise engaged in the production, sale, export, or import of the 
product(s) that was/were the subject of the investigation at issue in this dispute, or an officer or 
employee of an association of such enterpris es. All third party access to BCI shall be subject to the 
terms of these working procedures.  
7. The party submitting BCI shall mark the cover and/or first page of the document containing 
BCI, and each page of the document, to indicate the presence of such information. The specific 
information in question shall be placed between double brackets, as follows: [[xx , xxx.xx]]. The 
first page or cover of the document shall state "Contains Business Confidential Information", and WT/DS553/R/Add.1  
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  each page of the document shall con tain the notice "Contains Business Confidential Information" at 
the top of the page.  
8. Any BCI that is submitted in binary -encoded form shall be clearly marked with the statement 
"Business Confidential Information" on a label of the storage medium, and cl early marked with the 
statement "Business Confidential Information" in the binary -encoded files.  
9. In the case of an oral statement containing BCI, the party or third party making such a 
statement shall inform the Panel before making it that the statement  will contain BCI, and the Panel 
will ensure that only persons authorized to have access to BCI pursuant to these procedures are in 
the room to hear that statement. The written versions of such oral statements submitted to the 
Panel shall be marked as prov ided for in paragraph 7.  
10. Any person authorized to have access to BCI under the terms of these procedures shall store 
all documents containing BCI in such a manner as to prevent unauthorized access to such 
information.  
11. The Panel will not disclose BC I, in its report or in any other way, to persons not authorized 
under these procedures to have access to BCI. The Panel may, however, make statements of 
conclusion drawn from such information. Before the Panel circulates its final report to the Members, 
the Panel will give each party an opportunity to review the report to ensure that it does not contain 
any information that the party has designated as BCI.  
12. Submissions containing BCI will be included in the record forwarded to the Appellate Body in 
the event of an appeal of the Panel 's Report.  
 
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  ANNEX A -3 
INTERIM REVIEW  
1  INTRODUCTION  
1.1.  Articles 15.2 and 15.3 of the DSU provide:  
2. Following the expiration of the set period of time for receipt of comments from the 
parties to the dispute, the panel shall issue an interim report to the parties, including 
both the descriptive sections and the panel's  findings and conclusions. Within a period 
of time set by the panel, a party may submit a written request for the panel t o review 
precise aspects of the interim report prior to circulation of the final report to the 
Members. At the request of a party, the panel shall hold a further meeting with the 
parties on the issues identified in the written comments. If no comments are received 
from any party within the comment period, the interim report shall be considered the 
final panel report and circulated promptly to the Members.  
3. The findings of the final panel report shall include a discussion of the arguments made 
at the inter im review stage. The interim review stage shall be conducted within the 
time-period set out in paragraph 8 of Article 12.  
1.2.  We set out below a "discussion of the arguments made at the interim review stage" as required 
by Article 15.3 of the DSU, includ ing an overview of each party's  specific review requests, the other 
party's  position on those requests, and our evaluation. We have revised certain aspects of the 
Interim Report in the light of these requests. In addition, we have made certain changes to i mprove 
the clarity and accuracy of the Final Report and to correct typographical and non -substantive errors, 
including those suggested by the parties. Some of the paragraph and footnote numbers in the 
Final Report have changed due to these revisions. The n umbering of paragraphs and footnotes 
referred to below pertain to those of the Interim Report and differences vis-à-vis the Final Report 
are indicated in parentheses where appropriate. In instances where a party made the same 
substantive review request acr oss multiple aspects of the Interim Report, we have addressed that 
request only with respect to the first paragraph or passage (i.e. "precise aspect") for which it arose.  
1.3.  We do not include a discussion of the comments made by Korea as part of the int erim review 
process regarding its "promising appeal" if its desired changes were not made to the Interim Report.1 
We declined to take account of these comments because they did not pertain to a "precise aspect" 
of the Interim Report, and because revising the Interim Report in anticipation of one party's  litigation 
strategy would not accord with our duty to make an objective  assessment of the law and facts before 
us, as required by Article 11 of the DSU. We are cognisant of the broader systemic context in w hich 
Korea makes reference to its "promising appeal". But this broader context does not mean that we 
can or should revise our assessment of the law or facts due to an indication by one party that it may 
pursue an appeal if such revisions are not made.2  
2  SPECIFIC REQUESTS FOR REVIEW SUBMITTED BY THE PARTIES  
2.1  Paragraph 7.41  
2.1.  Japan requests the Panel to revise paragraph 7.41 of the Interim Report to remove the 
suggestion that, according to Japan, a panel can never take into account "implicit" findings, analyses, 
 
1 Korea's  comments on Japan's  comments on the Interim Report, pp. 2, 10 -11. See also 
Korea's  comments on the Interim Report, para. 6.  
2 See, by analogy, Panel Reports, China – Broiler Products (Article 21.5  – US) para. 7.354; Brazil – 
Retreaded Tyres , para. 7.276.  WT/DS553/R/Add.1  
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  or considerations that are not expressed in the text of an a uthority's  determination.3 Korea objects 
to Japan's  request, arguing that the current drafting accurately reflects Japan's  position.4 
2.2.  We have decided not to grant Japan's  request. In its interim review request, Japan contends 
that "explanations or examinations [that] were not explicitly stated in such published reports" are 
not relevant to a panel's  analysis because either (a) "they were not actually made by the 
authorities"; or (b) "the fact that they were not explicitly referenced in the published  reports 
indicates that the authorities considered them not to be substantially relevant" and thus are not 
germane to a panel's  assessment in WTO proceedings.5 Japan is therefore essentially reasserting its 
proposition that panels can never take into acco unt "implicit" findings, analyses, or considerations 
that are not expressed in the text of an authority's  determination, as already reflected in the relevant 
sentence of paragraph 7.41 of the Interim Report and the cited aspects of Japan's  arguments in 
footnote 98.  
2.2  Paragraph 7.63  
2.3.  Korea requests the Panel to reflect, in paragraph 7.63 of the Interim Report, two additional 
aspects of its case relating to the remedial effects of the anti -dumping duties and to price 
undercutting by the dumped imports.6 Korea also seeks an acknowledgement that its arguments, as 
Korea cited in paragraph 7.63, pertained to the cumulative assessment undertaken by the KIA. 
Japan objects to Korea's  request, arguing that the KIA's  determination encompassed a decumula tive 
assessment and that the two additional arguments whose inclusion Korea requests relate to 
Japan -specific considerations rather than the KIA's  cumulative assessment.7 
2.4.  We have decided not to grant Korea's  request. Korea's  cumulation -related argum ents 
(including price undercutting during  the POR as distinct from upon the removal  of the anti-dumping  
duties ) are not relevant to paragraph 7.63 because section 7.5.3.1 pertains to the drop in Japanese  
prices upon the removal  of the duties  and because th e Panel exercises judicial economy over 
Japan's  cumulation claim and Korea's  cumulation -related rebuttals at paragraphs 7.229 -7.230 of the 
Interim Report. Additionally, it is unnecessary to reflect Korea's  argument on remedial effects in 
paragraph 7.63, si nce this is already addressed in footnote 244 (footnote 243 of the Final Report) 
and, subsequently, in paragraphs  7.91 and 7.93 of the Interim Report.  
2.3  Paragraphs 7.65 -7.67 
2.5.  Korea requests the Panel to delete or reconsider paragraphs 7.65 -7.67 of the Interim Report 
because they reflect a de novo analysis by the Panel concerning the role of price in the Korean SSB 
market.8 Japan objects to Korea's  request, arguing that the evaluation in these paragraphs is not de 
novo and that Korea is relitigating  arguments that have already been rejected.9 
2.6.  We have decided not to grant Korea's  request. Korea's  request is based on an incorrect 
premise. Paragraphs 7.65 -7.67 do not contain an "analysis"10 by the Panel, but are instead 
descriptive in nature. Paragraph 7.64 indicates clearly that paragraphs 7.65 -7.67 provide an 
overview of the "relevant background, record evidence, and findings by the KIA". To the extent that 
Korea takes issue with any analy sis of the role of price that may be reflected in the Interim Report, 
we note that Korea made additional interim review requests with respect to paragraphs 7.73 
and 7.76 of the Interim Report, and we address those requests below.  
2.4  Paragraph 7.68  
2.7.  Korea requests the Panel to delete or reconsider paragraph 7.68 of the Interim Report because, 
contrary to the characterization of its argument in that paragraph, Korea did not intend to make a 
 
3 Japan's  comments on the Interim Report, para. 7.41.  
4 Korea 's comments on Japan 's comments on th e Interim Report, pp. 3 -4. 
5 Japan's  comments on the Interim Report, para. 5.  
6 Korea's  comments on the Interim Report, paras. 8 -9. 
7 Japan's  comments on Korea's  comments on the Interim Report, paras. 14 -15. 
8 Korea's  comments on the Interim Report, paras. 10 -13. 
9 Japan's  comments on Korea's  comments on the Interim Report, paras. 16 -18. 
10 Korea's  comments on the Interim Report, para. 11.  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
- 15 - 
 
  general statement about price -sensitivity.11 Japan objects t o Korea's  request, arguing that the Panel 
correctly cited Korea's  own argument.12 
2.8.  We have decided to grant Korea's  request. The evidence considered at paragraphs 7.65 -7.67 
of the Interim Report demonstrate that Korea was wrong to argue that " the onl y evidence on the 
record was that sales in particular basic grades, such as grade 304, were price sensitive".13 Indeed, 
as discussed further below, Korea itself introduced evidence in the present proceedings concerning 
the findings of earlier reviews and the original investigation, which indicated that there was 
price-sensitivity across the Korean SSB market generally. We accept Korea's  request because Korea 
now tells us that it did not intend to make a general statement about price -sensitivity through its  
quoted remark, and because its quoted remark was plainly incorrect.  
2.5  Paragraph 7.73 – "price is the most important factor in purchasing decisions"  
2.9.  Korea requests the Panel to revise the sentence in paragraph 7.73 that "Korea explains that 
the KI A's findings in the third sunset review rest on its conclusion in earlier reviews and the original 
investigation that price is the most important factor in purchasing decisions" .14 According to Korea, 
the statement referred to by the Panel pertained to Ko rea's description of the KIA's  finding in the 
second sunset review, and the KIA " never made such a finding in the third sunset review ".15 
Moreover, Korea contends that this statement related to the "likeness" finding in the second sunset 
review, and Korea 's reference to this statement was aimed at rebutting the alleged distinction 
between general -purpose and special steel by drawing on the "essentially standardized process for 
producing SSBs which are like products".16 Korea also asserts that this stateme nt did not have the 
"categorical meaning now given to it by the Panel", insofar as other non -price factors also played a 
role in consumers'  purchasing decisions.17 Japan requests the Panel to reject Korea's  request, and 
points to various instances where K orea relied on the KIA's  findings in past reviews to support the 
KIA's determination in the third sunset review, including its finding in the second sunset review that 
price was the most important factor in purchasing decisions.18 
2.10.   We have decided n ot to grant Korea's  request. Given the significance of the issues raised by 
Korea to our resolution of Japan's  claim on price and volume effects, we explain our decision to 
reject Korea's  request in detail. First, we address whether Korea did, in fact, "ex plain" to the Panel 
during the proceedings that "the KIA's  findings in the third sunset review rest on its conclusion in 
earlier reviews and the original investigation that price is the most important factor in purchasing 
decisions". Second, we elaborate u pon why we accepted Korea's  explanation in that regard.  
2.11.   In its first written submission, Korea stated that, whilst "the findings and analyses 
underpinning the original investigation and the previous reviews are not subject to challenge in this 
dispu te", Korea "finds it important to recount briefly some of the relevant facts and findings reached 
by the Korean authorities in the original investigation and the previous reviews", "in order to put 
this dispute in a proper context".19 In particular, as pa rt of its "recounting" of the "relevant facts and 
findings" from the second sunset review, Korea explained as follows:  
As for the price of the imports from Japan, the OTI confirmed that the average resale 
price in Korea was KRW [[ ***]] per ton (after the anti -dumping duty), which was higher 
than the average price of the like domestic products at KRW [[ ***]] per ton. This price 
change, prompted by the continued imposition of anti -dumping duty, may be the most 
important reason for the Japanese imp orts' loss of market share in Korea during the 
relevant POR, especially in light of the fact that the "price was the most important factor 
for the consumers in making a decision to purchase".   
 
11 Korea 's comments on the Interim Report, para. 15.  
12 Japan's  comments on Korea's  comments on the Interim Report, para. 19.  
13 Korea's  second written submission, para. 128.  
14 Interim Report, para. 7.73. (fn omitted)  
15 Korea's  comments on the Interim Report, pa ras. 18 -19. 
16 Korea's  comments on the Interim Report, para. 20.  
17 Korea's  comments on the Interim Report, paras. 20 -21. 
18 Japan's  comments on Korea's  comments on the Interim Report, paras. 21 -22. 
19 Korea's  first written submission, para. 60.  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  As for the competitive relationship among the dumped imports and with the like 
domestic products, the OTI again relied on numerous sources and investigative analyses 
as indicated in the various parts of its report.  For example, the OTI confirmed that 
"[t]he dumped imports along with the domestic products have passed the broadly 
recognized specification standards in the global market [e.g. Korean Industrial 
Standards, Japanese Industrial Standards, American Society for Testing and Materials, 
etc.] and in te rms of quality, Japan and Korea have received outstanding reviews". The 
OTI noted that the Japanese and Korean SSBs possess relatively higher quality, but 
confirmed that there was "no difference in function and component" between the 
dumped imports and the  like domestic products, and that "they are interchangeably 
used".   In fact, it was confirmed that price was the most important factor for 
purchasers'  buying decisions .20 
2.12.   As extracted below at paragraph 2.21,  the finding in the second sunset revie w that "price was 
the most important factor for the consumers in making a decision to purchase" was one of three 
points listed in a section of the KIA's  likeness analysis entitled "Quality and 
Consumers'  Evaluation".21 On the relationship between the thir d sunset review and the earlier 
reviews and original investigation vis-à-vis the "consumer evaluation" assessment, Korea stated in 
its first written submission that:  
Following its acknowledgement that the KTC in the first and second sunset reviews 
maintai ned the cumulative assessment of the original investigation, the OTI confirmed  
that the "physical characteristics, manufacturing process, distribution market, purpose 
of use, consumer evaluation,  etc., of the dumped imports and like product products are 
same or similar to that of the original investigation". The OTI thus found, as alleged by 
the applicants, that the competitive relationship among the dumped imports and with 
the like domestic products remained unchanged in the third sunset review as compared  
to the original investigation and the first and second reviews . Nothing on the record 
contradicted this general and reasoned conclusion.22 
2.13.   Korea also explained in its first written submission that:  
Japan argues that Korea blindly relied on the fa ct that cumulation was made in the 
previous investigation and reviews of SSBs, and did not sufficiently consider and address 
the facts from the POR of the third sunset review. This is wholly inaccurate. The KTC 
found that the same reasons justifying the cu mulative assessment of imports in the 
prior investigation and reviews applied to the third sunset review as well. Indeed, it was 
confirmed that the physical characteristics, manufacturing process, distribution channel, 
purpose of use, consumers'  evaluation , etc., of the imports and the like domestic 
product remained the same or similar to that of the original investigation as well as the 
first and second sunset reviews . In addition, the OTI confirmed that the products at 
issue had obtained certification of compliance with international standards, which 
confirmed their physical similarities. Thus, the KTC did not fail to examine the relevant 
information for the POR of the third sunset review, but rather its examination of the 
record facts confirmed  the simila rity to earlier investigation and reviews , in which 
cumulation was applied, and thus was one intermediate factual finding in support of the 
decision to cumulate. Japan has not challenged the original investigation or the 
subsequent sunset reviews, which ar e thus deemed to be WTO consistent.  
… 
For purposes of this decision, an important intermediary factual finding by the KTC in 
the third sunset review was that the imports and the domestic SSBs constituted "like" 
products. This finding had been consistently  made since the original investigation 
through the previous sunset reviews .  The finding of "likeness", based among others on 
customer statements and evaluations , grade/specification designation under 
globally -recognized certification standards, manufactur ing processes, distribution 
channels, price, functions and purported uses, etc., confirmed that the products as sold 
 
20 Korea's  first written submission, paras. 84 -85. (fns omitted; italics and underlining added)  
21 OTI's final report (second sunset review), (Exhibit KOR -11 (BCI)) , p.9. 
22 Korea's  first written submission, para. 92. (fn omitted; emphasis added)  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
- 17 - 
 
  in the Korean market shared sufficient similarities to be competing.  Thus, the 
competitive overlap among the dumped imports and with the l ike domestic products 
was very significant.23 
2.14.   In summary, Korea explained in its first written submission that the finding in the 
second  sunset review that "price was the most important factor for the consumers in making a 
decision to purchase" com prised part of the "relevant facts and findings" to understanding the 
KIA's determination in the third sunset review. Korea also explained that, as part of the 
KIA's determination in the third sunset review, the KIA "confirmed" the "similarity" between the  
second and third sunset reviews regarding ( inter alia) "consumers'  evaluation", which was the 
portion of the second sunset review in which the aforementioned finding was made. Korea also 
explained that the KIA's  "likeness" assessment in the third sunset r eview was consistent with the 
second sunset review, including its aspects on "customer statements and evaluations" and "price". 
In that regard, we reiterate that the finding in the second sunset review that "price was the most 
important factor for the cons umers in making a decision to purchase" was contained in a section of 
the KIA's  likeness analysis entitled "Quality and Consumers'  Evaluation". Finally, Korea explained 
that the KIA's  likeness finding comprised an "important intermediary factual finding" i n determining 
the competitive relationship amongst the relevant products.24 
2.15.   Following its first written submission, the Panel posed a number of questions to Korea that 
pertained to these aspects of its case. In response to one question from the Pan el, Korea extracted 
certain "excerpts" from the KIA's  determination in the third sunset review which, according to Korea, 
"sufficiently demonstrate that the KTC/OTI certainly and undoubtedly placed on the record of the 
third sunset review and considered th e relevant facts and determinations from the previous 
proceedings in the context of its third sunset reviews".25 One such "excerpt" extracted by Korea was 
the KIA's  likeness finding on page 9 and footnote 17 of the OTI's  final report in the third sunset 
review, which clearly incorporated the "Quality and Consumers'  Evaluation" assessment of the 
second sunset review into the third sunset review as shown by Korea's  "excerpt":  
(P. 9) In the original investigation, the first sunset review and the second sunse t review , 
domestic products and the dumped imports were determined to constitute like 
products.[17] 
[17] Resolution of the Korea Trade Commission No. 2013 -18 (dated 24 July 2013): "Domestic 
products have remained the same as in the original decision and the first sunset review and are 
identical with the dumped imports in product name, definition, purpose of use, physical 
characteristics, manufacturing proces s, etc. According to the review report, the dumped imports 
along with the domestic products have passed the broadly recognized specification standards in 
the global market (Korean Industrial Standards (KS), Japanese Industrial Standards (JIS), 
American Soc iety for Testing and Materials (ASTM)) and have the same product name, definition, 
physical characteristics, quality and consumer evaluations , purpose of use, etc. and are 
interchangeably used and therefore, are deemed to constitute like products."26 
2.16.  The footnote extracted in this "excerpt" provided by Korea, which is part of the KIA's  likeness 
determination in the third sunset review, is a quotation from the KIA's  determination in the 
second  sunset review that expressly references the "Quality and Consumers'  Evaluation" portion of 
the likeness assessment in second sunset review. To emphasize, Korea  submitted this "excerpt" to 
the Panel to illustrate instances where the KIA " considered the relevant facts and determinations 
from the previous proceedin gs in the context of its third sunset review".  
2.17.   In response to another question from the Panel, Korea stated that "[i] n the third sunset 
review, therefore, the KTC confirmed  based on the record evidence pertaining to the third POR that 
the relevant s ituations have not substantially changed from the PORs of the previous proceedings", 
again citing page 9 of the OTI's  final report containing the likeness finding as an example in this 
regard.27 As Korea explained it, the KIA's  likeness finding in the thi rd sunset review was tantamount 
 
23 Korea's  first written submission, paras. 148 and 150. (fns omitted; italics original; underlining added)  
24 Korea's  first written submission, paras. 150 -151 and 159 -160. 
25 Korea's  response to Panel question No. 4.  
26 Korea's  response to Panel question No. 4 (quoting OTI's final report (Exhibit KOR -5.c), p. 9 
(emphasis  added)).  
27 Korea's  response to Panel ques tion No. 5, fn 20.  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
- 18 - 
 
  to a "confirmation" that the same or similar considerations continued to be valid vis-à-vis the second 
sunset review (as well as the first sunset review and the original investigation).  
2.18.   In response to a further questi on from the Panel, Korea stated as follows:  
In addition, the record demonstrates that the Korean authorities went beyond merely 
relying on such an established industrial norm and practice.  Indeed, the KTC made 
various other analyses based on, inter alia, the consumers'  evaluation , market overlap, 
distribution channel/market overlap, purpose of use, similarity of physical 
characteristics and manufacturing process, interchangeability, etc., to further confirm 
the competitive relationship  among the dumped imports and between the dumped and 
domestic pro ducts throughout the course of the proceeding.  
As for the pinpoint references about such "repeated confirmations" , Korea draws the 
Panel's  attention to the following record excerpts, among many others:  
… 
OTI's Final Report ( Second Sunset Review ), Exhibit  KOR-11 (BCI):  
(P. 9) The dumped imports along with the domestic products have passed the broadly 
recognized specification standards in the global market) and in terms of quality, Japan 
and Korea have received outstanding reviews.  Products from Japan and  Korea have a 
high tensile strength and hardness; however, the dumped imports and domestic 
products can be interchangeably used.  It has been investigated that price was the most 
important factor for the consumers in making a decision to purchase .  The dum ped 
imports and domestic products have mass -production systems in place [] and they are 
interchangeably used as there is no difference in function and component.28 
2.19.   Thus, in response to this question, Korea again posited the KIA's  finding in the sec ond sunset 
review that "price was the most important factor for the consumers in making a decision to purchase" 
as having been "confirmed" by the KIA in the third sunset review as part of its assessment of likeness 
and the competitive relationship amongst the relevant products.  
2.20.   In its second written submission, Korea persisted with this explanation. Korea noted that the 
KIA's third sunset review determination " referred to its findings on the condition of competition in 
the original investigation, an d first and second sunset reviews" , provided an overview of the 
interconnected relationship between the respective findings, and concluded that the KIA found " the 
competitive relationship  among the dumped imports and with the like domestic products remained 
unchanged  in the third sunset review  as compared to the original investigation and the first and 
second reviews ", including explicitly with respect to the "consumer evaluation" aspect o f the 
second  sunset review vis-à-vis the third sunset review.29  
2.21.   To recall, the sentence in paragraph 7.73 about which Korea complains states that "Korea 
explains that the KIA's  findings in the third sunset review rest on its conclusion in earlier reviews 
and the original investigation that price is the most important factor in purchasing decisions" . We 
are not persuaded by Korea's  suggestion that, according to its position during the proceedings, the 
referenced conclusion was limited to the second sunset review and the KIA never relied on it for the 
third sunset review, and that this sentence "put unduly words in the mouth of the KIA [and] Korea".30 
As the foregoing overview illustrates, the sentence at issue in paragraph 7.73 neither 
"misrepresent s" Korea's  statements during the proceedings nor takes them "out of context".31 
Indeed, elsewhere in its interim review requests, Korea "requests the Panel to also reflect the 
KIA's explicit finding pursuant to the applicable laws that the dumped imports as well as the dumped 
and domestic products are in [a] competitive relationship  with each other as there has been no 
essential change  in the competitive environment between the Japanese and Korean products".32 This 
accords with Korea's  statement in its se cond written submission that the KIA found that "the 
 
28 Korea's  response to Panel question No. 6(a). (emphasis added; fns omitted)  
29 Korea's  second written submission, paras. 115 -118. 
30 Korea's  comments on the Interim Report, para. 21.  
31 Korea's  comments on the Interim report, paras. 19  and 21.  
32 Korea's  comments on the Interim Report, para. 49.  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  competitive relationship  among the dumped imports and with the like domestic products remained 
unchanged  in the third sunset review  as compared to the original investigation and the first and 
second revi ews".33 By contrast, in the context of the present review request, Korea contends that 
the "Panel uses a statement in Korea's  first written submission in which it was summarizing some of 
the findings of the second  sunset review on the question of the comp etitive relationship  between the 
various like products and takes it out of context to suggest that this was the finding made by the 
KIA in the third sunset review ".34 As we see it, either there was "no essential change" in the 
"competitive relationship" a s between the second and third sunset reviews, or there was such a 
change in the "competitive relationship", but both propositions cannot simultaneously be true as 
Korea seems to contend.  
2.22.   We turn now to explain the basis of our acceptance of the exp lanation offered by Korea during 
the proceedings that is referred to in the sentence at issue in paragraph 7.73. First, we note that 
Japan accepted Korea's  explanation in this regard.35 Second, our review of the text of the 
KIA's determination in the thir d sunset review indicated that, consistent with Korea's  explanation, 
the determination incorporated the KIA's  finding from the second sunset review regarding price as 
the most important factor in purchasing decisions. In particular, the KIA based its "like ness" 
determination in the third sunset review on the finding that "[i]n the original investigation, the 
first sunset review and the second sunset review, domestic products and the dumped imports were 
determined to constitute like products".36 In support of that statement, the KIA extracted and quoted 
the passage set out above (paragraph 2.15)  from its determination in the second sunset review. 
This passage, as quoted in the third sunset review, was taken from the KTC's  final resolution in the 
second sunset review, and is based on the OTI's  final report in the second sunset review 
("[a]ccording to the review report…"), including the section of that report pertaining to "Quality and 
Consumers'  Evaluation". Indeed, the "Quality and Consumers'  Evaluation" section is explicitly 
referenced in the passage from the second sunset review that is quoted by the KIA in the third  sunset 
review. In turn, the section of OTI's  final report in the second sunset review entitled "Quality and 
Consumers'  Evaluation" stated:  
B. Quality and Consumers'  Evaluation  
○ The dumped imports along with the domestic products have passed the broadly 
recognized specification standards in the global market) and in terms of quality, Japan 
and Korea have received outstanding reviews.  
- Products from Japan and Korea have a high tensile strength and hardness; 
however, the dumped imports and domestic products can be interchangeably 
used.  
- It has been investigated that price was the most important factor for the 
consumers in making a dec ision to purchase .37 
2.23.   In short, (a) the KIA concluded, in the likeness section of the OTI's  final report in the 
second  sunset review entitled "Quality and Consumers'  Evaluation" that "price was the most 
important factor for the consumers in making a  decision to purchase"; (b) the KIA then relied upon 
this "Quality and Consumers'  Evaluation" assessment in the KTC's  final resolution in the 
second  sunset review as part of its likeness finding; and (c) as the basis for its likeness finding in 
the third s unset review, the KIA explicitly cited this aspect of the KTC's  final resolution in the 
second  sunset review, including the KTC's  reference to "Quality and Consumers'  Evaluation" in that 
review.  
 
33 Korea's  second written submission, para. 118.  
34 Korea's  comments on the Interim Report, para. 19. (italics original; underlining added)  
35 See, e.g. Japan's  response to Panel question No. 19 (c), para. 113.  
36 OTI's final report, (Exhibit KOR -5.c (BCI)),  p. 9. See also KTC 's final resolution, (Exhibit KOR -4.b 
(BCI)), p. 6, in which the KIA cited these aspects of the OTI 's final report in stating that " [a]ccording to the 
Final Report, domestic products have remained  the same as in the original investigation, the first sunset 
review, and the second sunset review". (fn omitted)  
37 OTI's final report  (second sunset review) , (Exhibit KOR -11.b (BCI)),  p. 9. (fn omitted; 
emphasis  added)  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  2.24.   In our view, by explicitly quoting and relying upon the second sunset review's  "Quality and 
Consumers'  Evaluation" assessment in the third sunset review, the KIA incorporated the finding from 
that assessment that "price was the most important factor for the consumers in making a decision 
to purchase". We thus accepted Korea's  explanation on that point.  
2.25.   Korea also suggests that the sentence at issue in paragraph 7.73 misconstrues its position by 
affording a "categorical meaning" to the "price as the most important factor" finding that was never 
intended by Korea, nor by the KIA.38 Rather, Korea contends that the KIA found that price was 
"among" the most important factors alongside other non -price factors such as perceptions of quality, 
as opposed to price alone being the most important factor. For  Korea, differing pricing levels do not 
imply a lack of competition between products.39  
2.26.   Korea's  understanding in this regard reflects a misreading of the Interim Report. Neither the 
sentence at issue in paragraph 7.73, nor the Interim Report gener ally, affords a "categorical 
meaning" to the KIA's  reliance on the consideration that price was the most important factor in 
purchasing decisions. On the contrary, the footnote appended to the sentence at issue states:  
We note that Korea sought to context ualize this finding by explaining ( inter alia) that 
"[t]he statement that price was the most important factor does not mean that it is the 
only factor or that the lowest price always prevails". (Korea's  response to Panel question 
No. 20(e)(v)). We address the relevance of that matter below at paras.  7.74, 7.78, 
and 7.80. 
2.27.   The subsequent sentence in paragraph 7.73 is also caveated with a footnote that states:  
As mentioned in para.  7.74, Korea also stated that the KIA found that there could be 
price di fferences based on factors such as quality and reputation.  
2.28.   In turn, paragraph 7.74 of the Interim Report (i.e. immediately following paragraph 7.73) 
opens with the sentence: "[h]owever, Korea also explains that perceptions of quality, credibility, a nd 
technical superiority were found by the KIA to lead to price differences". Subsequently, in 
paragraph  7.80, we expressly "accept Korea's  contention that the KIA did not find price to be the 
only factor affecting purchasing decisions", and we further "ac cept Korea's  point that 'that cheaper 
priced products will [not] always win the buyer'". At paragraph 7.109 of the Interim Report, we 
summarize our understanding in the following terms:  
We recall that the KIA considered the SSB market to be a price -sensit ive market in 
which price was the most important factor in consumers'  purchasing decisions and in 
which consumers preferred low -priced products, albeit modulated by price premiums 
for Japanese and Korean products and price discounts for Indian and Chinese products.  
2.29.   We would draw Korea's  attention to the aforementioned aspects of the Interim Report, which 
demonstrate unambiguously that no "categorical meaning" was ascribed to the sentence in 
paragraph 7.73 that "Korea explains that the KIA's  findings in the third sunset review rest on its 
conclusion in earlier reviews and the original investigation that price is the most important factor in 
purchasing decisions."  
2.30.   For the foregoing reasons, we see no reason to make revisions to the sentence at is sue in 
paragraph 7.73. We likewise reject requests made by Korea with respect to paragraphs 7.77, 7.78, 
7.85, 7.99, 7.102, and 7.109 that are substantially the same as the present request.40 
2.6  Paragraph 7.73 – "within a given grade"  
2.31.   Korea reques ts the Panel to replace the sentence "[a]ccording to Korea, the importance of 
price in purchasing decisions arises from the interchangeability of certified products within a given 
grade" with "competition among SSBs generally takes place based on grades, b ut that there is 
 
38 Korea's  comments on the Interim Report, para. 20.  
39 Korea's  comments on the Interim Report, paras. 12, 20 -21, and 40.  
40 Korea's  comments on the Interim Report, paras. 40, 42, 57, 61, 69, and 78.  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
- 21 - 
 
  inter-grade competition as each SSB grade has possible alternative grades".41 According to Korea, 
its position during the proceedings was that there was "interchangeability" between "all 'covered 
SSB products'", and therefore Korea made a ny price related comments "in the context of whether 
the products were in the market and competing with one another".42 Japan objects to 
Korea's  request on the basis that the language used by the Panel already reflects the possibility that 
there can be in ter-grade competition, whilst also reasonably characterizing Korea's  position that 
competition "generally" and "mostly" occurs on a grade -by-grade basis.43 
2.32.   We have decided not to grant Korea's  request. The sentence at issue accurately depicts 
Korea 's position during the proceedings. Even in its requests for interim review, Korea continues to 
argue that " Japanese products competed  with Korean like products and third country products on a 
grade by grade basis and nothing in the record suggested otherw ise".44 Korea's  statement in this 
regard is consistent with the position that it repeatedly articulated during the proceedings. As a 
sample of Korea's  statements on this point during the proceedings:  
As Japan so much stressed, SSBs products generally compete  with each other on the 
basis of their grades or specifications .45 
SSB orders are placed based on designated grades or specifications , and as long as  the 
ordered products are properly certified for that certain grade or specification , the 
products are general ly deemed substitutable with products with the same or comparable 
designation.46  
SSBs are internationally traded commodities, which share physical similarities and 
fungibility in use (thus the market competition), and the interchangeability is presumed 
among comparable product specifications as long as they are certified by globally 
recognized standards .47 
[T]he KTC's  finding about "competitive relationship" is based mainly on the 
well-established industrial norm and practice that SSB products  certified  for 
corresponding  grade/specification  are in competitive relationship with each other .48 
Korea confirms that all dumped imports and like domestic products are in competitive 
relationship  as long as they are certified for corresponding grade/specification under 
internationally -recognized standard.  Yes, competition takes place based on grades, but 
it cannot be denied that products falling within same grade category are in competitive 
relationship with each other  to the extent they are likewise certified.49 
Korea confirms that no adjustments were made to the Japanese product prices.  
Because competition takes place always  between SSB products with corresponding 
grade certification , there ca n be no difference between the Japanese and Korean SSB 
products on steel quality, product type, grade, or product mixes.50 
[T]he OTI confirmed that the competition within SSB products takes place based on 
their steel grade , because SSBs with different ste el grade has different uses in general.   
Note that it has been repeatedly stressed that there is one more hurdle to clear in order 
to enter truly into this competitive relationship – the products must be certified for that 
particular grade under the inter nationally recognized certificate standard.51 
 
41 Korea's  comments on the Interim Report, para. 23.  
42 Korea's comments on the Interim Report, para. 22.  
43 Japan's  comments on Korea's  comments on the Interim Report, paras. 24 -25. 
44 Korea's  comments on the Interim Report, para. 8.  
45 Korea's  first written submission, para. 56. (emphasis added)  
46 Korea's  first written submission, para. 57. (emphasis added)  
47 Korea's  first written submission, para. 153. (emphasis added)  
48 Korea's  response to Panel question No. 6(a). (italics original; underlining added)  
49 Korea's  response to Panel question No. 6(b)(ii). (ita lics original; underlining added)  
50 Korea's  response to Panel question No. 19(a). (italics original; underlining added)  
51 Korea's  response to Panel question No. 20(f)(vii). (emphasis added)  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  It is also undisputable that SSB customers place orders based on 
internationally -certified grades . It would be absurd to argue that price comparability  is 
not ensured between two SSB products with the same certified grade specification .  
Therefore, when a demand arises for a certain grade of SSB, competition ensues almost 
immediately, and the producers compete with each other on the basis of their 
produc tion capacity which can be readily converted specifically into the ordered SSB 
products.52 
But, as the Korean authorities found, and as Korea has repeatedly confirmed, 
competition generally takes place among the SSB products within the same grade  (to 
the extent that the products are certified for the grade under the 
internationally -recognized standards). Indeed, even Japan  acknowledges that  SSBs 
generally compete with each other based on grades or specifications . … Purchasers rely 
on certificates under suc h internationally recognized standards when placing orders,  
and it is well established that SSBs produced in accordance with such standards are 
fungible and thus in competitive relationship with one another. This finding of 
interchangeability and substitu tability were thus between the same specification/grade 
of the covered SSB products .53  
Given that competition among SSB products takes place based on grade , such certificate 
standards effectively serves to certify the competitive relationship among the S SB 
products.  As an example, if two producers each manufacture SSB product with the 
same steel grade "100", and both products are properly certified for that certain 
grade/specification under same or corresponding standards, then the two products are 
certifiably in a competitive relationship in the market.54 
For SSBs, competition generally takes place between the same or comparable grades .55 
Even Japan acknowledges that SSBs generally compete with each other based on grades 
or specifications [.]56 
2.33.   At the oral hearings, Korea told us directly that "SSBs generally compete with each other 
based on grades or specifications"57 and that " SSBs are ordered, produced, and sold 'on -demand', 
based on [internationally -recognized standards for] grade specificat ions".58 We are therefore not 
persuaded by Korea now asserting that the interchangeability of SSBs is unrelated to their grade or 
specification.  Of course, Korea did at times offer certain qualifications to its general statement that 
competition in the SS B market takes place on a grade -by-grade basis, for instance:  
Korea believes that the OTI's  statement quoted in the Panel's  question, by itself, 
basically answers the question: "within the same steel grade", products compete against 
each other.  That is, because "[s]tainless steel bars have different uses depending on 
the steel grade",  they generally compete with each other based on grades or 
specifications. However, that does not mean that SSBs of different grades do not 
compete .59 
It is also undisputed  that SSBs compete with each other mostly based on grades  as 
certified under the relevant industrial standards,  although competition can sometimes 
also take place among different  SSB grades (as certified) as well.60 
While competition among SSBs generally takes place based on grades , as certified by 
widely recognized industrial standards, it does not mean that differently graded SSBs 
 
52 Korea's  second written submission, para. 100. (fn omitted; em phasis added)  
53 Korea's  response to Panel question No. 36(a). (fns omitted; emphasis added)  
54 Korea's  response to Panel question No. 37. (emphasis added)  
55 Korea's  response to Panel question No. 64(e). (emphasis added)  
56 Korea's  second written submission, paras. 76 and 170. (emphasis added)  
57 Korea's  opening statement at the first meeting of the Panel, para. 32.  
58 Korea's  opening statement at the second m eeting of the Panel, para. 44.  
59 Korea's  response to Panel question No. 28. (fn omitted; emphasis added)  
60 Korea's  second written submission, para. 21. (fn omitted; emphasis added)  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  do not compete with each other.  As demonstrated above, each SSB grade has possible 
alternative grades; as a matter of fact, inter-grade competitions do take place .61 
2.34.   In recognition of these qualifications, we appended footnote 192 (now footnote 191 in the 
Final Report) to paragraph 7.73, in which " [w]e note that Korea also contende d that, for some 
grades, there can be inter -grade competition". This was an appropriate acknowledgement that, 
whilst Korea contended that competition "generally" and "mostly" occurred on a grade -by-grade 
basis, Korea also considered that it is "possible" f or competition to occur between grades in some 
instances.  
2.35.   Of particular relevance to the present interim review request is that Korea linked its position 
that competition occurred on a grade -by-grade basis to its explanation of the dynamics of price  
competition in the SSB market. For instance, Korea explained that "[i]t is well -established that SSB 
products with same grade (as certified) are fungible  and, therefore , competition takes place mainly 
on price ".62 As another example, the following passag e illustrates how Korea explained that the 
KIA's findings on price premiums and price discounts were predicated on the conditions of 
competition "within the same steel grade" :  
First, the OTI confirmed that the competition within SSB products takes place b ased on 
their steel grade , because SSBs with different steel grade has different uses in general.   
Note that it has been repeatedly stressed that there is one more hurdle to clear in order 
to enter truly into this competitive relationship – the products m ust be certified for that 
particular grade under the internationally recognized certificate standard.  
Next, the OTI explained the nature of the SSB competition: " within the same steel 
grade ", there are products that have relatively high credibility and qu ality and there 
also are products that have high price competitiveness .  Because they are within the 
same grade , their competitive relationship  is confirmed.  
So, this finding  articulately captures the common sense that Korea so keenly and 
repeatedly stress ed above: products with relatively lesser market perception and quality 
would compete against products with relatively higher market perception and quality 
based on their price competitiveness ( e.g. price discounts) .63 
2.36.   Indeed, when read in the cont ext of Korea's  reliance on price as the most important factor in 
purchasing decisions and consumers'  preference for low -priced products, albeit modulated by price 
discounts and price premiums for certain products, it stands to reason that the preponderance  of 
grade -by-grade competition/interchangeability leads to price dynamics being observed on a 
grade -by-grade basis, as Korea suggested during the proceedings.  
2.37.   In light of the foregoing discussion, we see no reason to revise the sentence in paragrap h 7.73 
that "[a]ccording to Korea, the importance of price in purchasing decisions arises from the 
interchangeability of certified products within a given grade". Korea was both consistent and clear 
in articulating this position during the proceedings, and  we see no basis for Korea to now suggest 
otherwise.  
2.7  Paragraph 7.73 and footnote 192 – inter -grade competition  
2.38.   Korea requests the Panel to revise the sentence in footnote 192 to paragraph 7.73 (now 
footnote 191 in the Final Report) that "Korea also contended that, for some grades, there can be 
inter-grade competition", and to reference paragraph 229 of its second written submission in this 
passage. Korea contends that the placement and framing of this sentence in footnote 192 suggests 
that this "was a mere side argument of Korea when, in fact, it was one of Korea's  main 
 
61 Korea's  second written submission, para. 98. (fn omitted; emphasis add ed) 
62 Korea's  response to Panel question No. 64(c)(ii). (emphasis added)  
63 Korea's  response to Panel question No. 20(f). (fns omitted)  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  contentions".64 Korea points to its statement during the proceedings that "[m]ost, if not all, grades 
have possible alternative grades".65 Japan objects to Korea's  reques t.66 
2.39.   We have decided not to grant Korea's  request. We have set out our understanding of 
Korea's  case in this regard above at paragraphs 2.32 -2.36. Moreover, Korea has not identified any 
passage in the text of the KIA's  determination in which the KI A found explicitly that there was 
inter-grade competition for all SSBs. This is significant, because the text of the KIA's  determination 
reveals quite a different understanding, namely that "[s]tainless steel bars have different uses 
depending on the steel  grade , and within the same steel grade , Korean and Japanese products have 
high credibility in quality and Indian and Chinese products have high price competitiveness".67 
Accordingly, paragraph 7.73 and footnote 192 of the Interim Report accurately reflec t 
Korea's  position during the proceedings as supported by the text of the KIA's  determination, and we 
see no reason to revise this aspect of the Interim Report.  
2.8  Paragraph 7.74  
2.40.   Korea requests the Panel to delete the phrase "within a given grade " from the following 
sentence in paragraph 7.74: "[h]owever, Korea also explains that perceptions of quality, credibility, 
and technical superiority were found by the KIA to lead to price differences within a given grade". 
According to Korea, "nowhere is t here a statement about grade -specific price differences" in 
footnote  197 appended to this sentence.68 For Korea, the KIA's  finding about price premiums and 
price discounts applied "across all SSB products (across all grades, for that matter) and not with 
respect to specific grades".69 Japan makes no comment on Korea's  request.  
2.41.   We have decided to grant Korea's  request. Korea is correct insofar as none of the citations in 
footnote 197 (now footnote 196 in the Final Report) explicitly reference Korea' s position about 
grade -specific price differences, and Japan does not oppose Korea's  request. Whilst granting the 
request, we reiterate that we do not accept the premise underlying Korea's  request. As described at 
paragraphs 2.32 -2.37 above, Korea clearly took the position during the proceedings that the 
KIA's finding on price premiums and price discounts concerned price dynamics for SSBs within  a 
given  grade . Indeed, in one of Korea's  descriptions of the KIA's  finding in this regard, Korea stated 
that " [t]he authorities started with the description of the industry as a 'massive process industry'  and 
noted that there existed different steel grades and that within the same steel grades, Korean and 
Japanese products have high credibility in quality and Indian products have high price 
competitiveness ".70 Korea's  assertion that it never drew a link between competition taking place on 
a grade -by-grade basis in the SSB market and the presence of price premiums/price discounts is 
contradicted by the plain connectio ns made in this quotation as well as in those extracted at 
paragraphs 2.32-2.37 above.  
2.9  Paragraph 7.75 – "Japanese" prices  
2.42.   Korea requests the Panel to delete the term "Japanese" from the following sentence in 
paragraph 7.75: "Japan contends that the KIA erred by considering that the removal of the 
anti-dumping duties from Japanese prices would weaken the price competitiveness of domestic like 
products". According to Korea, Japan's  case was based on a cumulative analysis by the KIA, a nd not 
on a Japanese -specific analysis of price developments.71 Japan objects to Korea's  request on the 
basis that the sentence at issue correctly recognized that Japan's  arguments included the 
KIA's Japan -specific analysis.72 
2.43.   We have decided not to grant Korea's  request. Japan's  case concerning price and volume 
effects clearly encompassed the KIA's  Japan -specific analysis and alleged failures by the KIA to 
properly account for the particular circumstances of the Japanese exporters. This is reflect ed in the 
 
64 Korea's  comments on the Interim Report, para. 25.  
65 Korea's  comments on the Interim Report, para. 25 (referring to second written submission, fn  17). 
66 Japan's  comments on Korea's  comments on the Interim Report, paras. 24 -25. 
67 OTI's final report, (Exhibit KOR -5.c (BCI)),  p. 55. (emphasis added)  
68 Korea's  comments on the Interim Report, para. 27.  
69 Korea's  comments  on the Interim Report, para. 27. (emphasis original)  
70 Korea's  response to Panel question No. 11. (emphasis added)  
71 Korea's  comments on the Interim Report, para. 28 -29. 
72 Japan's  comments on Korea's  comments on the Interim Report, paras. 27 -29. WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  citations in footnote 200 to paragraph 7.75 of the Interim Report (now footnote 199 of the 
Final Report).  
2.10  Paragraphs 7.75 -7.76 – "average" prices  
2.44.   Korea requests the Panel to insert the term "average" as an adjective for the term "price" in 
paragraphs 7.75 and 7.76.73 Japan opposes Korea's  request.74 
2.45.   We have decided not to grant Korea's  request. Korea offers no compelling reason to make the 
requested revision. The term "price" in these paragraphs is being used in rela tion to descriptions of 
Japan's  argument. In terms of the Panel's  analysis, the Interim Report already addresses the 
nature  of these prices as averages at paragraphs 7.70 -7.72, 7.77, 7.78, and 7.81, and 
footnotes  208, 215, 233, and 236 (now footnotes 207, 214, 232 and 235 in the Final Report).  
2.11  Paragraph 7.76 – "consumers prefer low -priced products"  
2.46.   In a similar vein to its request to revise the first sentence of paragraph 7.73 ("price is the 
most important factor in purchasing decisions"), Kore a requests the Panel to revise the last sentence 
in paragraph 7.76. This sentence states, in relevant part, that "according to Korea, the 
KIA's determination on the competitive relationship amongst SSB products encompassed its finding 
from the original inv estigation that 'consumers prefer low -priced products'". Korea acknowledges 
that it referred to this finding from the original investigation in its submissions to the Panel, but 
contends that the Panel "uses a very general reference" by Korea that the "ori ginal finding was 
repeatedly and consistently confirmed in the first, second, and third sunset reviews" to suggest that 
Korea and the KIA made categorical findings about low -priced products always being preferred.75 
According to Korea, it did not make suc h an argument during the proceedings, nor did the KIA reach 
such a finding in the third sunset review. Rather, in the third sunset review, the KIA found that the 
competitive relationship was characterized by the Japanese and Korean products'  "quality" and the 
Indian and Chinese products'  "price competitiveness". Indeed, Korea refers to its argument during 
the proceedings that "[t]he fact that price is an important consideration does not mean that the 
lowest -priced product always gets the sale of course, oth erwise Indian products would have a 100% 
market share".76 Japan opposes Korea's  request because the statement at issue is merely a citation 
from Korea's  own submissions, and the Panel cannot be faulted for accepting and using Korea's  own 
characterization of the KIA's  finding on this point.77 
2.47.   We have decided not to grant Korea's  request. Given the significance of the issues raised by 
Korea to our resolution of Japan's  claim on price and volume effects, we explain our decision to 
reject Korea's  reque st in detail. First, we address whether Korea did, in fact, explain to the Panel 
during the proceedings that "the KIA's  determination on the competitive relationship amongst SSB 
products encompassed its finding from the original investigation that 'consume rs prefer low -priced 
products'". Second, we elaborate upon why we accepted Korea's  explanation in that regard.  
2.48.   In response to a question from the Panel, Korea stated as follows:  
In addition, the record demonstrates that the Korean authorities went beyond merely 
relying on such an established industrial norm and practice.  Indeed, the KTC made 
various other analyses based on, inter alia, the consumers'  evaluation , market overlap, 
distribution channel/market overlap, purpose of use, similarity of phys ical 
characteristics and manufacturing process, interchangeability, etc., to further confirm 
the competitive relationship  among the dumped imports and between the dumped and 
domestic products throughout the course of the proceeding.  
As for the pinpoint re ferences about such "repeated confirmations" , Korea draws the 
Panel's  attention to the following record excerpts, among many others:  
 
73 Korea's  comments on the Interim Report, para. 30.  
74 Japan's  comments on Korea's  comment on the Interim Report, para. 30.  
75 Korea's  comments on the Interim Report, para. 31.  
76 Korea's  comments on the Interim Report, para. 32 (quoting Korea's  response to Panel question 
No. 64(c)).  
77 Japan's  comments on Korea's  comments on the Interim Report, para. 31.  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  OTI's Final Report (Original Investigation), Exhibit KOR -9 (BCI):  
(P. 48) The Applicants submitted documents stating that  the dumped imports and 
domestic products have obtained certification of the broadly recognized standards in 
the global market and the products with the same specifications have identical physical 
characteristics [] According to the results of response ana lysis and on -site verification, 
both the dumped imports and domestic products have obtained certification of the 
broadly recognized standards in the global market; they are similar to each other in 
terms of quality and consumers'  evaluation; and the import ers and consumers prefer 
low-priced products  [] According to the result of response analysis and on -site 
verification, both the dumped imports and domestic products have obtained certification 
of the broadly recognized standards in the global market; both products with the same 
specifications have identical or similar function and component; and they are in a 
mutually competitive relationship in the domestic market.78  
2.49.   Thus, in response to the Panel's  question, Korea posited the KIA's  finding in the  original 
investigation that "consumers prefer low -priced products" as having been "confirmed" by the KIA in 
the third sunset review as part of its assessment of the competitive relationship amongst the relevant 
products. If Korea did not intend to charact erize the third sunset review determination as 
encompassing this finding, we would not expect Korea to extract and quote it upon describing those 
aspects that were "confirmed" by the KIA in the third sunset review.  
2.50.   In its first written submission an d subsequently, Korea also explained that the KIA's  finding 
in the original investigation concerning the competitive relationship amongst SSBs " was repeatedly 
and consistently confirmed in the first, second, and third sunset reviews".79 Korea now asserts that 
this only meant that "these products are standardized like products, and are in competition with 
each other", and nothing further should be read into its assertions in that regard.80 But, in 
articulating this contention during the proceedings, Korea explicitly referenced the 
"consumers'  evaluation" aspect of this finding in the original investigation, which Korea argued 
remained "the same or similar" in the third sunset review.81 The significance of Korea's  reliance on 
the continuing applicability of the "consumers'  evaluation" aspect of the original determination lies 
in the fact that the section entitled "Quality and Consumers'  Evaluation" in that determination 
contains the asse ssment that "consumers prefer low -priced products":  
○ Quality and Consumers ' Evaluation  
- According to the results of response analysis and on -site verification, both the dumped 
imports and domestic products have obtained certification of the broadly reco gnized 
standards in the global market; they are similar to each other in terms of quality and 
consumers'  evaluation; and the importers and consumers prefer low -priced products .82 
2.51.   Thus, not only did Korea extract and quote this portion of the section in the original 
determination as having been "confirmed" by the KIA in the third sunset review, but it also stated 
on numerous occasions during the proceedings that the findings of this section remained 
"unchanged" and "the same or similar" vis-à-vis the third sunset review. It is untenable for Korea 
to now assert that it never conveyed to the Panel that "the KIA's  determination on the competitive 
relationship amongst SSB products  encompassed its finding from the original investigation that 
'consumers prefer low -priced products'".  
2.52.   We accepted Korea's  explanation that the KIA's  determination in the third sunset review 
encompassed this finding because its explanation aligns wi th the text of the KIA's  determination. In 
particular, the KIA's  third sunset review determination states that the "[p]hysical characteristics, 
manufacturing process, distribution market, purpose of use, consumers'  evaluation , etc. of the 
dumped imports an d domestic like products are the same or similar to those of the original 
 
78 Korea's  response to Panel question No. 6(a). (emphasis added; fns omitted)  
79 See, e.g. Korea's  first written submission, para.  121; response to Panel qu estion No. 6(a); and 
second written submission, paras. 115 -119. 
80 Korea's  comments on the Interim Report, para. 31.  
81 Korea's  first written submission, paras. 58, 92, and 117 -119; second written submission, 
paras.  115-118, and 169.  
82 OTI's final report  (original investigation) , (Exhibit KOR -9.b (BCI)),  p. 48. WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  investigation ".83 To recall, the finding that "consumers prefer low -priced products" is contained in 
the "Quality and Consumers'  Evaluation" section of the original determination, w hich Korea 
explained was "confirmed" in the third sunset review. Korea now suggests that the KIA cannot have 
incorporated the finding that "consumers prefer low -priced products" into the third sunset review 
because that finding was "based on consumer surve ys obtained in the original investigation in 2004 
and was relevant to the likeness of the products."84 We disagree. The plain text of the 
KIA's determination suggests that the KIA engaged in a comparative assessment of the evidence on 
"consumers'  evaluati on" obtained during the third sunset review vis-à-vis the original investigation, 
and found that it remained "the same or similar".85 The record evidence before us on 
consumers'  evaluation of price -sensitivity during the third sunset review, including as set out in 
paragraphs 7.65 -7.68 of the Interim Report, accords with that understanding.86 Korea has not drawn 
our attention to any evidence on consumers'  evaluation that suggests the contrary.  
2.53.   Finally, Korea is wrong to suggest that, by accepting K orea's  explanation that the third sunset 
review determination encompassed the finding that "consumers prefer low -priced products", we 
somehow rejected its contention that "lowest -priced product [does not] always get the sale" due to 
price premiums and pric e discounts for certain products.87 On the contrary, in paragraph 7.80, we 
expressly "accept Korea's  contention that the KIA did not find price to be the only factor affecting 
purchasing decisions", and we further "accept Korea's  point that 'that cheaper priced products will 
[not] always win the buyer'". At paragraph 7.109, we summarize our understanding in the following 
terms:  
We recall that the KIA considered the SSB market to be a price -sensitive market in 
which price was the most important factor in c onsumers'  purchasing decisions and in 
which consumers preferred low -priced products, albeit modulated by price premiums 
for Japanese and Korean products and price discounts for Indian and Chinese products.  
2.54.   We would draw Korea's  attention to the afor ementioned aspects of the Interim Report, which 
demonstrate – contrary to Korea's  assertion – that the Interim Report takes due account of its 
argument that the lowest price does not always win the buyer, in addition to its explanation that the 
KIA's deter mination encompassed the finding that "consumers prefer low -priced products".  
2.12  Paragraphs 7.77, 7.78, 7.82, and 7.83  
2.55.   Korea requests the Panel to reconsider the findings made in paragraphs 7.77, 7.78, 7.82, 
and 7.83 regarding "price pressure" a nd the weakening of domestic price competitiveness.88 
According to Korea, the "undeniable competitive relationship among the covered products from 
Korea and Japan" means that "there will certainly be increased price pressure upon removal of the 
anti-dumpi ng duties due to the narrowing margin of the on -average price differential between the 
Japanese and Korean products".89 Korea also contends that the KIA's  "actual" finding in this regard 
was not that "Japanese prices would weaken the price competitiveness  of domestic like products", 
but was instead the "obvious" and "factual" statement that the drop in Japanese prices would lead 
to a corresponding recovery in the price competitiveness of Japanese products.90 Further, Korea 
contends that "the Panel's  finding effectively introduces a legal requirement in Article 11.3 under 
which any POR -bound price differential that exceeds [the] currently applicable anti -dumping duty 
margin necessarily calls for a separate analysis on the 'price'  competition between the dum ped and 
domestic products following  the removal of the anti -dumping duty".91 Japan objects to 
Korea's  request, noting that the KIA itself made an analysis of price effects central to its 
 
83 OTI's final report, (Exhibit KOR -5.c (BCI)),  pp. 9 and 33 (emphasis added). See also KTC's final 
resolution, (Exhibit KOR -4.b (BCI)), p. 11; and KTC's submission of review to MOSF, (Exhibi t KOR -48.b (BCI)),  
p. 4. 
84 Korea's  comments on the Interim Report, para. 31.  
85 See, e.g. KTC's submission of review to MOSF, (Exhibit KOR -48.b (BCI)), p. 4. Indeed, Korea 
advanced this same understanding during the proceedings. (Korea's  first written sub mission, para. 148).  
86 See also Application, (Exhibit JPN -4.b), p. 46; and Minutes of public hearing (24 November 2016), 
(Exhibit KOR -19.b (BCI)), pp. 20 and 31.   
87 Korea's  comments on the Interim Report, paras. 31 -32. 
88 Korea's  comments on the Interim Report, para. 39.  
89 Korea's  comments on the Interim Report, para. 34.  
90 Korea's  comments on the Interim Report, paras. 35 -36. 
91 Korea's  comments on the Interim Rep ort, para. 37. (emphasis original)  WT/DS553/R/Add.1  
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  determination and that the KIA explicitly found that Japanese prices  would weaken the price 
competitiveness of Korean SSBs if the anti -dumping duties were lifted.92 
2.56.   We have decided not to grant Korea's  request. It is useful to recall the KIA's  description of its 
chosen methodology for its likelihood -of-injury deter mination:  
In order to decide whether any material injuries to the domestic industry will continue 
or recur upon termination of anti -dumping duties , the Commission reviewed, based on 
the Final Report, production capacity in the supplying country of the dum ped imports, 
the outlook on the volume of dumped imports and the price level thereof upon 
termination of anti -dumping measures .93 
2.57.   It is apparent that a key aspect of the KIA's  methodology was to examine "the price level [of 
dumped imports] upon ter mination of anti -dumping measures". This aspect of the 
KIA's methodology led to the KIA's  findings that:  
[O]nce the anti -dumping measures are terminated, this would bring a drastic fall in the 
price of the dumped imports from Japan at KRW [[ ***]] per ton in 2015, which would 
also result in a [ sic] increase in price competitiveness in the domestic market.  
… 
Where the anti -dumping measures are terminated, it is predicted that a steep fall in the 
price of the dumped imports (Japanese △ [[***]]%) will lead to an increase in exports 
to Korea and weaken the price competitiveness of Like Products.94 
2.58.   These findings formed part of the KIA's  final conclusion that:  
[I]t is highly likely that once the anti -dumping measures are terminated, a drop in the  
price of the dumped imports  and an increase in volume of the dumped imports will again 
cause recurrence of material injury to the domestic industry, such as a downturn in 
sales and deterioration in operating profitability.95 
2.59.   For Korea to now sugge st that the Panel  is "reading [in] a requirement to conduct a 
post-expiry 'price effects'  analysis into Article 11.3"96 ignores the fact that such an analysis was part 
of the methodology chosen  by the KIA. It is only because the KIA's  intermediate and fin al conclusions 
rested upon this aspect of its chosen methodology, and because Japan challenges those intermediate 
and final conclusions, that we are called upon to examine them. Korea now tells us that an authority 
need not undertake a post -expiry "price e ffects" analysis "unless it has been first substantiated by 
the interested parties that such price differential would undermine the established competitive 
relationship between the dumped and domestic products".97 But once an authority itself chooses a 
methodology that involves a post -expiry "price effects" analysis and proceeds to base its 
likelihood -of-injury determination on the conclusions derived from that methodology, the 
hypothetical circumstances under which such an analysis might be legally "requi red" under 
Article  11.3 become irrelevant. Rather, in such circumstances, what matters for the purposes of a 
panel's  resolution of a claim is that the authority's  determination is based on such a methodology 
and that the outcome has been challenged by a co mplainant. Additionally, we recall that the 
Interim  Report does not find that the application and outcome of this aspect of the 
KIA's methodology in isolation  gives to a violation of Article 11.3. Rather, section 7.5.3.4 examines 
whether the KIA's  intermed iate finding in this regard is so central to the KIA's  final conclusion that 
it invalidates that final conclusion.  
 
92 Japan's  comments on Korea's  comments on the Interim Report, paras. 34 -37. 
93 KTC's final resolution, (Exhibit KOR -4.b (BCI)), p.  18. (emphasis added)  
94 KTC's final resolution, (Exhibit KOR -4.b (BCI)), p p. 21-22; OTI's final report, (Exhibit KOR -5.c (BCI)), 
pp. 63 and 67.  
95 KTC's final resolution, (Exhibit KOR -4.b (BCI)), p . 23; OTI's final report, (Exhibit KOR -5.c (BCI)), 
p. 67. 
96 Korea's  comments on the Interim Report, para. 37.  
97 Korea's  comments on the Interim Re port, para. 38.  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  2.60.   In essence, Korea is asking us to ignore (a) the KIA's  unambiguous explanation that its chosen 
methodology would encompass examining " the price level [of dumped imports] upon termination of 
anti-dumping measures"; and (b) the outcome of that aspect of its methodology, namely that the 
Japanese pricing level upon the termination of the duties "will lead to an increase in exports to Korea 
and weaken the price competitiveness".98 But panels in anti -dumping disputes must base their 
assessment on whether or not an authority's  determination is inconsistent with the 
Anti-Dumping  Agreement.99 We cannot now pretend that the KIA never chose to inc lude a 
post-expiry "price effects" analysis in its methodology, nor that its likelihood -of-injury determination 
never encompassed the conclusions arising from that aspect of its chosen methodology. If we were 
to do as Korea requests, we would be impermissi bly second -guessing the rationale upon which the 
KIA's determination was reached.100 
2.61.   In short, the post -expiry "price effects" of Japanese SSBs in the Korean market is addressed 
in the Interim Report not because the KIA was under a legal requiremen t to do so under Article 11.3, 
but because the KIA's  determination rested on a methodology encompassing this kind of analysis, 
and because Japan challenged the part of the KIA's  determination arising from that facet of its 
methodology. This is reflected cl early in paragraph 7.78 and footnote 192 of the Interim Report (now 
footnote 191 of the Final Report). Korea now asserts that " the Panel considered  that the KIA should 
have at least considered the price differential after the deduction of the anti -dumping duties in its 
likelihood -of-injury analysis"101, but the foregoing discussion illustrates how Korea's  assertion in this 
regard misreads the Interim Report and the KIA's  determination. It was the KIA that chose to 
examine the Japanese pricing level after t he deduction of the anti -dumping duties and whether that 
pricing level would lead to the weakening of Korean price competitiveness and to an increase in 
Japanese exports to Korea. By examining the impact of the post -expiry Japanese pricing level on 
Korean price competitiveness, the KIA opted to compare Japanese and Korean prices, including 
whether the expiry of the duties would leave Japanese prices at a level that would be adverse to 
Korean price competitiveness. Accordingly, it is incorrect to state that "the Panel considered  that the 
KIA should have at least considered the price differential…".102 Instead, it was the KIA that 
considered that the comparison between Korean and post -expiry Japanese prices should form part 
of its methodology.  
2.62.   Korea al so contends that "the Panel's  interim finding operates to effectively  introduce a legal 
test imposing such an a priori  obligation on the part of the investigating authority to proactively 
undertake a forward -looking price effect analysis whenever there exi sts a post -expiry overselling 
based on the POR -bound price differential ".103 Korea seems to derive this understanding from the 
assessment in the Interim Report that further analysis would be required by the KIA to substantiate 
how an average Japanese pric e that is [[ ***]] higher than Korean prices would "weaken the price 
competitiveness" of the Korean domestic industry. Korea asks:  
Unless the Panel is inclined to render a legal finding that any anti -dumping margin 
non-negligibly exceeding the POR -bound pr ice differential necessarily calls for a 
proactive price effect analysis in a forward -looking analysis, on what basis is the Panel 
going to draw a line? Here, nothing on the record offers a viable standard for 
determining the margin of post -expiry oversell ing that would constitute a plausible 
trigger -point for such an a priori  requirement, nor supports a notion that a close 
to [[***]]% of post -expiry overselling would otherwise constitute such a 
trigger -point.104 
2.63.   Again, in terms of "on what basis is the Panel going to draw a line", we emphasize that our 
reference point was the KIA's  determination. In particular, as Korea explained105, the KIA found that 
price was the most important factor in consumers'  decision -making and consumers preferred  
 
98 KTC's final resolution, (Exhibit KOR -4.b (BCI)), p . 22. 
99 Article 17.6 of the Anti-Dumping Agreement . 
100 Panel Report, China – GOES , para.  7.542 and fn 522; Appellate  Body Report, Japan  – DRAMs 
(Korea) , para.  135. 
101 Korea's  comments on Japan's  comments on the Interim Report, pp. 6 -7. (emphasis added)  
102 Korea's  comments on Japan's  comments on the Interim Report, pp. 6 -7. (emphasis added)  
103 Korea 's comments on Japan 's comments on th e Interim Report, p. 14. (italics  original; 
underlining  added)  
104 Korea 's comments on Japan 's comments on th e Interim Report, pp. 14 -15. 
105 See above in relation to Korea 's interim review requests concerning paragraphs 7.73 and 7.76 of the 
Interim Report . WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  low-priced products, albeit modulated by price premiums for Japanese and Korean SSBs and price 
discounts for Indian and Chinese SSBs. These findings by the KIA led to our conclusion that, as part 
of an "unbiased and objective" evaluation of the facts, we would expect the KIA to address how 
Korean price competitiveness would be weakened by average Japanese prices that would remain 
almost [[ ***]] higher than average Korean prices even if the anti -dumping duties were lifted. This 
was particularly so since the  KIA found both Japanese and Korean SSBs to command a price premium 
in the market. Accordingly, the presence of price premiums and price discounts could not explain 
(based on the KIA's  reasoning) how Japanese SSBs would weaken Korean price competitiveness 
whilst remaining [[ ***]] higher (see further paragraph 7.81 of the Interim Report).  
2.64.   It is noteworthy that Korean now asserts – as extracted above – that "nothing on the record 
offers a viable standard for determining the margin of post -expiry overse lling that would constitute 
a plausible trigger -point for such an a priori  requirement". If there was no "viable standard" on the 
record that could explain whether or not a [[ ***]] higher Japanese price would adversely affect 
Korean price competitiveness, then one may reasonably ask the question as to how the KIA 
determined that such a pricing level "will lead to an increase in exports to Korea and weaken the 
price competitiveness of Like Products".106 This question precisely encapsulates the shortcoming 
identified by Japan in the KIA's  determination on this point. On one hand, the KIA found that price 
was the most important factor in purchasing decisions with consumers preferring low -priced 
products, but on the other hand it found that [[ ***]] higher Japan ese prices would weaken Korean 
price competitiveness. The KIA's  determination offers no analysis or explanation as to how the latter 
was plausible in light of the former. This is the basic reason for which we conclude that the KIA failed 
to engage in an "u nbiased and objective" evaluation of the facts in section 7.5.3.1 as reflected in 
paragraphs  7.76-7.78 and 7.84 -7.85. 
2.65.   But it is also pertinent to point out that, whilst Korea now argues that "nothing on the record 
offers a viable standard for determ ining" the price at which Japanese imports may be harmful or 
inconsequential to Korean price competitiveness, Korea took a differing position during the 
proceedings, for example:  
It is also absurd to posit that Japanese "general -purpose" products were meeting 
"demand for products that do not exist" in the Korean market simply because they sell 
more of these products in Thailand. There clearly were substantial volumes of imports 
of "general -purpose" SSBs from Japan over the POR, which alone increased by 60.5% 
between 2014 and 2015. If anything, the relatively more limited sales of such 
"general -purpose" SSBs from Japan to Korea compared with Thailand can be explained 
by the 15% anti -dumping duty imposed by Korea on these price -sensitive products. The 
removal of this duty would make these products more attractive again, just as they 
were prior to the imposition of the duties .107 
2.66.   As Korea explains it, the "price sensitivity" of the products at issue explains why a 
15% anti-dumping duty applied by Kor ea would lead to fewer sales in Korea and more sales in 
Thailand. Korea made a similar point in its first written submission as part of its "recount[ing]" of 
the "relevant facts and findings reached by the Korean authorities in the original investigation a nd 
the previous reviews" :  
As for the price of the imports from Japan, the OTI confirmed that the average resale 
price in Korea was KRW [[ ***]] per ton (after the anti -dumping duty), which was higher 
than the average price of the like domestic products at KRW [[ ***]] per  ton. This price 
change, prompted by the continued imposition of anti -dumping duty, may be the most 
important reason for the Japanese imports'  loss of market share in Korea during the 
relevant POR, especially in light of the fact that the "p rice was the most important factor 
for the consumers in making a decision to purchase" .108 
2.67.   In this instance, Korea tells us that a [[ ***]] higher average Japanese price was "the most 
important reason" for the decrease in Japanese imports due to the  price-sensitivity of the market. 
And yet, Korea now suggests that a [[ ***]] higher average Japanese pricing level "will lead to an 
increase in exports to Korea and weaken the price competitiveness of Like Products", despite 
 
106 KTC's final resolution, (Ex hibit KOR -4.b (BCI)), p.  22. 
107 Korea's  second written submission, para. 80. (fn omitted; underlining added)  
108 Korea's  first written submission, para. 84. (fn omitted)  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  simultaneously contending that "nothing on the record offers a viable standard" for ascertaining the 
point at which Japanese prices are harmful or inconsequential to Korean price competitiveness.  
2.68.   In summary, the Interim Report does not introduce a post -expiry "price effects" anal ysis as 
a legal requirement under Article 11.3 in paragraph 7.77. Rather, the Interim Report examines the 
KIA's post-expiry "price effects" analysis because this analysis comprised part of the KIA's  chosen 
methodology and because Japan challenges aspects o f the KIA's  determination based on the 
application of that aspect of its methodology. We fault the KIA in section 7.5.3.1 of the 
Interim  Report because the KIA found that the average Japanese pricing level upon the removal of 
the anti -dumping duties "will lead to an increase in exports to Korea and weaken the price 
competitiveness of Like Products" despite remaining [[ ***]] higher than average Korean prices in 
the context of a market in which price is the most important factor in purchasing decisions and in  
which consumers prefer low -priced products. Specifically, we agreed with Japan that the KIA failed 
to provide any explanation or analysis that would bridge the logical gap between the KIA's  respective 
findings on these points. Korea has offered no compell ing reason to revise our assessment. Korea is 
effectively requesting us to ignore the KIA's  chosen methodology and to disregard the importance 
placed by the KIA on the post -expiry "price effects" of the Japanese imports, but we have no basis 
for doing so.  
2.13  Paragraph 7.78  
2.69.   Korea makes two requests with respect to paragraph 7.78 of the Interim Report. First, Korea 
requests the Panel to correct the sentence "Korea appears to accept that the KIA never undertook 
such an analysis" in light of paragrap h 7.79 in which the Panel recounts that "Korea suggests a 
number of ways in which the KIA did indeed address this apparent contradiction".109 Second, Korea 
requests that footnote 217 reflect the applicants'  argument that there was a "very high risk" that 
the Japanese exporters would target the Korean market if the anti -dumping duties were lifted.110 
Japan objects to Korea's  requests.111 
2.70.   We have decided not to grant Korea's  requests. The "analysis" referred to in paragraph 7.78 
concerns whether "price overselling could weaken the price competitiveness of domestic like 
products" with "higher on -average import prices [exerting] detrimental price pressure on lower 
on-average domestic prices". As reflected in footnote 213 (now footnote 212 in  the Final Report), 
Korea stated explicitly that the KIA did not undertake any "specific price undercutting, suppression 
and/or depression analyses" in the third sunset review. Despite the absence of any such analysis in 
the KIA's  determination, Korea prov ided a number of explanations for how domestic price 
competitiveness would be weakened by Japanese prices that would remain almost [[ ***]] higher 
even if the anti -dumping duties were lifted. These explanations provided by Korea are introduced in 
paragraph 7.79. Accordingly, there is no contradiction between the aspects of paragraphs 7.78 
and 7.79 identified by Korea, and we see no reason to revise them.  
2.71.   With respect to footnote 217 (now footnote 216 of the Final Report), Korea suggests it is 
"mislead ing" to omit the applicants'  argument concerning the "very high risk" that the Japanese 
exporters would target the Korean market if the duties expired.112 Currently, footnote 217 states 
that "the applicants excluded Japanese exporters from their descripti on of contemporaneous 
competitors in their application to initiate the third sunset review". We decline Korea's  request 
because the applicants'  "very high risk" argument related to an assumption of what the Japanese 
pricing level would be upon the lifting of the anti -dumping duties, and as set out at paragraph 7.66 
of the Interim Report, this assumption was factually incorrect. While declining Korea's  request, we 
will add paragraph 7.66 to the cross -references already listed in footnote 217.  
2.14  Paragraph  7.79  
2.72.   Korea makes two requests to revise paragraph 7.79 of the Interim Report. First, Korea 
requests the Panel to delete the suggestion that "the KIA reached its findings on price 
competitiveness on a grade -by-grade basis", and instead to reflect K orea's  description of the 
 
109 Korea's  comments on the Interim Report, para. 41.  
110 Korea's  comments on the Int erim Report, para. 45.  
111 Japan's  comments on Korea's  comments on the Interim Report, paras. 39 -40. 
112 Korea's  comments on the Interim Report, para. 45.  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  KIA's finding as set out in paragraphs 263 -265 of its second written submission.113 According to 
Korea, the KIA did not actually make a grade -by-grade finding because "no grade -based evidence 
was ever presented to the KIA by the Japanese respondents and therefore no such analysis could 
ever have taken place".114 Japan makes no comment in relation to this request.  
2.73.   Second, Korea requests the Panel to address an "essential argument" by Korea that is missing, 
namely that ther e were drastic changes in the price differential between the first and third sunset 
reviews.115 Japan objects to this request because the KIA's  determination in the third sunset review 
did not rely on the underselling finding from earlier reviews, and mor eover, an assessment of past 
pricing that from over 12 years ago is not consistent with the forward -looking nature of sunset 
reviews.116  
2.74.   We have decided not to grant Korea's  requests to revise paragraph 7.79. As to the first 
request, Korea complai ns that the Panel is wrong to describe its argument as being that "the KIA 
reached its findings on price competitiveness on a grade -by-grade basis". However, the direct 
quotation from Korea's  submission is: "[t]he Korean authorities obviously considered th at 
termination of the anti -dumping duties would lead to improved price competitiveness of the dumped 
imports on [a] grade -by-grade  basis".117 Moreover, to the extent that Korea made 
internally -contradictory arguments on this point, paragraph 7.81 of the I nterim Report already 
captures this.  
2.75.   As to the second request, we reviewed the citations provided by Korea. Korea contends that 
these citations show that it had argued during the proceedings, based on the "history of Japanese 
products underselling d omestic products", that "even if there was overselling based on the data 
collected in the third sunset review, there was no certainty that these prices would continue after 
the termination of the duties".118 However, the citations provided by Korea indicate that it made a 
different argument during the proceedings. In particular, in these citations, Korea argued that the 
pricing history showed that the KIA could not have placed strong emphasis on past pricing data, 
since that pricing data had varied as between reviews. Korea was not arguing, as it is now, that this 
pricing history showed that the KIA considered that there was volatility in the Japanese 
exporters'  prices, which in turn suggested that overselling  would not necessarily continue after the 
expiry of the duties. Moreover, Korea has not drawn our attention to any aspect of the 
KIA's determination in which the KIA expressly relied upon this past pricing history to find that 
Japanese prices may fall by a  margin lower than the quantum of the anti -dumping duty upon its 
termination. Accordingly, we see no compelling reason to make the revisions requested by Korea 
regarding paragraph 7.79.  
2.15  Paragraphs 7.80 and 7.97 – price premiums  
2.76.   Japan requests the Panel to add passages to paragraphs 7.80 and 7.97 to reflect that there 
may be variations in different industries regarding the role, if any, of price premiums and price 
discounts.119 Korea objects to Japan's  request because the Panel's  assessment is focused on the 
SSB market  in particular.120 
2.77.   We have decided not to grant Japan's  request. In effect, Japan wishes the Panel to reach a 
finding that the price premium commanded by Japanese products was not capable of explaining why 
Japanese products  would recapture market share despite remaining higher -priced. To do so would 
be to engage in an impermissible de novo review.  
2.16  Paragraph 7.80 – reflection of Korean arguments  
2.78.   Korea requests the inclusion of its arguments that (a) the Japanese exporters never adduced 
grade -by-grade pricing evidence to show that price differences per grade meant a lack of competition 
 
113 Korea's  comments on the Interim Report, para. 46.  
114 Korea's  comments on the Interim Report, para. 46.  
115 Korea's  comments on the Interim Report, para. 47.  
116 Japan's  comments on Korea's  comments on the Interim Report, para. 41.  
117 Korea's  response to  Panel question No.  64(c)(iv). (emphasis added)  
118 Korea's  comments on the Interim Report, para. 47.  
119 Japan's  comments on the Interim Report, paras. 8 -10. 
120 Korea's  comments on Japan's  comments on the Interim Report, p. 5.  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  thus negating cumulation; and (b) the KIA found the products of all relevant countries to be in a 
competitive relationship and "the re has been no essential change in the competitive environment 
between the Japanese and Korean products".121 Japan makes no comment on this request.  
2.79.   We have decided not to grant Korea's  request. Korea offers no rationale for the inclusion of 
these arguments in paragraph 7.80 of the Interim Report. Paragraph 7.73 of the Interim Report 
already recognizes Korea's  argument that the KIA's  findings in the third sunset review rest upon its 
conclusions in earlier reviews, including the second sunset review in which price was found to be the 
most important factor in purchasing decisions. Paragraph 7.76 and footnote 203 (now footnote 202 
in the Final Report) also recognize Korea's  argument that the KIA's  "likeness" finding in the third 
sunset review was based on earlier reviews, including the original investigation, and incorporated 
the finding that consumers prefer low -priced products. Thus, these aspects of the Interim Report 
already recognize, as Korea now contends, that "there has been no essential change i n the 
competitive environment between the Japanese and Korean products" in these ways.122 Similarly, 
Korea's  "grade -by-grade evidence" argument is already addressed to the extent necessary in 
paragraph 7.108 (now paragraph 7.107) and section 7.5.3.3 of the Interim Report, and Korea offers 
no reason why it needs to be reflected in paragraph 7.80.  
2.17  Paragraph 7.81  
2.80.   Korea requests the Panel to revise the sentence that " Korea tells us that '[t]he 
Korean  authorities obviously considered that termination of the anti -dumping duties would lead to 
improved price competitiveness of the dumped imports on [a] grade -by-grade basis'" .123 The 
underlined portion of this sentence is a direct quotation from Korea's  submissions during the 
proceedings.  We reject this request.  
2.18  Paragraph 7.82  
2.81.   Japan requests the Panel to revise the general proposition in paragraph 7.82 of the 
Interim  Report that a price gap may become irrelevant when the focus is on what producers could 
produce.124 According  to Japan, such a finding would in practice vary from case -to-case, and further, 
the supply side does not operate in isolation from demand. Korea objects to Japan's  request, noting 
that the language used by the Panel does not imply the kind of categorical finding that Japan is 
suggesting the Panel made.125 
2.82.   We have decided not to grant Japan's  request. The passage in question is already sufficiently 
caveated to accommodate Japan's  concerns, namely by reference to " if production can shift in 
response to demand ".126 
2.19  Paragraph 7.91  
2.83.   Korea requests the Panel to more comprehensively summarize Korea's  arguments in 
paragraph 7.91 of the Interim Report about the "other factors" on which the KIA relied to find that 
Japanese exports would increase , particularly those set out in paragraphs 226 -227 of its 
second  written submission.127 Japan makes no comment on this request.  
2.84.   We have decided not to grant Korea's  request. Paragraphs 7.101, 7.112, and 7.119 of the 
Interim Report already expand up on these "other factors" in more detail. Korea has not 
demonstrated any need to additionally refer to its arguments on these points in paragraph 7.91, 
which is intended to provide a brief overview of the main thrust of the parties'  respective cases.  
 
121 Korea's  comments on the  Interim Report, paras. 48 -49. 
122 Korea's  comments on the Interim Report, para. 49.  
123 Korea's  comments on the Interim Report, para. 50 (quoting Interim Report, para. 7.81, in turn 
quoting Korea's  response to Panel question No.  64(c)(iv)). (emphasis omit ted; underlining added)  
124 Japan's  comments on the Interim Report, paras. 11 -12. 
125 Korea 's comments on Japan 's comments on th e Interim Report, p. 9.  
126 Interim Report, para. 7.82. (emphasis added)  
127 Korea's  comments on the Interim Report, paras. 51 -52. WT/DS553/R/Add.1  
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  2.20  Paragraph 7.92  
2.85.   Japan requests the Panel to include language in paragraph 7.92 of the Interim Report to 
qualify the general proposition that, if anti -dumping duties are exerting a remedial effect, the 
removal of the duties could lead to the situatio n prevailing prior to their application.128 
Japan's  concerns are that (a) higher prices and lower volumes are not necessarily indicative of 
anti-dumping duties exerting a remedial effect; and (b) even if the duties are exerting a remedial 
effect, changes in the market situation may nonetheless preclude a return to the situation prevailing 
prior to their application.129 Korea objects to Japan's  request, emphasizing that the language 
proposed by Japan would lead to an overly prescriptive new test.130 
2.86.   We have decided not to grant Japan's  request. The relevant passage of paragraph 7.92 simply 
states that if the duties are exerting a remedial effect, then it may be reasonable to consider that 
their removal will lead to a return of the prior situati on – but that any such assessment must have 
a factual  basis. We see no reason to add further qualifying language.  
2.21  Paragraph 7.94  
2.87.   Korea asserts that " [t]he sentence that 'Korea seems to suggest that the 'price gap'  between 
Japanese imports and third-country imports upon the lifting of the anti -dumping duties was 
irrelevant  to whether they were in competition with one another …'  is an inaccurate and misplaced 
presentation of Korea's  position".131 Korea continues that its argument in paragraph 23 7 of its 
second written submission, which is cited in relation to this sentence in paragraph 7.94, addressed 
a different argument by Japan, namely the "replacement"/"displacement" argument.132 Moreover, 
Korea contends that the main question at issue was w hether Japanese products were in competition 
with Korean products. In this regard, Korea requests the Panel to reflect its argument that the price 
differential was not such as to suggest that these products were not in competition.133 
2.88.   Japan objects  to Korea's  request, noting that Korea's  own cited answer to Panel question 
No. 20(f) proves the Panel's  point in this aspect of the Interim Report.134 
2.89.   We have decided not to grant Korea's  request. We have reviewed paragraphs 233 -237 of 
Korea's  second written submission, as well as Korea's  response to Panel question Nos. 19 and 20(f). 
Based on our review of those aspects of Korea's  submissions during the proceedings, we are satisfied 
that paragraph 7.94 of the Interim Report accurately depicts Korea 's argument on this point.  
2.22  Paragraph 7.95  
2.90.   Korea requests the Panel to "reconsider its findings about the central nature of the Japanese 
prices" in paragraph 7.95 of the Interim Report, and to correct the inaccurate statement that "the 
relevan t finding of the KIA is that the drop in Japanese prices would lead to an increase in imports".135 
Japan objects to Korea's  request, contending that the price drop for Japanese products was indeed 
the central point in the KIA's  analysis.136 
2.91.   We hav e decided not to grant Korea's  request. It is based on an incorrect reading of what is 
being described as "central" in paragraph 7.95 of the Interim Report. Paragraph 7.95 describes the 
role of the Japanese pricing level in the intermediate finding, which is made clear through 
footnote  281 to paragraph 7.95 (now footnote 280 in the Final Report). This paragraph does not 
describe the role of the Japanese pricing level with respect to the overall likelihood -of-injury 
determination, which is addressed at parag raphs  7.116 -7.119 of the Interim Report.  
 
128 Japan 's comments on th e Interim Report, paras. 13 -14. 
129 Japan 's comments on th e Interim Report, paras. 14 -15. 
130 Korea 's comments on Japan 's comments on th e Interim Report, pp. 12 -13. 
131 Korea' s comments on the Interim Report, para. 53. (emphasis original)  
132 Korea's  comments on the Interim Report, para. 54.  
133 Korea's  comments on the Interim Report, paras. 54 -55. 
134 Japan's  comments on Korea's  comments on the Interim Report, paras. 45 -47. 
135 Korea's  comments on the Interim Report, paras. 57 -60. 
136 Japan's  comments on Korea's  comments on the Interim Report, para. 52.  WT/DS553/R/Add.1  
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  2.23  Paragraph 7.100  
2.92.   Korea requests the Panel to delete or reconsider its analysis based on pages 58 -59 of the 
OTI's final report, contending that the following sentence in paragraph 7.100 of the Interim Rep ort 
reflects a misunderstanding of Korea's  position: "[t]o the extent that the 'lack of 
incentives'  proposition was addressed in the KIA's  determination, Korea stated that it was 
'definitively'  addressed at pp.  58-59 of the OTI's  final report."137 Japan o bjects to Korea's  request, 
arguing that Korea's  view of the "lack of incentive" issue is unduly limited to general -versus -special 
steel.138 
2.93.   We have decided to revise paragraph 7.100 in light of Korea's  comments by deleting the 
following sentence: "[t]o the extent that the 'lack of incentives'  proposition was addressed in the 
KIA's determination, Korea stated that it was 'definitively'  addressed at pp.  58-59 of the OTI's  final 
report". Korea now clarifies that it did not intend to argue th at the broader "lack of incentives" issue 
was "definitively" addressed in this regard, and Korea's  clarification reflects a plausible reading of 
its response to Panel question No. 16. Korea now tells us that the KIA did not address the "lack of 
incentives"  issue from the perspective of per grade price differences, but instead addressed it solely 
from the perspective of general -versus -special steel since this was the proposition of the Japanese 
exporters to which the KIA was responding.139 Korea's  clarifica tion in this regard confirms the 
accuracy of the conclusion in paragraph 7.100 that the KIA's  determination contains no evaluation 
of how the volume of Japanese exporters would increase upon the lifting of the anti -dumping duties 
in view of the presence of  a large volume of lower -priced imports from third countries that was 
already exerting price pressure in the price -sensitive Korean SSB market.  
2.94.   Korea also requests the Panel to reconsider "how it approached this issue related to the 
alleged 'lack of  incentive'  for Japanese producers to export to Korea" because "it would be entirely 
de novo" to conduct an analysis based on a proposition that is different to the one advanced by the 
Japanese exporters during the review.140 Japan objects to Korea's  request.141 
2.95.   We have decided not to grant Korea's  request. Panels in anti -dumping disputes are not limited 
in their analysis to the arguments actually made by interested parties during the underlying 
investigation at issue.142 There is no such rule in the Anti -Dumping Agreement or the DSU. Such a 
rule would frustrate the ability of complainants to challenge aspects of an authority's  evaluation that 
were not disclosed until its final determination or that were never disclosed to the interested parties, 
contrary to e.g. the obligation on authorities in Article 6.9 of the Anti -Dumping Agreement. Whether 
an interested party raised a given matter or objection during the underlying review can be relevant 
to a panel's  examination of whether the authority's  evaluation is "unbiased and objective", but it is 
not dispositive.143 Indeed, we recall that Korea advocated such a position during the present 
proceedings:  
To be clear, the position of Korea is not that simply because an interested party has not 
raised an objection to particular conclusion of the authorities during the investigation 
that a Member would be prevented from raising it in the context of a WTO dispute.  That 
is clearly not the case and that is not the argument made by Korea. Indeed, if a 
challenge against the authority's  finding is properly before a panel, the panel should be 
allowed to review the challenge even if no interested parties have raised the same 
challenge in the underlying investigation or review.144 
2.96.   In any case, we d o not accept Korea's  argument that the Japanese exporters only advanced 
a "lack of incentives" argument in relation to exports of general -purpose steel and not in relation to 
the differing price levels of Japanese and other products. Korea's  argument is fa ctually incorrect. 
 
137 Korea's  comments on the Interim Report, paras. 62 -67. 
138 Japan's  comments on Korea's  comments on the Interim Report, para s. 56-63. 
139 Korea's  comments on the Interim Report, para. 66.  
140 Korea's  comments on the Interim Report, para. 68.  
141 Japan's  comments on Korea's  comments on the Interim Report, para. 64.  
142 See, e.g. Panel Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 7.66 and fn 136; 
China – Autos (US) , paras. 7.30, 7.249, and 7.292 . 
143 See, e.g. Panel Reports, EC – Countervailing Measures on DRAM Chips , para. 7.229; EU – Fatty 
Alcohols (Indonesia) , para. 7.196; US – Carbon Steel (India) (Article 21.5 – India) , paras. 7.211 and 7.221; 
and Egypt – Steel Rebar , paras. 7.382 and 7.386.   
144 Korea's  response to Panel question No. 3(b).  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  The Japanese exporters clearly made arguments in relation to their products being priced 
significantly higher than those of other countries that were not contingent on the general -purpose 
steel argument.145 Korea's  characterization of t he assessment of the "lack of incentives" issue in the 
Interim Report as being de novo is without foundation and we see no reason to make any revisions 
to the Interim Report in that regard.  
2.24  Paragraph 7.102  
2.97.   Japan requests certain revisions to paragraph 7.102 of the Interim Report concerning how 
price might affect the quantity of imports demanded.146 Japan is concerned to ensure that there is 
no scope for an "overbroad reading" of paragraph 7.102 whereby lower prices or greater duty 
absorption could alone justify an assumption of an increase in imports without positive evidence.147 
Korea objects to Japans request, arguing that the revisions would change the essence of the 
Panel's  finding in paragraph 7.102.148 
2.98.   We have decided not to gra nt Japan's  request. Paragraph 7.102 does not endorse, implicitly 
or explicitly, the proposition about which Japan expresses a concern. Accordingly, there is no reason 
to introduce caveats in relation to such a proposition.  
2.25  Paragraph 7.104  
2.99.   Korea requests the Panel to reconsider its findings and revise paragraph 7.104 of the 
Interim  Report in light of a number of concerns, including (a) the absence of a basis for concluding 
that competition was not already taking place; (b) the undertaking of a de novo review by examining 
price differentials in isolation; (c) the reliance on Exhibit KOR -41.b despite this information not being 
before the KIA; and (d) the selective reliance on aspects of the applicants'  petition.149 Japan 
disagrees with Korea – emphasizing that the KIA failed to account for price being the most important 
factor in purchasing decisions150 – and proposes its own revisions to paragraph 7.104 to clarify both 
why the record material contradicts Korea's  assertion, as well as how the Panel relies on 
exhibit  KOR-41.b.151 
2.100.   We have decided to delete paragraph 7.104 from the Interim Report. This paragraph 
responds to an argument made by Korea, but as Korea now emphasizes, it rejects the distinction 
between general -purpose and special steel.152 Accordingly, the Korean argument that 
paragraph  7.104 seeks to address was made on an arguendo  basis.153 Since the Panel does not 
make a finding on the alleged distinction between general -purpose and special steel, 
Korea's  arguendo  argument is not enlivened, and we therefore have no need to address it. Given 
that we have decided to delete paragraph 7.1 04, we see no need to make the revisions to this 
paragraph proposed by Japan.  
2.101.   We also note that Korea's  arguments concerning Exhibit KOR -41.b are unfounded for the 
reasons set out in footnote 318 of the Interim Report (now substantively reflected i n footnote 322 
of the Final Report), and we decline Korea's  request to remove any references to this exhibit 
elsewhere in the Report.  
2.26  Paragraphs 7.116 -7.119  
2.102.   Korea requests the Panel to include the KIA's  finding regarding capacity utilization  in 
paragraphs 7.116 -7.119 of the Interim Report (now paragraphs 7.115 -7.118 of the Final Report) 
because the Japanese exporters'  low capacity utilization rate provided an independent, standalone 
 
145 See, e.g. Japanese exporter s' opinion regarding injuries , (Exhibit JPN -10.b (BCI) ), pp. 9-10 and 19; 
Japanese exporter s' opinion regarding applicants'  rebuttal,  (Exhibit JPN -13.b (BCI) ), pp. 7-8. 
146 Japan' s comments on the Interim Report, para. 16.  
147 Japan's  comments on the Interim Report, para. 17.  
148 Korea's  comments on Japan's  comments on the Interim Report, pp. 16 -17. 
149 Korea's  comments on the Interim Report, paras. 70 -76. 
150 Japan's  comments on K orea's  comments on the Interim Report, paras. 67 -68. 
151 Japan's  comments on the Interim Report, paras. 18 -19; comments on Korea's  comments on the 
Interim Report, para. 69.  
152 Korea's  comments on the Interim Report, para. 74.  
153 See also Korea's  response  to Panel question No. 16(v).  WT/DS553/R/Add.1  
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  basis for a "huge incentive to increase the export of the co vered product … upon removal of the 
current anti -dumping duties".154 Japan makes no comment on Korea's  request.  
2.103.   We have decided not to grant Korea's  request. The role of the KIA's  capacity utilization 
finding is already part of the holistic examin ation of the KIA's  likelihood -of-injury determination in 
section 7.5.3.4.  
2.27  Paragraph 7.128  
2.104.   Korea requests the Panel to add certain arguments that it made during the proceedings to 
paragraph 7.128 of the Interim Report (now paragraph 7.127 of the Final Report) because these are 
currently absent.155 Japan objects to the request, arguing that Korea's  proposed insertions add 
nothing of substance.156 
2.105.   We have decided not to grant Korea's  request. Paragraph 7.128 contains a brief s ummary 
of arguments and Korea has offered no rationale for why the requested arguments need to be 
referenced in this paragraph.  
2.28  Paragraphs 7.132 -7.133  
2.106.   Japan requests the Panel to revise paragraphs 7.132 -7.133 (now paragraphs 7.131 -7.132 
of the Final Report) to clarify that there needs to be "some linkage" between the production capacity 
for other products and the product under investigation before such other production capacity can be 
"legitimately useable" in examining the production capacit y for the product under investigation.157 
Japan is concerned that the current findings may be read to allow authorities to skip examining this 
kind of linkage, even when the evidence suggests a lack of technical feasibility or commercial 
incentives for sw itching production from other products to the product under investigation.158 Korea 
objects to Japan's  request, arguing that Japan's  revisions are effectively seeking to introduce a new 
legal obligation in Article 11.3 and that the revisions are not relev ant to the resolution of the present 
dispute.159 
2.107.   We have decided not to grant Japan's  request. Paragraphs 7.132 -7.133 indicate that an 
authority must have a "factual basis" for determining the parameters used for the product scope in 
its capacity utilization calculation. Accordingly, Japan's  concern that authorities could determine a 
given product scope without a "factual basis" or without regard to contrary evidence does not 
warrant a revision to paragraphs 7.132 -7.133.  
2.29  Paragraph 7.136  
2.108.  Korea makes a series of interim review requests in relation to paragraph 7.136 of the 
Interim  Report (now paragraph 7.135 of the Final Report). We address each in turn.  
2.109.   Korea's  first request is to reconsider "all interim findings that are based  on [the Panel's] 
incorrect intermediate factual finding that the KIA had changed its initial parameter for assessing 
the SSB production capacity".160 According to Korea, the Panel's  finding of a "change" is based on 
the incorrect premise that the KIA's  initial parameter was contained in the June 2016 dumping 
questionnaire.161 Korea contends that, in order to ascertain the KIA's   initially -preferred pa rameter 
for calculating production capacity, the Panel should rely on the injury  questionnaire sent to the 
Korean domestic industry instead of relying on the dumping  questionnaire sent to the Japanese 
exporters.162 Korea further contends that the initial parameter as conveyed in the injury  
questionnaire sent to the Korean domestic industry was the same parameter that had been used by 
the KIA in all of the previous SSB proceedings, and that the Japanese exporters had also used this 
 
154 Korea's  comments on the Interim Report, paras. 80 -83. 
155 Korea's  comments on the Interim Report, para. 84.  
156 Japan's  comments on Korea's  comments on the Interim Report, paras. 73 -74. 
157 Japan's  comments on the Interim Report, para. 21.  
158 Japan's  comments on the Interim Report, paras. 22 -23. 
159 Korea 's comments on Japan 's comments on the  Interim Report, p. 20.  
160 Korea's  comments on the Interim Report, para. 105. (emphasis omitted)  
161 Korea's  comments on the Interim Report, paras. 86 -89. 
162 Korea's  comments on the Interim Report, paras. 90 -93. WT/DS553/R/Add.1  
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  same parameter in their s ubmission to the USITC's  SSB proceeding.163 Korea also argues that it 
used the ISSF data reflecting a broader parameter in the second sunset review and that it used the 
ISSF data for India's  production capacity despite the cooperation of Viraj, an Indian exporter, in the 
third sunset review.164  
2.110.   Japan objects to Korea's  request, arguing that the June 2016 dumping questionnaire clearly 
set the "product under investigation" as the preferred parameter, and the KIA's  final determination 
itself relied on the Japanese exporters'  responses to that questionnaire in its injury assessment.165 
Japan also points out that what was asked of the Korean domestic industry does not prove what was 
asked of the Japanese exporters.166 
2.111.   We have decided not to g rant Korea's  request. We agree with Japan that "what matters is 
the written content of the questions actually directed to the Japanese [exporters]" in the KIA's  third 
sunset review, as well as the content of any oral questions "actually directed" to those exporters.167 
The materials now relied upon by Korea relate to questions posed to other interested parties, or 
posed in the proceedings of other investigating authorities, or posed in previous SSB proceedings 
by the KIA. Such materials cannot displace the  clear request by the KIA to the Japanese exporters 
in the 3  June 2016 dumping questionnaire to provide production capacity data with the "[p]roduct 
under investigation" as the preferred product scope for that data. Nor can such materials displace 
the clea r references in the KIA's  likelihood -of-injury determination to the Japanese 
exporters'  responses to the 3  June 2016 dumping questionnaire. This is direct evidence that the KIA 
relied on the 3  June 2016 dumping questionnaire for the purposes of its likelih ood-of-injury 
assessment and its probative value far outweighs the circumstantial materials now relied upon by 
Korea to contend otherwise.  
2.112.   Korea's  second request is to refrain from relying on the references to the Japanese 
exporters'  responses to the 3  June 2016 dumping questionnaire in the KIA's  likelihood -of-injury 
determination to find that the dumping questionnaire comprised the "starting point" of the 
KIA's injury investigation.168 Japan objects to Korea's  request.169 
2.113.   We have decided  not to grant Korea's  request. Korea's  main contention is that, when the 
KIA stated in its likelihood -of-injury determination "[a]ccording to Appendix D -3 attached to 
'Response to Anti -Dumping Questionnaire'  submitted by the Japanese Respondents" and 
"[a]ccording to the data submitted by the Japanese Respondents ( Appendix D -3 Production Record 
and Production Capacity attached to 'Response to Questionnaire about Anti -dumping' )", the KIA 
actually meant to reference the Japanese exporters'  joint submission of 1 September  2016, in which 
the Japanese exporters had extracted data from their responses to the 3  June 2016 dumping 
questionnaire.170 But Korea offers no direct evidence in support of its assertion. Indeed, elsewhere 
in the KIA's  determination, the KIA refers to the Japanese exporters'  "written opinion" where their 
joint submissions are intended to be referenced as the source of the rel evant data.171 Korea offers 
no explanation for why the KIA failed to adopt this same approach with respect to the instances 
cited in paragraph 7.136 of the Interim Report.  
2.114.   Korea's  third request is to "re -consider [the] findings captured in paragra ph 7.136 in their 
entirety" due to a "serious and fundamental inconsistency in the Panel's  factual analysis" as between 
paragraphs 7.135 and 7.136.172 According to Korea, the Panel finds in paragraph 7.135 that "the 
official dialogue with respect to produ ction capacity… commenced on 1  September  2016", whereas 
 
163 Korea's  comments on the Interim Report, paras. 93 -96. 
164 Korea's  comments on the Interim Report, paras. 97 -100. 
165 Japan's  comments on Korea's  comments on the Interim Report, paras. 75 -78. 
166 Japan's  comments on Korea's  comments on the Interim Report, para. 80.  
167 Japan's comments on Korea's comments on the Interim Report, para. 81  
168 Korea's  comments on the Interim Report, paras. 107 -109. 
169 Japan's  comments on Korea's  comments on the Interim Report, para. 75.  
170 OTI's final report, (Exhibit KOR -5.c (BCI)),  pp. 58 and  87, and fn 80.  (emphasis added)  
171 See, e .g. OTI's final report, (Exhibit KOR -5.c (BCI)),   p. 58 (" [d]ata: The Three Japanese 
Respondents ' written opinion submitted after the public hearing (Table 1, Table 2)"), p. 8 (" [s]ource: The 
Three Japanese Respondents ' written opinion submitted after the public hearing (Tables 3, 4, and 5)"), and 
p. 85: (" [s]ource: The Three Japanese Respondents ' written opinion submitted after the public hearing 
(Tables  1 and 2)").  
172 Korea's  comments on the Interim Report, paras. 111 -112. WT/DS553/R/Add.1  
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  "[i]n paragraph 7.136, the Panel suddenly takes 21  September as the commencement date of the 
said dialogue" .173 Japan objects to Korea's  request.174 
2.115.   We have decided not to grant Korea's  request. Korea's  request is based on an incorrect 
premise. Neither paragraph 7.135 nor paragraph 7.136 purport to arrive at any finding as to when 
the alleged "dialogue" commenced. Rather, paragraph 7.136 refers to 21  September  2016 because 
this is when the KI A's Injury Investigation Division first made an inquiry of the Japanese exporters 
(not to be confused with the 3  June 2016 dumping questionnaire, which was the first inquiry by the 
KIA seeking production capacity data from the Japanese exporters). The 1  September  2016 date 
referred to in paragraph 7.135 pertains to when the Japanese exporters'  31 August written opinion 
was received by the KIA's  Injury Investigation Division.  
2.116.   Korea also now argues that the 21  September  2016 inquiry by the KIA was a follow -up to 
the 31  August written opinion, and not to the 3 June questionnaire response, contrary to the 
understanding reflected in paragraph 7.136. Specifically, Korea contends "[b] ut, of course, the KIA 
on 21  September  2016 was looking for information t hat is 'supplementary'  to the KIA's  inquiries  
raised with respect to the Japanese respondents'  Written Opinion submitted on 
1 September  2016."175 According to the KIA's  own log, however, the 21  September  2016 inquiry by 
the KIA was the first made by the Injury Investigation Division. Before 21  September, there do not 
exist any "KIA inquiries raised with respect to the Japanese respondents'  Written Opinion submitted 
on 1 September  2016" to which the 21  September inquiry was "supplemental"/"additional" – that 
is, other than the KIA's  3 June dumping  questionnaire, which is precisely the point of this aspect of 
paragraph 7.136.  
2.117.   Based on the for egoing, we see no compelling reason to make any of the requested revisions 
to paragraph 7.136. Given that Korea's  request regarding paragraph 7.138 is consequential upon 
the Panel granting its requests regarding paragraph 7.136, we likewise decline to make  the 
requested revision to paragraph 7.138.176 
2.30  Paragraph 7.139  
2.118.   Japan requests the Panel to revise paragraph 7.139 of the Interim Report (now 
paragraph  7.138 of the Final Report) because it incorrectly describes the email at issue as having 
been sent to the KIA, when in reality the email was an internal correspondence between the Japanese 
exporters and their legal representatives.177 Korea agrees with Japan's  request, except for the 
second part of the revision, and asks the Panel to reconsid er all of its findings based on the erroneous 
understanding that the email was sent to the KIA.178 
2.119.   We agree to revise paragraph 7.139 in light of the proper understanding of the email as an 
internal email. Our revisions complement Korea's  review r equest regarding paragraph 7.143 of the 
Interim Report for the following reasons. The text of the email states in relevant part:  
Regarding the utilization rate on page 20, Table 3 of the Opinion Regarding Injuries to 
the Industry, isn't it true that produ cts other than stainless steel are also produced in 
the facility whose standard utilization rate was the basis of the calculations? What is the 
ratio between stainless steel and other products produced in this facility? Please identify 
the ratio of special  steel and general -purpose products out of stainless steel.179 
2.120.   The text of the question to which the Japanese exporters responded in their 
7 November  2016 submission is:  
With respect to the capacity utilization in Table 3 on page 20 of the opinio n on injury to 
industry, please explain whether other products other than stainless steel are produced 
through the facilities, which are the basis of calculating capacity utilization, and further 
 
173 Korea's  comments on the Interim Report, para. 111. (emphasis omitted)  
174 Japan's  comments on Korea's  comments on the Interim Report, para. 75.  
175 Korea's  comments on the Interim Report, para. 1 11. (italics omitted; underlining added)  
176 Korea's  comments on the Interim Report, para. 113.  
177 Japan's  comments on the Interim Report, para. 7.139.  
178 Korea 's comments on Japan 's comments on th e Interim Report, pp. 23 -24. 
179 Email reporting the  meeting dated 21  September  2016, (Exhibit JPN -30.b (BCI)), p.  1. WT/DS553/R/Add.1  
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  explain the respective proportions of stainless steel and ot her products that are 
produced through the facilities and also respective proportions of special steel and 
general -purpose steel out of stainless steel.180 
2.121.   As these extracts show, the Japanese exporters'  understanding of the KIA's  information 
request as reflected in the internal email is substantively equivalent to their understanding of this 
information request as reflected in their subsequent submission to the KIA. Accordingly, the 
considerations regarding what was asked by the KIA, what was unde rstood by the Japanese 
exporters, and whether/how the KIA took steps to inform the Japanese exporters that they had 
misunderstood the information request, are substantively the same and therefore inform our 
revisions to paragraphs 7.139, 7.141, and 7.145 -7.146 of the Interim Report (now 
paragraphs  7.138, 7.140, and 7.144 -7.145 of the Final Report).  
2.31  Paragraph 7.143  
2.122.   Korea requests the Panel to revise paragraph 7.143 of the Interim Report to reflect and 
examine Korea's  argument in relation to th e Japanese exporters'  confirmation of the 
KIA's information request through the question to which they responded in their 7  November  2016 
submission.181 Japan makes no comment on this request.  
2.123.   As we have explained in relation to Japan's  request to review paragraph 7.139 of the 
Interim  Report, we consider it appropriate to make the revisions requested by Korea, and have done 
so in a way that complements the revisions made regarding paragraph 7.139. Our revisions in this 
regard enco mpass the descriptive aspects of paragraphs 7.141 and 7.145, as well as the evaluative 
aspect of paragraph 7.146.  
2.32  Paragraphs 7.147 -7.150  
2.124.   Korea requests the Panel to revise paragraphs 7.147 -7.150 (now paragraphs 7.146 -7.149 
of the Final Repor t) to reflect certain record facts that it contends are currently missing from the 
Interim Report, and to reconsider all of the Panel's  findings accordingly.182 Korea's  comments in this 
regard are unstructured and do not clearly itemize the record facts t hat are allegedly missing, nor 
do they clearly delineate the "precise aspects" for which Korea seeks certain revisions to the text of 
paragraphs 7.147 -7.150 of the Interim Report. The Panel thus sought to distil these comments into 
discrete requests for re visions, which could then be evaluated within the framework of Article 15.2 
of the DSU, as follows.  
2.125.   First, Korea appears to request the Panel to examine its argument that the Japanese 
exporters'  8 December  2016 submission demonstrated that they un derstood that production 
capacity should be based on "secondary peeling processing", which is not limited to the "product 
under investigation".183 Second, Korea requests additional analysis by the Panel beyond simply 
stating that the KIA's  information req uest in mid/late November was "somewhat imprecise".184 Third, 
Korea requests the Panel to find that the Japanese exporters failed to provide any data (as opposed 
to providing data based on incorrect parameters).185 Fourth, Korea requests the Panel to ana lyse 
the wording of the question contained in the Japanese exporters'  submission of 7  November  2016, 
which shows the "degree of specificity" with which the KIA conveyed the correct parameters.186 Fifth, 
Korea requests the Panel to assess the Japanese exporters'  continued submission of the same figure 
despite repeated requests for further information by the KIA and despite the exporters'  changing 
their position on the product scope of that same fig ure, and to assess the Japanese 
exporters'  decision to deliberately submit incorrect figures.187 Sixth, Korea requests the Panel to 
 
180 Japanese exporters ' submission of opinion dated 7 November 2016, (Exhibit KOR -25.b (BCI)), p.  1. 
181 Korea's  comments on the Interim Report, para. 114.  
182 Korea's  comments on the Interim Rep ort, para. 130.  
183 Korea's  comments on the Interim Report, para. 116.  
184 Korea's  comments on the Interim Report, para. 117.  
185 Korea's  comments on the Interim Report, paras. 118 -119. 
186 Korea's  comments on the Interim Report, paras. 120 -122 and 125 -126. 
187 Korea's  comments on the Interim Report, paras. 124 and 126 -127. WT/DS553/R/Add.1  
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  include a discussion of the KIA's  written opinion to the MOSF on its attempts to obtain and verify 
data from the Japanese e xporters.188 
2.126.   Japan understands Korea's  interim review request to involve the reconsideration of 
two pieces of evidence, namely exhibit JPN -16.b and exhibit KOR -48.b, and Japan objects to 
Korea's  request.189 Japan's  main points are that (a) the In terim Report already addresses 
Korea's  concerns about exhibit JPN -16.b in paragraph 7.154 and footnote 453 of the Interim Report; 
(b) the Panel properly focused on the documentary evidence of what the KIA communicated, not on 
what Korea now tells the Panel  that the KIA intended to communicate or thought it was 
communicating regarding its preferred production capacity parameters; (c) exhibit KOR -25.b does 
not reveal the KIA's  alleged premise that production capacity should be based not only on the 
product un der investigation, but also on other products not subject to the investigation; (d) the 
Interim Report already addresses exhibit KOR -48.b and reasonably finds its probative value to be 
limited; and (e) if the figures submitted by the Japanese exporters had  been so inconsistent and 
unreasonable in the eyes of the KIA, as argued by Korea, then the KIA should have sought 
clarifications – but there is no record evidence of such clarifications being sought clearly and 
directly.190 
2.127.   We have decided not to  grant Korea's  requests regarding paragraphs 7.147 -7.150 as we 
understand them. The first, fifth, and sixth requests (as numbered according to our understanding 
above) pertain to matters that are already addressed adequately in the Interim Report. Specific ally, 
Korea's  first request regarding the relationship between the Japanese exporters'  reference to 
"secondary peeling processing" in their 8  December  2016 submission and the understanding of the 
product scope as the "product under investigation" is addres sed already in paragraph 7.154 and 
footnote 453 of the Interim Report (now footnote 451 in the Final Report), and Korea has offered no 
compelling reason why those aspects are inadequate. Korea's  fifth request implies that the Japanese 
exporters deliberatel y misled the KIA, with Korea arguing that they "failed to respond to the 
KIA's information requests not because  they did not understand the questions due to their 
'imprecise'  nature, but because they opted to provide an incorrect answer  that they were late r forced 
to change".191 Matters relating to the reliability of the Japanese exporters figures are already 
addressed in paragraphs 7.160 -7.163 of the Interim Report, and matters relating to the alleged 
"unfaithful participation" of the Japanese exporters a re already addressed in paragraphs 
7.165 -7.173 of the Interim Report, and we therefore see no reason to revise paragraphs 
7.147 -7.150 in light of Korea's  fifth request. Korea's  sixth request is already addressed in footnote 
419 of the Interim Report (now f ootnote 411 in the Final Report), and again, Korea offers no 
compelling reason as to why that aspect of the Interim Report is inadequate.  
2.128.   We turn now to Korea's  second, third, and fourth requests regarding 
paragraphs  7.147 -7.150 as we understand th em. Regarding Korea's  second request, 
paragraphs  7.147 -7.150 adequately show that the documentary evidence did not indicate that the 
term "capable" meant what Korea now contends, and moreover, other contextual documentary 
evidence suggested the contrary. K orea has not substantiated the need for a revision in this regard. 
However, in light of Korea's  request in relation to paragraph 7.136 that the Interim Report reflect 
the KIA's  information request to the Korean domestic industry (see above paragraph 2.109) , we 
have decided to juxtapose the specificity of what was requested in writing of the Korean domestic 
industry vis-à-vis the imprecision of what was requested orally of the Japanese exporters in relation 
to their respective capacity utilization figures (r eflected in paragraph 7.150 of the Final Report). 
Regarding Korea's  third request, we understand this to concern what is largely a semantic issue of 
"data" versus "numbers", and we note that Korea initially described the Japanese exporters'  figures 
as "dat a" in its first written submission192, whilst subsequently changing its case to argue that these 
figures did not constitute "data". The KIA also referred to the Japanese exporters'  submitted figures 
as "data", albeit incomplete and edited.193 We have adj usted paragraph 7.150 of the Interim Report 
to clarify that, based on the evidence before us, the KIA never told the Japanese exporters that their 
submitted figures did not qualify as "data" in the eyes of the KIA. But we cannot accept the premise 
that the  Japanese exporters submitted nothing , because evidently they did make submissions 
 
188 Korea's  comments on the Interim Report, paras. 128 -129. 
189 Japan's  comments on Korea's  comments on the Interim Report, para. 91.  
190 Japan's  comments on Korea's  comments on the Inte rim Report, paras. 92 -98. 
191 Korea's  comments on the Interim Report, para. 126. (emphasis added)  
192 Korea's  first written submission, para . 323. 
193 KTC's submission of review to MOSF, (Exhibit KOR -48.b (BCI)), p.  8; OTI's final report, 
(Exhibit  KOR-5.c (BCI)),  p. 87 ("[a] ccording to the data submitted by the Japanese Respondents  …"). WT/DS553/R/Add.1  
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  concerning their capacity utilization rate. Regarding Korea's  fourth request, this is addressed above 
through the revisions made in response to Korea's  request regarding par agraph 7.143 of the 
Interim  Report.  
2.33  Paragraph 7.155 and footnote 457  
2.129.   Korea requests the deletion of the reference in footnote 457 (now footnote 455 in the 
Final Report) to how Korea explained the proper understanding of the term "dumped impo rts", 
arguing that this is irrelevant to the substance of paragraph 7.155 of the Interim Report.194 Japan 
opposes Korea request, contending that Korea's  explanation of the term "dumped imports" is 
relevant and should be retained, particularly since Korea stated that this explanation underlay every 
single finding and analysis in the text of the KIA's  determination.195 
2.130.   We have decided not to grant Korea's  request. The sentence of paragraph 7.155 of the 
Interim Report to which footnote 457 is appende d states: "[i]f anything, the KIA's  request on 
11 January  2017 for the 'annual and daily volume of production … of the dumped imports ' could 
warrant the opposite inference, insofar as the exporters might expect the production volume data 
and the production capacity data to have corresponding product scopes".196 In turn, footnote 457 
states:  
That is, in the absence of any indication otherwise from the authorities. See also 
Korea's  response to Panel question No. 9(a)(i) -(ii) concerning how the term "dumped 
imports" should be understood in the underlying review.  
2.131.   In turn, Korea's  response to Panel question No. 9(a)(i) -(ii) states, in relevant part, that:  
To come straight to the point, this is the rationale underlying every single finding and 
analysis in the text of the Korean authority's  determination. Clearly, all 
likelihood -of-injury analysis by the KTC or OTI was conducted on the basis of the 
covered products.  Products other than the covered products – excluded products – 
were never a part of the review, so it is safe to suppose that any analysis or finding 
made by the KTC in the context of its determination was exclusively focused on the 
covered product or covered product market.  
… 
By definition, therefore, the 'dumped imports'  or '재심사대상물품 ' can only refers [ sic] to 
the covered product (i.e. does not include products that are excluded from the scope of 
the review).  
To conclude, the said rationale appears almost everywhere in the OTI's  Final Report or 
the KTC's  Final Resolution to the ex tent that the Korean authorities'  findings concern 
probable influx of the covered products from Japan upon termination of the 
anti-dumping measure.  
2.132.   The relevant aspects of paragraph 7.155 and footnote 457 concern what may, or may not, 
have been pla usibly understood by the Japanese exporters upon receiving an information request 
from the KIA regarding the "dumped imports". Korea has not adequately explained how the cited 
part of footnote 457 "has nothing to do with the issue at hand".197 
2.34  Parag raph 7.159  
2.133.   Korea requests "that the Panel at least examine whether the Japanese respondents had ever 
submitted any requested information, and make the appropriate findings, which would include 
re-considering its finding in paragraph 7.159".198 Korea's main argument is that, whilst the Japanese 
 
194 Korea's  comments on the Interim Report, para. 132.  
195 Japan's  comments on Korea's  comments on the Interim Report, para. 100.  
196 Emphasis added.  
197 Korea's  comment s on the Interim Report, para. 132.  
198 Korea's  comments on the Interim Report, para. 135.  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  exporters submitted a "naked number" or "numerical allegation" on production capacity, they never 
submitted "specific data" in response to the KIA's  requests.199 Japan makes no comment on 
Korea's  request.  
2.134.  We have decided not to grant Korea's  request. We have earlier considered, in relation to 
Korea's  requests to review paragraphs 7.147 -7.150, that Korea's  concern in this regard is largely a 
semantic issue of "data" versus "numbers", and Korea itself i nitially described the Japanese 
exporters'  figures as "data" in its first written submission200, whilst subsequently changing its case 
to argue that these figures did not constitute "data". We note that the KIA itself stated during the 
third sunset review  that the Japanese exporters had submitted "some data", but that it was 
"incomplete" or "edited".201 Clearly, therefore, the KIA itself considered that "some data" was 
submitted by the Japanese exporters concerning production capacity. This removes the pr emise of 
Korea's  request to revise paragraph 7.159, namely that no "data" (or no "information") was 
submitted.  
2.35  Paragraph 7.161  
2.135.   Korea requests the Panel to revise its acceptance of the Japanese exporters'  discrepancy 
referred to in paragraph 7.161 of the Interim Report as "inadvertent". Japan objects to 
Korea's  request.202 
2.136.   We have decided not to grant Korea's  request. It is premised on a misreading of 
paragraph  7.161 of the Interim Report. This paragraph does not refer to an "acceptan ce" of the 
discrepancy as "inadvertent". Rather, this paragraph recounts that, subsequent to the discrepancy, 
the Japanese exporters provided an accurate description of their intended product scope, and thus 
the discrepancy cannot be said to have undermine d the overall credibility and reliability of the 
production capacity figures submitted by the Japanese exporters.  
2.36  Paragraph 7.162  
2.137.   Korea requests the Panel to consider, in paragraph 7.162 of the Interim Report, the "inherent 
tension" between "peeling" and "inspection" before concluding that there is no "inherent tension" 
between "peeling" and "secondary processing".203 Specifically, Korea contends that:  
Although "peeling"  is a subset of "secondary processing", "peeling"  is not a subset of 
"inspection". In fact, both "peeling"  and "inspection"  are the defined stages of SSB 
manufacturing, distinctive from each other.  
Therefore, Korea respectfully submits t hat the Panel must either recognize this inherent 
tension or find further justification with respect to the relationship between 
"peeling"  and "inspection".204 
2.138.   Japan objects to Korea's  request, arguing that Korea seeks to create the appearance of a 
tension when in fact the two documents in question are consistent with one another.205 
2.139.   We have decided not to grant Korea's  request. Korea relies on Aichi's  questionnaire response 
to substantiate the proposition that [[ ***]] is a d istinct stage of SSB manufacturing. However, the 
matter at issue in paragraph 7.162 of the Interim Report concerns Daido's  submissions and whether 
Daido  submitted contradictory material. In its questionnaire response, Aichi distinguished between 
[[***]], but there is no suggestion that this implied any meaningful difference for the generation of 
its production capacity figure, and moreover, Aichi [[ ***]], thus differentiating its process from 
 
199 Korea's  comments on the Interim Report, paras. 133 -134. 
200 Korea's  first written submission, para . 323. 
201 KTC's submission of review to MOSF, (Exhibit KOR -48.b (BCI)), p.  8. (emphasis added)  
202 Japan's  comments on Korea's  comments on the Interim Report, para. 102.  
203 Korea's  comments on the Interim Report, paras. 139 -141. 
204 Korea's  comments on the Interim Report, paras. 139 -141. 
205 Japan's  comments on K orea's  comments on the Interim Report, para. 103.  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  Daido. In its individual response to the KIA's  3 June 2016 dumpin g questionnaire, Daido  stated 
[[***]].206 Daido thus described [[ ***]], and not as separate stages or processes.  
2.140.   According to paragraph 7.162 of the Interim Report, there is no "inherent tension" between 
the subsequent joint submission of the Japa nese exporters – which referenced secondary 
processing207 – and this earlier questionnaire response by Daido. The subsequent joint submission 
did not explicitly reference [[ ***]], but as just mentioned, it is apparent from Daido's  earlier 
questionnaire re sponse that Daido considered [[ ***]]. Korea has not demonstrated that 
Daido's  reference to [[ ***]] in its earlier questionnaire response has any meaningful implication for 
its calculation of production capacity nor, relatedly, the subsequent description in  the joint 
submission that secondary processing – and thus the peeling process – was the reference point for 
calculating production capacity. Accordingly, Korea has provided no compelling reason for the Panel 
to revise paragraph 7.162.  
2.37  Paragraphs 7.1 65-7.173  
2.141.   Korea requests the Panel to delete paragraphs 7.165 -7.173 from the Interim Report.208 
Korea's  main contention is that it never argued that Japan acted in "bad faith" in initiating or 
engaging in the present proceedings, nor did the KIA m ake a finding of "bad faith" or draw adverse 
inferences from the Japanese exporters'  conduct in the underlying review.209 Korea advances various 
related and additional arguments in support of its request, which we will address as appropriate in 
our evalua tion below. Japan objects to Korea's  request because "[t]he argument of bad faith was 
clearly made, and took substantial time and resources of the other Party and the Panel".210 
2.142.   We begin by examining whether, as a factual matter, Korea did indeed argue during the 
proceedings that Japan was acting in bad faith in the present proceedings with respect to its 
production capacity claims and whether Korea asked the Panel to avoid an outcome that would result 
in Japan's  misrepresentations being rewarded.  
2.143.   In the "General Observations" section of its comments on Japan's  responses to the 
Panel's  questions, Korea stated:  
[A]s Korea will demonstrate below, Japan's  desperate attempts at rescuing the 
Japanese respondents'  unsubstantiated numerical allegat ion from the fundamental 
errors that taint the very foundation of the allegation's  veracity only reveals the 
unfaithful participation by the Japanese respondents'  in the underlying review, and quite 
possibly,  by Japan in this dispute  (although Korea hates to say this).211 
2.144.   Korea indicated that this "demonstrat[ion]" would be made in its comments on 
Japan's  response to Panel question Nos. 101 and 106. We note that question 106, in particular, 
concerns production capacity. We al so note that, in its comments on Japan's  response to Panel 
question No. 92 in respect of production capacity, Korea made a remark similar to that just quoted 
from its "General Observations", namely:  
More importantly, as demonstrated below, Japan's  desperat e attempts at minimizing 
the significance of such flaws by admitting the serious inconsistencies totally fails and 
even calls into question the good faith participation of Japan in this dispute .212 
2.145.   The plain text of these remarks in Korea's  "Gener al Observations" and comments on 
Japan's  response to Panel question No. 92 shows that Korea did indeed "call into question the good 
faith participation of Japan in this dispute", which Korea intended to "demonstrate" in its subsequent 
comments on Japan's  responses to Panel questions. Korea specified question 106 in that regard, 
 
206 Daido questionnaire response, (Exhibit  JPN-9.b (BCI)), annex D -3. (emphasis added)  
207 Japanese exporters ' post-hearing opinion, (Exhibit JPN -16.b (BCI)), p p 1-2. 
208 Korea's  comments on the Interim Rep ort, para. 144.  
209 Korea's  comments on the Interim Report, paras. 152 -154. 
210 Japan's  comments on Korea's  comments on the Interim Report, para. 106.  
211 Korea 's comments on Japan 's response to Panel question "General Observations", p. 4 . 
(emphasis  added)  
212 Korea 's comments on Japan 's response to Panel question No.  92, p.  16. (emphasis added)  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  which concerns production capacity. In turn, in its comments on question No. 106, Korea made the 
following remarks:  
(Japan's  Response is Disingenuous)  Japan's  response to this critic al question 
demonstrates either the fundamentally disingenuous nature of Japan's  participation in 
this dispute or Japan's  fundamental misunderstanding of the subject matter at hand.  
… 
Indeed, if the Panel breaks down Japan's  argument in paragraphs 87 and 89 
chronologically, it will note that the Japanese respondents committed mistakes in 
virtually  every  submission  made to the Korean authorities. This suggests that the 
mistakes were not inadvertent, and the Panel should not be misled by Japan's  crafty 
repac kaging of the chronology of the events.  
But more importantly , Japan's  post hoc justification is both completely false and 
evidently disingenuous.  
… 
In contrast, Japan's  position constantly changes as the case develops, often providing 
self-contradictory a rguments, and almost always run counter to the prevailing reality 
and the well -known industrial knowledge. By simple and straightforward analogy, 
therefore, it should be clear that Korea's  arguments are in line with the objective 
findings of the Korean aut horities based on the evidences and analyses that are genuine 
and contemporaneous, while Japan's  arguments are opportunistic, often relying on an 
unfounded premise that the Panel would give them something if they raise enough 
number of issues, with or with out a proper basis. As Korea repeatedly stressed, such 
an opportunistic approach does not represent a proper decorum befitting such an 
internationally -prestigious proceeding that is the WTO's  dispute settlement procedure. 
That much is clear.  
…  
Korea truly believes that its authorities'  attitude in the underlying review is to be 
commanded [sic] if anything but not to be faulted in any case. Conversely, Korea 
respectfully warns the Panel against the destructive implication that would be triggered 
by rewarding the Japanese respondents for their blatantly unfaithful participation in the 
underlying review due to some room for improvement  that the Panel has apparently 
identified from the Korean authorities'  conduct of review.  
As an aside but relatedly,  Korea notes that Japan has made clear the premise on which 
it has launched this lawsuit: (i) explicitly, respondents to an anti -dumping investigation 
and review can cherry -pick the specific request from the authority that they will respond 
to, and (ii) im plicitly, the respondents can choose the manner in which they will respond 
to the specific request by the authority. Otherwise, this is a dispute that could have not 
been conceivably brought to this Panel.213 
2.146.   To recall, Korea had indicated earlier  in its filing that it would "demonstrate", in its comments 
regarding question No. 106214, the "unfaithful participation" by Japan in this dispute and how 
"Japan's  desperate attempts at minimizing the significance of such flaws by admitting the serious 
inconsistencies totally fails and even calls into question the good faith participation of Japan in this 
dispute". In turn, the above aspects of Korea's  comments on Japan's  response to Panel question 
No. 106 reveal the following points. Korea argued that Jap an's submissions concerning the Japanese 
exporters'  production capacity figures were intentionally "disingenuous", and that Japan had 
engaged in a "crafty repackaging of the chronology of the events", including with respect to 
"mistakes" by the Japanese ex porters that were "not inadvertent", i.e. deliberately misleading. Korea 
 
213 Korea 's comments on Japan 's response to Panel question No.  106, pp. 46-51. (emphasis original)  
214 Korea also mentioned question No. 101, which relates to export volumes and the issue of 
"general -versus -special" steel.  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  also argued that Japan had adopted an "opportunistic approach" that was inconsistent with the 
"proper decorum" of the present proceeding, including by making submissions on the "premi se that 
the Panel would give them something if they raise enough number of issues". Korea "warn[ed]" the 
Panel against rewarding the Japanese exporters "for their blatantly unfaithful participation in the 
underlying review", presumably by accepting Japan's  arguments regarding the Japanese 
exporters'  production capacity figures. Finally, Korea identified two questionable factors that formed 
the "premise" on which Japan "launched this lawsuit", contending that "[o]therwise, this is a dispute 
that could have n ot been conceivably brought to this Panel".215 
2.147.   In summary, in its comments on Japan's  responses to the Panel's  questions, Korea framed 
an overall argument that "call[ed] into question the good faith participation of Japan in this dispute" 
and desc ribed Japan's  "participation" in the dispute as quite possibly "unfaithful", including with 
respect to its production capacity claims. Within the rubric of that overall argument, Korea relied 
upon (a) the wilful misrepresentation by Japan during the procee dings of the evidence relating to 
the Japanese exporters'  production capacity figures; (b) the approach allegedly adopted by Japan 
of making a large volume of arguments so that the Panel might accept one of them; and (c) the 
questionable premise on which J apan allegedly initiated the present proceedings.  
2.148.   In the same filing, Korea also asserted – again in relation to production capacity – that 
"Japan submits several misleading and disingenuous arguments", that "Korea is genuinely troubled 
by Japan's  disingenuous arguments before this Panel", that a certain argument by Japan was 
"incredibly misleading", and that "Korea must express its concern because 
Japan's  misrepresentation of the facts does not seem to have been inadvertent".216 The only way to 
read these assertions by Korea is that they were meant to convey that Japan was deliberately 
misleading the Panel in relation to its production capacity claims. Given the similarities in the subject 
matter and the language used, it is apparent to the Panel t hat these remarks also fell within the 
rubric of Korea's  overall argument in which doubt was cast over Japan's  good faith participation in 
the present proceedings vis-à-vis production capacity.  
2.149.   In a separate filing, namely Korea's  comments on Japan 's responses to Korea's  questions, 
Korea made a number of remarks about Japan's  conduct in the proceedings vis-à-vis the Japanese 
exporters'  "various numerical allegations" (including the subject matter of Panel question No. 106 
concerning production capac ity) as follows:  
As a matter of primary importance , Korea underscores Japan's  disingenuous response 
in paragraphs 92 -93. It is one thing to describe a discrepancy as an "inadvertent 
mistake", but it is another to intentionally mislead the Panel, which unf ortunately has 
been a frequent approach by Japan in this dispute.  
… 
It was considered that most, if not all, of the Japanese respondents'  various numerical 
allegations were either unsubstantiated or inconsistent, or both. Japan provides various 
unsubstanti ated, self -serving allegations to justify the apparent inconsistencies, but 
despite the numerous speculations and convoluted misrepresentation of the facts , Japan 
always fails to properly explain the problems. In contrast, one simple answer that is 
apparen t from the record evidence is that the Japanese respondents'  numerical 
allegations were unfounded. This basic and straightforward answer must not be 
overlooked, as Japan's  blatant misrepresentation of the facts should not be rewarded in 
this dispute . 
Havin g said that, Korea's  Question 29 focuses on one iteration  (export volume data) of 
a fundamental problem in the review concerning the lack of participation and quality 
submissions by the Japanese respondents. Indeed, there was a general theme  in the 
review of the Japanese respondents only selectively participating and providing the 
requested data. In those instances where information was provided, there were several 
issues with the data, which also Japan confirms in its responses to Panel Questions 101 
 
215 Korea 's comments on Japan 's response to Panel question No.  106, pp. 46-51. 
216 Korea 's comments on Japan 's response to Panel question No.  92, pp. 12-13. WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  and 1 06. Japan's  suggestion that it concerned merely a few "miswritten figures" is not 
credible.217 
2.150.   Accordingly, Korea alleged that it was a "frequent approach by Japan in this dispute" to 
"intentionally mislead the Panel", which correlates to Korea's  overall argument calling into question 
Japan's  good faith participation in the dispute as described above. Moreover, Korea contended that 
"Japan's  blatant misrepresentation of the facts should not be rewarded in this dispute", which we 
understand to be a r equest to the Panel to refrain from "rewarding" Japan in this way.  
2.151.   We also note that, in its second written submission, Korea made a generalized iteration of 
its argument (described above) concerning the approach allegedly adopted by Japan of makin g a 
large volume of production capacity arguments so that the Panel might accept one of them, as 
follows:  
Korea finds it particularly troublesome that such an approach is apparently prevalent 
across many other claims and arguments that Japan is advancing  to the Panel in this 
dispute. Korea does not consider that this "kitchen sink" approach  of trying any 
argument that comes along is what the drafters had in mind when they provided that 
all Members are to engage in these procedures in good faith  in an effor t to resolve the 
dispute.218 
2.152.   As this extract demonstrates, Korea explicitly linked Japan's  alleged "kitchen sink" approach 
to the question of "engag[ing] in these procedures in good faith".  
2.153.   In short, the foregoing demonstrates that Korea called into question whether Japan was 
participating in good faith in the present dispute in relation to its production capacity claims. 
Specifically, Korea cast doubt over the premise on which Japan initiated the proceedings and 
suggested that Japan  had made deliberate misrepresentations and misleading statements to the 
Panel during the proceedings. Korea linked Japan's  engagement in the dispute to the Japanese 
exporters'  alleged "blatantly unfaithful participation" in the underlying review. Korea as ked the Panel 
to avoid rewarding such behaviour. Accordingly, the Panel understood Korea to argue that Japan 
was acting in bad faith in the present WTO proceedings in relation to its production capacity claims. 
This understanding, as reflected in paragraph s 7.168 -7.169 of the Interim Report, is derived from 
the plain text of Korea's  submissions during the proceedings. Korea asserts that this understanding 
is incorrect for a numbers of reasons, to which we now turn.  
2.154.   First, Korea contends that the fac t that it allegedly raised these issues "at the very end of 
the proceeding" shows that "this alleged argument was not an essential aspect of Korea's  case that 
would have warranted such a lengthy discussion" in the Interim Report.219 We agree that the timi ng 
of the submission of arguments and evidence can impact their admissibility under the Working 
Procedures and in light of principles of due process. However, neither party has raised any question 
as to the admissibility of Korea's  arguments in this regard .220 Moreover, it is inherent in the nature 
of these arguments – i.e. assertions as to the other party's  conduct during the proceedings – that 
they may emerge only as the proceedings unfold. Thus, the fact that Korea advanced these 
arguments at a late sta ge in the proceedings does not provide a basis for the Panel to decline to 
address them in the Report.  
2.155.   Second, Korea contends that it never used the term "bad faith" in relation to Japan .221 Korea 
notes that it did use the term "bad faith" on one occasion in relation to the Japanese  exporters , but 
in the unrelated context of general -versus -special steel.222 In our view, the term "bad faith" is the 
inverse of "good faith", and Korea expressly  "call[ed] into question the good faith participation of 
Japan in this dispute".223 Korea also used the term "unfaithful participation" in relation to Japan, 
 
217 Korea 's comments on Japan 's response to Korea 's question No. 29, pp. 61 and 64 . (emphasis added)  
218 Korea's  second written submission, para. 69. (emphasis added)  
219 Korea's  comments on the Interim Report, para. 145.  
220 Indeed, Japan requests that we address these arguments . (Japan's  comments on Korea's  comments 
on the Interim Report, para. 106).  
221 Korea's  comments on the Interim Report, para. 146.  
222 Korea's  comments on the Interim Report, paras. 146 -149. 
223 Korea 's comments on Japan 's response to Panel question No.  92, p. 16. WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  referring specifically to "the unfaithful participation … quite possibly, by Japan in this disput e".224 We 
note that the Interim Report uses the term "bad faith" to describe Korea's  allegations against Japan, 
but it does not use quotation marks or otherwise imply that Korea used this exact term. We consider 
"unfaithful participation" to be synonymous  with "acting in bad faith". We therefore see no reason 
to revise paragraphs 7.165 -7.173 of the Interim Report on this basis.  
2.156.   Third, Korea contends that the Interim Report is incorrect to assert that Korea argued that 
Japan acted in bad faith in " initiating" or "engaging" in the proceedings.225 Korea states that it "never 
made such an allegation and the Panel is unable to point to any such statement".226 Contrary to this 
assertion by Korea on "initiating", part of Korea's  "demonstrat[ion]" of dou bt over "the good faith 
participation of Japan in this dispute" concerned allegations regarding "premise" on which Japan 
"launched this lawsuit".227 Clearly, Korea's  allegations in this regard concerned Japan's  "initiation" 
of the proceedings. Additionall y, contrary to Korea's  assertion on "engaging", Korea expressly linked 
its allegation of Japan's  "kitchen sink" approach to doubts over whether such an approach accorded 
with the requirement "to engage  in these procedures in good faith in an effort to reso lve the 
dispute".228 Korea also described Japan's  arguments during the proceedings as "misleading", 
"disingenuous", "blatant misrepresentations", and stated that that it was a "frequent approach by 
Japan in this dispute" to "intentionally mislead the Pane l". Clearly, Korea's  allegations in this regard 
concerned Japan's  engagement in the proceedings.  
2.157.   Fourth, Korea contends that the remarks by Korea cited in the Interim Report were "focused 
on highlighting the uncooperative behaviour of the Japanese  exporters in general … their 
demonstrated submission of incorrect information on the key point of selling 'general purpose'  steel, 
and their confusing and changing version of the facts when it came to production capacity".229 
According to Korea, Japan ha d sought to "minimize" the nature of the mistakes and inaccuracies in 
the information provided by the Japanese exporters, and Korea was simply responding to Japan by 
pointing out that "it was unlikely that these inaccuracies were 'inadvertent'".230 Korea proceeds to 
assert that "[i]t was not Korea that argued that these inaccuracies were deliberate; rather, Korea 
was responding to Japan's  assertions about the alleged 'inadvertent'  nature of the mistakes".231  
2.158.   We are unconvinced by Korea's  attempt to distinguish between the concepts of "not 
inadvertent" and "deliberate". Moreover, we recall that Korea made the following remarks in relation 
to Japan's  production capacity claims (a) "Japan submits several misleading and disingenuous 
arguments"; (b) "K orea is genuinely troubled by Japan's  disingenuous arguments before this Panel"; 
and (c) "what Japan tries to argue based on such a non -issue is incredibly misleading".232 Korea 
followed these remarks with the broader suggestion that "[a]t this juncture, Korea must express its 
concern because Japan's  misrepresentation of the facts does not seem to have been inadvertent".233 
In our view, according to a plain reading of the text of these remarks by Korea, if Japan's  alleged 
misrepresentation of the facts wa s not inadvertent, then it was intentional. Our understanding of 
Korea's  argument in this regard was informed by Korea's  allegation that it was a "frequent approach 
by Japan in this dispute" to "intentionally mislead the Panel".234 In any event, contrary to what Korea 
now asserts, Korea explicitly contended that Japan was complicit in presenting the Japanese 
exporters'  so-called "not inadvertent" errors as "mistakes", contending that these "mistakes were 
not inadvertent, and the Panel should not be misled by Japan's  crafty repackaging of the chronology 
 
224 Korea 's comments on Japan 's response to Panel question "General Observations", p. 4 . 
225 Korea's  comments on the Interim Report, paras. 150 -151. 
226 Korea's  comments on the Interim Report, para. 150.  
227 See paras. 2.143 -2.148 above.  
228 Emphasis added. See also paras. 2.151 -2.152 above.  
229 Korea's  comments on the Interim Report, para. 157.  
230 Korea's  comments on the Interim Report, para. 157.  
231 Korea's  comments on the Interim Report, para. 157.  
232 Korea 's comments on Japan 's response to Panel question No.  92, pp. 12-13. 
233 Korea 's comments on Japan 's response to Panel question No.  92, p. 13. We also note that the same 
response by Korea conclud es by linking these remarks to its "good faith" argument, stating "[m] ore 
importantly, as demonstrated below, Japan 's desperate attempts at minimizing the significance of such flaws 
by admitting the serious inconsistencies totally fails and even calls into  question the good faith participation of 
Japan in this dispute ". (Ibid. p. 16).  
234 Korea 's comments on Japan 's response to Korea 's question No. 29, pp. 61 and 64 . WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  of the events".235 Korea made this remark as part of its "demonstrat[ion]" of why the "the good faith 
participation of Japan" was being "call[ed] into question" in this dispute.236  
2.159.   Korea now sugges ts that, rather than making a separate allegation of bad faith against 
Japan, it was (a) seeking to express "its frustration over this distortion of the facts and the willful 
[sic] shifting of the burden and re -characterization of the errors"237; (b) arti culating the "frustration 
on Korea's  side" about the "litigation technique of Japan" by which Japan sought to "blame the 
authorities for the errors committed by the Japanese exporters"238; (c) pointing "to a number of 
considerations that would have requir ed a bit more restraint on the side of Japan" because "Japan 
may have been sailing a bit too close [to the wind]"239; and (d) expressing its "frustration about 
Japan's  attempt at creating a critical confusion" and Japan's  "seriously misleading" and 
"disin genuous" presentation of certain facts.240 While Korea argued that Japan had engaged in a 
"disingenuous cover -up" during the proceedings, Korea now suggests that this is because "Japan 
attempted to rescue some serious discrepancies in the Japanese respond ents' responses by 
'packaging'  – or 'covering them up'  as 'inadvertent and minor mistake'".241 Rather than making a 
separate allegation of bad faith against Japan through these kinds of remarks, Korea now argues 
that it was instead "plac[ing] a question m ark around Japan's  strategy".242 Korea tells us that "[t]his 
question mark is not an argument or claim that Japan violated Article 3.10 of the DSU", but "is 
simply that, a question mark".243  
2.160.   In our view, if a party in WTO dispute settlement rais es a question before a panel over the 
good faith participation of the other party to the proceeding, it should expect to receive an answer. 
Korea should not now be surprised that, having called into question Japan's  "unfaithful participation" 
in the procee dings244, the Panel proceeded to review this allegation in its Interim Report. In any 
event, we reject Korea's  suggestion that it was merely "placing a question" as opposed to making 
an argument or claim for the Panel's  consideration. As we have recounted above, Korea's  remarks 
went significantly further than "placing a question". We therefore see no reason to revise 
paragraphs  7.165 -7.173 on the basis that Korea was merely "placing a question" as opposed to 
makin g a claim or argument about Japan's  participation in the present proceedings.  
2.161.   Korea also objects to the suggestion in paragraph 7.168 that Korea "characterized certain 
aspects of Japan's  case as a 'hoax'", and in paragraph 7.169 that Korea "is acti ng in a manner 
inconsistent with Article 3.10 of the DSU by allegedly advancing allegations of bad faith as part of 
an adversarial effort or litigation technique".245  
2.162.   On the first point, Korea contends that it never argued that Japan's  case was a  hoax nor that 
it was alleging bad faith on the part of Japan, but was instead referring to the Japanese 
exporters'  argument on general -versus -special steel as a hoax and suggesting that perhaps Japan 
"was being misled by the cunning lawyers for the respon dents".246 We have reviewed 
Korea's  argument and consider the statement in paragraph 7.168 that Korea "characterized certain 
aspects of Japan's  case as a 'hoax'" to be consistent with Korea's  explanation during the 
proceedings. In particular, Korea explai ned that it "made the qualification of the argument  as a 
'hoax'  and 'opportunistic', and it is Korea's  right to respond to the arguments  of Japan  by pointing 
to …".247 We therefore see no reason to revise that aspect of the Interim Report. Moreover, we ar e 
not convinced by Korea's  argument that this matter pertained to something "that Korea said verbally 
in the heat of the debate" and that it arose from the "oral exchange" and therefore did not warrant 
being addressed in the Interim Report.248 The allegat ion that the Japanese exporters had engaged 
 
235 Korea 's comments on Japan 's response to Panel question No.  106, p. 51. 
236 In particula r, it was part of Korea's  comments on Japan's  response to Panel question No. 106, which 
Korea described as part of its demonstration in this regard. ( Korea 's comments on Japan 's response to Panel 
question  "General Observations", p. 4 , and No. 92, p. 16).  
237 Korea's  comments on the Interim Report, para. 161.  
238 Korea's  comments on the Interim Report, paras. 162 and 163.  
239 Korea's  comments on the Interim Report, para. 163.  
240 Korea's  comments on the Interim Report, paras. 164 -166. 
241 Korea's  comments on  the Interim Report, paras. 168 -169. 
242 Korea's  comments on the Interim Report, para. 170.  
243 Korea's  comments on the Interim Report, para. 170.  
244 Korea 's comments on Japan 's response to Panel question  "General Observations", p. 4 . 
245 Korea's  comments on the Interim Report, para. 173.  
246 Korea's  comments on the Interim Report, paras. 174 -175 and 180.  
247 Korea's  response to Panel question No. 11. (emphasis added)  
248 Korea's  comments on the Interim Report, para. 174.  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  in a "hoax" being advanced by Japan (knowingly or otherwise) was significant and potentially 
far-reaching. A "hoax" connotes a deception or fraud. Korea now contends that this remark was 
made "in the heat of the debate". However, by asking question No. 11, the Panel afforded Korea the 
opportunity to clarify in writing what it had intended by the "hoax" allegation and how this allegation 
related to the KIA's  determination. For instance, in response to that question , Korea could have 
unambiguously withdrawn the remarks made by its legal counsel during the oral hearing that the 
Japanese exporters had engaged in a "hoax" that now formed part of Japan's  arguments. Korea did 
not avail itself of that opportunity. On the c ontrary, Korea stated that " Korea remains of the view 
that this argument on special versus general -purpose steel is a smokescreen and that there is no 
basis for considering the authorities'  rejection of this distinction for purposes of its likelihood analy sis 
to be unreasonable" and "[t]hat is why Korea qualified the argument as a 'hoax'".249 
2.163.   On the second point250, the passage in paragraph 7.169 about which Korea complains is 
simply a reflection of Korea's  explanation in its response to question No. 11 that:  
The Panel is called upon by Japan (in Japan's  defense, as led by the crafty lawyering of 
the Japanese respondents) to stand at the verge of accepting such a mistaken premise 
that has no basis whatsoever under any applicable industrial norm or  practice.  
Thus, Korea made the qualification of the argument as a "hoax" and "opportunistic", 
and it is Korea's  right to respond to the arguments of Japan by pointing to 
inconsistencies in the position of the Japanese respondents and a lack of evidence to  
support the conclusion that there was anything unreasonable or biased in the 
authorities'  rejection of similar arguments during the review.  On the flap side [sic] of 
coin, it is also Korea's  responsibility as a Member of the WTO to exert its best advocac y 
effort in this adversarial process to prevent the Panel from accepting a premise that is 
so unrealistic .251 
2.164.   Korea explained its "hoax" argument as being, at least in part, a reflection of its 
"responsibility as a Member of the WTO to exert its b est advocacy effort in this adversarial process". 
Paragraph 7.169 accurately quotes the relevant passages of Korea's  explanation in this regard, and 
expresses the view – in the abstract and in the conditional tense – that advancing allegations of bad 
faith as part of an adversarial "advocacy effort" or litigation technique would not accord with 
Article  3.10 of the DSU, nor would it assist in facilitating the fair, prompt, and effective resolution of 
the actual matter in dispute. Whilst Korea pointed to its "advocacy effort in this adversarial process" 
in the quotation extracted above, we note that Article 3.10 of the DSU recognises that "the use of 
the dispute settlement procedures should not be intended or considered as contentious  acts".252 We 
see no reas on to revise the aspect of paragraph 7.169 about which Korea now complains.  
2.165.   Korea also contends that paragraphs 7.165 -7.173 "mix artificially issues raised in an entirely 
different context, such as in respect of the discussion on 'special'  versus ' general -purpose'  steels 
with this issue on capacity utilization so as to build an alleged claim of bad faith".253 We note, 
however, that Korea explicitly mixed the "production capacity" issues with the 
"general -versus -special steel" issues in relation to the "unfaithful participation" of the Japanese 
exporters and of Japan, as follows (note that question 101 related to general -versus -special steel, 
and question 106 related to production capacity):  
Moreover, in its answers to the Panel's  questions, even Ja pan admits that there were 
inconsistencies in the reported production capacity and volume data  by the Japanese 
respondents. In response to Questions 101 and 106 , Japan acknowledges there were 
several errors in the Japanese respondents'  submissions. Japan c onfirms that the 
reported production capacity and volume data were not "correct", "accurate", or part of 
a "mistake". But as Korea will demonstrate below, Japan's  desperate attempts at 
rescuing the Japanese respondents'  unsubstantiated numerical allegation  from the 
fundamental errors that taint the very foundation of the allegation's  veracity only 
reveals the unfaithful participation by the Japanese respondents'  in the underlying 
 
249 Korea's  respo nse to Panel question No. 11.  
250 Korea's  comments on the Interim Report, paras. 181 -182. 
251 Korea's  response to Panel question No. 11. (emphasis added)  
252 Emphasis added.  
253 Korea's  comments on the Interim Report, para. 184.  WT/DS553/R/Add.1  
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  review, and quite possibly, by Japan in this dispute  (although Korea hates to say this). 
In addition, as Korea explained at the second substantive meeting, there were simply 
too many inconsistencies in the Japanese respondents'  unsubstantiated numerical 
allegations that it made no practical sense to pursue every single one of them ( although, 
as explained in Korea's  response to the Panel's  question, the Korean authorities 
nonetheless attempted to clarify them to the extent possible). This refutes, among 
others, Japan's  argument that the Korean authorities could, and should, have used the 
respondents'  data to extrapolate the countrywide production capacity number for Japan, 
as there were serious questions about that data's  affirmative, objective, verifiable, and 
credible nature.  
Indeed, most of the numerical allegations advanced by the Japanese respondents'  in 
the underlying review were unsubstantiated . In other words, whether it is the allegation 
that they exported [[ ***]] tons of "general -purpose" steel  in 2015 or that their 
production capacity (for either the "covered product only" or  "both the covered and 
excluded products", as they see fit) in 2015 was [[ ***]] tons , for example, neither of 
these numbers were based on evidence, and both of these numbers were inconsistent 
with relevant numbers otherwise submitted by the Japanese respondents.  
Korea recalls that even Japan does not dispute that the Japanese respondents refused 
to participate in the dumping proceeding. Indeed, the Japanese respondents failed to 
provide information about the domestic sales and cost of product ion, rendering it 
impossible to calculate any sort of normal value. Tellingly, Japan's  only defense is that 
their respondents are entitled to cherry -pick the specific aspects of the proceeding that 
they intend to cooperate with. Be that as it may, but they  must then also accept that 
this approach may have consequences in terms of the information that is available to 
the authorities. By comparison, what is the difference between the Japanese 
respondents'  fatal refusal to provide data for their domestic sales  and cost of production 
in the dumping proceeding, on the one hand, and their unilateral allegation that they 
had exported [[ ***]] tons of "general -purpose" steel in 2015 or that their production 
capacity in 2015 was [[ ***]] tons in the injury proceeding ?254 
2.166.   As another example, Korea argued in its comments on one of Japan's  responses:  
Japan unavailingly tries to rescue the Japanese respondents'  chronological responses 
from the various discrepancies prevalent therein. But, despite how it packages t he 
discrepancies, Japan is essentially forced to admit the discrepancies. Japan attempts to 
package the discrepancies as a mere "inadvertent mistake". Even assuming arguendo  
that they are, that does not change the fact that discrepancies were prevalent acr oss 
the responses by the Japanese respondents. Korea reiterates that similar 
inconsistencies were prevalent across almost all of the Japanese respondents'  responses 
in the review. Simply put, the Japanese respondents'  responses on a variety of topics 
were fatally inconsistent and unreliable, such that it was impractical, if not impossible, 
for the Korean authorities to chase after every single discrepancy . However, the 
authorities still tried their best to obtain clarifications on such discrepancies, all to  no 
avail from the unwilling respondents.  
As a matter of primary importance, Korea underscores Japan's  disingenuous response 
in paragraphs 92 -93. It is one thing to describe a discrepancy as an "inadvertent 
mistake", but it is another to intentionally misl ead the Panel, which unfortunately has 
been a frequent approach by Japan in this dispute .  
… 
Korea is prepared to do this exercise all day long, until Japan is completely cornered 
and forced to give up every effort to post hoc justify any of the prevalent discrepancies 
included in the Japanese respondents'  numerical allegations. Korea is more than 
confident that its authorities thoroughly examined and understood the inherent 
inconsistencies prevalent across the Japanese respondents'  numerical allegations. I t 
 
254 Korea 's comments on Jap an's response to Panel question "General Observations", pp. 4-5. 
(italics  original; underlining added; fns omitted)  WT/DS553/R/Add.1  
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  was considered that most, if not all, of the Japanese respondents'  various numerical 
allegations were either unsubstantiated or inconsistent, or both.  Japan provides various 
unsubstantiated, self -serving allegations to justify the apparent inconsistencie s, but 
despite the numerous speculations and convoluted misrepresentation of the facts,  Japan 
always fails to properly explain the problems. In contrast, one simple answer that is 
apparent from the record evidence is that the Japanese respondents'  numerica l 
allegations were unfounded. This basic and straightforward answer must not be 
overlooked, as Japan's  blatant misrepresentation of the facts should not be rewarded in 
this dispute . 
Having said that, Korea's  Question 29 focuses on one iteration (export volume data) of 
a fundamental problem in the review concerning the lack of participation and quality 
submissions by the Japanese respondents. Indeed, there was a general theme in the 
review of the Japanese respondents only selectively participating and providing the 
requested data. In those instances where information was provided, there were several 
issues with the data, which also Japan confirms in its responses to Panel Questions 101 
and 106.  Japan's  suggestion that it concerned merely a few "miswritten figures" is not 
credible.255 
2.167.   Similarly, Korea submitted to the Panel that:  
With frustration, Korea would like to remind the Panel that there can be no question 
whatsoever that  the Japanese respondents'  participation in the underlying review, in 
general, was selective, far from being complete, result -oriented, and mostly 
unsubstantiated  (in line with their tradition in all of the previous SSB anti -dumping 
investigation and revie ws).  The inconsistent nature  of the Japanese 
respondents'  argument was perhaps the second most prevalent feature in the Japanese 
respondents'  responses, topped only by the unsubstantiated nature  of the Japanese 
respondents'  arguments.  Simply put, most of  the Japanese respondents'  arguments 
were either unsubstantiated or internally inconsistent  – it was not the other way around 
as the Panel seems to wrongly postulate.  Korea had hoped that the Panel would have 
started to appreciate this general approach of  the Japanese respondents from the 
discussion we had on the artificial distinction between the  "special" and 
"general -purpose" steels for example .  The Japanese respondents'  evasive responses  to 
the Korean authorities'  continued instructions on the product ion capacity data  was 
another example of this tactic.256 
2.168.   As the foregoing extracts demonstrate, Korea's  "unfaithful participation" argument was 
based on the assertion that the Japanese exporters submitted voluminous unsubstantiated and 
inconsisten t numerical allegations, including those related to production capacity and 
"general -versus -special" steel, and Japan was now endorsing and advocating these numerical 
allegations as part of its own case. Korea's  argument in this regard certainly applied wi th respect to 
production capacity specifically.257 But it was also broader, cutting across and drawing upon a 
number of facets of the dispute. This included the "general -versus -special" steel issue. We see no 
reason to revise paragraphs 7.165 -7.173 on the  basis that they artificially mix issues that arose in 
a different context, such as the "general -versus -special" steel context, nor on the basis that 
Korea's  comments regarding "bad faith" were limited to the "general -versus -special" steel context.  
2.169.   We turn now to the specific arguments made by Korea in respect of the Japanese exporters 
– as distinct from those in respect of Japan itself – in its request to revise paragraphs 7.165 -7.173. 
Korea argues that it is " both erroneous and inutile" for the Pa nel to make the finding at 
paragraph  7.167 that "Korea has not demonstrated that the KIA found that the Japanese exporters 
acted in bad faith in the underlying review".258 Korea contends that it "did not argue that the KIA 
made a finding of bad faith or d rew adverse inferences from any failure to cooperate or provide 
accurate information".259 However, regardless of what the KIA found, Korea explicitly asked the 
Panel to avoid an outcome in the present dispute that would "reward" the Japanese 
 
255 Korea's  comments on Japan's  response to Korea's  question No. 29, pp. 61 and 64. (emphasis added)  
256 Korea 's response to Panel question No. 102, para. 182 . (emphasis added)  
257 Korea 's comments on Japan 's response to Panel question No.  92, p.  16. 
258 Korea's  comments on the Interim Report, para. 154.  
259 Korea's  comments on the Interim Report, para. 154.  WT/DS553/R/Add.1  
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  exporters'  "blatantly unfaithful participation" in the underlying review.260 Thus, Korea asked us to 
take account of this alleged "unfaithful participation" when making a finding on whether the 
KIA's production capacity determination was inconsistent with Article 11.3  of the Anti -Dumping 
Agreement. Korea now explains to us that "Korea was not saying that the KIA drew adverse 
inferences from alleged bad faith, but rather Korea was providing context for the findings of the KIA 
which identified inaccuracies in the informa tion provided".261 As Korea now explains it, the function 
of this "context" of "unfaithful participation" is that it "reveals that the authorities were right not to 
just rely on this inaccurate information".262 However, we cannot now uphold the KIA's  determination 
on the basis of a rationale that is different to that adopted by the KIA. To so do would be to engage 
in impermissible ex post reasoning. This is the essence of paragraph 7.167 of the Interim Report, 
and we see no compelling reason to revise it. Rather, Korea's  arguments in its interim review request 
confirm that the Interim Report reached the correct conclusion in (a) the unders tanding that Korea 
was requesting us to take account of the Japanese exporters'  alleged "unfaithful participation" to 
reject Japan's  claim and uphold the KIA's  determination on production capacity; and (b) in 
concluding that the KIA did not, however, base its determination on any findings related to the 
"unfaithful participation" of the Japanese exporters.  
2.170.   Further, Korea contends that, contrary to the approach of paragraph 7.172 of the 
Interim  Report, the USITC report "directly confirms  the very dis ingenuous nature of the Japanese 
respondents'  participation in the third sunset review, which should at least bear some relevance in 
the Panel's  factual findings about the KIA's  scrutiny in respect of its examination of the Japanese 
respondents'  production  capacity calculation".263 However, Korea relitigates matters that are already 
addressed in paragraphs 7.170 -7.172 and offers no compelling reason to make a revision.264 
Moreover, Korea again asks us to take into account the "very disingenuous nature" of  the Japanese 
exporters'  behaviour in the third sunset review in order to reject Japan's  claims and uphold the 
KIA's determination, but we again reiterate that we cannot substitute the KIA's  rationale for a new 
and different rationale, particularly as Kore a explicitly accepts that the KIA never made any findings 
on, or drew any inferences from, the alleged "unfaithful participation" of the Japanese exporters.  
2.171.   In conclusion, Korea offers no compelling reason to make any revisions to 
paragraphs  7.165 -7.173 of the Interim Report, and we therefore decline Korea's  request.  
2.38  Paragraph 7.174  
2.172.   Korea requests the Panel to reconsider paragraph 7.174 of the Interim Report in light of 
two factors: (a) Viraj was a fully -cooperating Indian respondent  and the KIA nonetheless used 
ISSF data for India's  production capacity, which shows that the ISSF data was always the starting 
point for the KIA; and (b) the pre -hearing November 2016 interim report of the KIA explicitly stated 
that the KIA would use the ISSF data, and also conveyed the product scope of that data, which 
shows that the Japanese exporters were duly informed of the fact that the KIA was using a parameter 
encompassing not just the covered products but also the excluded products and more.265 Japan 
objects to Korea's  request, contending that Korea's  argument on the pre -hearing interim report 
mischaracterizes what that document actually conveyed to the Japanese exporters.266 
2.173.   We have decided not to grant Korea's  request. The argument rela ting to the pre -hearing 
interim report is a new argument by Korea.267 We are unable test the evidence on the pre -hearing 
interim report with the parties, which is salient given that the Japanese exporters contested the 
pre-hearing interim report as defect ive for failing to account for their submissions.268 It is unclear to 
us what this document represents and whether it was, in fact, defective. In any event, 
Korea's  argument that this document conveyed the KIA's  preferred parameters of the product scope 
 
260 Korea 's comments on Ja pan's response to Panel question No. 106, pp. 50 -51. 
261 Korea's  comments on the Interim Report, para. 158.  
262 Korea's  comments on the Interim Report, para. 161.  
263 Korea's  comments on the Interim Report, para. 187. (emphasis original)  
264 Korea's  commen ts on the Interim Report, paras. 185 -187. 
265 Korea's  comments on the Interim Report, paras. 190 -196. 
266 Japan's  comments on Korea's  comments on the Interim Report, paras. 112 -114. 
267 This is the first instance, as far as the Panel is aware, in which Kor ea was relied upon the 
KIA's pre-hearing interim report as a vehicle for conveying the relevant production capacity parameters to the 
Japanese exporters. Specifically, it is omitted from Korea's  arguments and chronology in the following: 
Korea's  responses to Panel question Nos. 50(a) and 92; and second written submission, para. 211.  
268 Japanese exporters ' post-hearing opinion, (Exhibit JPN -16.b (BCI)) , pp. 10 -11. WT/DS553/R/Add.1  
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  for production capacity is deficient for the same reasons as outlined in paragraph 7.156 of the 
Interim Report. Korea has offered no compelling reason to revise the Interim Report on this basis.  
2.174.   Additionally, Korea has not demonstrated why the posit ion of Viraj – which was an Indian 
exporter – is relevant to the present dispute. Korea has not drawn the Panel's  attention to any record 
evidence concerning what the KIA conveyed to Viraj, nor how Viraj responded. Moreover, according 
to the ISSF statistic s submitted by Korea, Viraj represented only a fraction of India's  overall 
production capacity for stainless steel bars and sections, which stands in contrast to the Japanese 
exporters'  [[***]] share of Japan's  production capacity in the ISSF data. Korea h as offered no 
compelling reason to revise the Interim Report on the basis of the position of Viraj.  
2.39  Paragraph 7.189  
2.175.   Korea requests the Panel to reflect, in paragraph 7.189 of the Interim Report, the fact that 
the ISSF data was used in the second sunset review without any objection by the interested parties, 
and thus constituted the starting point for the third sunset review.269 Japan opposes Korea's  request, 
contending that the key issue is what information was requested in the third sunse t review.270 
2.176.   We have decided not to grant Korea's  request. The fact that the ISSF data was used in the 
second sunset review does not obviate the fact that, in the third sunset review, the KIA requested 
the Japanese exporters to provide production capacity data for "the product under investigation" in 
its initial questionnaire (the 3  June 2016 dumping questionnaire).  
2.40  Paragraph 7.190  
2.177.   Korea requests the Panel to reconsider placing relevance, in paragraph 7.190 of the 
Interim  Report, on the fact that the Japanese exporters comprised [[ ***]] of the ISSF's  Japan -wide 
production capacity data.271 Korea also requests the Panel to reconsider its reference to a KIA 
Commissioner describing the Japanese exporters'  production capacity data as "necessary" and to 
Korea's  remark in its first written submission that this data was "necessary".272 Japan objects to 
Korea's  requests, arguing that Korea is inappropriately seeking to change the starting point of the 
discussion, and that the reference to  the KIA Commissioner's  comment indicates that the requested 
information was important and necessary to ascertaining Japan's  production capacity.273 
2.178.   We have decided not to grant Korea's  requests. First, the fact that the Japanese exporters 
compris ed [[ ***]] of the ISSF production capacity data shows that the distinction between 
countrywide and exporter -specific data is largely irrelevant in the present case. Additionally, 
paragraphs 7.187 -7.191 of the Interim Report sufficiently examine whether the  ISSF data was the 
true starting point for the KIA's  investigation. Second, the materials about which Korea now 
complains, in which the Japanese exporters'  production capacity data is described as "necessary", 
further indicate the indispensable character o f the Japanese exporters'  data in the eyes of the KIA. 
Korea advances no compelling reason to make any revisions in that regard.  
2.41  Paragraph 7.192  
2.179.   Korea requests the Panel to quote a slightly different aspect of its case when describing its 
argument in paragraph 7.192 of the Interim Report.274 Japan makes no comment on Korea's  request. 
We have decided to grant Korea's  request, particularly since it has no impact on the resolution of 
the dispute.  
 
269 Korea's  comments on the Interim Report, para. 201.  
270 Japan's  comments on Korea's  comment s on the Interim Report, para. 116.  
271 Korea's  comments on the Interim Report, paras. 203 -206. 
272 Korea's  comments on the Interim Report, paras. 207 -208. 
273 Japan's  comments on Korea's  comments on the Interim Report, paras. 117 -120. 
274 Korea's  comments on the Interim Report, para. 212.  WT/DS553/R/Add.1  
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  2.42  Paragraph 7.195  
2.180.   Korea requests th e Panel to include a lengthy recitation of its arguments in 
paragraph  7.195.275 We have decided not to grant Korea's  request because, in the absence of any 
other consideration, Korea's  arguments will already be captured in its executive summary.  
2.43  Paragraph 7.203  
2.181.   Korea requests the Panel provide a full summary of Korea's  position in paragraph 7.203 in 
similar detail to the description of Japan's  position in paragraphs 7.201 -7.202.276 Korea argues that 
the Panel fails to give due regard to Kore a's position presently by collapsing Korea's  rebuttal 
arguments into the statement that "Korea rejects Japan's  argument".277 Japan objects to 
Korea's  request, arguing that the Panel's  summarization of Korea's  argument is accurate and 
sufficient.278  
2.182.  We have decided to not to grant Korea's  request. Korea requests the Panel to set out in 
detail its rebuttal arguments in the introduction to section 7.6. The present section 7.6.1, entitled 
"[i]ntroduction and legal standard", is intended to provide a brief review of the applicable provisions 
of the Anti -Dumping Agreement, along with a roadmap for the Panel's  analysis in the subsequent 
sections pertaining to each of the main points of contention. As Japan is the complainant in this 
dispute, the nature a nd substance of its claims necessarily informs the manner in which the Panel 
considers it appropriate to structure its analysis, as set out in the introduction. Korea's  rebuttal 
arguments are examined in detail in the subsequent analysis and Korea has offe red no compelling 
reason to additionally include a lengthy recital of its rebuttal arguments in the introduction. In any 
event, Korea's  rebuttal arguments will already be captured in its executive summary.  
2.44  Paragraph 7.204  
2.183.   Korea requests that the Panel delete or revise the third and fourth sentences of 
paragraph  7.204. Korea argues that these sentences do not properly reflect its argument because 
"Korea did not agree with Japan on anything and … did not just say that producers are not required 
to provide explicit reasons to establish good cause".279 Japan objects to Korea's  request, arguing 
that the Panel's  summarization of Korea's  argument is accurate and sufficient.280 Japan notes, 
moreover, that Korea's  own summary will be included in its e xecutive summary.281 
2.184.   We have decided not to grant Korea's  request. Korea states that its first written submission 
does not specifically "agree with Japan" nor specifically argue that "explicit reasons" are not required. 
We nonetheless consider the summary of Korea's  position in the Interim Report to be accurate. First, 
Korea has not called into question Japan's  assertion that the documents at issue do not contain any 
explicit reference to good cause. Accordingly, Korea did not dispute t his point during the 
proceedings. Second, Korea responds to Japan's  argument that there was no express showing of 
good cause by arguing that the submission of redacted documents "implicitly asserts" good cause, 
and that this was sufficient for the purpose of Article 6.5.282 Accordingly, paragraph 7.204 correctly 
characterizes Korea's  argument as being "that the applicants were not required to provide explicit 
reasons to establish good cause".283 Additionally, Korea's  rebuttal arguments will be captured in  its 
executive summary.  
 
275 Korea's  comments on the Interim Report, para. 213.  
276 Korea's  comments on the Interim Report, para. 21 8 (referring to K orea's  second written submission, 
paras. 288 -290). 
277 Korea's  comments on the Interim Report, para. 21 8 (referring to Korea's  second written submission, 
paras. 288 -290). 
278 Japan's  comments on Korea's  comments on the Interim Report, para. 125. 
279 Korea' s comments on the Interim Report, para. 21 9 (referring to Korea's  first written submission, 
paras. 421 -422). 
280 Japan's  comments on Korea's  comments on the Interim Report, para. 126. 
281 Japan's  comments on Korea's  comments on the Interim Report, para. 126. 
282 Korea 's first written submission, para. 422 . 
283 Interim Report, para. 7.204.  WT/DS553/R/Add.1  
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  2.45  Paragraph 7.206  
2.185.   Japan requests the Panel to delete the second and third sentences of paragraph 7.206284, 
because "[a]s found by the Appellate Body in the EC – Fasteners  (China)  case, for the investigating 
authority to objectively assess whether there had been 'good cause shown'  under Article 6.5 … it is 
logically required to scrutinize the showing of good cause by the party seeking confidential treatment 
of information".285 Japan additionally requests that footnote 628 (now footnote 626 in the 
Final Report) be condensed and incorporated into the body of the text at the end of paragraph 7.206 
for consistency between the understanding of the Panel and that of the Appellate Body.286 
2.186.   Korea objects to Japan's  request, arguing that there is no basis for the proposed deletion of 
the second sentence of paragraph 7.206, which contains a direct quote from Japan's  argument.287 
Korea further argues that there is no basis for the de letion of the second sentence of 
paragraph  7.206.288 Korea additionally argues that footnote 628 clarifies the relationship between 
the Panel's  analysis and the Appellate Body Report in Korea  – Pneumatic  Valves  (Japan) .289 
2.187.   We have decided not to grant Japan's  request to delete the second and third sentences of 
paragraph 7.206. Japan proposes to delete a sentence directly quoting its own argument, as well as 
the following sentence stating the Panel's  disagreement with Japan's  argument. The quotatio n of 
Japan's  argument, however, is verbatim and thus clearly accurate, as is our description of our 
approach to that argument.290 We have also decided not to grant Japan's  request to integrate part 
of footnote 628 into the text of paragraph 7.206. Japan h as not provided any compelling reason to 
make such a revision. Moreover, the present footnote more effectively clarifies the relationship 
between the Appellate Body's  findings in Korea  – Pneumatic  Valves  (Japan)  and the findings in the 
present case.  
2.46  Paragraph 7.211  
2.188.   Korea requests the Panel to revise the following sentence in paragraph 7.211 of the 
Interim  Report: "Korea argues that Korean officials should be assumed to have checked whether the 
redacted information in the documents fell into t he categories of the Enforcement Rule, and to have 
thus discharged the requirement for good cause in Article 6.5."291 Korea requests this be revised as 
follows: "Korea argues that Korean officials are bound to follow the law and that they complied with 
the law by 'checking'  whether certain information fall within any enumerated category specified by 
Article 15 of the Enforcement Rules."292 Korea submits that this revision should be made because 
the present summary of its argument in paragraph 7.211 is not  accurate as Korea did not state that 
"Korean officials should be assumed to have checked".293 
2.189.   Japan objects to Korea's  request, arguing that the Panel's  summarization of 
Korea's  argument is accurate and sufficient.294 Japan continues that panels  do not need to follow 
the specific language used by the parties.295 Japan notes, moreover, that Korea's  own summary will 
be included as an annex.296 
2.190.   We have decided not to grant Korea's  request. The fourth sentence of paragraph 7.211 
provides an accurate summary of Korea's  argument. Korea argues that the KIA should be assumed 
to have checked for good cause. In turn, the reason underlying Korea' s argument in this regard – 
i.e. because the KIA officers "are bound to follow the law" – is identified in the second sentence of 
 
284 Japan's  comments on the Interim Report, para. 2 8. 
285 Japan's  comments on the Interim Report, para. 2 8 (referring to Appellate Body Report, Korea – 
Pneumatic Valves (Japan) , para. 5.411) . 
286 Japan's  comments on the Interim Report, para. 31. 
287 Korea's  comments on Japan's  comments on the Interim Report, p. 25. 
288 Korea's  comments on Japan's  comments on the Interim Report, p. 25. 
289 Korea's  comments on Japan's  comments on the Interim Report, p. 25. 
290 Interim Report, para. 7.206; Japan 's first written submission, para. 332 . 
291 Korea's  comments on the Interim Report, para. 2 20. 
292 Korea's  comments on the Interim Report, para. 2 20. 
293 Korea's  comments on the Interim Report, para. 2 20 (referring to Korea's  first written submission, 
para. 426).  
294 Japan's  comments on Korea's  comments on the Interim Report, para. 127. 
295 Japan's  comments on Korea's  comments on the Interim Report, para. 127. 
296 Japan's  comments on Korea's  comments on the Interim Report, para. 128. WT/DS553/R/Add.1  
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  paragraph 7.215 of the Interim Report ("Korea argues that the Panel should presume the KIA 
investigators acted in compliance w ith domestic laws, and thus that good cause was properly shown 
in accordance with Article 6.5"). Korea has not objected to the characterization of its case in 
paragraph 7.215. We see no reason to expand upon the summary of Korea's  argument in 
paragraph  7.211, but we have made a revision to clarify that the Panel is not directly quoting 
Korea's  submissions in paragraph 7.211.  
2.47  Paragraph 7.217  
2.191.   Korea requests the Panel to include a reference to Korea's  argument that "merely because 
certain informa tion is publicly available does not necessarily mean that there is no good cause for 
non-disclosure of such information", especially in relation to third party intellectual property 
rights.297 Japan objects to Korea's  request, arguing that Korea's  reference to third party intellectual 
property rights is being presented at the interim report stage for the first time, and thus should not 
be taken into account by the Panel.298 
2.192.   We have dec ided to decline Korea's  request. This request concerns Korea's  argument that, 
while certain information was "public", "good cause" was nonetheless shown for treating it as 
confidential because it was subject to a third party's  intellectual property rights.299 
Korea's  arguments on this point are already addressed in paragraph 7.217 of the Interim Report. In 
particular, we have already found in paragraph 7.217 that Korea failed to support these arguments 
with sufficient evidence. Korea does not provide any p ersuasive reason to make the requested 
revision.  
2.48  Paragraph 7.219 and footnote 656  
2.193.   Korea requests the Panel to remove the finding in footnote 656 (now footnote 654 in the 
Final Report) that: "[w]e consider that Korea clearly conceded that Nos.  78-79, 81, 83, and 95 -97 
are public information."300 Korea argues that its position did not amount to a concession that certain 
information was public.301 Korea further requests the Panel remove the finding in relation to items 
Nos. 78 -79, 81, 83, and 9 5-97 of Exhibit KOR -35 that Korea: "tacitly conceded that these items had 
'already been made public'".302 
2.194.   Japan objects to Korea's  request, arguing that the Panel's  summarization of 
Korea's  argument is accurate and sufficient.303 Japan continues that panels do not need to follow 
the specific language used by the parties.304 
2.195.   We have decided to decline Korea's  requests. In footnote 656, the Panel analysed 
Korea's  statements in relation to whether items Nos. 78 -79, 81, 83, and 95 -97 were pub lic and 
concluded that "Korea clearly conceded that Nos. 78 -79, 81, 83, and 95 -97 are public information". 
By quoting Korea's  statement that these items had "already been made public", and that Japan 
"already has full access to the information", footnote 6 56 of the Interim Report shows that Korea 
clearly did make a concession that the relevant information was public.305 Footnote 656 also 
addresses Korea's  subsequent attempts to provide an alternative explanation, and concludes that 
"Korea's  later attempts to clarify the meaning of 'publicly available'  were incomplete and 
unsupported by evidence".306 While Korea disagrees with the Panel's  finding, it offers no compelling 
reason to revise footnote 656. For the same reasons we do not consider Korea to have of fered any 
compelling reason to revise paragraph 7.219.  
 
297 Korea's  comments on the Interim Report, para. 2 21. 
298 Japan's  comments on Korea's  comments on the Interim Report, para. 130. 
299 Korea 's response to Japan 's Article 6.5.1 allegations, (Exhibit KOR -35), Nos. 10, 15 -16, 19, 40, 
and 44-45. 
300 Korea's  comments on the Interim Report, para. 2 21. 
301 Korea's  comments on the Interim Report, para s. 221-222. 
302 Korea's  comments on the Interim Report, para s. 221-222. 
303 Japan's  comments on Korea's  comments on the Interim Report, para. 131. 
304 Japan's  comments on Korea's  comments on the Interim Report, para. 131. 
305 Interim Report, fn 656 (referring to Korea 's response to Japan 's Article 6.5.1 allegations, 
(Exhibit  KOR-35), Nos. 7 8, 83, and 95 -97). 
306 Interim Report, fn 656 (referring to Korea 's response to Panel question No. 108, para. 231 ). WT/DS553/R/Add.1  
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  2.49  Paragraph 7.221  
2.196.   Korea requests the Panel to provide specific findings in relation to four different groupings 
identified by Korea of the 102 items of information challenged by Japan.307 Korea also argues that 
the Panel's  finding that "the fact of the existence of the aforementioned system of checking does 
not, in and of itself, provide a sufficient rebuttal to Japan's  claims" puts the burden of proof onto 
Korea.308 Additionally, Korea co nsiders that there is no basis for a finding that there were "manifest 
inadequacies" in certain individual items as the individual items challenged by Japan "are left largely 
unaddressed in the Panel's  interim report".309 Finally, Korea argues that it did  not simply rely on the 
KIA's system to defend the confidential treatment, but also "for each of such instance, how under 
such system the KIA has complied with Article 6.5 of the Anti -Dumping Agreement by confirming 
the 'good cause shown'  by the submitter of the information".310 
2.197.   Japan objects to Korea's  request, arguing that Korea's  claim that the Panel shifts the burden 
of proof mischaracterizes the Panel's  finding.311 
2.198.   We have decided to decline Korea's  request. First, the Panel's  finding  does not unduly shift 
the burden of proof onto Korea. The analysis rather concludes that Korea's  explanation of the 
KIA's system in this particular case is an ineffective rebuttal to Japan's  claims because of the 
"manifest inadequacies" identified in the KIA's treatment of the confidential information.312 Japan 
still bore the onus of proving its case. In particular, paragraphs 7.215 and 7.216 of the 
Interim  Report already describe how Japan set out to prove its case, and paragraph 7.221 concludes 
that Jap an did indeed establish its case in this regard.313 We therefore see no reason to revise 
paragraph  7.221 of the Interim Report on the basis of an undue shifting of the burden of proof onto 
Korea.  
2.199.   Second, the basis for the finding of "manifest inad equacies" is clearly found in the preceding 
four paragraphs, which analyse in detail a substantial number of cases that indicate that the KIA 
failed to adequately check the redacted information (paragraph 7.217 addressing items 
nos. 10, 15-16, 19, 40, and 44 -45; paragraph 7.218 addressing items nos. 14, 46, and 65; and 
paragraph 7.219 addressing nos. 78 -79, 81, 83, and 95 -97). Korea has not demonstrated that a 
revision to paragraph 7.221 is warranted on this basis.  
2.200.   Third, Korea did rely on the KIA's  system to defend the KIA's  treatment of the challenged 
items of information as confidential, and Korea's  item-specific "grounds for redaction" did not 
comprise a separate rebuttal in this regard. As there is no record information concerning the 
KIA's actual reasoning for according confidential treatment to each individual item challenged by 
Japan, the item -specific "grounds for redaction" provided by Korea during the proceedings are 
necessarily imputed to be the grounds that the KIA would have ide ntified through its system of 
checking. Accordingly, and contrary to the argument that Korea now seems to make, there is no 
basis for treating the item -specific "grounds for redaction" provided by Korea as a separate rebuttal 
vis-à-vis the existence and op eration of the KIA's  system of checking. To find the contrary – that is, 
to treat Korea's  item-specific "grounds for redaction" as a separate rebuttal – would lead to the 
acceptance of impermissible ex post reasoning. This is because of the absence of reco rd evidence 
that the item -specific "grounds for redaction" now provided by Korea in these proceedings were 
indeed the grounds that the KIA actually relied upon in the underlying review (that is, separate from 
its system of checking whether there is "good c ause" vis-à-vis the categories in the 
Enforcement  Rule). Accordingly, we see no reason to revise paragraph 7.221 on the basis that 
Korea's  item-specific "grounds for redaction" comprised a separate rebuttal to its reliance on the 
KIA's system of checking.  
 
307 Korea's  comments on the Interim Report, para s. 223-225. 
308 Korea's  comments on the Interi m Report, para. 2 23. 
309 Korea's  comments on the Interim Report, para. 2 24. 
310 Korea's  comments on the Interim Report, para. 2 23. 
311 Japan's  comments on Korea's  comments on the Interim Report, para. 132. 
312 Interim Report, para. 7.221.  
313 Interim Repor t, para. 7.221.  WT/DS553/R/Add.1  
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  2.50  Paragraph 7.222  
2.201.   Japan requests the Panel to delete the last sentence of paragraph 7.222 of the 
Interim  Report, which states: "[r]ather, we see merit in the general approach adopted by the KIA 
to protecting confidential information". Japan arg ues that the last sentence should be deleted 
because the Panel, having clarified that its findings were limited, does not need to "go further and 
make such a broad comment about Korea's  'general approach'".314 
2.202.   Japan requests alternatively that we replace the last sentence of paragraph 7.222 with the 
following language: "[r]ather, we see merit in Korea's  allegation that an 'implicit assertion'  of good 
cause may be allowed for certain information depending on the circumstances of the case as 
describe d above". Japan proposes alternative language "to avoid the overly broad implications" of 
the present language if the Panel is unwilling to simply delete the last sentence.315 
2.203.   Korea objects to Japan's  request, arguing that the "Panel is entitled t o find merit in the 
general approach adopted by the KIA to protecting confidential information based on an 
'Enforcement Rule'".316 Korea further argues that the proposed alternative language should also be 
rejected on the basis that it distorts the Panel' s findings, which was not confined to "certain 
information and instances".317 
2.204.   We have decided to decline Japan's  request to delete the last sentence of paragraph 7.222. 
In view of the nature of Japan's  claims and Korea's  rebuttal, we consider it i mportant to clarify that 
our findings under Article 6.5 of the Anti -Dumping Agreement should not be understood as casting 
doubt over whether the general approach adopted by the KIA to protecting confidential information 
is capable of operating in a manner consistently with Article 6.5.  
2.205.   We further decline to replace the last sentence of paragraph 7.222 with Japan's  proposed 
alternative language because this alternative language is inaccurate. Neither Korea nor the Panel 
gave consideration to whether an "implicit assertion" of good cause would be limited to "certain 
information".  
2.51  Paragraphs 7.229 and 7.230  
2.206.   Japan requests extensive additions to paragraphs 7.229 -7.230 to convey that the 
cumulation -based assessment was not alone capable of s upporting the KIA's  overall 
likelihood -of-injury determination. While Japan does not disagree with the Panel's  finding, it argues 
that its proposed revisions are necessary to provide sufficient factual findings for the Appellate Body 
to complete the legal analysis if the Panel's  decision to exercise judicial economy over the issue of 
cumulative assessment is overturned on appeal.318 Japan specifically raises a concern that Korea 
may argue in later proceedings or on appeal that the KIA's  ultimate conclusion  was not exclusively 
based on the Japan -specific analysis, and that the KIA's  cumulative assessment provides a 
standalone basis for upholding the KIA's  ultimate conclusion.319 
2.207.   Japan also suggests that the Panel complete the analysis because "the P anel already found 
in essence that Japanese imports cannot be assumed to interact or compete with the domestic like 
products in the Korean market" and thus that "the Panel can easily find that the use of cumulative 
assessment lacks a sufficient factual bas is and that there is no unbiased and objective determination 
under Article 11.3".320 
2.208.   Korea objects to Japan's  request, arguing that Japan tries to rewrite the Panel's  findings and 
seeks to have the Panel make findings on various issues that it nev er made.321 
 
314 Japan's  comments on the Interim Report, para. 33. 
315 Japan's  comments on the Interim Report, para. 34. 
316 Korea's  comments of Japan's  comments on the Interim Report, p. 26.  
317 Korea's  comments of Japan's  comments on the Interim Report, p. 26.  
318 Japan's  comments on the Interim Report, para. 36.  
319 Japan's  comments on the Interim Report, para. 37.  
320 Japan 's comments on the Interim Report, para. 39.  
321 Korea's  comments on Japan's  comments on the Interim Report, p. 29.  WT/DS553/R/Add.1  
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  2.209.   We have decided to decline Japan's  requests to revise paragraphs 7.229 -7.230 of the 
Interim  Report. As we understand it, Japan's  requests concern two discrete matters. Japan first 
indicates that it wishes the Panel to further explain t he exercise of judicial economy over 
Japan's  claim concerning cumulation. Japan continues, however, to argue that the Panel should 
simply find in Japan's  favour on this issue.  
2.210.   We see no reason to reverse our decision to exercise judicial economy ov er Japan's  claim 
concerning cumulation and to instead examine the merits and find in favour of Japan. Contrary to 
Japan's  contention, such a finding has not already been made "in essence", and an examination on 
the merits would require substantial addition al analysis, contrary to our decision to exercise judicial 
economy over this claim. We note that Japan's  proposed clarifications in paragraphs 7.229 -7.230 
are actually substantive arguments not reflecting findings by the Panel elsewhere in the 
Interim  Report. 
2.211.   We also do not consider it necessary to provide additional explanation for the exercise of 
judicial economy over this claim. As the analysis makes clear, the KIA's  ultimate likelihood -of-injury 
determination did not turn on the KIA's  cumulative  assessment.322 We therefore consider it 
sufficiently clear in paragraphs 7.229 -7.230 that, based on our findings on the structure and content 
of the KIA's  ultimate likelihood -of-injury determination, the KIA's  cumulative assessment did not 
alone sustain the KIA's  ultimate likelihood -of-injury determination, nor can it now provide a 
standalone basis to justify that ultimate determination. Rather, as explained in 
paragraphs  7.229 -7.230, as well as in paragraphs 7.116 -7.119 regarding the drop in Japanese pri ces 
and 7.177 -7.183 regarding Japan's  capacity utilization rate, the KIA's  Japan -specific findings were 
integral to its ultimate likelihood -of-injury determination and thus to its renewal of anti -dumping 
duties on the Japanese products.323 Our findings in  this regard on the content and structure of the 
KIA's ultimate likelihood -of-injury determination concern how, as a factual matter, this ultimate 
determination should be construed. Japan has not provided any compelling grounds for its concern 
that this fa ctual finding on the content and structure of the KIA's  ultimate determination may be 
overturned on appeal. A panel would be unable to ever exercise judicial economy if it was required 
to complete the analysis on each issue in view of the mere possibility that a finding – not least, a 
factual finding – could be reversed on appeal, as Japan seems to suggest. In view of the foregoing, 
we see no reason to make any revisions to paragraphs 7.229 -7.230 of the Interim Report.  
2.52  Paragraphs 7.234 and 7.235  
2.212 .  Japan requests the Panel to complete the analysis of Japan's  claim that Korea failed to 
disclose certain essential facts in paragraphs 7.234 -7.235 of the Interim Report.324 Japan argues 
that the Panel should not exercise judicial economy because (a) th e "rationale explained by the Panel 
for the use of judicial economy over these claims has the effect of rendering practically useless any 
'as applied'  claim under Article 6.9 in conjunction with substantive claims"; and, (b) "[a]ccepting a 
substantive clai m should not prevent the Panel from also addressing 'as applied'  claims under 
Article  6.9, and thus providing guidance to the parties for future stages in the proceeding".325 
2.213.   Korea objects to Japan's  request, arguing that the Panel is entitled to exercise judicial 
economy if it is of the view that there is no need to address the claim under Article 6.9 in light of 
the findings under the substantive provisions at issue.326 
2.214.   We have decided not to grant Japan's  request. We conside r that a panel need only address 
those claims that must be addressed in order to resolve the matter in issue in a dispute. As explained 
in paragraphs 7.234 -7.235, the question of whether all essential facts were disclosed on a given 
matter is irrelevant if , due to a substantive finding of inconsistency, a subsequent reinvestigation to 
comply with that inconsistency would necessarily require a renewed factual assessment of the given 
matter. Japan does not identify any issues that the Panel failed to consider  in deciding to exercise 
judicial economy over its claims under Article 6.9. The Panel's  exercise of judicial economy is specific 
to the facts of the case and does not render procedural claims "useless". More so, a specific finding 
 
322 Interim Report, paras. 7.116 -7.119, 7.177 -7.183, and 7.229 -7.230.  
323 Interim Report, paras. 7.116 -7.119, 7.177 -7.183, and 7.229 -7.230.  
324 Japan's  comments on the Interim Report, paras. 41 -43. 
325 Japan's  comments on the Interim Report, para. 41.  
326 Korea's  comments on Japan's  comments on the Interim Report, p. 34.  WT/DS553/R/Add.1  
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  by the Panel is not nece ssary to guide the parties as they are already directed by Article 6.9 as to 
the requirement to disclose essential facts.  
2.53  Paragraph 8.1  
2.215.   Korea requests the Panel to reflect its findings from paragraphs 7.109, 7.110, 7.126, 
and 7.222 of the Int erim Report in the "Conclusions and Recommendations" section.327 Japan objects 
to Korea's  request, arguing that there is no need to summarize all secondary findings in the 
"Conclusions and Recommendations" section.328 
2.216.   We have decided not to grant  Korea's  request. First, paragraphs 7.109 -7.110 pertain to 
outcomes on arguments and not findings on claims. This understanding is consistent with the 
Panel's  explanation at paragraph 7.60 of the Interim Report. The conclusion on the relevant claim 
coverin g paragraphs 7.109 -7.110 is contained in paragraph 8.1(b)(i). Second, paragraph 7.126 is 
clearly referenced in paragraph 8.1(b)(iii). Third, paragraph 7.222 does not contain a finding on a 
claim. The finding on the relevant ("as applied") claim is already referenced in paragraph 8.1(d)(i).  
2.217.   We are nonetheless content to recognize that the following paragraphs contain aspects that 
were favourable to Korea's  case:  
a. Paragraph 7.109: Based on the material before us, Japan has not established the exist ence 
of a reliable relationship between pricing levels and the categorization of a product as 
general -purpose steel (grades 304 and 316) or special steel (all others). On the contrary, 
the uncontested record evidence indicates that Japanese general -purpose  steel was in a 
different price bracket to general -purpose steel from other sources  and was, according to 
the applicants, "only general in name, but ha[s] particular specification or size and are 
mostly products that are not competitive". Moreover, accord ing to the pricing data 
submitted by Korea, it was not the case that special steel was necessarily higher -priced 
and general -purpose steel was necessarily lower priced during the POR.329 
b. Paragraph 7.110: Therefore, Japan has not established a prima  facie case that the KIA 
erred by failing to undertake an analysis that differentiated between general -purpose and 
special steel when examining the consequences of the drop in Japanese prices upon 
removing the anti -dumping duties. We consequently find that Jap an has failed to 
demonstrate that the KIA acted inconsistently with Article  11.3 of the 
Anti-Dumping  Agreement on this point. For the avoidance of doubt, our conclusion in this 
regard should not imply a broader finding on the existence or utility of the al leged 
distinction between general -purpose steel and special steel, nor on the degree of 
competitive overlap in the product mixes of the relevant countries.  
c. Paragraph 7.126: We therefore find that Japan has failed to demonstrate that the KIA 
acted incons istently with Article  11.3 of the Anti -Dumping  Agreement regarding the cost 
of raw materials and the weak demand in the domestic and export markets. Having 
reached this finding, we need not address the parties'  arguments and rebuttals on the 
precise circum stances and manner in which an authority may be required to examine other 
known injury factors under Article  11.3, including whether there is a difference between 
recurrence and continuation determinations in that regard.  
d. Paragraph 7.222: We emphasize t hat our finding is confined to the particular redactions 
challenged by Japan in the review at issue in these proceedings. We reiterate that, in our 
view, Japan has not demonstrated that the KIA's  system for protecting information as 
confidential is incapab le of operating in a manner consistently with Article  6.5. Rather, we 
see merit in the general approach adopted by the KIA to protecting confidential 
information.  
_______________  
 
 
327 Korea's  comments on the Interim Report, paras. 226 -227. 
328 Japan's  comments on Korea's  comments on the Interim Report, para. 134.  
329 Fns omitted.  WT/DS553/R/Add.1  
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  ANNEX  B 
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 First integrated executive summary of the arguments of Japan  63 
Annex  B-2 First integrated executive summary of the arguments of Korea  74 
Annex  B-3 Second integrated executive summary of the arguments of Japan  84 
Annex  B-4 Second integrated executive summary of the arguments of Korea  94 
 
 WT/DS553/R/Add.1  
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  ANNEX B -1 
FIRST INTEGRATED EXECUTIVE SUMMARY OF  
THE ARGUMENTS OF JAPAN  
I. Introduction  
 
1. Through its  first written  submission, opening and  closing statement s at the first panel meeting 
as well as its responses to the Panel 's questions, Japan has established that Korea 's continued 
imposition of anti -dumping duties upon Japanese stainless steel bars does no t comply with its 
obligations under the General Agreement on Tariffs and Trade 1994 ("GATT 1994") and the 
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 
("Anti -Dumping Agreement").  
 
II. Korea 's Anti-Dumping Me asures on Stainless Steel Bars from Japan Are Inconsistent 
with Article 11.3 of the Anti -Dumping Agreement  
 
A. Legal Standards under Article 11.3 for the Imposition and Maintenance of an 
Anti-Dumping Duty  
 
2. Although Article 11.3 of the Anti -Dumping Agreement does not require the investigating 
authority to establish a causal link between the past dumping and injury anew in a sunset review, it 
does require that the investigating authority establish a causal "nexus" between the "expiry of the 
duty" and "continuation or recurrence of dumping and injury" that allows the authority to reasonably 
"determine" the existence of a causal link between dumping and injury.  
 
3. Article VI :1 of the GATT 1994 states that dumping "is to be condemned if it cause s or threatens 
material injury to an established industry in the territory of a [Member] or materially retards the 
establishment of a domestic industry", and Article VI :2 of the GATT 1994 provides that a Member 
may levy an anti -dumping duty "[i]n order to offset or prevent dumping". Article VI :6(a) of the 
GATT  1994 further provides that no anti -dumping duty shall be levied unless the importing Member 
"determines that the effect of the dumping … is such as to cause or threaten material injury to an 
establish ed domestic industry, or is such as to retard materially the establishment of a domestic 
industry". Thus, as the Appellate Body found in US – Anti-Dumping  Measures  on Oil Country  Tubular  
Goods , Article VI of the GATT 1994 "establishes the fundamental princ iple that there must be a 
causal link between dumping and injury to a domestic industry, if an anti -dumping duty is to be 
levied on a dumped product" and "further establishes that the purpose of an anti -dumping duty is 
to counteract dumping that causes inj ury". In other words, anti -dumping duties can be imposed on 
imports from a certain Member only if dumping of such imports from that country causes material 
injury to the domestic industry. Considering also that anti -dumping duties are, according to 
Article  VI:2 of the GATT 1994, imposed "[i]n order to offset or prevent dumping" and are not 
imposed as penalties for past dumping actions, this principle necessarily also means that, if dumped 
imports cease to exist or if dumped imports cease to cause injury to the domestic industry and, 
therefore, there is accordingly no longer a need to "offset or prevent dumping", no anti -dumping 
duty can be imposed.   
 
4. Article 11.1 of the Anti -Dumping Agreement also confirms that this is an overarching principle 
for the rev iew procedure, providing that "[a]n anti -dumping duty shall remain in force only as long 
as and to the extent necessary to counteract dumping which is causing injury". In this regard, the 
Appellate Body in US – Anti-Dumping  Measures  on Oil Country  Tubular  Goods  also found that this 
principle, provided in Article 11.1 of the Anti -Dumping Agreement, "applies during the entire life of 
an anti -dumping duty. If, at any point in time, it is demonstrated that no injury is being caused to 
the domestic industry by t he dumped imports, the rationale for the continuation of the duty would 
cease".  
 
5. In essence, as the Appellate Body appropriately described in US – Anti-Dumping  Measures  on 
Oil Country  Tubular  Goods , a causal link between dumping and injury to the domestic industry is 
necessary for both the imposition and the maintenance  of an anti -dumping duty under the 
Anti-Dumping Agreement.  WT/DS553/R/Add.1  
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  6. This means that it is a fundamental principle in anti -dumping procedure s under Article VI of 
the GATT 1994 and the Anti -Dumping Agreement that anti -dumping duties can be imposed on 
imports from a Member only if dumping from that Member causes material injury to the domestic 
industry.  
 
7. Accordingly, a determination of likel ihood of injury should not be based on a mere assumption 
made from the past affirmative injury determinations, including the most recent one. Rather, a 
likelihood -of-injury  determination should be based upon positive evidence and a sufficient factual 
basis that allows the authority to draw a reasoned and adequate conclusion pertaining to the relevant 
period of investigation ("POI"). The Appellate Body in US – Oil Country  Tubular  Goods  Sunset  
Reviews  found that these requirements set forth in Article 3.1 of the Anti -Dumping Agreement are 
"equally relevant" to the likelihood -of-injury determination in a sunset review which is undertaken 
by the investigating authorities under Article 11.3 of the Anti -Dumping Agreement. Also, it should 
be recalled that , in light  of the forward -looking nature of sunset reviews, every determination therein 
must stand on its own and supersede the prior determinations. When an investigating authority uses 
information and findings from past proceedings, it must be ensured that those i nformation and 
findings are actually applicable to the POI of the sunset review.  
 
8. Otherwise, an anti -dumping duty could be maintained even if the sunset determination left 
open a possibility that the likely dumped imports from a certain Member would not in fact cause 
material injury to the domestic industry.  
 
B. Critical Deficiencies of the Likelihood -of-Injury Determination by the 
Korean  Investigating Authorities  
 
9. The likelihood -of-injury determination by the Korea Trade Commission ("KTC") a nd the Office 
of Trade Investigation ("OTI") (" Korean Investigating Authorities") does not meet the requirements 
of Article 11.3 of the Anti -Dumping Agreement. The Korean Investigating Authorities based their 
determination on an insufficient assessment of the interactions through the market competition 
among the likely dumped imports from each country and the domestic like products, and they failed 
to consider other factors that may have effects on the injury to the domestic industry, in particular 
third co untry imports, in the analysis of the effects of likely dumped imports.  
 
10. These failures contravene the fundamental principle that anti -dumping duties can be imposed 
on imports from a Member only if dumping from that Member causes material injury to the domestic 
industry. Therefore, these failures mean that the Korean Investigating 
Authorities ' likelihood -of-injury determination at issue is not based upon "positive evidence" and an 
"objective examination" and lacks a "sufficient factual basis" that al lows the investigating authority 
to draw a "reasoned and adequate conclusion", and thus is inconsistent with Article 11.3 of the 
Anti-Dumping Agreement.  
 
1. The Korean Investigating Authorities ' Findings Regarding the Propriety 
of Using Cumulative Assessme nt 
 
a. Introduction  
 
11. It should be noted that Article VI of the GATT 1994 clearly indicates that the causal link 
between dumped imports and injury to the domestic industry must be examined and found to exist 
on a country -by-country basis, and accordingly, that the use of cumulative assessment should not 
be permitted to cause a false attribution of injury to the domestic industry to dumped imports from 
a country whose imports do not actually cause such injury. The first sentence of Article VI :1 of the 
GATT 1994 defines dumping as "products of one country  … introduced into the commerce of another 
country at less than the normal value of the products". (emphasis added) The same sentence also 
provides that dumping "is to be condemned if it causes … material injury" to the domestic industry. 
(emphasis added) Article VI :6(a) of the GATT 1994 further states that "[n]o [Member] shall levy 
any anti -dumping … duty on the importation of any product of the territory of another [Member] 
unless it determines t hat the effect of the dumping  … 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". (emphasis added) Thus, the determination of a causal link bet ween "dumping", as defined 
on a country -by-country basis, and injury to the domestic industry, is required for the imposition or 
continued imposition of anti -dumping duties. For sunset reviews, this means that a nexus between 
the expiry of the anti -dumping  duties and the continuation or recurrence of injury must be found on WT/DS553/R/Add.1  
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  a country -by-country basis, namely, that the dumped imports from a particular country that would 
be likely to continue or recur are the cause of the injury. If such a nexus cannot be fou nd regarding 
the imports of a particular country, specifically, then a causal link between dumping and injury to 
the domestic industry also cannot be reasonably assumed, and thus, anti -dumping duties against 
such dumped imports cannot be maintained. In oth er words, regardless of whether the proceeding 
at issue is an original investigation or a sunset review, Article VI of the GATT 1994 does not allow 
attribution of injury to the domestic industry to dumped imports from a specific Member if those 
dumped impo rts do not in fact cause material injury.  
 
12. In deciding that they may cumulatively assess the imports from Japan, India, and Spain, the 
Korean Investigating Authorities relied upon factual findings and conclusions made in prior 
investigations. As alread y discussed, a mere assumption based on the existence of an affirmative 
determination or findings in previous proceedings cannot be sufficient, since the relevant 
circumstances, including market situation, may have changed meaningfully since the time of th e last 
determination.  
 
13. If there has been meaningful change from a previous proceeding, the investigating authority 
cannot rely on the finding from such previous proceeding as such, regardless of whether the finding 
was accurate at the time it was made . In such cases, the extent to which the investigating authority 
can rely on a previous finding may depend on the degree of the changes since the previous 
proceeding. This is because such changes impact whether or not the prior findings are still applicabl e 
in the current investigation, regardless of whether the finding was accurate at the time it was made.  
 
14. Accordingly, the Korean Investigating Authorities should have assessed whether or not such 
meaningful changes had taken place between the time the  findings they sought to use were rendered 
and the current POI. However, the Korean Investigating Authorities did not sufficiently examine 
whether or not such changes took place.  
 
15. The Korean Investigating Authorities stated that they found cumulative a ssessment to be 
appropriate for the following three reasons: (a) the Korean Investigating Authorities had used 
cumulative assessment in the original investigation and in the first and second sunset reviews; 
(b) the physical characteristics, manufacturing p rocess, distribution market, uses, and consumer 
evaluation, etc. of the product under investigation and the domestic like products were the same as 
or similar to those at the time of the original investigation; and (c) allegedly, the competitive market 
environment had not changed since the second sunset review. Notably, in reaching their finding on 
point (c), the Korean Investigating Authorities found only two facts: (i) the import proportion of 
general -purpose products from Japan, the import proportion of Indian special steels, and the 
production proportion of special steel produced by the domestic industry maintained a similar level 
during the POI, and (ii) the proportion of the import volume of the product under investigation to 
the total import volume in  2013 and 2015 were similar.  
 
16. However, the Korean Investigating Authorities did not explain what these statements meant 
in any more detail, nor did they provide information on the data that they used to make such 
findings. As a result, it is not possib le to discern whether or not the Korean Investigating 
Authorities ' statements regarding the lack of change since the prior investigations are properly 
founded, or even what ranges of products from which countries the Korean Investigating Authorities 
were comparing to draw these conclusions. In fact, the record in the sunset review at hand shows 
that there have been significant changes in both the competitive environment and the products at 
issue.  
 
b. Lack of justification  for reliance  upon findings  in the previous  investigations  
 
17. In this case, there have been drastic changes which have accumulated over the long period 
from the original investigation through the following three reviews, which has lasted for over 
15 years, some of which d irectly contradict the unsupported conclusions stated by the 
Korean  Investigating Authorities. It would be necessary to examine the changes that have taken 
place since the original investigation in order to properly rely upon the findings in the original 
investigation.  
 
18. In particular, the market interaction among the relevant products (i.e. the product under 
investigation imported from the several subject countries and the domestic like products) has 
changed significantly due to the change in their product mixes, such tha t there is the lack of WT/DS553/R/Add.1  
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  substantial overlap in the competitive relationships among the Japanese imports, the Indian imports 
and the domestic like products. As a result, cumulative assessment is now (if it ever was) no longer 
appropriate, because the product  under investigation from the several subject countries does not 
have a "cumulative" effect on the Korean industry, if they do have an effect. There have also been 
significant changes in the levels of imports from third countries, which has altered the mar ket 
situation in Korea.  
 
19. These changes in the underlying situation regarding the market and the products were obvious 
from the record before the Korean Investigating Authorities, but the Korean Investigating Authorities 
simply relied upon the prior inv estigations ' findings without examining such changes appropriately 
nor providing any reasons why they still could rely on the previous findings despite such changes.  
 
20. Furthermore, aside from such changes in the underlying situation regarding the market  and 
the products, the evidence on record shows substantial differences in price among the allegedly 
dumped imports from Japan, those from India, and the domestic like products, and differences in 
the respective proportions of special steel and general -purpose steel within them, which indicate the 
lack of substantial overlap of competitive relationships among different segments of the product 
under investigation from different countries. In such circumstances, the Korean Investigating 
Authorities could not have relied on findings in prior proceedings to rely upon a cumulative 
assessment without properly examining the aforementioned facts that seemed to conflict with such 
prior findings and that indicated the lack of substantial overlap of competitive relatio nships due to 
the differences of product mix and of price levels.  
 
21. In addition, the prior investigations did not provide sufficient support for the use of a 
cumulative assessment because the prior investigations did not sufficiently examine the factors  
relevant to the propriety of the use of a cumulative assessment that were raised in the sunset review 
at issue by the Japanese producers that responded to the review ("Japanese Respondents"). In the 
face of reasonable objections by the interested parties,  the factors relevant to the use of a cumulative 
assessment needed to be assessed, regardless of the fact that they had not been properly addressed 
in the previous proceedings.  
 
22. Additionally, due to the enlargement of the scope of products excluded fro m the product under 
investigation over the past sunset reviews, the prior investigations used a differently defined product 
under investigation. Therefore, there is inherently a difference in the scope of the products which 
were examined in prior investiga tions compared to those being at issue in the current investigation. 
Accordingly, the Korean Investigating Authorities should have examined, in light of the re -defined 
product scope of the third sunset review, whether the different grades - in particular the categories 
of general -purpose steel and special steel - interacted in the market or not. This issue was also 
unaddressed by the Korean Investigating Authorities, although the necessity for an examination of 
the prior findings and their evide ntiary bases is particularly true in this case, where the evidence 
and findings in the current review conflict with the findings made in the previous proceeding.  
 
c. Insufficiency  of the Korean  Investigating  Authorities ' Analysis  of 
Competitive  Relationshi ps in the Current  Period  of Investigation  
 
23. Finally, apart from the failure to address the changes between the prior investigations and the 
sunset review at issue, the Korean Investigating Authorities ' findings related to the current POI are 
likewise in sufficient to support the decision to use a cumulative assessment. The 
Korean  Investigating Authorities made only a very few findings regarding the POI. Namely, the 
Korean Investigating Authorities found that the product under investigation and the domesti c like 
products in the sunset review at issue were similar to those in the original investigation in terms of 
their physical characteristics and other attributes and that the conditions of competition had not 
changed since the second sunset review. However , both of these findings rely upon a comparison 
with the prior investigations ' findings which the Korean Investigating Authorities could not rely on 
for the reasons discussed above, to derive meaning. Accordingly, the Korean Investigating 
Authorities did n ot make any meaningful findings regarding the facts of the current POI which could 
stand alone.  
 
24. In addition, the Korean Investigating Authorities ' evaluation of the propriety of cumulative 
analysis of the Japanese, Indian, and Spanish product under investigation was inappropriate because 
the authorities did not engage in a sufficient analysis of the competitive relationships among the WT/DS553/R/Add.1  
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  product under i nvestigation from the several subject countries and between the product under 
investigation and the domestic like products.  
 
25. If the likely dumped imports from each exporting country in an investigation do not have any 
substantial overlap in their comp etitive relationships with each other, or with the domestic like 
products, the investigating authority may not be able to provide a reasonable explanation to justify 
the use of cumulative assessment to conclude that all of the likely dumped imports from th e several 
different countries will likely cause material injury to the domestic industry. Such an affirmative 
finding through cumulative assessment leaves open a possibility that the likely dumped imports from 
one country were the sole cause of the materia l injury to the domestic industry, and thus the 
authority cannot reasonably attribute the material injury to the products from the other countries.  
 
26. In the sunset review at issue, there were significant differences in terms of grades, product 
mixes an d price levels among the product under investigation from the several subject countries 
and between the product under investigation and the domestic like products which indicated the lack 
of substantial overlap of competitive relationships among them.  
 
27. Specifically, the published reports demonstrate that there were clear price differences among 
the relevant products from the several subject countries and the domestic like products. This fact 
indicated that there is a possibility that (i) even within th e same grade, Japanese stainless steel bars 
are higher priced because of the difference of quality and consequently the lack of substitutability 
with other lower -priced products and/or (ii) Japanese stainless steel bars contain a higher 
percentage or propo rtion of high -priced grades.  
 
28. The substantial price differences between products from different sources, in particular for 
products that are material input used by cost -sensitive industrial users, should be viewed as strongly 
indicative that these pro ducts are serving different market needs. The Appellate Body 
Report 's findings support this conclusion. In China  – HP-SSST  (Japan)  / China  – HP-SSST  (EU), the 
Appellate  Body found that when the evidence on the record indicates the existence of different ty pes 
of products, with different prices, the investigating authority cannot disregard such evidence; 
otherwise, it cannot conduct an objective examination.  
 
29. In this regard, Korea argues that its finding of "likeness" for the purpose of defining the 
dome stic like products proves that the products at issue were in competition with one another such 
that there was no need to separately assess the competitive relationships between them. However, 
the "likeness" analysis does not actually provide such proof. In  fact, previous panels, such as the 
panel in China  – Autos  (US) and the panel in China  – X-Ray Equipment , have repeatedly rejected 
arguments that an investigating authority could use a finding of "likeness" as a substitute for the 
more careful required analysis of assessing the actual competitive impact of the imported products. 
When considering "likeness", the investigating authority is not required to examine the conditions 
of competition between the allegedly dumped imports and the domestic l ike products, or to examine, 
in particular, competition which may exist between each of the sources of dumped imports and the 
domestic like products.  
 
30. Nor does Korea 's examination of the trends in the product mixes suffice as an examination of 
the competitive relationships between the relevant products. The product mixes are merely 
snapshots of the relative proportions at a given point in time and are essentially irrelevant to whether 
general -purpose steel and special steel have market interaction a nd are in a competitive relationship 
or not. The proportion of import volumes of general -purpose steel and special steel could change 
because of shifting demand, which has nothing to do with the degree of competitive relationship 
among the different produc t segments.  
 
31. One of the most relevant factors in analysing a competitive relationship is whether the 
products are substitutable for purchasers. The Korean Investigating Authorities focused on 
examining the Japanese producers ' production capacities and the alleged adaptability of production 
facilities between stainless steel bars and other steel products, and did not analyse the 
substitutability of the products from the purchasers ' perspective. In other words, the 
Korean  Investigating Authorities focused  on analysing production side information  and did not 
address demand side information or the competitive relationship in the market  between and among 
the product under investigation and the domestic like products. However, the ability to produce a 
certain quantity of products is a fundamentally different concept from whether and how those 
products actually compete with each other in the market, and whether the products are commercially WT/DS553/R/Add.1  
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  interchangeable with each other for purchasers. In fact, the price diffe rences between the product 
under investigation from the several subject countries suggests that the products were not 
substitutable, and most notably, the record shows that a Korean purchaser stated at the public 
hearing that price was the most important f actor in making purchase decisions for stainless steel 
bars. This in turn suggests that the higher priced Japanese products are not substitutable with the 
lower priced products from other sources, as they would not be competitive in Korea.  
 
2. The Korean I nvestigating Authorities ' Findings Regarding the Production 
and Export Capacities of the Japanese Respondents  
 
32. The Korean Investigating Authorities ' determination of likelihood of injury is not supported by 
"positive evidence" or an "objective examinat ion" also because it is based on improperly made 
findings regarding the production capacities and export capacities of the Japanese Respondents.  
 
33. The Korean Investigating Authorities based their findings regarding the production capacities 
and export c apacities of the Japanese Respondents upon data from the International Stainless Steel 
Forum ("ISSF"), which showed a much larger production capacity for the Japanese Respondents, 
rather than the data that the Korean Investigating Authorities requested fro m and were provided by 
the Japanese Respondents. Those data provided by the Japanese Respondents was direct and to the 
point in assessing the production capacities and export capacities of the Japanese Respondents. 
However, the Korean Investigating Authori ties did not provide sufficient reasons for their rejection 
of the Japanese Respondents ' data, nor did they provide sufficient reasons why the ISSF 's data was 
reliable, despite there being obvious aspects of it which put its suitability in doubt.  
 
34. As reasons for rejecting the Japanese Respondents ' data, the Korean Investigating Authorities 
merely stated that the Japanese Respondents ' data was significantly different from that of the ISSF, 
that the calculation methodologies used for their production cap acity data varied between the 
Japanese Respondents, that two of the Japanese Respondents were members of the ISSF, that the 
ISSF's data addressed the production capacity of stainless steel bar mills, that the Japanese 
Respondents allegedly prevented the Ko rean Investigating Authorities from performing on -site 
verification by not responding to the dumping investigation, and that the investigating authority of 
another Member, namely, the United States, also used the ISSF 's data in making its findings. 
However , none of these facts provided a sufficient factual basis for the Korean Investigating 
Authorities to reject the data from the Japanese Respondents.  
 
35. The Japanese Respondents provided the Korean Investigating Authorities with explanations 
regarding all of their expressed concerns. Namely, the Japanese Respondents explained that the 
ISSF's data was different (and larger) in part because it included products which were not part of 
the product under investigation. The ISSF 's data was also base d on rough estimates, as the ISSF 
did not have direct data on the production capacities of the Japanese Respondents, and the 
ISSF's data did not take into account bottlenecks in processing capacities due to the Japanese 
Respondents ' capacity limits for sec ondary processing. The calculation methods used by the 
Japanese Respondents were also fully explained by them in their submissions to the Korean 
Investigating Authorities, and the differences reflected slight differences in the flow of their 
manufacturing processes. The Korean  Investigating Authorities did not dispute these explanations 
during the sunset review.  
 
36. In terms of the suitability of the ISSF 's data, the fact that two of the Japanese Respondents 
were members of the ISSF means nothing as to the  reliability of the ISSF 's data, because they did 
not provide the ISSF with data regarding their production capacities. Nor did the 
Japanese  Respondents prevent the Korean Investigating Authorities from verifying their data, as the 
Korean Investigating Aut horities could have undertaken an on -site verification during the injury 
investigation or verified the data in some other way.  
 
37. The fact that the United States ' investigating authority also used the ISSF 's data is also 
meaningless because the United S tates' authority referred to the ISSF 's data in examining the global 
trends of demand or production, rather than as evidence regarding the actual situation of the country 
subject to the review or as evidence regarding the details of activities of the compa nies in such 
country. Additionally, in a recent sunset review conducted by the United States regarding the 
anti-dumping duties on stainless steel bars from Brazil, India, Japan, and Spain, all of the Japanese 
Respondents calculated their production capacit y in the same manner as they did in the sunset WT/DS553/R/Add.1  
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  review at issue and submitted the resulting data to the United States ' investigating authority, which 
indeed relied on such data.  
 
38. Accordingly, the Korean Investigating Authorities ' determination, relying upon the 
ISSF's more favorable data, is not based on "positive evidence" or an "objective examination".  
 
3. The Korean Investigating Authorities Did Not Make Proper Findings 
Regarding Import Volume and Price Effects  
 
39. The Korean Investigating Authoritie s also did not appropriately assess the import volume and 
price effects from the several subject countries, and accordingly, their determinations based on such 
assessments are not based on "positive evidence" or an "objective examination ". 
 
40. Specifically, the Korean Investigating Authorities found that the import volume of the product 
under investigation would increase and that such increase would be likely to cause injury to the 
domestic industry, should the anti -dumping duty be terminated. H owever, the Korean Investigating 
Authorities made that finding regarding an increase in import volume by selectively analysing only 
a part of the data from the relevant time period. Namely, the Korean Investigating Authorities 
referred only to the increase  in the import volume since 2014, whereas the import volume of the 
product under investigation during the whole POI (2012 to 2015) overall decreased.  
 
41. Furthermore, as discussed above in relation to the use of cumulative assessment, the 
Korean  Investigating Authorities did not examine the actual competitive relationship between the 
domestic like products and the product under investigation taking into account that the difference 
in grades, product mixes and price levels. They appear to have simp ly presumed that all products 
contained within the scope of the product under investigation and all products contained within the 
domestic like products compete with each other, despite evidence from multiple sources to the 
contrary. Accordingly, the Korea n Investigating Authorities ' analysis does not establish what, if any, 
the actual price effects which the product under investigation from the several subject countries 
imposes upon the domestic market are.  
 
42. Likewise, the Korean Investigating Authorit ies' analysis of the impact of the product under 
investigation on the domestic industry did not take into account other factors, such as third country 
imports, on the predicted import volumes of the product under investigation from the several subject 
countries or upon the actual price effects that the product under investigation may have.  
 
4. The Korean Investigating Authorities Did Not Consider the Impact of 
Other Factors on the Existence of a Nexus Between the Product Under 
Investigation and the Recurren ce of Injury to the Domestic Industry  
 
43. Finally, the Korean Investigating Authorities did not consider whether the likely injury to the 
domestic industry would be caused by factors other than the product under investigation, such as 
third country import s, material costs, and weakening domestic demand. Although the 
Korean  Investigating Authorities explicitly recognized that such factors currently have or may have 
an effect on the domestic industry in their published reports, they did not address those fac tors in 
making their likelihood -of-injury determination.  
 
44. The omission of such factors from the Korean Investigating Authorities ' analysis of the 
likelihood of injury, despite the fact that such other factors are currently having an adverse impact 
on the domestic industry, casts doubt upon the existence of a causal nexus between the expiry of 
the anti -dumping duty on the product under investigation and the recurrence of injury to the 
domestic industry. Without analysing the likely impact of other factor s upon the domestic industry 
in case of expiry of the anti -dumping duties, the Korean Investigating Authorities cannot ensure that 
the injuries which would in fact be caused by those unexamined other factors would not be attributed 
to the subject imports o f product under investigation.  
 
III. Korea 's Continuation of the Imposition of Anti -Dumping Measures on Stainless Steel 
Bars from Japan Is Inconsistent with Article VI :6(A) of the GATT 1994  
 
45. Article VI :6(a) of the GATT 1994 establishes that a Member cannot impose an anti -dumping 
duty on any product from another Member unless it determines that the effect of the dumping is 
such as to cause or threaten material injury to the domestic industry.  WT/DS553/R/Add.1  
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  46. For the reasons discussed above, the Korean Inve stigating Authorities did not properly 
determine that the effect of the alleged dumping of the product under investigation is such as to 
cause or threaten material injury to the domestic industry.  
 
IV. Korea 's Use of Facts Available in the Likelihood -of-Injury Determination Was 
Inconsistent with Articles 11.4 and 6.8 of the Anti -Dumping Agreement  
 
47. Article 6.8 of the Anti -Dumping Agreement permits an investigating authority to use facts 
available to make its determinations, under the conditions provided  in Annex II. Article 11.4 of the 
Anti-Dumping Agreement provides that Article 6 (including, of course, Article 6.8) applies to sunset 
reviews, as well as original investigations. Under Paragraph 3 of Annex II of the 
Anti-Dumping  Agreement, as the Appellate Body clarified in US – Hot-Rolled  Steel, an investigating 
authority is not entitled to reject the information submitted to it which meets all of the requirements 
set forth within that Paragraph (i.e. verifiability of the data, a ppropriateness of the manner of 
submission, timeliness of submission, and, where applicable, the use of a medium or computer 
language requested by the authority).  
 
48. In this case, the Japanese Respondents submitted information regarding their production  
capacities, which the Korean Investigating Authorities ultimately rejected in favor of the ISSF 's data, 
as discussed above. However, the Korean Investigating Authorities did not address the factors listed 
in Paragraph 3 of Annex II to explain their reject ion of the data, and in fact, the information provided 
by the Japanese Respondents and its method and timing of provision all comply with the 
requirements of Paragraph 3 of Annex II. This rejection is therefore not compliant with Article 6.8.  
 
49. Furtherm ore, Paragraph 7 of Annex II states that an investigating authority should base their 
findings upon information from secondary sources with "special circumspection", which the panel in 
Korea  – Certain  Paper  explained to mean that the investigating authorit ies should confirm the 
reliability of the information . Korea  – Certain  Paper  (Article  21.5 – Indonesia) 's panel also stated 
that the investigating authority must adequately explain how it compared secondary source 
information with that provided by the inte rested parties. The panel and Appellate Body in Mexico  – 
Anti-Dumping  Measures  on Rice found that the secondary source information should be found to be 
the "best" information available. However, the Korean Investigating Authorities did not explain 
whether or how they analysed these factors.  
 
50. Korea argues in this proceeding that it did not resort to the use of facts available at all, because 
the necessary information was country -wide unused capacity and utilization rather than those of the 
Japanese Respondents. However, there is no basis in Article 6.8 and Annex II to find that the 
requirements for use of "facts available" need not be met for certain types of information, e.g. when 
an authority seeks to examine a country 's production capacity rather than individual capacities of 
producers within that country.  
 
51. Moreover, while the general issue with regard to the capacity utilization or capacity of a certain 
subject country in the sunset review is that of the relevant industry as a whole in the particular 
country, the particular evidence which should be used to adduce such is a sepa rate question. In 
determining what evidence should be used, an investigating authority should consider whether the 
source of the evidence at issue is a primary source, whether the data includes only the product 
under investigation or whether it includes ot her products, and whether there are producers of the 
product under investigation which did not provide their production capacity information. The 
Korean  Investigating Authorities did not make any such evaluation in choosing the ISSF 's data over 
the data su bmitted by the Japanese Respondents as evidence.  
 
52. In this case, not only was the capacity data submitted by the Japanese Respondents 
information derived from a primary source, the evidence also indicated that the Japanese 
Respondents had a significant share of the exports to Korea of the product under investigation from 
the producers in Japan. Moreover, while the Japanese Respondents ' data was specifically focused on 
the product under investigation, the ISSF 's data included products other than the produ ct under 
investigation. Thus, the Korean Investigating Authorities ' use of secondary source information 
(i.e. the ISSF 's data) over primary source information (i.e. the Japanese Respondents ' data) in this 
case does not satisfy the foregoing requirements un der Article 6.8 and Paragraphs 3 and 7 of 
Annex  II of the Anti -Dumping Agreement.  
 WT/DS553/R/Add.1  
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  V. The Korean Investigating Authorities Failed to Disclose the Essential Facts as 
Required by Articles 11.4 and 6.9 of the Anti -Dumping Agreement  
 
53. Article 6.9 of the Anti-Dumping Agreement provides that an investigating authority must 
inform all interested parties of the essential facts which form the basis for the decision whether to 
apply definitive measures before a final determination is made on the application of such definitive 
measures.  
 
54. The Korean Investigating Authorities, however, did not disclose the essential facts before the 
final determination was made, depriving the Japanese Respondents of the ability to defend 
themselves in an effective manner. The K orean Investigating Authorities indicated to the Japanese 
Respondents on 3  April 2017 that the essential facts were disclosed by OTI 's Final Report and 
KTC's Resolution of Final Determination, as well as OTI 's Interim Report (Revised). However, the 
KTC's Resolution of Final Determination, which is the "final determination" under Article 6.9 of the 
Anti-Dumping Agreement, was already rendered by that time.  
 
55. Furthermore, even if those documents had disclosed the essential facts in a timely fashion, 
the sc ope of the disclosure is limited and therefore does not satisfy the required standard under 
Article 6.9 of the Anti -Dumping Agreement.  
 
56. The disclosure of the essential facts underling an investigating authority 's determination must 
be disclosed in such  a way as to permit an interested party to understand the basis for the decision 
to continue imposing anti -dumping duties, including the factual basis for their intermediate findings 
and conclusions reached by them.  
 
57. However, the documents indicated by  the Korean Investigating Authorities are so heavily 
redacted that it is not possible to confirm the facts which were essential to the Korean Investigating 
Authorities ' determination.  
 
58. Concerning the likelihood of dumping, the Korean Investigating Aut horities found, inter alia, 
(a) the dumping margin calculated for each exporter, (b) unused production capacity in each 
exporting country, and (c) a decrease in import volume and domestic market share of the product 
under investigation after the imposition  of anti -dumping duty.  
 
59. Concerning the likelihood of injury, the Korean Investigating Authorities found,  inter alia, 
(d) sufficient unused production capacity and export capacity of the exporting country, (e) a possible 
increase in the import volume and domestic market share of the product under investigation in case 
of the expiry of the anti -dumping duty, (f) a large decrease in the price of the product under 
investigation, which would cause the increase in its imports and weaken the domestic like 
products ' price competitiveness, in case of the expiry of the anti -dumping duty, and (g) the import 
controls by the United States and the European Union, which would cause the exporting countries 
to have a limited market for exports.  
 
60. The reports indicated by the Korean Investigating Authorities did not disclose much of the 
numerical data that they used to conclude that the above factors supported their determination. 
Some of the data was removed entirely from the disclosed versions of the reports to the effect that 
the interested parties were unable to discern that the relevant material even existed. Much of the 
rest of the data was redacted such that the interested parties could know of its existence but could 
not discern its content.  
 
61. Additi onally, the Korean Investigating Authorities made a finding that it was appropriate to 
make a cumulative assessment of the effects of imports of the product under investigation from 
Japan, India, and Spain. However, as discussed above, the Korean Investiga ting Authorities did not 
provide the essential facts regarding why cumulative assessment was appropriate, and therefore 
their determination based upon such cumulative assessment does not comply with Article 6.9 of the 
Anti-Dumping Agreement.  
 
62. Although Article 6.5.1 of the Anti -Dumping Agreement provides that an investigating authority 
may provide summaries of data which needed to be redacted to protect confidential information, the 
Korean Investigating Authorities ' reports also did not provide sufficien t summaries of the data which 
was redacted such as could allow the interested parties to understand the substance of the 
information withheld.  WT/DS553/R/Add.1  
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  VI. The Korean Investigating Authorities ' Treatment of Certain Information as 
Confidential and Failure to Provide Sufficiently Detailed Non -Confidential 
Summaries Were Inconsistent with Articles 11.4, 6.5 and 6.5.1 of the 
Anti-Dumping  Agreement  
 
63. Article 6.5 of the Anti -Dumping Agreement provides that information may be treated as 
confidential only when a s howing of good cause has been made for such treatment. The 
Korean  Investigating Authorities  did not adhere to the requirements under Article 6.5 because they 
treated the information submitted by the Applicants as confidential without any showing of good 
cause having been made. There is also no indication, in any of OTI's Final Report, KTC 's Resolution 
of Final Determination, or OTI 's Interim Report (Revised),  of an assessment by the 
Korean  Investigating Authorities as to whether good cause actually existed for the information to be 
treated as confidential.  
 
64. The panel in Korea  – Pneumatic  Valves (Japan)  correctly found that " the existence in the 
legislation of defined categories of information that will normally be treated as confidential does not 
relieve the investigating authorities of their obligation to determine that good cause has been sh own 
to justify the confidential treatment ". This finding is in line with the Appellate Body 's previous 
findings in EC – Fasteners  (China)  and China  – HP-SSST (Japan)  / China  – HP-SSST  (EU) that the 
investigating authority is required to objectively assess the "good cause" alleged for confidential 
treatment and scrutinize whether the request for confidential treatment has been sufficiently 
substantiated by the showing of alleged "good cause".   
 
65. It should also be noted that the Appellate Body also clarified in China  – HP-SSST  (Japan)  / 
China  – HP-SSST  (EU) that a panel must examine whether the investigating authority undertook the 
necessary analysis to confirm that the submitted information  indeed warranted confidential 
treatment "on the basis of the investigating authority 's published report and its supporting 
documents".  
 
66. Article 6.5.1 of the Anti -Dumping Agreement also requires that sufficiently detailed 
non-confidential summaries of  the information which was granted confidential treatment be 
provided. However, the K orean Investigating Authorities  also failed to satisfy this requirement, as 
they have not provided sufficiently detailed non -confidential summaries of the information gran ted 
confidential treatment such as to allow the interested parties to understand the substance of the 
confidential information and to defend their interests. In fact, most redactions of confidential 
information were accompanied by no explanation of either the justification for the redaction or the 
data which was redacted.  
 
VII. Korea 's Anti-Dumping Measures on Stainless Steel Bars from Japan Are Inconsistent 
with Articles 12.3, 12.2 and 12.2.2 of the Anti -Dumping Agreement  
 
67. Lastly, Article 12.2 requires that public notice be given of, among other things, any preliminary 
or final determination. Article 12.2.2 further requires that for the conclusion of an investigation in 
the case of an affirmative determination providing for the imposition of a d efinitive duty, the public 
notice shall make available all relevant information on the matters of fact and law and reasons which 
have led to the imposition of final measures.  
 
68. However, the Korean Investigating Authorities did not describe in sufficient  detail their findings 
and all relevant information regarding, among other things, (a) their decision to use cumulative 
assessment, (b) their findings regarding the production capacity of the Japanese Respondents, 
(c) their findings regarding the propriety  of use of facts available constituting secondary source 
information, (d) their findings regarding expected import volumes and their effects on the domestic 
industry should the anti -dumping duties terminate, (e) their findings regarding the 
Japanese  Respon dents ' incentives to increase exports to Korea, (f) their findings regarding the 
existence of a nexus between the expiry of the anti -dumping duties and the recurrence of injury, 
and (g) their findings regarding the effects of other factors on the nexus bet ween the expiry of the 
anti-dumping duties and the recurrence of injury.  
 WT/DS553/R/Add.1  
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  VIII.  Korea 's Ex Post Arguments Within This Dispute Settlement Proceeding Should Be 
Rejected  
 
69. Japan also notes that Korea has made various ex post arguments for the first time within this 
dispute settlement proceeding, seeking to justify the Korean Investigating Authorities ' determination 
and the findings underlying them with new arguments which were not raised or addressed during 
the sunset review at issue.  
 
70. These ex post arguments that cannot be discerned from the record evidence or the published 
reports include, among other things, (a) an allegation that the Korean Investigating Authorities 
found that all types of stainless steel bars were commodities that can be tai lor-made to 
purchasers ' orders and thus compete against each other, (b) an allegation that the authorities 
conducted an analysis of the prices of the dumped imports and the domestic like products, (c) an 
allegation that the Korean Investigating Authorities  examined factors other than the product under 
investigation to make the determination of likelihood of injury, and (d) new proposed reasons 
allegedly for which the Korean Investigating Authorities rejected the Japanese Respondents ' data 
regarding their pr oduction capacity.  
 
71. However, these new ex post arguments by Korea should not be taken into account when 
analysing the Korean Investigating Authorities ' determination and findings. The Appellate Body 
found in US – Countervailing  Measures  (China)  (Articl e 21.5 – China)  that the parties to a 
WTO dispute settlement proceeding are precluded from offering new rationales or explanations 
ex post to justify the determination of an investigating authority. The Appellate Body likewise found 
in US – Countervailing  Duty Investigation  on DRAMS  that a panel examining the determinations of 
an investigating authority should consider whether the investigating authority provided, during the 
sunset review, a reasoned and adequate explanation as to: (i ) how the evidence on the record 
supported its factual findings; and (ii) how those factual findings supported the overall 
determination, and that such explanations should be discernible from the published determination 
itself. Accordingly, ex post explana tions cannot cure a deficiency in the published determination.  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  ANNEX B -2 
FIRST INTEGRATED EXECUTIVE SUMMARY OF  
THE ARGUMENTS OF KOREA  
INTRODUCTION  
 
1. This dispute concerns Korea 's third sunset review of the definitive anti -dumping measures on 
imports of stainless steel bars ( "SSBs" or "dumped imports") from Japan, India, and Spain. The 
original anti -dumping measures were taken by the Ministry of Finance and Economy (a predecessor 
of the Ministry of Strategy and Finance) on 3 0 July 2004. The imposition of the anti -dumping duties 
were extended by the Ministry of Strategy and Finance ("MOSF") firstly in February 2010 and secondly 
in October 2013, through the first and second sunset reviews, respectively. On 2  June 2017, in the 
third sunset review, the MOSF decided to extend the imposition of the anti -dumping duties for a 
period of 3 years ("Final Determination"). The Final Determination was based on the Final Resolution 
of the Korea Trade Commission ("KTC") and the Final Rep ort of the Office of Trade 
Investigation  ("OTI"), a subsidiary organ of the KTC.  
 
2. Korea 's decision to extend the application of the anti-dumping duties on SSB imports in the 
third sunset review wa s based on a sufficient factual record and was the result  of an objective 
examination based on positive evidence of the facts on the record. The decision to extend the duties 
was supported by reasoned and adequate conclusions. Specifically, the KTC evaluated and applied 
the required elements of the Anti -Dumping Agreement for sunset reviews, and  conducted a critical 
and searching examination of the record evidence in conformity with  the basic principles of good faith 
and fundamental fairness. The examination of the evidence was made in an unbiased manner, without 
favoring any interested party or group of interested parties, and involved positive evidence. Then, in 
a reasoned and reasonable manner, the KTC made a number of intermediate factual findings that 
supported its ultimate conclusion on a likely continuation or recurrence of dumping and injury to the 
domestic industry in Korea  if the SSB duties were to expire . 
 
3. Following the recommendation of the KTC, MOSF subsequently allowed all interested parties, 
including the Japanese respondents and the KTC, to presen t further arguments in support of their 
respective positions. After careful review of the parties ' submissions, the MOSF decided to endorse 
the KTC 's findings and thus extended the anti -dumping duties pursuant to Article 11.3 of the 
Anti-Dumping Agreement.  
 
PRELIMINARY RULING REQUEST PURSUANT TO ARTICLE 6.2 OF THE DSU 
 
4. Korea submits that Japan 's request for the establishment of a panel ("Panel Request") is 
inconsistent with the requirements of Article 6.2 of the DSU since it fails to identify the specific 
"measures" challenged and includes claims that were not covered by its request for consultati ons.  
 
5. In the Panel Request, Japan refers to "the measures" by Korea, but never clearly identifies the 
relevant measures in accordance with Article 17.4 of the Anti -Dumping Agreement. However, a panel 
request concerning a dispute under the Anti -Dumping Agreement must comply with the relevant 
provisions of the DSU and the Anti -Dumping Agreement. The request must identify, as the specific 
measure at issue, one of three types of anti -dumping measures, namely either a definitive 
anti-dumping duty, the accept ance of a price undertaking, or a provisional measure. A panel request 
that challenges a decision to initiate an investigation under Article 5 or a sunset review determination 
under Article 11 fails to meet this obligation.  
 
6. Accordingly, Korea submits that Japan 's Panel Request fails to identify the relevant measures 
in accordance with Article 6.2 of the DSU and 17.4 of the Anti -Dumping Agreement and, on that 
basis, all of Japan 's claims are outside the Panel 's terms of reference.  
 
7. In the alternativ e, Korea submits that Japan 's Panel Request unduly expanded on matters 
identified in its request for consultation, and thus includes claims for which no proper consultations 
were held in violation of Articles 4.4 and 6.2 of the DSU and Article 17.3 of the 
Anti-Dumping  Agreement.  WT/DS553/R/Add.1  
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LEGAL STANDARD UNDER ARTICLES 11.3  AND 11.4  OF THE ANTI-DUMPING AGREEMENT CONCERNING 
SUNSET REVIEWS  
 
8. The applicable disciplines in sunset reviews are set forth in Articles 11.3 and 11.4 of the 
Anti-Dumping Agreement. Articl e 11.3 requires termination of an anti -dumping duty after five years 
unless its expiry would "likely" lead to continuation or recurrence of dumping and injury. In contrast 
to original investigations, Article 11.3 does not impose detailed disciplines for fi ndings of dumping, 
injury, and causation. This suggests a certain degree of latitude when reaching a "likelihood" of 
dumping or injury finding upon expiration of duties as long as there is a sufficient factual basis for 
the conclusions. In essence, any challenge of a sunset review is a factual matter. In respect of such 
factual determinations, the relevant standard of review under Article 17.6 of the Anti -Dumping 
Agreement and Article 11 of the DSU is that, as long as a reasoned and adequate explanation has 
been provided by the authorities, the conclusions must be upheld even if another conclusion could 
have been reached.  
 
9. Article 17.6 of the Anti -Dumping Agreement is one of the special and additional rules of 
procedure which highlights that the panel is not the trier of fact in anti -dumping disputes but is only 
to review whether the determination of the investigating authority was objective and unbiased. It 
importantly specifies that if the evaluation was unbiased and objective, the evaluation sh all not be 
overturned, even though the panel might have reached a different conclusion. This important 
deferential standard of review must be borne in mind in a dispute that is essentially of a factual 
nature given the total lack of specific legal discipli nes or guidance in Article 11.3 of the 
Anti-Dumping  Agreement.  
 
10. The Appellate Body has underscored that original investigations and sunset reviews are distinct 
processes with different purposes. Indeed, Article 11.3 does not prescribe a specific metho dology for 
making a "likelihood" determination, and it does not identify particular factors that must be taken 
into account in such a determination. All that is required is that investigating authorities must act 
with an appropriate degree of diligence in order to arrive at a reasoned conclusion, and undertake a 
forward -looking analysis and seek to resolve the issue of what likely would occur if the duty expired. 
Such a determination is forward -looking and based on a certain degree of speculation about futu re 
events. While the nature and extent of the requisite evidence will vary with the attendant 
circumstances of each review, the Appellate Body has noted that current  market conditions are 
relevant as a basis to draw reasoned conclusions regarding likely future market conditions.  
 
11. Similarly, in terms of likely future injury, Article 11.3 does not specify a methodology that must 
be followed. Rather, investigating authorities enjoy a certain degree of discretion, as no injury 
examination in the sense of A rticle 3 of the AD Agreement is required in sunset reviews. All that is 
required is that a likelihood of injury finding must be made pursuant to an objective examination 
based on positive evidence, and rest on a sufficient factual basis that is supported b y reasoned and 
adequate explanations that future injury is likely if the duty expires.  
 
12. Moreover, there is no requirement to establish a "causal link" between likely dumping and 
injury in a sunset review. Whereas causation between dumping and injury is a fundamental 
requirement in original investigations, the  nexus to be demonstrated in a sunset review is rather 
between "the expiry of the duty" and the likely continuation or recurrence of dumping and injury.  
 
13. Japan consistently refers to the need to  establish a "causal nexus" in the context of a sunset 
review. Although formally speaking it states that this nexus should be demonstrated to exist between 
the expiry of the duty and the likely continuation or recurrence of dumping and injury, it is clear that 
it actually uses this concept to impose new obligations not present in Article 11.3. It deliberately 
borrows this "causal nexus" terminology from the causation requirement between dumping and injury 
in Article 3.5 of the Anti -Dumping Agreement that ap plies only in original investigations. Indeed, 
through the concept of "causal nexus", Japan seeks to introduce the Article 3.5 causation requirement 
into Article 11.3 through the backdoor.  
 
14. The inquiry in sunset reviews is between the expiry  of the an ti-dumping measure and the 
likelihood  of dumping  and injury . Importantly, the Appellate Body has made clear that a causal link 
between dumping and injury need not be established  anew  in a review conducted under Article 11.3. 
Rather, to the extent that  dumping and injury are likely to continue or recur if a measure e xpires, 
the Appellate Body has noted that "it is reasonable to assume that … the causal link between dumping 
and injury, established in the original investigation, would exist". In other words, the question is not WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  whether dumped imports from a particular c ountry are causing injury, but whether the expiry of the 
duty would likely lead to a continuation or a recurrence of dumping and injury.  
 
15. By force of logic, therefore, it only follows that the "building blocks" for the causal link, 
e.g., price effect (or price comparability, for that matter), need not be established  anew under 
Article  11.3 either. Absent a new market development in the relevant POR clearly and substantially 
vitiating the pre -determined correlation (including price comparability) betwee n the dumped imports 
and the state of the domestic industry, the correlation must be presumed to exist. It naturally also 
means that the price developments during the relevant POR are not determinant for the projection 
of the future  price effect in the "fo rward -looking" analysis under Article 11.3, where fundamental 
changes in pricing matrix is destined to occur upon termination of the anti -dumping duties. In this 
context, situations pertaining to the periods prior to imposition of the measure may be highly  
relevant. Nothing on the record even remotely indicated that the correlation established in the original 
investigation was severed or significantly altered during the POR for the third sunset review.  
 
16. Also important in analyzing the likelihood of inju ry upon termination of the current 
anti-dumping measure is the continued effect of the anti -dumping measure on the volume and price 
of the dumped imports. If the anti -dumping measure is continuing to affect the volume and price of 
the dumped imports, it is  reasonable and adequate to assume that the volume and the price of the 
dumped imports will increase and decrease, respectively, upon removal of the measure. The record 
clearly shows that imposition of the anti -dumping measure immediately and continuously exerted 
remedial effect, as it suppressed the volume and inflated the price of the dumped imports from all 
subject countries throughout the course of the measure 's imposition. In fact, it is on these bases, 
among others, that the KTC considered it appropri ate to cumulate the de minimis  imports from Spain 
with the dumped imports from other subject countries during the third sunset review. The 
Japanese  respondents, for their part, had never demonstrated that the dumped imports from Japan 
showed any deviation from the dumped imports from other origin from this perspective.  
 
17. A similar error of law that permeates Japan 's arguments concern s the disciplines on cumulating 
injury in sunset reviews. Again, Japan is effectively trying to have the same dis ciplines applying in 
original investigations (under Article 3.3) to sunset reviews (under Article 11.3) as it seeks to 
demonstrate that the Korean investigating authorities ' decision to examine the effects of the measure 
on dumped imports on a cumulative b asis was inconsistent with Article 11.3. It argues that the 
authorities failed to properly determine that cumulation was appropriate in this sunset review given 
the alleged lack of competition between Japanese imports of "special" SSBs with domestic and 
Indian sales of "general purpose" SSBs and that the authorities should have followed the normal rule 
of making a country -specific examination. However, Japan attempts to create new rules out of thin 
air, and errs when re -stating the relevant jurisprudence.  
 
18. The Appellate Body has recalled that cumulation is not the exception, contrary to what  Japan 
seems to suggest, but is rather what would "normally" happen in injury determinations. Since injury 
might come from several sources simultaneously, the Appell ate Body has found cumulation to be a 
useful tool. Japan 's attempt at reading more into the basic utility of cumulation in the context of 
sunset reviews is unwarranted, and would lead the Panel to add to obligations of Members without 
any textual basis in the Anti -Dumping Agreement. In addition, contrary to Japan 's repeated 
assertions based on the distinction between "general purpose" and "special" SSBs, there is no 
requirement in Article 11.3 to examine whether cumulation is appropriate in the light of the  conditions 
of competition between the imported products and between imported products and the like domestic 
product. In its report on US – Oil Country  Tubuluar  Goods  Sunset  Reviews , the Appellate Body has 
already clearly rejected this attempt at reading t he requirements of Article 3.3 into Article 11.3 finding 
that the conditions of Article 3.3 "do not apply in the context of sunset reviews". In addition to the 
fact that Japan 's argument based on this distinction between these newly invented categories of 
products has no basis in the facts on the record, as explained below, it is thus also legally irrelevant. 
Japan 's claim on cumulation under Article 11.3 is flawed in every way.  
 
RELEVANT CONTEXT OF THE THIRD SUNSET REVIEW  
 
19. Korea originally imposed anti -dumping measures on SSBs from, among others, Japan in 2004 
and these duties were extended twice through the first and second sunset reviews. In these prior 
proceedings, very similar issues were raised and they were largely addressed  in the same manner as 
in the third sunset review, without challenge by Japan. The third sunset review, therefore, was derived 
from and part of a string of connected and sequential determinations that started with the original WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  investigation and continued t hrough the subsequent sunset reviews. In the third sunset review, the 
Korean authorities did not simply rely on its findings from prior proceedings, but, to the extent 
relevant, these prior findings may still play a part in subsequent reviews. For example,  the 
Korean  authorities followed the pattern of reasoning and analysis that was used in previous 
proceedings, when assessing the record evidence pertaining to the third sunset review. Factual and 
analytical findings from prior proceedings also lend importa nt contextual support to the KTC 's findings 
in the underlying third sunset review. Based on such record evidence, it was confirmed that the 
relevant situation had not changed substantially from previous proceedings.  
 
20. SSB products are a special steel gr ade among steel bars, and SSBs products generally compete 
with each other on the basis of their grades or specifications. Because SSBs is an internationally 
traded commodity, traders rely on internationally -recognized designation standards when placing 
orders internationally. Thus, SSB orders are placed based on designated grades or specifications, and 
as long as the ordered products are certified for that certain grade or specification, the fungibility 
between the products are presumed and the products are  deemed to be in a competitive relationship.  
 
21. In addition, SSB production facilities have high adaptability for a wide -range of steel products, 
without a need for further investment in or alternation of the facilities. It is well known that SSB 
production facilities not only can produce all kinds of SSB products with different grades, but can also 
produce other steel products that require surface treatment, (e.g., carbon steels, alloy steels, tool 
steels, bearing steels, etc.), almost immediately  upon order. The industrial practice for SSB is to 
maintain only minimal amount of inventory, as vast majority of SSB sales are produced upon order. 
The Japanese respondents explicitly confirmed that this was their case as well, i.e. that SSB products 
were manufactured and supplied to Korean customers on an 'on -demand basis', and thus that they 
do not keep inventory. A corollary of this undisputed fact is the high adaptability of SSBs production 
facilities, where production can be tailored to customer deman d and specifications. In other words, 
SSB producers can modify easily and quickly their facilities to produce any grade of SSB as long as 
there is demand. This is the reason why the Korean authorities ' likelihood -of-injury determination in 
the third sunset  review focused, among others, on the SSB capacity utilization of the subject 
countries.  
 
22. Moreover, an unsubstantiated assertion by the Japanese respondents that the dumped imports 
from Japan were not in competition with the like domestic products were  refuted, as it stood in tension 
with record evidence. Indeed, no applicable standard categoriz ing SSBs into "general purpose" and 
"special" steel products  exists , contrary to what Japan suggests . Although each steel grade is 
characterized by specific chem ical composition, they all form one consolidated group of like products. 
There was simply no justifiable ground to distinguish so-called "general purpose" SSB products from 
so-called "special" SSB products for purposes of the investigation.  
 
23. Nevertheless, for purposes of examining the Japanese respondents ' argument, the 
Korean  authorities assumed that such an artificial distinction between "general -purpose" and 
"special" SSB products could be made. Thus, they examined whether the alleged diffe rence in product 
mix potentially implied that there was no competition between the dumped and domestic products. 
It turned out, however, that the Japanese respondents ' assertion was not at all supported by the 
facts on the record. Official customs data con firmed that there was a large overlap between the 
dumped imports from Japan and the like domestic product, even accepting the artificial categorization 
of "general purpose" and "special" SSB products. Indeed, no record evidence suggested that the 
Japanese respondents had stopped producing so -called "general purpose" steel or that 
Korean  producers did not produce "special" steel, such that there would be no competitive overlap. 
Exporters as well as domestic producers were found to sell both "categories" of p roducts in significant 
amounts and largely similar proportions. The fundamental factual premise of the 
Japanese  respondents ' argument was not supported by the facts on the record. There was no reason 
to consider that the basket of covered products of the J apanese respondents was not in competition 
with the basket of products of other exporters and domestic producers. Imported and domestic like 
products are in the market together and competing with one another and there was therefore no 
reason to doubt that the situation would be any different if the duties were removed.  
 WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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LEGAL ARGUMENT  
 
V.1. CLAIM  1: JAPAN'S CLAIM  THAT  KOREA  FAILED  TO DETERMINE  PROPERLY  THAT  THE EXPIRY  OF THE 
SSB  DUTIES  WOULD  LIKELY  LEAD TO CONTINUATION  OR RECURRENCE  OF INJURY  IS WITHOUT  
MERIT 
 
24. Japan claims that Korea  failed to properly determine that the expiry of the SSB duties would 
likely lead to a continuation or recurrence of injury in accordance with Article 11.3 of the 
Anti-Dumping Agreement. However, all four of Japan 's specific allegations in support of its claim 
under Article 11.3 are without merit and based on an erroneous understanding of the relevant 
disciplines.  
 
V.1.1.  JAPAN'S CLAIM THAT KOREA'S CUMULATIVE LIKELIHOOD OF INJURY DETERMINATION WAS 
NOT BASED ON AN OBJECTIVE EXAMINATION OF POSITIVE EVIDENCE IS BASELESS  
 
25. Japan asserts that the likelihood of injury determination by Korea violated Article  11.3 because 
there was not a sufficient factual basis for the finding to cumulate imports from Japan, India, and  
Spain, as imports from Japan allegedly did not compete with imports from the other countries. 
Especially, Japan considers there were critical differences in the product mixes, as imports from Japan 
mostly consisted of "special" steel SSBs whereas imports from India and the like domestic product 
were mainly composed of "general purpose" SSBs.  
 
26. Korea considers that this claim under Article 11.3 is without merit. In the absence of any 
specific legal requirement  in respect of cumulation in sunset reviews, Japan fails to demonstrate that 
there was an insufficient factual basis for Korea 's decision to cumulate imports, or that the decision 
did not rest on positive evidence and an objective examination.  
 
27. There was a sufficient factual basis for Korea 's decision to cumulate imports from Japan, India, 
and Spain. Indeed, relevant jurisprudence clearly confirms that cumulation of injury in sunset reviews 
is permissible provided such a decision is supported by positive evidence and has a sufficient factual 
basis that the imports are 'in the market together and competing against each other'. The KTC found 
that all dumped imports, regardless of origin, are in competition with each other and with the like 
domestic products. The covered SSB products were produced by all of the subject countries as well 
as Korea, were fungible, were present in the Korean market during the review period, and used the 
same distribution channels.  
 
28. In fact, the factual underpinnings taken into account by the KTC when making its decisi on to 
cumulate imports fulfilled all the requirements enumerated by the Appellate Body in US – 
Anti-Dumping  Measures  on Oil Country  Tubular  Goods  when upholding an USITC determination to 
cumulate imports in a sunset review.  
 
29. First, the KTC found  that the same reasons justifying a cumulative assessment of injury in the 
prior investigation  and review s applied to the third sunset review as well. The physical characteristics, 
manufacturing process, distribution channel, purpose of use, consumers ' evaluation, etc., of the 
imports and the like domestic product remained the same or similar to that of the original 
investigation as well as the first and second sunset reviews. In addition, the OTI confirmed that the 
products at issue had obtained relevant c ertificates under  international standards, which ipso facto 
confirmed their physical similarities  and effectively confirmed their competitive relationship . The 
KTC's examination of the record facts confirmed the similarity to earlier investigation  and revi ews, 
and was thus an intermediate factual finding in support of the decision to cumulate.  
 
30. Second,  an important intermediary factual finding by the KTC in the third sunset review was 
that the imports and the domestic SSBs constituted "like" products. T his finding had been consistently 
made since the original investigation through the previous sunset reviews. The finding of "likeness", 
based among others on customer statements and evaluations, grade/specification designation under 
globally -recognized cer tification standards, manufacturing processes, distribution channels, price, 
functions and purported uses, etc., confirmed that the products sold in the Korean market shared 
sufficient similarities to be competing . Thus, the competitive overlap among the d umped imports and 
with the like domestic products was significant. Indeed, SSBs are internationally traded commodities, 
which share physical similarities and fungibility in use (thus the market competition), and the 
interchangeability is presumed among com parable product specifications as long as they are certified 
by globally recognized standards.  WT/DS553/R/Add.1  
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31. Third, the KTC examined the artificial distinction between "general -purpose" and "special" SSBs 
introduced by the Japanese respondents but considered that even accepting this distinction there was 
no basis in the facts on the record to consider that there was no or insufficient competition between 
imported and like domestic products. For example, the composition of trade had remained similar 
over the current  POR and the previous investigations, i.e. there had been a consistent proportion of 
imports of so -called "general -purpose" and "special" SSBs from Japan and India, and in relation to 
production and sales volumes in Korea. The official customs clearance da ta revealed that the 
Japanese respondents ' assertion  that imports of "general purpose" SSBs ceased as of 2015 was 
incorrect.  
 
32. Fourth, the price information that was considered by the KTC confirmed that the average resale 
price of the like domestic product was within the range of the dumped imports ' resale prices. In fact, 
the average import and resale price of the dumped imports were considerably lower than the average 
resale price of the like domestic product in 2015.  
 
33. As a result, Kor ea's decision to examine imports cumulatively for the likelihood of injury had a 
sufficient factual basis and Japan failed to demonstrate any bias in the authorities ' evaluation of the 
facts. This evaluation cannot be overturned. Therefore, Japan 's claim m ust fail.  
 
V.1.2.  JAPAN'S CLAIM THAT KOREA'S DETERMINATION THAT THE JAPANESE INDUSTRY HAD THE 
CAPABILITY TO INCREASE PRODUCTION AND EXPORTS TO KOREA WAS NOT AN OBJECTIVE 
EXAMINATION BASED ON POSITIVE EVIDENCE IS BASELESS  
 
34. Japan argues that Korea violat ed Article 11.3 because the determination of a likelihood of 
recurrence of injury relied, among others, on the allegedly erroneous finding that Japan 's SSB sector 
had sufficient additional production capacity for exports. Japan argues that this finding was  not based 
on an objective examination of positive evidence because the KTC rejected "direct evidence" 
submitted by the Japanese producers and instead relied on secondary source information "without 
justifiable reason".  
 
35. Korea considers that this claim  under Article 11.3 is without merit. The Korean authorities had 
different sources of information at their disposal to examine the extent to which there was excess 
production and export capacities in Japan. A reasonable and adequate explanation was provide d why 
the data from ISSF, the Japan Stainless Steel Association, and the Korea International Trade 
Association were preferred in examining production and export capacities in Japan.  
 
36. First, the data were eminently objective, reliable, and credible, as information was derived from 
reputable  international institutions and industry associations. The data on production capacity was 
obtained through ISSF, and reflected data collected by its members, national steel associations, 
overseas market research agenc ies, publicly available information, and industrial knowledge .  
 
37. Second,  the Korean authorities ' examination was not meant to be company -specific, but was 
necessarily order -wide and thus related to the country as a whole. The ISSF data covered  the 
production capacities of the Japanese industry as a whole, including the three Japanese respondents, 
and collected statistics on the secondary processing step of SSB products. In the context of t he 
likelihood -of-injury analysis, the ISSF data was preferred and was used to examine production 
capacities in India and Spain as well, without objection.  Tellingly, the Korean authorities relied on the 
ISSF data in previous reviews as well, and this was n ever disputed by the Japanese respondents in 
the past. In addition, ISSF  data has been used by other WTO Members in anti -dumping proceedings 
concerning SSB s and other stainless steel products.  
 
38. Japan asserts that there was no reasonable justification f or the Korean authorities to reject the 
Japanese respondents ' capacity data when calculating the production capacity of Japan 's SSBs sector, 
in favour of the ISSF data. However, the Korean authorities examined and provided elaborate 
explanation for the dec ision not to use the Japanese respondents ' data. In particular, it was difficult 
to accept the respondents ' data because it significantly differed from ISSF data, the method of 
calculating production capacity varied by each company, no underlying data was provided to allow 
verification of the submitted information, and the respondents ' repeatedly changed their calculation 
methodologies throughout the review . In addition, the record shows that the Korean authorities 
attempted to verify the submitted data, but the r espondents refused to cooperate by providing the WT/DS553/R/Add.1  
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  requested raw data . The decision to rely on the ISSF data, which had been used in the second sunset 
review, in respect of which Japan never raised any issue was thus reasonable.  
39. As a resu lt, the countrywide ISSF data did not suffer from the problems that affected the 
information provided by the Japanese respondents, and was information that had been used in the 
second sunset review as well as in anti -dumping investigations by WTO Members. The data relied on 
was reliable, credible, and objective and was obtained from a well -respected source, and thus 
constituted "positive evidence" that provided a sufficient factual basis for the Korean investigating 
authorities ' determination that Japan 's SSB industry had sufficient additional production capacity and 
room for exports. Japan 's claim is without merit.  
 
V.1.3.  JAPAN'S CLAIM THAT KOREA ERRED IN FINDING THAT IMPORTS FROM JAPAN WOULD 
INCREASE IF DUTIES WERE REMOVED AND THAT DOMESTIC PRICES WOULD D ECREASE IS 
WITHOUT MERIT  
 
40. Japan argues that Korea violated Article 11.3 of the Anti -Dumping Agreement because the 
determination of a likelihood of recurrence of injury was based on the erroneous finding that imports 
from Japan would increase if duties expired and that domestic prices would significantly decrease. 
Japan asserts that this is speculative and that the Japanese industry has shifted its focus away from 
the price competitive "general purpose" SSBs that dominate the Korean market. Howeve r, 
Japan 's assertions are not supported by the facts on the record which reasonably supported the 
Korean  authorities ' contrary findings.   
 
41. First, the finding that dumped imports were likely to increase if duties expired was based on, 
inter alia, a rec ent increase in their volume and market share (despite the imposition of duties), in 
combination with the fact that such volumes were still well below pre-measure  levels, suggesting 
further increases were probable. In addition, the Korean authorities found that investigated producers 
continued to make investments in new facilities, and that there was considerable spare production 
capacity.  
 
42. Second, the Korean authorities ' examination of prices showed that the dumped imports 
continued to undercut prices of the like domestic product throughout the POR, and that the average 
import and resale prices of the dumped imports were considerably lower than the average res ale 
price of the like domestic product at the end of the POR. Thus, even with the imposition of 
anti-dumping duties, the average sales price of the dumped imports undercut the average price of 
the like domestic product. The logical conclusion, therefore, w as that expiry of the duties would exhort 
additional price pressure on domestic prices. This finding was supported by analysis of the 
above -referenced price data and related explanation. The authorities also pointed to the fact that the 
removal of the duti es on imports from Japan would make these imports more price competitive 
putting additional pressure on domestic prices.  
 
43. Third, the Korean authorities also examined the likely impact of other factors, especially 
third-country imports, material costs,  and domestic demand. This analysis showed that there were 
no reason why such other factors would refute a finding of likely increase in volume and decrease in 
domestic prices if duties were removed. For example, the volume and market share of third -countr y 
imports remained stable over the review period, and their market share had only increased slightly.  
 
44. In sum, the Korean authorities ' determination of a likely increase in the volume of dumped 
imports and a drop in domestic prices if duties were to ex pire was firmly grounded in the facts on the 
record and was based on reasonable projections about future events.  
 
V.1.4.  JAPAN'S CLAIM THAT KOREA FAILED TO PROPERLY EXAMINE THE LIKELY IMPACT OF OTHER 
FACTORS IS WITHOUT MERIT  
 
45. Japan argues that Korea 's determination of a likelihood of recurrence of injury is inconsistent 
with Article 11.3 because the Korean authorities failed to examine properly the likely injury caused 
by "known factors other than the dumped imports". However, first, as a legal matter,  Article 11.3 
does not require a causation and non -attribution analysis based on the effects of dumped imports on 
injury as separated and distinguished from the effects of other known factors, as is the case in original 
investigations under Article 3.5. In  any case, second, as a factual matter, Korea 's determination 
involved an objective examination of positive evidence, and rested on a sufficient factual basis, that 
allowed Korea to make a reasoned and adequate conclusion on the likelihood of recurrence of  injury 
if the duties were removed even in the light of other factors.  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
- 81 - 
 
   
46. As part of this analysis, although not legally required, the Korean authorities considered the 
effects of factors other than the dumped imports, such as third -country imports , material costs, and 
demand. The Korean authorities found that there was no basis to consider that these other factors 
played an important role in determining the likelihood of recurrence of injury if the anti -dumping 
duties were removed. For examp le, regarding the volume of third -country imports, the authorities 
found that the volume and market share of these imports remained stable over the review period, 
and trended similarly to the dumped imports and the like domestic product. In addition, mater ial 
costs declined and demand increased in the review period. These two factors could not be a cause of 
recurrence of injury if the duties were removed.  
 
47. In sum, the Korean investigating authorities examined the likely impact of factors other than 
the dumped imports, even though there is no such obligation under Article 11.3. This evaluation of 
other factors was objective and reasonable. Japan has failed to demonstrate the contrary and its 
claim must thus be rejected.  
 
V.2. CLAIM  2: JAPAN'S CLAIM  THAT  THE ALLEGED  USE OF FACTS  AVAILABLE  VIOLATED  ARTICLES  11.4, 
6.8 AND PARAGRAPHS  3 AND 7 OF ANNEX  II OF THE ANTI-DUMPING  AGREEMENT  IS IN ERROR 
 
48. Japan claims that Korea acted inconsistently with Articles 11.4, 6.8, and paragraphs 3 and 7 
of Annex II of the Anti -Dumping Agreement because it rejected information submitted by the 
Japanese respondents and allegedly resorted to facts available for calculating the SSB production 
capacity in Japan based on ISSF data. However, Japan errs when it argues that Kore a resorted to the 
use of facts available, and in any case fails to demonstrate  that Korea acted inconsistently with 
Article  6.8 and paragraphs 3 and 7 of Annex II of the Anti -Dumping Agreement in the underlying 
review investigation.  
 
49. First, the Korean authorities did not resort to the use of facts available due to missing necessary 
information in the third sunset review. They simply attached more weight to the reliable ISSF data. 
The authorities had the necessary information that most reliably represent ed Japan 's countrywide 
capacity and production from reputable public sources, e.g. the ISSF data. Article 6.8 and Annex II 
simply do not apply to a likelihood -of-injury determination where investigating authorities seek to 
examine, as one of many factors, the availability of excess production and export capacity in a country 
of export. While actual data  about producers ' prices and costs are "necessary" to be obtain ed from 
the producers themselves in order to make a determination of dumping, the same is not the case for 
a likelihood -of-injury determination. Such a determination includes an analysis of a 
country 's production capacity and capacity utilization with a vi ew to evaluating the likely future 
increase in the volume of imports, as one of many factors that is examined. In this case, there was 
no missing information, as there was reliable and objective data available from the ISSF. In addition, 
the specific infor mation from the cooperating exporters did not constitute "necessary" information, 
as such data was only producer specific. There was thus no gap to fill that would have required the 
authorities to resort to facts available under Article 6.8.  
 
50. Second, in any case, and should the Panel find that Korea resorted to facts available 
(quod non), every condition under Article 6.8 was satisfied and, thus, Korea was justified to use facts 
available. Indeed, the Japanese respondents refused access to nece ssary information by, for 
example, failing to respond to the dumping aspect of the review. The respondents also withheld 
various requested data, ignoring the clear instructions and requests by the Korean authorities. Thus, 
the respondents more than signifi cantly impeded the third sunset review, failed to act to the best of 
their abilities, and their submitted information was neither verifiable, nor appropriately or timely 
submitted so that it could be used without undue difficulties by the Korean investigat ing authorities.  
 
51. Third, there is no basis for Japan 's claim that the Korean authorities acted without special 
circumspection when using the ISSF data. Korea notes that the ISSF data did not constitute 
"secondary source" information. As there was no primary  source of information for the finding on 
capacity available in Japan as a whole, the ISSF data could not constitute secondary  source 
information. In any event, the Korean authorities assessed the relevance and reliability of the ISSF 
and JSSA data fo r the question concerning production capacity and capacity utilization in Japan. It 
found that the ISSF data represented useful and reliable data on this issue, as it was collected from 
various producers and national associations involved in the SSB indust ry, and that the data was 
frequently relied on in anti -dumping investigations of other WTO Members. Japan in the context of 
this dispute has also confirmed that it is not challenging the reliability of the ISSF data.  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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52. In sum, the Korean investigating authorities did not resort to the use of facts available, as they 
had relevant and appropriate information on production and exports of SSBs in Japan from reputable 
public sources. Assuming, arguendo , that Article 6.8 and Annex II of the Anti -Dumping Agreement 
even apply, all conditions for resorting to facts available were met. Japan 's claim is to be rejected.  
 
V.3. CLAIM  3: JAPAN'S CLAIM  THAT  KOREA  FAILED  TO DISCLOSE  THE ESSENTIAL  FACTS  BEFORE  THE 
FINAL  DETERMINATION  IN VIOLATION  OF ARTICLES  11.4 AND 6.9 OF THE ANTI-DUMPING  
AGREEMENT  IS BASELESS  
 
53. Japan claims that Korea violated Articles 11.4 and 6.9 of the Anti -Dumping Agreement, as the 
KTC allegedly failed to inform all interested parties of the essential facts under consideration that 
formed the basis for the decision to extend the anti -dumping duties. However, this claim is baseless, 
as the Korean authorities disclosed the essential facts that constituted the basis for its decision in 
various documents and meetings, in particular in the KTC 's Final Resolution and the OTI 's reports. 
Indeed, the Korean authorities not only provided the respondents with the interim report that 
contained most of the OTI 's findings on dumping and injury, but also provided the amended inter im 
report which reflected the opinions of the interested parties, thereby disclosing most of the facts that 
constituted the OTI 's findings.  
 
54. All of Japan 's allegations under this claim are either groundless or concern facts that were not 
significant i n the process of reaching a decision to extend the measure – they were thus not 
"essential" facts that warranted disclosure. Where actual data was redacted for protection of 
confidential information, the narrative in the published reports provided the rele vant information 
through a non -confidential summary, allowing the interested parties to exercise their rights of 
defense. Importantly, neither the Japanese respondents in the underlying investigation nor Japan 
brings a claim under Articles 6.2 and 6.4 of t he Anti -Dumping Agreement, thus confirming that the 
respondents ' rights to defend their interests were fully respected in the underlying investigation.  
 
55. In sum, the essential fact s for the decision to extend the application of the anti -dumping 
measure s on imports of SSB s were clearly disclosed to the interested parties in accordance with 
Articles 11.4 and 6.9, enabling them to defend their interests with respect to the key facts supporting 
the determination.  
 
V.4. CLAIM  4: JAPAN'S CLAIM  THAT  KOREA  FAILED  TO TREAT  PROPERLY  CONFIDENTIAL  INFORMATION  IN 
VIOLATION  OF ARTICLES  11.4, 6.5, AND 6.5.1 OF THE ANTI-DUMPING  AGREEMENT  IS BASELESS  
 
56. Japan claims that Korea violated Articles 11.4, 6.5, and 6.5.1 of the Anti -Dumping Agreement 
because the Ko rean authorities afforded confidential protection of certain information without a 
showing of "good cause", and because they failed to require sufficient non -confidential summaries of 
the confidential information. Japan 's claims of violation of these provisions are baseless.  
 
57. In Korea, every interested party in anti -dumping investigations submits non -confidential 
summaries by designating what information is to be treated confidential. It does this by deleting the 
relevant information. By doing so, the provider of the information asserts that such deleted 
information falls within the categories of "confidential information" specifically set forth in the relevant 
laws in Korea (in particular, the Enforcement Decree and Enforcement Rule of the Customs Act of 
Korea). It is understood that every participant in the underlying investigation, including the applicants 
and the respondents, were aware of this established practice in Korea.  
 
58. The KTC proceeded to assess objectively whether there was "good cau se", i.e. whether the 
deleted information indeed fell within a category of confidential information enumerated in the 
relevant Korean laws. In applying the relevant provisions of Korean law, the KTC also considered that 
the requested confidential informati on was by nature "commercially -sensitive information (such as 
profit or cost data or proprietary customer information) that is not typically disclosed in the normal 
course of business and which would likely be regularly treated as confidential in anti -dump ing 
investigations". There was therefore an assessment of "good cause" in light of the standard applied 
under Korean law, but the KTC did not require the applicants to link each piece of redacted information 
to a category of confidential information, becau se the nature of the redacted information obviously 
pointed to the relevant category of confidential information under the law. T here is no obligation 
under Article 6.5 requiring investigating authorities to make express "statements" in their reports as 
to whether good cause was shown for the confidential treatment of specific information. Rather, the WT/DS553/R/Add.1  
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  obligation on investigating authorities is to treat any information as confidential "upon good cause 
shown" by the provider of the information. Thus, an autho rity must only satisfy itself (i.e. "ensure") 
that good cause is shown before treating the information in question as confidential.  
 
59. Moreover , it is the established practice in Korea that all interested parties to anti -dumping 
investigations provide th e "non -confidential summary" of their confidential information by way of 
providing a public version of the document that contains the confidential information. Non-confidential 
summaries are not required under Article 6.5.1 for every single figure and piec e of data included in 
the parties ' submissions, regardless of the relevant context. Thus, investigating authorities are 
entitled to a reasonable degree of deference in accepting or rejecting non -confidential summaries. In 
the underlying investigation, the applicants provided non -confidential summaries for all confidential 
information that they submitted . Such non -confidential summaries were in sufficient detail to permit 
reasonable understanding of the substance of the confidential information.  
 
60. In sum,  Korea 's treatment of confidential information in the third sunset review was consistent 
with Articles 11.4, 6.5, and 6.5.1. Moreover, Japan did not include a claim under Articles 6.2 and 6.4 
of the Anti -Dumping Agreement – thus confirming the respondents ' rights to defend their interests 
were fully respected in the underlying investigation.  
 
V.5. CLAIM  5: JAPAN'S CLAIM  THAT  KOREA  FAILED  TO PROVIDE  SUFFICIENT  DETAIL  OF FINDINGS  AND 
CONCLUSIONS  IN VIOLATION  OF ARTICLES  12.3, 12.2, AND 12.2.2 OF THE ANTI-DUMPING  
AGREEMENT  IS WITHOUT  MERIT 
 
61. Japan claims that Korea acted inconsistently with Articles 12.3, 12.2, and 12.2.2 of the 
Anti-Dumping Agreement because of a failure to provide in sufficient detail the findings and 
conclusions reached on all issues of fact and law that the investigating authorities considered material. 
However, Japan 's arguments are without merit. The MOSF rendered its final determination by way of 
endorsing the findings and recommendations made by the KTC and the OTI, without  any modification. 
When the MOSF issued the public announcement of the final determination, it also publicly disclosed 
in adjoining annexes the Final Resolution and the Final Report.  
 
62. Therefore, the MOSF  complied with its obligations under Articles 12 .3, 12.2, and 12.2.2 through 
its disclosure of the Final Determination, which included the Final Resolution and the Final Report.  
 
V.6. CLAIM  6: JAPAN'S CONSEQUENTIAL  VIOLATION  OF ARTICLE  VI:6(A) OF THE GATT  1994  IS 
UNFOUNDED  
 
63. Japan claims that Korea a cted inconsistently with Article VI :6(a) of the GATT 1994 because of 
the alleged inconsistencies with Article 11.3 of the Anti -Dumping Agreement. Japan 's claim is entirely 
consequential of its Article 11.3 claims. Korea submits that this claim should be rejected, since Korea 
has refuted Japan 's claims under Article 11.3. Moreover, Japan 's Panel Request  fails to specify which 
of the obligations under GATT Article VI :6(a) would be violated as a consequence of the alleged 
inconsistencies with Article 11.3. T herefore, this claim is not within the terms of reference of the 
Panel, as Japan has failed to present the problem clearly in accordance with Article 6.2 of the DSU.  
 
CONCLUSION  
 
64. For the reasons stated in this submission, Korea respectfully request s the Panel to reject all of 
Japan 's claims that Korea 's determination to extend the anti -dumping measure on imports of SSB s 
from Japan, India, and Spain is inconsistent with the Anti -Dumping Agreement.  
 
 WT/DS553/R/Add.1  
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  ANNEX B -3 
SECOND INTEGRATED EXECUT IVE SUMMARY OF  
THE ARGUMENTS OF JAPAN
I. Introduction  
 
1. Through its  second written  submission, opening and  closing statement s at the second 
substantive meeting of the Panel, as well as its responses to the Panel 's questions, Japan continues 
to demonstrate that Korea 's continued imposition of anti -dumping duties upon Japanese stainless 
steel bars does not comply with its obligations under the General Agreement on Tariffs and 
Trade  1994 ("GATT 1994") and the Agreement on Implementation of Article VI of the 
General  Agreement on Tariffs and Trade 1994 ("Anti -Dumping Agreement").  
 
II. Common Evidentiary Issues  
 
A. Impermissibility of Ex Post Explanations  
 
2. Korea has put forth and relied upon multiple new, ex post explanations for the findings and 
conclusions in the reports of the Korea Trade Commission and Office of Trade Investigation 
("Korean  Investigating Authorities"). However, neither the evidence in th e record of the sunset 
review at issue nor the Korean Investigating Authorities ' published reports indicate that these 
explanations had been contemplated  by the Korean Investigating Authorities during the sunset 
review.  
 
3. It is well established that a Me mber cannot supply new, ex post rationales in a World Trade 
Organization (" WTO") dispute settlement proceeding to support the determinations of its 
investigating authorities, when those rationales were not a contemporaneous part of the 
investigation. It is  clear that ex post explanations that cannot be discerned from the published 
reports and record evidence cannot be considered by the panel as evidence of what the investigating 
authority actually considered, analysed, or determined during its investigation . 
 
4. Thus, in the present case, the ex post explanations presented to the Panel by Korea cannot 
be taken into account in assessing whether the determination is consistent with the requirements of 
the Anti -Dumping Agreement.  
 
B. Standard of Review  
 
5. An inquiry by the panel into whether there is an  "alternative explanation of the facts [that] is 
plausible" to assess whether the investigating authority 's explanation is reasoned and adequate in 
light of that alternative explanation, found to be necessary by the Appellate Body in US – 
Countervailing  Measures  (China)  (Article  21.5 – China) , is fully consistent with both Article 11 of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes (" DSU") and 
Article  17.6(i) of the Anti -Dumping Agreement, and was necessary in this case.  
 
6. Japan 's arguments do not seek a de novo review of the Korean Investigating 
Authorities ' findings in this case. Rather, Japan argues that the determination of likelihood of injury 
in this case is clearly not reasoned and adequate based on the published re ports and record evidence 
from the investigation as the Korean Investigating Authorities ' investigation has left open a risk of 
the false attribution of injury to the alleged dumped imports from Japan , which means that the 
conclusion that the expiry of the  anti-dumping duty on imports (including Japanese imports) would 
lead to the likely -recurring injury may be false . 
 
III. Article 11.3 of the Anti -Dumping Agreement  
 
7. The Korean Investigating Authorities ' determination of the likelihood of injury does not 
comport with the requirements of Article 11.3 of the Anti -Dumping Agreement because it was not 
based on positive evidence and an objective examination, and did not have a sufficient factual basis 
to allow them to draw reasoned and adequate conclusions.  Japan has provided explanations WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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  regarding both the legal standards and the specific analysis of the deficiencies of the 
likelihood -of-injury determination at issue.  
 
A. Legal Issues  
 
1. Korea 's Argument That the Causal Nexus Need Not Be Examined is Incorrect  
 
8. Korea emphasizes that "there is no requirement to establish a causal link in a review under 
Article 11.3", as Article 3.5 does not apply to sunset reviews, and states that Japan 's argument is 
"essentially" concerned with such requirement that  does not actually exist.  
 
9. However, although a causal link between the dumping and injury may not need to be 
established anew, a causal nexus between the expiry of dumping and the continuation or recurrence 
of injury must still be established. This requ irement to establish the causal nexus derives from the 
fundamental principles under Article VI of the GATT 1994 that (i) anti -dumping duties can be 
imposed on imports from a certain Member only if dumping from that Member causes material injury 
to the dome stic industry, and (ii) if dumped imports cease to exist or cease to cause injury to the 
domestic industry, no anti -dumping duty can continue to be imposed.  
 
10. Article 11.3 of the Anti -Dumping Agreement confirms and embodies such principles under 
Article VI of the GATT 1994, by requiring that the expiry of the anti -dumping duties would be likely 
to "lead to" the continuation or recurrence of dumping and injury to the domestic industry. In this 
regard, as the Appellate Body has recognized in US – Anti-Dumping  Measures  on Oil Country  Tubular  
Goods , examination of the causal nexus between the expiry of the anti -dumping duties and the 
continuation or recurrence of injury to the domestic industry allows the existence of the causal link 
between dumping an d injury to be reasonably assumed, which is the reason that such causal link 
may not be established anew in sunset reviews.  
 
2. The Forward -Looking Nature of a Sunset Review Does Not Allow Bare 
Speculation, and the Update of the Market Realities Is Necessa ry 
 
11. Korea argues that because the analysis in a sunset review is "forward -looking", it inherently 
includes a degree of speculation. However, as the Appellate Body found in US – Anti-Dumping  
Measures  on Oil Country  Tubular  Goods , the text of Article 11. 3 provides that "the termination of 
the anti -dumping duty at the end of five years is the rule and its continuation beyond that period is 
the 'exception'". According to the Appellate Body 's finding in US – Corrosion -Resistant  Steel Sunset  
Review , the term "determine" in that provision also indicates that the investigating authority is not 
allowed to "simply assum[e] that likelihood exists" without evaluating the facts of a particular case. 
Rather, as the Appellate Body stated in US – Oil country  Tubular  Goods  Sunset  Reviews , the 
requirement of Article 3.1 is "equally relevant" to sunset reviews, and thus such determination must 
be based on "positive evidence" and an "objective examination". The Appellate Body further found, 
in US – Corrosion -Resistant Steel Sunset  Review , that "[a]n investigating authority must have a 
sufficient factual basis to allow it to draw reasoned and adequate conclusions concerning the 
likelihood of such continuation or recurrence".  
 
12. This view that even forward looking  analysis requires a proper factual basis is supported also 
by Article 3.7 of the Anti -Dumping Agreement, which prohibits an affirmative finding of threat of 
future material injury based "merely on allegation, conjecture or remote possibility" . The analysi s of 
threat of material injury under Article 3.7 has a stronger forward -looking nature than the likelihood 
of injury analysis under Article 11.3. In this regard, the Appellate Body in US – Oil Country  Tubular  
Goods  Sunset  Reviews  has found that the "immine nt" timeframe under Article 3.7 does not apply to 
sunset reviews. However, the Appellate Body in US – Softwood  Lumber  VI (Article  21.5 – Canada)  
also found that the Article 3.1 is an "'overarching provision[s] ' that reinforce elements of Article 11 
of the DSU by imposing certain 'fundamental ' obligations ' … that determinations of injury, including  
threat  of injury , be based on positive evidence and an objective examination of the specific factors 
set out in these provisions" (emphasis added), and Articles 3.1 and 3.7 "enjoin a panel to scrutinize 
carefully the inferences and explanations of the investigating authority in order to ensure that any 
projections or assumptions made by it, as to likely future occurrences, are adequately explained and 
supported by positive evidence on the record" . Article  11.3 and 3.7 thus have a parallel relationship 
to Article 3.1. Under both Article 11.3 and Article 3.7, speculation without positive evidence is not 
allowed, as the authority must make a forward looking " determination", and all such determinations 
must be based on "positive evidence" under Article 3.1. The phrase "not merely on allegation, WT/DS553/R/Add.1  
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  conjecture or remote possibility" is helpful context for understanding how an authority should 
approach a forward look ing determination based on "positive evidence".  
 
13. Therefore,  the forward -looking nature does not excuse the likelihood -of-injury determination 
from being based on the objective examination and positive evidence, and a sufficient factual basis 
that allow s the reasoned and adequate conclusion. Rather, in light of the forward -looking nature, 
the likelihood -of-injury determination must be based upon proper inferences from the most recent 
relevant past and supersede the prior determinations, and thus must ref lect the updated market 
situation for the current POI. In this regard, the investigating authority cannot passively rely on the 
findings of the previous proceeding without examining whether such previous findings actually apply 
to the POI of the review at issue. In other words, the historical factual basis provided by the prior 
proceedings must be updated to reflect the current market realities. Moreover, the investigating 
authority must be open to a possibility that the fact finding in the prior proceeding s was not accurate 
when such possibility can be inferred from the market realities currently before the investigating 
authority.  
 
14. For this purpose, if the investigating authority properly finds that there has not been any 
meaningful change in the fact ors and circumstances that supported the finding in a previous 
proceeding and that there is no basis to consider that such prior finding was not accurate when 
made, such finding could form the basis for an affirmative determination in a subsequent sunset 
review. On the other hand, if an investigating authority finds a meaningful change from a previous 
proceeding, the investigating authority cannot rely on the finding from such previous proceeding as 
such, even if the finding may have been accurate at the ti me it was made. In such cases, the extent 
to which the investigating authority can rely on a previous finding may depend on the degree of the 
changes since the previous proceeding. If, for example, there have been substantial changes in 
multiple factors th at supported the previous finding, the investigating authority would only be able 
to rely on the previous finding to a limited extent. It is even possible that the investigating authority 
could not sufficiently assess the entire effect of such changes, thu s eliminating the ability to rely on 
any aspect of such previous finding. In such cases where an investigating authority cannot determine 
the relevance of a previous finding to a current proceeding, the investigating authority must examine 
the current stat us of the market and make new findings, rather than examining what has changed 
from the previous proceedings.  
 
3. Relevancy of Articles 3.2, 3.3 and 3.5 of the Anti -Dumping Agreement in Sunset 
Reviews  
 
15. Japan also considers that, as Article 3 and Articl e 11.3 are both based on the fundamental 
principles established by Article VI of the GATT 1994, Articles 3.2, 3.3 and 3.5, while not being 
directly applicable in sunset reviews, still constitute an important part of the context for 
understanding the likeli hood-of-injury determination under Article 11.3 in that they provide certain 
guidance for what matters are required to be examined under Article 11.3. When properly viewed in 
context, Article 11.3 only provides that the investigating authority has flexibil ity in the steps involved 
and the evidence to be examined beyond those set forth in the various subparagraphs of Article 3. 
And even though the investigating authority has somewhat more discretion as to its approach under 
Article 11.3, that discretion does  not allow it to ignore the important function of the analytical 
framework under Article 3.  
 
16. The Appellate Body 's findings confirm this understanding. The Appellate Body in US – Oil 
Country  Tubular  Goods  Sunset  Reviews  found that "[c]ertain of the anal yses mandated by Article 3 
and necessarily relevant in an original investigation may prove to be probative, or possibly even 
required, in order for an investigating authority in a sunset review to arrive at a 'reasoned 
conclusion'". The Appellate Body in t he same case states that "factors such as the volume, price 
effects, and the impact on the domestic industry of dumped imports, taking into account the 
conditions of competition, may be relevant to varying degrees in a given likelihood -of-injury 
determination", and that "[a]n investigating authority may also, in its own judgement, consider 
other factors contained in Article 3 when making a likelihood -of-injury determination".  
 
B. Issues Related to the Analysis of the Korean Investigating Authorities  
 
17. With regard to the substantive issues of the Korean Investigating Authorities ' analysis, Korea 
has been unable to explain the serious flaws in the Korean Investigating Authorities ' decision to 
cumulatively assess the effects of imports from Japan, India, and Spain; their consideration (or lack WT/DS553/R/Add.1  
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  thereof) of the effects of factors other than the product under investigation , their analysis of the 
price and volume effects of the product under investigation, and their analysis of pr oduction capacity.  
 
18. While the final likelihood -of-injury determination was based on four major findings, namely: 
(a) a volume effects analysis, (b) a price effects analysis, (c) the unused export capacity, and (d)  the 
trade remedy measures in other cou ntries, because of the serious flaws in the aforementioned 
issues, each of the four major bases for the determination has serious deficiencies. Structural defects 
in even one of the four pillars would bring down Korean 's flimsy structure, and here all four  of the 
pillars are defective. Thus, the Korean Investigating Authorities ' affirmative likelihood -of-injury 
determination, even in the totality of evidence, is not at all based on positive evidence and an 
objective examination, nor reasoned or adequate.   
 
1. The Korean Investigating Authorities ' Decision to Use Cumulative Assessment 
Does Not Comport with the Requirements of Article 11.3  
 
19. Korea essentially argues that because Article 3.3 of the Anti -Dumping Agreement does not 
apply  per se to sunset revi ews, the Korean Investigating Authorities were not required to ensure 
that their use of cumulative assessment was appropriate in light of the conditions of competition 
between the domestic like products and the product under investigation and between the p roduct 
under investigation from different subject countries, despite the fact that Korea has also admitted 
that "whether imports are 'in the market together and competing against each other'" may need to 
be examined when relying on cumulative assessment.  
 
20. However, although Article 3.3 does not apply per se to sunset reviews, the requirements 
contained within it may need to be satisfied in a sunset review regardless, depending on the factual 
circumstances of the case, as an investigating authority must ensure that the injury to the domestic 
industry is not being falsely attributed to the product under investigation from a particular country, 
whether or not it chooses to cumulatively assess the effects of imports from multiple countries. 
Otherwise, the in vestigating authority cannot determine, in accordance with the requirements of 
Article 11.3, that the expiry of the anti -dumping duty on products from a certain country would be 
likely to lead to the continuation or recurrence of injury to the domestic ind ustry.  
 
21. Specifically, if the products have no substantial overlap in their competitive relationships, that 
is to say, if the products from a subject country do not substantially compete with the domestic like 
products or the products from other subject  countries, the impact of the products from that country 
on the domestic industry as a whole may not reach the level of "material". Thus, if the evidence and 
arguments before the investigating authority indicate the lack of substantial competition between 
them, it needs to examine whether a sufficient competitive relationship can be found in spite of such 
evidence and arguments, in order to remove the risk of false attribution.  
 
22. It should also be noted that Korea admits that "whether imports are 'in the  market together 
and competing against each other'" may need to be examined when relying on cumulative 
assessment. Moreover, the statement in the OTI 's Final Report that the "competitive market 
environment at the time of the second sunset review has not ye t changed" at least shows that the 
Korean Investigating Authorities also understood that they were required to find that subject imports 
are "competing against each other" in order to use cumulative assessment.  
 
23. Japan has demonstrated that the finding of and evidence before the Korean Investigating 
Authorities in this case show that the products imported from Japan were constantly and 
substantially higher priced than the domestic like products and the products imported from India, 
and that the three cou ntries ' products had different product mixes in terms of the steel grades they 
contained. Thus, it was highly likely that the imports from Japan overall do not substantially compete 
with either of the domestic products overall or the imports from India ove rall. However, the Korean 
Investigating Authorities made a baseless assumption that all of the Japanese, Korean, and Indian 
products could be deemed homogeneous without addressing the findings and evidence that suggest 
otherwise, which left open the possib ility of falsely attributing the likelihood of injury to the domestic 
industry to the imports from Japan.  
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  2. The Korean Investigating Authorities ' Analysis of Factors Other than the 
Product Under Investigation Does Not Comport with the Requirements of 
Article 11.3  
 
24. Korea argues that the Korean Investigating Authorities were under no obligation to consider 
factors other than the product under investigation because they were under no obligation to examine 
causation and non -attribution in the sunset revie w, but that even if there was such an obligation, 
the Korean Investigating Authorities did examine the other factors raised by Japan: third -country 
imports; changes in the price of material costs; and demand in domestic and export markets.  
 
25. However, the need to analyse other factors is directly derived from the fundamental principle 
under Article VI of the GATT 1994 that anti -dumping duties can be imposed on imports from a certain 
Member only if dumping from that Member causes material injury  to the domestic industry, which 
is confirmed and embodied in Article 11.3 of the Anti -Dumping Agreement. Indeed, the 
Korean  Investigating Authorities in this case made explicit findings that the current injury to the 
domestic industry appeared to be cause d by the factors Korea mentioned above, which would be 
likely to remain highly relevant upon the expiry of anti -dumping duties. Nevertheless, there is no 
evidence on the record at all that they actually took into account these or any other factors, other 
than the product under investigation, in making their likelihood -of-injury determination, which 
means that all of Korea 's arguments before the Panel are ex post arguments.  
 
26. In addition, even the Korean Investigating Authorities ' alleged conclusions regarding such 
factors lack a sufficient factual basis, because of their biased selection of data or other improper 
analysis that allegedly supports the conclusions.  
 
3. The Korean Investigating Authorities ' Analysis of Price Effects and Volume  
Effects Does Not Comport with the Requirements of Article 11.3  
 
27. Korea argues that the assessment of the volume and price effects of the dumped imports, 
which are required under Article 3.2, are not required under Article 11.3, and that the 
Korean  Investigating Authorities "did not actually undertake a price effects analysis" in the sunset 
review at issue. However, it is apparent that the Korean Investigating Authorities did in fact rely 
upon such analysis in the sunset review at issue, as they stated t hat, "[w]here the anti -dumping 
measures are terminated, a steep fall in the price of the dumped imports" would occur, which would 
"lead to an increase in exports to Korea and weaken the price competitiveness of [domestic] [l]ike 
products" in their final de termination.  
 
28. Japan understands that Article 3.2 does not directly apply to sunset reviews. However, an 
analysis of the causal nexus between the expiry of the anti -dumping duties and the continuation or 
recurrence of injury to the domestic industry wo uld logically require an assessment of the volume 
and price effects of the dumped imports, as is required for the analysis of the causal link, so as to 
comply with the requirement of Article 3.1 as well as the fundamental principles of Article VI of the 
GATT 1994, which are confirmed and embodied in Article 11.3. Comparability of imported products 
with the domestic products, which is required for analysing the volume and price effects of the 
dumped imports under Articles 3.1 and 3.2, also constitutes an imp ortant part of factual context to 
establish a proper causal nexus under Article 11.3, even if the specific method or manner in which 
they must be examined may differ between original investigations and sunset reviews. In virtually 
every case, comparability  will be a key part of the positive evidence that should underlie the analysis 
of the likelihood of injury by the investigating authority as framed by Article 3.1.  This is because, if 
the dumped imports are not comparable with the domestic like products, i .e., if the dumped imports 
do not interact or compete in the market with the domestic like products, the expiry of the 
anti-dumping duty against those dumped imports would not logically lead to the continuation or 
recurrence of injury to the domestic indus try from those dumped imports.  
 
29. Korea also tries to justify the Korean Investigating Authorities ' statement above, arguing that 
"if the anti -dumping measure is continuing to affect the volume and price of the dumped imports, it 
is reasonable and adequa te to assume that the volume and the price of the dumped imports will 
increase and decrease, respectively, upon removal of the measure" and that the record showed that 
the measure was continuously having an effect on the product under investigation.  
 
30. However, this is a mere assumption without any factual basis and not consistent with the 
record evidence. Since the imposition of the anti -dumping duties, the market situation has changed WT/DS553/R/Add.1  
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  substantially in terms of several factors, including (i) changes in the product mix of the product 
under investigation which is imported into Korea from Japan, (ii) changes in third country imports 
into Korea which mean that other countries are now exporting higher volumes of products which 
compete with the domestic like p roducts, and (iii) changes in the prices of materials. 
Korea 's argument is based on an incorrect presumption that the same market actors would act 
exactly the same way upon the expiry of dumping as they did prior to the imposition of duties 15 
years ago, d espite the changes in market conditions.  
 
31. Japan also notes that the Korean Investigating Authorities ' assessment of the record evidence 
that forms the basis for the findings of price and volume effects was non -objective and unreasonable, 
and always di rected to affirmative determination.  
 
4. The Korean Investigating Authorities ' Findings and Analysis of Production 
Capacity Do Not Comport with the Requirements of Article  11.3 
 
a. Examination  of the Production  and Export  Capacities  Alone  Does Not Suffice  as 
an Analysis  of Conditions  of Competition   
 
32. To avoid the issues with the Korean Investigating Authorities ' price effect and volume effect 
analysis, Korea argues that the KTC 's alleged conditions of competition analysis instead focused on 
the production capacity of the subject countries ' stainless steel bar industries. However, the 
examination of production capacity and export capacity considers only the supply side of the market, 
and thus, such examination alone cannot suffice as an analysis o f conditions of competition. The 
Korean Investigating Authorities should have examined the demand side of the market as well, which 
may include whether certain products are substitutable with other products in the market.  
 
b. The ISSF's Data Was Neither  Suitable  Nor Reliable  for the Sunset  Review  at Issue  
 
33. In any event, the Korean Investigating Authorities ' production capacity analysis cannot be 
considered reasonable and adequate because it was based on data which was not suitable for the 
calculation of the production capacity and capacity utilization rate of the product under investigation.  
 
34. The production capacity data from the International Stainless Steel Forum ("ISSF"), which the 
Korean Investigating Authorities relied upon in maki ng their finding regarding the production 
capacity of the Japanese producers that responded to the review ("Japanese Respondents") , is not 
suitable to be used as the production capacity for the product under investigation because the scope 
of products incl uded within the data includes products other than stainless steel bars, and because 
both the method of calculation and the source of the data are unknown, all of which do not apply for 
the Japanese Respondents ' data. 
 
35. The ISSF 's data was overbroad in t hat it captured products separate from the product under 
investigation, namely stainless steel sections. Although Korea argues that the production capacity 
for products other than the product under investigation should be counted in the production capacity  
because the capacity is allegedly convertible to that of the product under investigation, such analysis 
is not reflected in the Korean Investigating Authorities ' records and is therefore an ex post argument. 
Such premise for expanding the product coverage  to calculate the production capacity was not 
addressed to the Japanese Respondents in the review procedure either.  
 
36. Furthermore, as mentioned in connection with the Korean Investigating Authorities ' analysis 
of price effects and volume effects, the Ko rean Investigating Authorities did not examine whether 
the Japanese Respondents had any incentive to produce additional quantities of the product under 
investigation because they did not examine whether there was any additional demand that such 
additional quantities could meet. Additionally, the Korean Investigating Authorities did not analyse 
whether it was commercially feasible for the Japanese Respondents to convert their facilities which 
are dedicated to other products.  
 
37. The ISSF 's data was further rendered unsuitable by the fact that the Korean Investigating 
Authorities chose production volume data from another source, the Japan Stainless Steel 
Association, the product scope of which did not match that of the ISSF 's data. Thus, the calculation 
of the capacity utilization rate involved misalignment between the numerator (i.e. production 
volume) and the denominator (i.e. production capacity). However, the Korean Investigating 
Authorities did not consider this or attempt to compensate for it.  WT/DS553/R/Add.1  
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  38. At the  same time, the Korean Investigating Authorities rejected the Japanese 
Respondents ' own data regarding their production capacities, which was specifically calculated to 
show their capacity to produce the product under investigation. As the Japanese Respond ents 
themselves are the primary source of information about their own production capacity, their 
information should naturally have been used. However, the Korean Investigating Authorities rejected 
the data on vague and insufficient bases (which were addres sed in Japan 's first written submission), 
and none of the arguments Korea is presenting in the current proceeding in an attempt to explain 
the rejection is reasonable, as discussed below in section V.B regarding Japan 's claims under Articles 
11.4 and 6.8 a nd Annex II. Also as explained in that section, the Korean Investigating 
Authorities ' allegation, that the ISSF 's data was necessary because countrywide data was required, 
is unfounded.  
 
c. The Japanese  Respondents  Did Not Have Incentives  to Utilize  the Unused 
Production  Capacity  to Increase  Their Exports  of the Product  Under  Investigation  
to Korea  
 
39. Furthermore, even assuming that the conclusion that the Korean Investigating Authorities 
reached regarding the production capacity had been reasonable and adequately supported, the 
Korean Investigating Authorities failed to consider whether or not any unused production capacity 
may actually be used for products to be exported to Korea, because they did not assess whether or 
not the Japanese Re spondents had any incentive to use that production capacity to produce 
additional quantities of the product under investigation, or whether the Japanese Respondents had 
any incentive to export additional quantities of the product under investigation to Kor ea. 
 
40. The incentives of the Japanese Respondents must be examined, in order to connect the 
production capacity to the likelihood of injury, because if the Japanese Respondents do not produce 
or ship to Korea additional quantities of the product under in vestigation, then it could hardly be said 
that the potential to produce additional quantities alone (with no actual additional production or 
exporting ever taking place) could lead to the continuation or recurrence of injury to the domestic 
industry.  
 
41. In this respect, Japan cites as examples of factors which should have been considered, 
considering the evidence that was before the Korean Investigating Authorities: the fact that the vast 
majority of the product under investigation which is produced by th e Japanese Respondents is 
consumed in Japan and Japanese demand for the product under investigation is growing; whether 
there is any demand in Korea for additional quantities of the higher -priced product under 
investigation that the Japanese Respondents pr oduce; and whether the Japanese 
Respondents ' product under investigation could compete with other products which could also meet 
that additional demand, such as the imports from China and Chinese Taipei.  
 
IV. Article VI :6(a) of the GATT 1994  
 
42. In its first written  submission, Korea takes issue with Japan 's claims under Article VI :6(a) of 
the GATT 1994, arguing that Japan 's panel request does not specify which of the obligations under 
Article VI :6(a) would be violated and accordingly, that the claim is n ot within the terms of reference 
of the Panel. Korea 's second written submission merely repeats the arguments of its  first written  
submission with no further elaboration.  
 
43. Japan disagrees with Korea 's position. Article 6.2 of the DSU provides only that a panel request 
must "provide a brief summary of the legal basis of the complaint sufficient to present the problem 
clearly" and that Japan 's panel request specifies the relevant paragraph of Article VI of the 
GATT  1994 as "6(a)", and states that "Kor ea is levying the antidumping duties without establishing 
that the effect of the dumping is such as to cause or threaten material injury to an established 
domestic industry", such that the issue is clear and Japan 's claim meets the standards.  
 
V. Articles 11.4 and 6.8 and Annex II of the Anti -Dumping Agreement  
 
44. Korea makes multiple arguments as to why the Korean Investigating 
Authorities ' determination did not present any problems under Article  11.4 and 6.8 and Annex II. 
First, Korea puts forth  several arguments as to why the provisions of Article  11.4 and 6.8 and Annex 
II do not apply. Second, Korea argues that even if the Korean Investigating Authorities had resorted 
to facts available, they did so properly. However, these arguments are not me ritorious.  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
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A. The Provisions  of Articles 11.4 and 6.8 and Annex II Apply  
 
45. Korea argues that the provisions of Articles 11.4 and 6.8 and Annex II apply only when the 
necessary information is specific to interested parties and that, in the present case , the necessary 
information was the countrywide production capacity of Japan. However, first, there is no textual 
basis in Article 6.8 or Annex II for any change in the applicable requirements for the use of facts 
available depending on the type of informa tion at issue. Second, during the sunset review, the 
Korean Investigating Authorities never indicated that they were seeking or examining information 
on countrywide production capacity. Rather, the Korean Investigating Authorities ' questionnaire to 
the Jap anese Respondents explicitly requested the individual exporter 's own production and 
purchase volume of the product under investigation.  
 
46. With regard to Korea 's argument that the provisions of Article 6.8 are not mandatory, Japan 
explained that Article 6.8 does not indicate that compliance with its provisions are optional, if the 
investigating authorities have chosen to use facts available. The choice presented to investigating 
authorities is to either use direct evidence provided to it or to use facts available and comply with 
the provisions of Article 6.8 and Annex II.  
 
47. Nor could the Korean Investigating Authorities escape from the requirements of Article 6.8 
and Annex II by simply avoiding the term "facts available" in discussing the ir analysis. The inquiry 
is not governed by the label that the investigating authorities attach to their actions. Here, where 
the Korean Investigating Authorities have rejected the data of the Japanese Respondents regarding 
their production capacity in ord er to use the production capacity data provided by another source, 
the provisions of Article 6.8 and Annex II apply.  
 
B. There Were No Faults with the Japanese Respondents ' Data Such as to Allow Its 
Rejection in Favour of Facts Available  
 
48. Korea argues that the information provided by the Japanese Respondents was not "verifiable", 
was not "submitted so that it [could] be used without undue difficulties", and was not supplied in a 
timely fashion, for various reasons, and that as a result, the use of the I SSF's data is consistent with 
Articles 11.4 and 6.8, and Paragraph 3 of Annex II, of the Anti -Dumping Agreement. In its 
second  written submission, Japan explained why each of these reasons is not a justification for the 
use of facts available, in addition to the fact that most of them were never mentioned by the 
Korean  Investigating Authorities during the sunset review proceeding or in their written reports and 
are therefore impermissible ex post explanations.  
 
49. First, Korea has not shown why the country wide production capacity was critical information 
separate and distinct from the production capacity data it requested from the Japanese Respondents. 
The Japanese Respondents represented the production of the overwhelming majority of the product 
under inve stigation, with only a small fraction being produced by other producers. The figures for 
countrywide production capacity and the Japanese Respondents ' aggregated capacity would not 
have been particularly different. Thus, the limited remaining production ca pacity of other producers 
can be either disregarded or extrapolated from other existing information.  
 
50. Second, although Korea argues that "raw data" was not provided, the Japanese Respondents 
answered each request for data made by the Korean Investigat ing Authorities, although the 
Korean  Investigating Authorities did not explain the precise content and nature of the allegedly 
necessary "raw data". The record does not show that the Korean Investigating Authorities expressed 
dissatisfaction with the data they received.  
 
51. Third, the Japanese Respondents submitted their information within a "reasonable period", 
giving the Korean Investigating Authorities sufficient time to examine the submitted data.  
 
52. Fourth, the difference between the ISSF 's data and  the Japanese Respondents ' data is likely 
to have derived from the difference in product coverage between the two datasets, and the 
ISSF's data is less reliable. In addition, the alleged variations in the methodologies for the production 
capacity calculati on applied by each of the Japanese Respondents do not undermine the reliability 
of their data. Stainless steel bar production involves a standard process which always includes 
secondary processing, but the specific type of secondary processing may vary fro m company to 
company. The Japanese Respondents ' data simply reflected this reality, and the Japanese WT/DS553/R/Add.1  
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  Respondents thoroughly explained this to the Korean Investigating Authorities with the formulas 
used in each company 's calculation.  
 
53. Lastly, the Japanese Respondents were fully cooperative with the Korean Investigating 
Authorities ' requests for information regarding their production capacity and acted to the best of 
their abilities. Contrary to Korea 's argument, they never prevented or objected to on-site 
verification.  
 
C. The Korean Investigating Authorities Based Their Finding on Secondary Source 
Information Without Special Circumspection  
 
54. Korea argues (i) that the Japanese Respondents ' data is not "primary source" information in 
terms of the countrywide production capacity of Japan and (ii) that the ISSF 's data is not "secondary 
source" information, and the information was relevant, reliable, and the best information. Korea 
asserts that, accordingly, the Korean Investigating Authorities ' use of the ISSF 's data is consistent 
with Paragraph 7 of Annex II of the Anti -Dumping Agreement.  
 
55. In this regard, Japan points out that information from the Japanese Respondents is the most 
probative information. What is ultimately important is the sour ce's proximity to the original source 
of the relevant information, and thus, the primary source of information about industry capacity is 
data from the individual firms that make up that industry, rather than the ISSF. Korea 's assertion 
that the ISSF is re liable as an institution does not substantiate the reliability of the production 
capacity data compiled by the ISSF to be used in the sunset review at issue.  
 
VI. Articles 11.4 and 6.9 of the Anti -Dumping Agreement  
 
56. The main points of Korea 's arguments  are (i) that the legal standard under Article 6.9 allows 
the disclosing party to meet the disclosure obligations by providing a narrative description of the 
facts, and that such obligations are limited by the confidentiality obligations set out in Article  6.5, 
(ii) that the Korean Investigating Authorities disclosed the essential facts sufficiently in 
KTC's Resolution of Final Determination and OTI 's Final Report which were issued before the final 
determination , and (iii) that the Japanese Respondents ' right to a defense has not been violated 
because Japan has not brought a claim under Articles  6.2 or 6.4 of the Anti -Dumping Agreement.  
 
57. However, where the Korean Investigating Authorities provided narrative descriptions of the 
redacted information at iss ue, those descriptions were not sufficient to allow the Japanese 
Respondents to understand the content of the redacted information sufficiently to defend their 
interests. In addition, the Korean Investigating Authorities often did not provide any such narr ative 
description.  
 
58. Furthermore, the confidentiality obligations under Article 6.5 do not limit the disclosure 
obligations under Article 6.9. Rather, as the Appellate Body confirmed in Russia  – Commercial  
Vehicles , in an instance where confidential inf ormation constitutes essential facts, it need not be 
directly disclosed, but the investigating authorities must instead disclose sufficient non -confidential 
summaries of that information.  
 
59. Additionally, the alleged disclosure of the essential facts through the reports of the 
Korean  Investigating Authorities was not sufficient because it was not made before the "final 
determination", but rather the reports Korea refers to actually comprise the final determination. 
Moreover, even if the final det ermination issued by the KTC could be considered a part of the 
disclosure of the essential facts, OTI 's Final Report and KTC 's Resolution of Final Determination do 
not sufficiently disclose essential facts regarding: the alleged recurrence of dumping; unus ed 
production capacity and export capacity; the Korean Investigating Authorities ' use of facts available; 
the Korean Investigating Authorities ' use of cumulative assessment; the effect of third -country 
imports on the price of the domestic like products; th e effect of the product under investigation on 
the price and volume of the domestic like product sales; the trends in the capacity utilization rates; 
operating profit ratio of the domestic industry; and market share of third -country imports. 
Accordingly, O TI's Final Report and KTC 's Resolution of Final Determination cannot remedy the 
failure to disclose essential facts.  
 
60. Finally, the absence of a claim under Article 6.2 or 6.4 of the Anti -Dumping Agreement does 
not have any bearing on whether or not an investigating authority has met its disclosure obligations WT/DS553/R/Add.1  
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  under Article 6.9. A country is not obligated to bring every claim that it has. Furthermore, past 
findings of panels and the Appellate Body distinguish the obligations of the investigating authorit ies 
under Articles  6.2 or 6.4 from those under Article 6.9.  
 
VII. Articles 11.4, 6.5, and 6.5.1 of the Anti -Dumping Agreement  
 
A. The Korean Investigating Authorities Treated Certain Information as Confidential 
Even Though There Was No Good Cause Shown  
 
61. Korea argues that the Korean Investigating Authorities did not fail to ensure that good cause 
for confidential treatment of information was shown, because under the general practice of 
anti-dumping investigations in Korea, the submission of redacted in formation is deemed to be an 
implicit assertion by the submitter that the redacted information constitutes "confidential 
information" which falls within one of the five categories of information that must be treated as 
confidential specified in Article 15 of the Enforcement Rules of the Customs Act of Korea 
("Enforcement Rules "), a domestic Korean law , and that such is a sufficient showing of good cause.  
 
62. This does not suffice to satisfy the obligations under Article 6.5 regarding a showing of good 
cause, for several reasons. First, it is for the party requesting confidential treatment of its information 
to furnish reasons justifying such treatment to the investigating authority. Therefore, whether the 
wording of the Enforcement Rules suggests any go od cause for confidential treatment is irrelevant 
unless the party explicitly relies on such wording to justify confidential treatment of its information. 
Second, some of the categories of information set forth in Article 15 of the Enforcement Rules are 
too general to indicate good cause, and as a result, even if the Applicants ' mere act of redacting 
data was intended to indicate a claim that it fell within one of the categories listed in Article 15 of 
the Enforcement Rules, such an indication alone co uld not demonstrate good cause. Third, there is 
nothing in the record of the present case demonstrating that the Korean Investigating Authorities 
analysed the question of which one of the categories set forth in Article 15 of the Enforcement Rules 
the redacted information would fall within.  
 
B. The Korean Investigating Authorities Failed to Require the Submitters of Redacted 
Information to Furnish Adequately Detailed Non -Confidential Summaries  
 
63. In the Applicants ' submissions in the sunset review at issue, the allegedly confidential figures 
have been: (i) completely deleted without any ranges or percentage rates that sufficiently 
summarize the redacted figures; (ii) replaced with a narrative which does not provide any meaningful 
indication of the redacted info rmation; or (iii) redacted with a yearly percentage change which does 
not sufficiently summarize the substance of the redacted information. By not requiring the Applicants 
to furnish non -confidential summaries of those allegedly confidential figures  "in su fficient detail to 
permit a reasonable understanding of the substance" thereof, the Korean Investigating Authorities 
failed to satisfy their obligations under Articles 11.4 and 6.5.1.  
 
VIII.  Articles 12.3, 12.2, and 12.2.2 of the Anti -Dumping Agreement  
 
64. Korea is mistaken in its understanding regarding Japan 's argument when Korea argues that 
Japan demands a second disclosure of the same facts that had been disclosed pursuant to Article  6.9. 
Japan is not arguing that all underlying data that was conside red by the KTC must be disclosed in 
the public notice, but rather argues that all "relevant" information was not provided in "sufficient 
detail".  
 
65. Under Articles 12.2 and 12.2.2, when there is a matter that must necessarily be resolved by 
the investiga ting authority to be able to reach a determination in the course of imposing a definitive 
anti-dumping duty, such matter is "material" and has "led to the imposition of final measures", and 
the investigating authority is required to include its findings an d conclusions, as well as all relevant 
information, regarding such matter in the public notice.  
 
66. Japan has pointed out that although Korea states that the Korean Investigating 
Authorities ' published reports provided sufficient disclosure, Korea did not  explain how the 
documents did so. Korea has not provided any new arguments regarding these Articles in its 
submissions after the first  written submission.  
 WT/DS553/R/Add.1  
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  ANNEX B -4 
SECOND INTEGRATED EXECUTIVE SUMMARY OF  
THE ARGUMENTS OF KOREA
INTROD UCTION  
 
1. This dispute concerns Korea 's third sunset review of the anti -dumping measures on imports 
of stainless steel bars ( "SSBs" or "dumped imports") from Japan, India, and Spain.  
 
2. The original anti -dumping measures were taken by the Ministry of Finance and Economy (a 
predecessor of the Ministry of Strategy and Finance) on 30  July 2004. The imposition of the 
anti-dumping duties was extended by the Ministry of Strategy and Finance ("MOSF") firstly in 
February  2010 and secondly in Octobe r 2013, through the first and second sunset reviews, 
respectively. On 2  June 2017, in the third sunset review, the MOSF decided to extend the imposition 
of the anti -dumping duties for a period of 3 years ("Final Determination").  
 
3. The MOSF 's Final Deter mination was based on the Final Resolution of the Korea Trade 
Commission ("KTC") and the Final Report of the Office of Trade Investigation ("OTI"), a subsidiary 
organ of the KTC.  
 
PRELIMINARY RULING REQUEST PURSUANT TO ARTICLE 6.2 OF THE DSU 
 
4. Korea submits that Japan 's request for the establishment of a panel (" RFE") is inconsistent 
with the requirements of Article 6.2 of the DSU since it fails to identify the "specific measures" 
challenged and includes claims that were not covered by its request for  consultations.  
 
5. In the RFE, Japan refers to "the measures" by Korea, but never identifies the specific  measures 
in accordance with Article 17.4 of the Anti -Dumping Agreement. However, it is well -established that 
a panel request must identify, as the specific measure at issue, one of three types of anti -dumping 
measures, namely either a definitive anti -dumping duty, the acceptance of a price undertaking, or 
a provisional measure. A panel request that only identifies  a sunset review under Article 11  must 
fail to meet this obligation.  
 
6. In Korea, the sole authority to impose anti -dumping duties is vested with the MOSF, and it is 
the MOSF 's final determination that constitutes both the 'final determination ' and 'decision to apply 
definitive measure ' under Article 6.9 of the Anti -Dumping Agreement. Proper weight must be given 
to the DSU Article 6.2 requirement to identify "the specific  measures at issue", which was 
intentionally worded differently from the DSU Article 4.4 requirement to simply identif y "the 
measures at issue". Accordingly, Korea submits that Japan 's Panel Request fails to identify the 
specific  measures at issue in accordance with Article 6.2 of the DSU and 17.4 of the Anti -Dumping 
Agreement and, on that basis, all of Japan 's claims are  outside the Panel 's terms of reference. In 
the alternative, among others, Korea submits that the RFE unduly expanded on matters identified 
in its request for consultation, and thus includes claims for which no proper consultations were held 
in violation o f Articles 4.4 and 6.2 of the DSU and Article 17.3 of the Anti -Dumping Agreement.  
 
LEGAL STANDARDS  
 
7. The applicable disciplines in sunset reviews are set forth in Articles 11.3 and 11.4 of the 
Anti-Dumping Agreement. It is well -established that the 'nexus ' (but not the 'causal ' nexus as falsely 
contended by Japan) that needs to be demonstrated under Article 11.3 by the authority is between 
the removal  of the anti -dumping measure, on the one hand, and the likelihood  of injury and 
dumping, on the other. Thus, while factors relating to a past period (e.g., POR) carry indicative 
value, the authority 's task in a sunset review is to examine whether there is a sufficient factual basis 
to conclude there is a likelihood (or "probability") of future  continuation or recurrence of injury upon 
removal  of the anti-dumping  measure  based on the totality of the relevant facts and substantiated 
arguments. In addition, authorities are only required to examine and respond to arguments by the 
intereste d parties that are properly substantiated, and not merely assertions or allegations.  WT/DS553/R/Add.1  
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  8. Where, as here, the anti -dumping measure has immediately and continuously exerted 
remedial effect by suppressing the volume and inflating the price of the dumped import s throughout 
the course of the measure 's imposition, then it is only reasonable and adequate to assume that the 
volume and the price of the dumped imports will increase and decrease, respectively, upon removal 
of the current measure. Tellingly, neither the  Japanese respondents nor Japan has addressed this 
important element in the Korean authorities ' likelihood -of-injury determination. Japan 's only 
argument is that the Korean authorities neglected to consider the market change since the original 
measure, but  this naked assertion is belied by the authorities ' express finding that the competitive 
environment in the Korean market remained largely unchanged since the original investigation and 
the second sunset review. In contrast, other than by relying on the de monstrably arbitrary and 
groundless distinction between the "special" and "general -purpose" steels, Japan has totally failed 
to refute this specific and important finding by the Korean authorities.  
 
9. In contrast to Article 3  of the Anti -Dumping Agreement , under which various methodological 
guidance is provided with respect to each step of injury -analysis, Article 11.3 does not prescribe any 
specific methodology for making a "likelihood -of-injury " determination, and it does not identify 
particular factors that must be taken into account in such a determination.   
 
10. It is also worth noting that the causal link between the dumped imports and the domestic 
industry that was established in the original investigation need not be established a new in the sunset 
review. Indeed, t he Appellate Body has underscored that original investigations and sunset reviews 
are distinct processes with different purposes , and thus, "it is reasonable to assume that … the causal 
link between dumping and injury, es tablished in the original investigation, would exist". It follows 
that all of the "building blocks" for the causal link, i.e. the volume, price effect (including the price 
comparability), and impact on domestic industry analyses, need not be established an ew in a sunset 
review. It naturally also means that the price developments during the past period cannot be 
determinant for the projection of the future  price effect in the "forward -looking" analysis, where 
fundamental changes in pricing matrix is destined  to occur upon termination of the current measure.  
 
11. In addition, t he Appellate Body has consistently found  that cumulation is not the exception, 
but is rather what would "normally" happen in injury proceedings . Further, the Appellate Body in 
US – Oil Country  Tubuluar  Goods  Sunset  Reviews , while rejecting the notion that Article 3.3 applies 
to Article 11.3, essentially held that cumulation is permitted in a sunset review as long as products 
from different sources are in the same market together and compe tes with the like domestic product. 
Japan 's claim on cumulation is flawed in every way.  
 
12. Next, Korea recalls an important WTO jurisprudence under which a breach of Article 11.3 
cannot be found based on certain intermediate findings of the investigating  authority, but may be 
found only when it has been clearly established that the authority 's overall likelihood -of-injury 
determination, when holistically reviewed based on the totality of circumstances, cannot be 
sustained. Indeed, WTO jurisprudence confirms that, where determinations are based on multiple 
considerations, any alleged errors must be sufficiently materi al to undermine the objectivity of the 
entire assessment. This is all the more true in the context of Article 11.3, which does not require  
any specific intermediary findings, but simply requires that there be a sufficient factual basis for the 
likelihood d etermination.  
 
13. It goes without saying that the burden to establish a prima  facie case that an error is 
sufficiently material to the overall determination rests entirely  upon the complaining party.  
 
14. Regarding the burden of proof, Korea must stress that such burden also attaches to the 
complainant (especially) whenever they raise the flag of ex post rationalization. Whether such 
argument is raised against a piece of evidence or certain reasoning submit ted by the responding 
party, the complainant bears the burden of proof, which can only be met upon establishing a prima  
facie case. The Panel, as an objective reviewer of the case, must not apply double standard of proof 
by being lenient with the complaina nt's argument and strict with the responding party 's argument. 
If anything, the Panel must respect the responding party 's entitlement to the presumption of good 
faith compliance.  
 
15. Finally, Article 17.6 of the Anti -Dumping Agreement highlights that the panel is not the trier 
of fact in anti -dumping disputes but is only to review whether the determination of the investigating 
authority was objective and unbiased. It importantly specifies that if the evaluation was unbiased WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
- 96 - 
 
  and objective, the evaluation sh all not be overturned, even though the panel might have reached a 
different conclusion.  
 
16. Put differently, the Panel 's task is not to determine whether it would  have reached the same 
result as the Korean authorities. Rather, the Panel 's task is to dete rmine whether a reasonable, 
unbiased authority, looking at the same evidences presented before the Korean authorities, "could 
have" – not "would have" – reached the same conclusion that the Korean authorities reached in the 
underlying review. Thus, the Pan el must not substitute the authorities ' findings with that of its own, 
or review the reasonableness of the authorities ' findings through a prism of its own creation.  
 
RELEVANT CONTEXT OF THE UNDERLYING THIRD SUNSET REVIEW  
 
17. Korea originally imposed anti -dumping measures on SSBs from Japan in 2004 and these duties 
were extended twice through the first and second sunset reviews. In these prior proceedings, similar 
issues were raised and they were addressed in the same manner as in th e underlying review, without 
challenge by Japan. The third sunset review, therefore, was derived from and part of a string of 
connected and sequential determinations. Therefore, factual and analytical findings from prior 
proceedings lend important contextu al support to the authorities ' findings in the underlying review.  
 
18. It must be noted that the Korean authorities are under a statutory obligation to confirm the 
competitive relationship not only between the dumped and domestic products, but also among the 
dumped imports before proceeding to assess the impact of the dumped imports cumulatively. Thus, 
the authorities expressly stipulated in their previous investigative reports that the competition exists 
between the dumped and domestic products, and among  the dumped imports. In the underlying 
review, the Korean authorities also complied with this statutory obligation and expressly found that 
the competitive environment remained unchanged since the original investigation or second review.  
 
19. In arriving at such finding, the Koran authorities properly conducted extensive analysis based 
on various factors such as customer survey,  customer evaluations, grade specification under 
internationally -recognized certification standards, manufacturing processes, dist ribution channels, 
price, functions and purported uses, etc. Japan attempts to unduly limit such extensive analysis as 
the basis for the Korean authorities ' findings on the "likeness" exclusively, and argue that a 
competitive relationship cannot be presume d based on the finding of "likeness" only.  
 
20. As a preliminary matter, a finding of "likeness" necessarily establishes a presumption of 
competitive relationship between the products that are alike. The Panel must not fall into the trap 
of inadvertently conflating the Article 3.2 requirement to ensure the price comparability with the 
presumption of competition, which are two distinct concepts. More importantly, the Korean 
authorities did not base their "finding" on the "competitive relationship" on their "likeness finding" 
as mischaracterized by Japan. Rather, as expressly  and separately  described by the investigative 
reports from the original investigation, the first, second, and the underlying third sunset reviews, 
the Korean authorities rendered an independent  finding  on the "competitive relationship"  as 
specifically required under its own applicable laws. Japan 's only argument in this regard is that the 
authorities erred by finding the "competitive relationship" based only on their finding of "likeness", 
which is clearly misplaced. The authorities did  not presume, but explicitly found, the required 
competitive relationship through extensive analysis based on various factors.  
 
21. This is not to mention that denying such competitive relationship would contravene the 
prevailing reality. Indeed, SSBs are internationally traded commodities, which share physical 
similarities and fungibility in use (thus the market competition). SSB products are a special -purpose 
steel grade among steel bars (not the arbitrary "special" steel distinction alleged by Japan), an d 
SSBs products generally compete with each other on the basis of their grades or specifications. 
Because SSBs is an internationally traded commodity, traders rely on internationally -recognized 
designation standards when placing orders. Thus, SSB orders ar e placed based on designated grades 
or specifications, and as long as the ordered products are certified for that certain grade or 
specification, the fungibility between the products are presumed and the products are deemed to be 
in a competitive relations hip.  
 
22. In addition, SSB production facilities have high adaptability for a wide -range of steel products, 
without a need for further investment in or alternation of the facilities. It is well known that SSB 
production facilities not only can produce all  kinds of SSB products with different grades, but can 
also produce other steel products that require similar surface treatment almost immediately upon WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
- 97 - 
 
  order. The industrial practice for SSB is to maintain only minimal amount of inventory, as vast 
majority of SSB sales are produced upon order. The Japanese respondents explicitly confirmed that 
this was their case as well, i.e. that SSB products were manufactured and supplied to 
Korean  customers on an 'on -demand basis', and thus that they do not maintain inve ntory in 
principle. A corollary of this undisputed fact is the high adaptability of SSBs production facilities, 
where production can be tailored to customer demand and specifications. In other words, 
SSB producers can modify easily and quickly their facili ties to produce any grade of SSB as long as 
there is demand. Japan 's refusal to accept (while not being able to deny) this prevailing reality is 
revealing.  
 
23. Moreover, the Japanese respondents ' participation in the underlying review was highly 
selective . Even Japan is forced to admit that the Japanese respondents refused to participate in the 
dumping proceeding. In the injury proceeding as well, the Japanese respondents submitted various 
unsubstantiated allegations that were also self -contradictory. In f act, most, if not all, of the 
allegations by the Japanese respondents that are being examined by the Panel in this dispute were 
unsubstantiated and/or internally inconsistent. Korea has also demonstrated how every attempt by 
Japan at explaining or post hoc justifying such fundamental inconsistency and errors fatally fails. 
Such a general lack of veracity must not be exonerated or otherwise disregarded by the Panel.  
 
24. Finally, Korea has demonstrated that the decision to extend the SSB measure in the 
third sunset review wa s based on a sufficient factual record and involved an objective examination 
of the record facts. Specifically, the Korean authorities ' determination of a likelihood -of-injury was 
reasonable, in line with standard practice, and based on multiple  considerations  which together 
formed the basis for the determination. However, Japan builds its entire claim under Article 11.3 on 
a few elements of these multiple considerations in isolation , namely in particular (i) the distinction 
between th e so-called "general -purpose" and "special" steel, and (ii) the use of ISSF data over the 
respondents ' data.  
 
25. These isolated allegations are neither legally relevant nor supported by the record facts. Nor 
has Japan demonstrated that they are material to the validity of the overall likelihood -of-injury 
determination. Clearly, Japan did not even attempt  to show such materiality in this dispute.  
 
LEGAL  ARGUMENT  
 
V.1. CLAIM  1: JAPAN'S CLAIM  THAT  KOREA  ERRED  IN ITS DETERMIN ATION  THAT  THE EXPIRY  OF THE 
SSB DUTIES  WOULD  LIKELY  LEAD TO RECURRENCE  OF INJURY  IS WITHOUT  MERIT 
 
26. Japan advances four specific arguments in support of its claim under Article 11.3 that the 
authorities ' likelihood -of-injury determination is flawed. However, all four such arguments are 
without merit.  
 
V.1.1.  WHETHER THE AUTHORITIES ' CUMULATIVE ASSESSMENT WAS IMPROPER  
 
27. Korea considers that this claim is without merit. In the absence of any specific legal 
requirement  in Article 11.3 in respect of cumulation in sunset reviews, Japan fails to demonstrate 
that there was an insufficient factual basis for Korea 's decision to c umulate imports, or that the 
decision did not rest on positive evidence and an objective examination. Rather, t here was a 
sufficient factual basis for Korea 's decision to cumulate imports from Japan, India, and Spain.  
 
28. Indeed, the Appellate Body in US – Anti-Dumping  Measures  on Oil Country  Tubular  Goods  
clearly found that cumulative assessments  in sunset reviews is permissible provided such a decision 
is supported by positive evidence and has a sufficient factual basis that the imports are essentially 
'in the market together and competing against each other'. The authorities found that all dumpe d 
imports, regardless of origin, are in competition with each other and with the like domestic products. 
The covered products were produced by all of the subject countries as well as Korea, were fungible, 
were present in the Korean market during the review  period, and used the same distribution 
channels.  
 
29. During the underlying review, the Japanese respondents essentially argued that the dumped 
imports from Japan must be assessed separately because they are not in competition with the 
imports from India  or the like domestic products, which in turn was based on their allegation that 
the dumped imports from Japan was predominantly composed of higher  priced  "special" steel, WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
- 98 - 
 
  whereas the Indian imports and the like domestic products are composed of lower  priced 
"general -purpose" steel.  
 
30. First, a price differential between two products does not ipso facto deny the competitive 
relationship. Accepting such a misguided premise would be tantamount to denying the prevailing 
reality in any market, where correspon ding products with different prices always  compete with each 
other over the same market  share . Also, price differential is not even an element for the Article 3.3 
"condition of competition", a requirement that does not even apply to sunset reviews under 
Article 11.3. Simple price differential, without more, cannot refute the competitive relationship that 
was explicitly found to exist. This is all the more so given that a likelihood -of-injury determination 
in a sunset review must be based on a forward -lookin g analysis, under which authorities are required 
to draw a reasonable speculation as to a future scenario when the prices would necessarily  drop due 
to the removal of the anti -dumping duties, probably followed by further price drop triggered by influx 
of subject imports and heightened competition that follows. As such, current price differential is even 
less meaningful in a sunset review than in an original investigation.  
 
31. Second, the Korean authorities considered that the products are in competitive re lationship 
based on various factors such as "physical characteristics, manufacturing process, distribution 
channel, purpose of use, consumer 's evaluation, etc." between the dumped and domestic products. 
The authorities also confirmed that the ratio of "special" and "general -purpose" steels from Japan 
and India, and those produced by the domestic industry, remained at similar proportion since the 
second POR. The authorities thus reasonably considered that the "competitive market environment 
at the time o f the second sunset review has not changed", and concluded that such differences in 
proportion cannot be a basis to find lack of "competitive relationship" between the products.  
 
32. Third, the Japanese respondents ' self-serving allegation that they have s hifted away from 
producing "general -purpose" steel was unsubstantiated, and was refuted by the record fact. The 
respondents argued without any evidence that they (and all Japanese SSB producers, for that 
matter) no longer produce or sell "general -purpose" steels to Korea, alleging that they had 
exported  [[***]] tons of "general -purpose" steels to Korea in 2015. This unsubstantiated allegation 
was proven to be false by the official customs clearance data of Korea, as their sale of 
"general -purpose" steel act ually increased between 2014 and 2015, even after giving maximum 
benefit of doubt to their allegation by treating all unclassifiable imports as "special" steel. Thus, the 
respondents ' another groundless assertion that they have shifted away from producing and selling 
"general -purpose" steels to Korea also lost any merit. At the same time, even if the 
respondents ' allegations were true ( quod non), that in and of itself does not establish that they 
cannot or will not resume selling the "general -purpose" steel s to Korea even after the anti -dumping 
measure is lifted and incentives are thus presented.  
 
33. Fourth, the respondents ' distinction between the so -called "general -purpose" and "special" 
steels was simply groundless; to make matters worse, the respondent s unduly changed the definition 
of "general -purpose" steel three times during the review, without any justification. Their alleged 
export volume in 2015 also changed at least twice (again without any justification), and this was 
not due to the change in de finition as they had alleged higher export volume of "general -purpose" 
steel when they defined only grade 304 as "general -purpose" (i.e., [[ ***]] tons) than when they 
defined both grade 304 and 316 as "general -purpose" (i.e., [[ ***]] tons). Their alleged e xport 
volume was proven to be false, and when asked for justification, the respondents simply withdrew 
the allegation about ceasing to export "general -purpose" in 2015, again without providing any 
justification. The disingenuous nature of the respondents ' responses in the underlying review is 
further confirmed by their own subsequent statement to the USITC that the U.S. market is not their 
target, as their SSB export is focused on the Asian markets with Korea being their top three 
SSB export ma rkets.  
 
34. Fifth, it must be noted that Japan 's arguments before the Panel have been inconsistent and 
ever-changing. Originally, Japan argued that the cumulation was flawed because the imports from 
Japan was predominantly composed of higher -priced "special" steel, whereas the Indian and 
domestic products were predominantly composed of lower -priced "general -purpose" steel. Upon 
learning that the "special" steels are actually lower -priced than "general -purpose" steels, and 
learning that the respondent s' (eventually abandoned) allegation about the [[ ***]] export volume 
in 2015 contradicts the official customs clearance data, Japan quickly changed the course. Japan is 
now basically arguing that the imports from Japan are priced higher anyways so there ca n be no 
competition, and that the authorities ' improperly treated the respondents ' allegation about the WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
- 99 - 
 
  "general -purpose" steel. Certainly, such unsubstantiated and self -serving allegations must 
necessarily be rejected.  
 
35. Korea recalls that Japan 's latest arguments are developed opportunistically based on the 
Panel 's relevant questions. But Korea has already demonstrated that price differential alone cannot 
disprove the competitive relationship, and the authorities have nonetheless found the competitive 
relationship based on an extensive analysis of various factors, as required by the applicable 
Korean  laws. Also, the respondents ' allegations about the "general -purpose" steel were 
unsubstantiated, inconsistent, and eventually abandoned by the respondents themselves. Most 
importantly, Japan provides no substantiated argument whatsoever, let alone establishes a prima  
facie case, against the authorities ' decision to cumulatively assess the imports from Japan, India, 
and Spain for the underlying review.  
 
36. To conclude, Japan 's arguments against the authorities ' decision to cumulate are entirely 
meritless.  
 
V.1.2.  WHETHER THE AUTHORITIES ' CAPACITY UTILIZATION FINDING INVALIDATES THE 
OVERALL LIKELIHOOD -OF-INJURY DETERMINATION  
 
37. Japan argues that authorities ' likelihood -of-injury determination was flawed because it was 
based on , among others, the allegedly erroneous finding that Japan 's SSB industry  had sufficient 
additional production capacity for exports. Japan argues that this finding was not based on an 
objective examination of positive evidence because the authorities  rejected "direct evidence" 
submitted by the respondents  and instead relied on the ISSF data . Japan 's claim is without merit.  
 
38. First, Japan fails to substanti ate, let alone establish, how such alleged flaw in the 
authorities ' finding on the capacity utilization necessarily results in violation of Article 11.3. Indeed, 
the authorities ' likelihood -of-injury determination rested on numerous other considerations, s uch 
that even without the authorities ' finding on capacity utilization, the overall likelihood -of-injury 
determination that largely followed the classic  likelihood -of-injury analysis would properly stand. 
Indeed, it is well -established that errors in intermediate findings do not render the overall 
likelihood -of-injury determination inconsistent with Article 11.3, especially if the determination is 
supported by other factors. That is because a violation of Article 11.3 can be established only upon 
proving that the authorities ' overall likelihood -of-injury determination is flawed. Thus, 
Japan 's challenge against the Korean authorities ' specific finding on the capacity utilization, even if 
successful ( quod non), cannot invalidate the overall likelihood -of-injury determination.  
 
39. Second, at any rate, the Korean authorities ' more directly relevant intermediate finding that 
the Japanese SSB industry has the capacity to increase production and export of the covered product 
to Korea upon removal of the anti -dumping measure must remain valid. As explicitly confirmed 
through the case of one of the Japanese producers, secondary processing can be simply outsourced 
if desirable. Thus, the notion that the SSB producers are bound by their current production capacity 
is factually incorrect; as long as incentive arises upon removal of the current measure, current 
capacity utilization would not pose meaningful restriction on increasing the SSB export to Korea. 
Next, the Korean authorities confirmed that the Japanese resp ondents were continually making 
investments on the new facilities, indicating that their overall production capacity will increase.  
 
40. Third, even if the respondents ' unsubstantiated, inconsistent and entirely self -serving 
numerical allegation about the ir production capacity is accepted "as is", the authorities ' relevant 
intermediate finding still remains valid. That is, the authorities considered that, even assuming 
arguendo  that the unsubstantiated capacity utilization as alleged by the respondents is legitimate, 
the respondents alone had the spare capacity to produce a significant additional amount of the 
covered products in 2015, which amounted to a major portion of the total domestic sales of the like 
domestic product.  
 
41. Therefore, the Korean authorities ' finding that the Japanese SSB industry has the ability to 
increase production and export of the covered products to Korea upon removal of the measure must 
remain valid at any rate. In turn, the Korean authorities ' overall likelihood -of-injury determination 
remains unaffected by any flaw in the authorities ' numerical finding on the capacity calculation.  
 
42. Fourth, the authorities ' finding about the capacity utilization was reasonable. Korea submits 
that the authorities ' selection of bot h the numerator (the JSSA data) and denominator (the WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
- 100 - 
 
  ISSF data) for their calculation of the capacity utilization was reasonable, duly reflecting the 
high-adaptability of the SSB production facilities. The ISSF data were eminently objective, reliable, 
and credible,  and the data 's scope was reasonably limited so as to allow proper calculation of the 
capacity utilization. Any perceived misalignment between the numerator and the denominator does 
not undermine at all the overall reasonableness of selecting the ISSF data as the denominator. In 
any case, the outcome of such alleged misalignment has only negligible impact on the capacity 
utilization calculation.  
 
43. Fifth, very importantly, the Japanese respondents ' alleged production capacity was both 
unsubstanti ated and unreliable because it lacked any sort of supporting materials and the 
respondents failed to respond to the authorities ' repeated requests for verifiable information. In fact, 
the respondents refused to provide the requested overall production capa city data and the proportion 
of SSB products that are being manufactured through the same production facilities, etc., while only 
providing the same, unsubstantiated and self -contradictory numerical allegation over and over 
again.  
 
44. To make the matters  worse, the respondents provided conflicting explanations as to the scope  
and source  of their numerical allegation. In light of the fact that the respondents never provided any 
sensible justification for such blatant changes in course, and the fact that th eir alleged production 
capacity differed so significantly from the ISSF data, the respondents ' unsubstantiated numerical 
allegation simply could not have been accepted as their actual combined production capacity.  
 
45. Finally, Japan has failed to establis h any flaw in the Korean authorities ' findings through its 
unsubstantiated and constantly changing arguments.  
 
46. Japan 's original argument about the capacity utilization was that the Korean authorities used 
capacity for 'primary processing', which was squarely refuted by the record evidence. Japan then 
moved on to argue that capacities for "SSB" and "sections" are distinctive. Korea then demonstrated, 
based on the Japanese respondents ' own catalogues and the structure of the ISSF data, that the 
same  capacity can be used to produce both "SSB" and "sections".  
 
47. Japan now argues that sections are not subject to 'peeling processing'. But not only does that 
new allegation runs counter to the respondents ' own catalogue, but it also disregards the fact that 
the secondary processing capacity found by the authorities were not limited to 'peeling ' only, but 
also 'grinding, peeling, and drawing'. In this regard, Japan ignores the fact that the covered products 
included not only 'round bar', but also 'square bar', 'hexagonal bar', and 'flat bar'; secondary 
processing capacities used for producing sections can readily be used for producing various types of 
covered products, even accepting arguendo  Japan 's argument that 'peeling capacity ' cannot be used 
for prod ucing 'round bar'. At the same time, to the extent that Japan maintains that the 
respondents ' alleged production capacity was in fact limited to "peeling" process only, Japan 's own 
argument profoundly tarnishes the legitimacy of the Japanese respondents ' numerical allegation, as 
the alleged number may then cover "round bars" only, but not other "shaped" covered  products . 
 
48. Korea has pointed out several of Japan 's disingenuous representations of basic facts in this 
dispute, which should carry at least som e weight in the Panel 's assessment of the matter before it.  
 
V.1.3.  THE AUTHORITIES ' FINDING THAT REMOVAL OF DUTIES WOULD LIKELY  TRIGGER 
INCREASE OF IMPORTS AND DECREASE OF PRICE FOR THE DUMPED IMPORTS  
 
49. Japan argues that the Korean authorities violated Article 11.3 of the Anti -Dumping Agreement 
because the determination of a likelihood of recurrence of injury was based on the erroneous finding 
that imports from Japan would increase if duties expired and that domestic prices would sig nificantly 
decrease. Japan asserts that this is speculative and that the Japanese industry has shifted its focus 
away from the price competitive "general purpose" SSBs that dominate the Korean market. 
However, Japan 's assertions are not supported by the fa cts on the record which reasonably 
supported the Korean authorities ' contrary findings.   
 
50. As an initial matter, Japan attempts to recycle its arguments against the 
authorities ' cumulative assessment of the imports from Japan, India, and Spain. But onc e the 
cumulation is deemed valid, all subsequent review must be conducted on that cumulative basis. 
Thus, Japan 's claims in this regard are largely misplaced and must summarily be rejected.  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
- 101 - 
 
  51. Next, the finding that dumped imports were likely to increase if duties expired was based on, 
inter alia, a recent increase in their volume and market share (despite the imposition of duties), in 
combination with the fact that such volumes were still well below pre-measure  levels, suggesting 
further increases upon re moval of the measure were probable. In addition, the authorities found 
that there was considerable spare production capacity  in all subject countries to increase the 
production and export of the covered products .  
 
52. Furthermore , the authorities ' examina tion of prices showed that the dumped imports on 
cumulative basis continued to undercut prices of the like domestic product throughout the POR, and 
that the average import and resale prices of the dumped imports were considerably lower than the 
average res ale price of the like domestic product at the end of the POR. Thus, even with the 
imposition of anti -dumping duties, the average sales price of the dumped imports undercut the 
average price of the like domestic product. The logical conclusion, therefore, w as that expiry of the 
duties would exhort additional price pressure on domestic prices. This finding was supported by 
analysis of the above -referenced price data and related explanation. The authorities also expressly 
pointed to the fact that the removal of the duties on imports from Japan would make these imports 
more price competitive putting additional pressure on domestic prices.  
 
53. Finally, the Korean authorities also examined the likely impact of other factors, especially 
third-country imports, material costs, and domestic demand. This analysis showed that there were 
no reasons why such other factors would refute a finding of likely in crease in volume and decrease 
in domestic prices if duties were removed. For example, the volume and market share of 
third-country imports remained stable over the review period, and their market share had only 
increased slightly.  
 
54. In sum, the Korean a uthorities ' determination of a likely increase in the volume of dumped 
imports and a drop in domestic prices if duties were to expire was firmly grounded in the facts on 
the record and was based on reasonable projections about future events.  
 
V.1.4.  JAPAN'S CLAIM THAT KOREA FAILED TO PROPERLY EXAMINE THE LIKELY IMPACT OF OTHER 
FACTORS IS WITHOUT MERIT  
 
55. Japan argues that the Korean authorities ' determination of a likelihood of recurrence of injury 
is inconsistent with Article 11.3 because the authoritie s failed to examine properly the likely injury 
caused by "known factors other than the dumped imports". However, first, as a legal matter, 
Article  11.3 does not require a causation and non -attribution analysis based on the effects of dumped 
imports on inju ry as separated and distinguished from the effects of other known factors, as is the 
case in original investigations under Article 3.5. In any case, second, as a factual matter, the 
authorities ' determination involved an objective examination of positive e vidence, and rested on a 
sufficient factual basis, that allowed the authorities to make a reasoned and adequate conclusion on 
the likelihood of recurrence of injury if the duties were removed even in the light of other factors.  
 
56. As part of this analysi s, although not legally required, the Korean authorities considered the 
effects of factors other than the dumped imports, such as third -country imports , material costs, and 
demand. The Korean authorities found that there was no basis to consider that these  other factors 
played an important role in determining the likelihood of recurrence of injury if the anti -dumping 
duties were removed. For example, regarding the volume of third -country imports, the authorities 
found that the volume and market share of the se imports remained stable over the review period, 
and trended similarly to the dumped imports and the like domestic product. In addition, material 
costs declined and demand increased in the review period. These two factors could not be a separate 
cause of  recurrence of injury if the duties were removed.   
 
V.2. CLAIM  2: JAPAN'S ERRONEOUS  CLAIM  THAT  THE ALLEGED  USE OF FACTS  AVAILABLE  VIOLATED  
ARTICLES  11.4, 6.8 AND PARAGRAPHS  3 AND 7 OF ANNEX  II 
 
57. Japan claims that the authorities acted inconsistently with Articles 11.4, 6.8, and paragraphs  3 
and 7 of Annex II of the Anti -Dumping Agreement because they rejected information submitted by 
the Japanese respondents and allegedly resorted to facts available for calculating the SSB production 
capacity in Japan based on ISSF data. However, Japan errs when it argues that the authori ties 
resorted to the use of facts available, and in any case fails to demonstrate  that the authorities  acted 
inconsistently with Article 6.8 and paragraphs 3 and 7 of Annex II in the underlying review.  WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
- 102 - 
 
  58. First, the Korean authorities did not resort to th e use of facts available due to missing 
necessary information in the third sunset review. They simply attached more weight to the reliable 
ISSF data. The authorities had the necessary information that most reliably represented 
Japan 's countrywide capacity and production from reputable public sources, e.g. the ISSF data. 
Article 6.8 and Annex II simply do not apply to a likelihood -of-injury determination where 
investigating authorities seek to examine, as one of many factors, the availability of excess 
produ ction and export capacity in a country of export. While actual data  about producers ' prices and 
costs are "necessary" to be obtained from the producers themselves in order to make a 
determination of dumping, the same is not the case for a likelihood -of-injury determination. Such a 
determination includes an analysis of a country 's production capacity and capacity utilization with a 
view to evaluating the likely future increase in the volume of imports, as one of many factors that 
is examined. In this case, t here was no missing information, as there was reliable and objective data 
available from the ISSF. In addition, the specific information from the cooperating exporters did not 
constitute "necessary" information, as such data was only producer specific. The re was thus no gap 
to fill that would have required the authorities to resort to facts available under Article 6.8.  
 
59. Second, in any case, and should the Panel find that the authorities  resorted to facts available 
(quod non), every condition under Arti cle 6.8 was satisfied and, thus, the authorities were justified 
to use facts available. Indeed, Korea has already explained how the respondents constantly refused 
to comply with the authorities ' repeated requests for detailed information by submitting the same 
self-contradictory number over and over again, without providing any supporting materials that 
would have allowed verification. Importantly, the respondents provided conflicting explanations 
about the scope  and source  of their numerical allegation of production capacity, rendering it even 
more impossible to verify the allegation, at least without "undue difficulties", to say the least. Thus, 
the respondents more than significantly impeded the underlying third sunset review, failed to act to 
the best of  their abilities, and their submitted information was neither verifiable, nor appropriately 
or timely submitted so that it could be used without undue difficulties by the Korean authorities.  
 
60. Third, there is no basis for Japan 's claim that the Korean a uthorities acted without special 
circumspection when using the ISSF data. Korea notes that the ISSF data did not constitute 
"secondary source" information. As there was no primary  source of information for the finding on 
capacity available in Japan as a wh ole, the ISSF data could not constitute secondary  source 
information. In any event, the Korean authorities assessed the relevance and reliability of the ISSF 
and JSSA data for the question concerning production capacity and capacity utilization in Japan. It 
found that the ISSF data represented useful and reliable data on this issue, as it was collected from 
various producers and national associations involved in the SSB industry, and that the data was 
frequently relied on in anti -dumping investigations of other WTO Members.  
 
61. In contrast, Japan has never even attempted  to argue that more reasonable replacement than 
the ISSF data was available to the Korean authorities, but only argued that the respondents ' data 
was more reliable. In fact, Japan repeatedly confirmed that it is not challenging the reliabi lity of the 
ISSF data. Simply put, Japan has failed to establish a prima  facie case in relation to its paragraph 7 
claim.  
 
62. In sum, the Korean investigating authorities did not resort to the use of facts available, as 
they had relevant and appropriate i nformation on production and exports of SSBs in Japan from 
reputable public sources. Assuming, arguendo , that Article 6.8 and Annex II of the Anti -Dumping 
Agreement even apply, all conditions for resorting to facts available were met. Japan 's claim is to 
be rejected.  
 
V.3. CLAIM  3: JAPAN'S BASELESS  CLAIM  THAT  KOREA  FAILED  TO DISCLOSE  THE ESSENTIAL  FACTS  BEFORE  
THE FINAL  DETERMINATION  IN VIOLATION  OF ARTICLES  11.4 AND 6.9 
 
63. Japan claims that Korea violated Articles 11.4 and 6.9 of the Anti -Dumping Agreement, as the 
KTC allegedly failed to inform all interested parties of the essential facts under consideration that 
formed the basis for the decision to extend the anti -dumping duties. This claim is baseless, as the 
authorities disclosed the essential facts that constituted the basis for the MOSF 's Final Determination  
in the non -confidential versions of the KTC 's Final Resolution and the OTI 's Final Report.  
 
64. In Korea, the MOSF has the sole authority to decide the "substance" and "imposition" of 
anti-dumping measures. Whenever the KTC makes recommendations by way of delivering its 
resolution to the MOSF, the MOSF always conducts objective assessment of the WT/DS553/R/Add.1  
BCI deleted, as indicated [[***]]  
- 103 - 
 
  KTC's recommendations, and reaches its own determinations. Given that the MO SF has reversed or 
otherwise changed almost  20% of all final resolutions adopted by the KTC thus far, the 
MOSF 's review process is not formalistic at all, and only the MOSF 's final determination is both the 
decision to impose anti -dumping duties and the fi nal determination within the meaning of Article 6.9 
of the Anti -Dumping  Agreement in Korea.  
 
65. Also, even prior to the KTC 's adoption of its Final Resolution based on the OTI 's Final Report, 
various disclosures that sufficiently disclosed the essential f acts were made. Indeed, long before the 
KTC's Final Resolution, the OTI not only provided the respondents with the Interim Report that 
contained most of the findings included in the Final Report, but also provided a Revised Interim 
Report reflecting the ar guments and opinions of the interested parties on the Interim Report.  
 
66. In addition, a ll of Japan 's allegations under this claim are either groundless or concern facts 
that were not significant in the process of reaching a decision to extend the measur e – they were 
thus not "essential" facts that warranted disclosure. Where actual data was redacted for protection 
of confidential information, the narrative in the published reports provided the relevant information 
through a non -confidential summary, allo wing the interested parties to exercise their rights of 
defense. Importantly, neither the Japanese respondents in the underlying review  nor Japan brings 
a claim under Articles 6.2 and 6.4 of the Anti -Dumping Agreement, thus confirming that the 
respondents ' rights to defend their interests were fully respected in the underlying review .  
 
67. In sum, the essential fact s for the decision to extend the application of the anti -dumping 
measures on imports of SSB s were clearly disclosed to the interest ed parties in accordance with 
Articles 11.4 and 6.9, enabling them to defend their interests with respect to the key facts supporting 
the determination.  
 
V.4. CLAIM  4: JAPAN'S BASELESS  CLAIM  THAT  KOREA  FAILED  TO TREAT  PROPERLY  CONFIDENTIAL  
INFORMATION  IN VIOLATION  OF ARTICLES  11.4, 6.5, AND 6.5.1 
 
68. Japan claims that Korea violated Articles 11.4, 6.5, and 6.5.1 of the Anti -Dumping Agreement 
because the Korean authorities afforded confidential protection of certain information without a 
showing of "good cause", and because they failed to require sufficient non -confidential summaries 
of the confidential information. Japan 's claims of violation of these provisions are baseless.  
 
69. In Korea, every interested party in anti -dumping investigations submi ts non -confidential 
summaries by designating what information is to be treated confidential. It does this by deleting the 
relevant information. By doing so, the provider of the information asserts that such deleted 
information falls within the categories o f "confidential information" specifically set forth in the 
relevant laws in Korea. Every  interested party, including the respondents, was aware of this 
established practice.  
 
70. The authorities proceeded to assess objectively whether there was "good cause ", i.e. whether 
the deleted information indeed fell within a category of confidential information enumerated in the 
relevant Korean laws. Moreover , all interested parties the underlying review provided the 
"non-confidential summary" of their confidential i nformation by way of providing a public version of 
the document that contains the confidential information. Non-confidential summaries are not 
required under Article 6.5.1 for every single figure and piece of data included in the 
parties ' submissions, rega rdless of the relevant context. Thus, authorities are entitled to a 
reasonable degree of deference in accepting or rejecting summaries. I n the underlying review, the 
applicants provided summaries for all confidential information that they submitted . Such summaries 
were in sufficient detail to permit reasonable understanding of the substance of the confidential 
information.  
 
71. In sum, Korea 's treatment of confidential information in the underlying third sunset review 
was consistent with Articles 11.4, 6.5,  and 6.5.1. Moreover, Japan did not include a claim under 
Articles 6.2 and 6.4 of the Anti -Dumping Agreement – thus confirming the respondents ' rights to 
defend their interests were fully respected in the underlying review.  
 WT/DS553/R/Add.1  
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  V.5. CLAIM  5: JAPAN'S CLAIM  THAT  KOREA  FAILED  TO PROVIDE  SUFFICIENT  DETAIL  OF FINDINGS  AND 
CONCLUSIONS  IN VIOLATION  OF ARTICLES  12.3, 12.2, AND 12.2.2 
 
72. Japan claims that Korea acted inconsistently with Articles 12.3, 12.2, and 12.2.2 of the 
Anti-Dumping Agreement because of a failure to provide in sufficient detail the findings and 
conclusions reached on all issues of fact and law that the investigating authorities considered 
material. However, when the MOSF published its final determination, it d isclosed the full public 
version of the OTI 's Final Report and the KTC 's Final Resolution by attaching them as the final 
determination 's annexes. Given such full disclosure, Japan 's claims under Article 12 are entirely 
without merit.  
 
V.6. CLAIM  6: JAPAN'S CONSEQUENTIAL  CLAIM  IS UNFOUNDED  
 
73. Japan claims that Korea acted inconsistently with Article VI :6(a) of the GATT 1994 because of 
the alleged inconsistencies with Article 11.3 of the Anti -Dumping Agreement. Japan 's claim is 
entirely consequential of its  Article 11.3 claims. Moreover, Japan 's Panel Request  fails to specify 
which of the obligations under GATT Article VI :6(a) would be violated as a consequence of the alleged 
inconsistencies with Article 11.3. Therefore, this claim should be rejected  in its entirety . 
 
CONCLUSION  
 
74. For the reasons stated in this executive summary , Korea respectfully requests the Panel to 
reject all of Japan 's claims that the Korean authorities ' determination to extend the 
anti-dumping  measure on imports of SSB s from Japan, India, and Spain is inconsistent with the 
Anti-Dumping  Agreement . 
 
 
_______________  
 
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  ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of the European Union  106 
Annex  C-2 Integrated executive summary of the arguments of the United States  110 
 
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  ANNEX C -1 
INTEGRATED EXECUTIVE SUMMARY OF THE  
ARGUMENTS OF THE EUROPEAN UNION  
I. INTERPRETATION OF ARTICLE 11.3 OF THE ANTI -DUMPING AGREEMENT  
A. Legal  obligations  under  Article  11.3 of the Anti-Dumping  Agreement  
1. Article 11.3 of ADA1 requires that definitive anti -dumping duties are to be terminated not later 
than five years after their imposition (or the last review, when that review covered bot h dumping 
and injury) unless a positive determination is made after a review procedure that the expiry of the 
duty would likely lead to continuation or recurrence of dumping and injury. It is in this sense that 
the termination of the anti -dumping duty afte r the time period provided for in Article 11.3 ADA is 
the default, while the continuation is the exception.  
2. The substantive question which the investigating authority must assess when making a 
determination under Article 11.3 ADA is whether the terminat ion of a specific anti -dumping duty 
previously imposed will likely "lead to" the continuation or recurrence of dumping and injury in the 
future.  
3. As the Appellate Body has found, the determination under Article 11.3 ADA has to be made 
on a "sufficient  factual  basis that allows  the investigating  authority  to draw reasoned  and adequate  
conclusions ". 
B. Cumulative  Assessment  under  Article  11.3 of the Anti-Dumping  Agreement  
Permissibility of cumulative assessment under Article 11.3 ADA  
4. Article 3.3 ADA specifically provides for the cumulative assessment of imports from several 
countries under certain conditions. Article 11.3 ADA does not refer to Article 3 ADA and the 
Appellate  Body has stated that investigating authorities are in principle not mandated to follow the 
provisions of Article 3 ADA when making a determination under Article 11.3 ADA.  
5. The EU2 submits however that the rationale underlying the use cumulative assessment 
justifies using such assessment not only in the original investigations a nd determinations but also in 
review determinations under Article 11.3 ADA: the substantive test of Article 11.3 ADA concerns a 
(prospective) nexus, namely between the termination of the duty and the continuation or recurrence 
of dumping and injury and a c umulative assessment may be appropriate in determining this nexus.  
Conditions for applying a cumulative assessment in an Article 11.3 ADA review  
6. The EU submits that the guiding principle for the appropriateness of a cumulative assessment 
is to be found in the rationale for such assessment as described by the Appellate Body in EC – Tube 
or Pipe Fittings  and which the Appellate Body specifically found to be applicable both in original as 
well as in review procedures.  
7. It is clear from the Appellate Body 's finding in EC – Tube or Pipe Fittings  that the rationale for 
cumulative assessment lies in the fac t that a country -specific assessment may not be able to reflect 
the effects on the domestic industry of the imports of dumped products from several countries. What 
a cumulative assessment is therefore meant to overcome is the specific difficulty which an 
investigating authority may face that the imports of dumped products from any one country are not 
sufficient to injure the domestic industry (or not injure sufficiently) while it remains an economic 
fact that a domestic industry is impacted by all imports i n a cumulative fashion.  
 
1 The Agreement on Implementation of Ar ticle VI of the General Agreement on Tariffs and Trade 1994 
(the "ADA" or "the Anti -Dumping Agreement").  
2 The European Union ( "the EU ").  WT/DS553/R/Add.1  
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  C. Country -wide  or company -specific  data on capacity  
8. Country -wide data on spare capacity is in principle an appropriate and permissible benchmark 
when assessing spare capacity in likelihood of dumping and injury determinations u nder 
Article  11.3 ADA. 
D. Definition  of "injury " 
9. With regard to the relationship between the meaning of "injury " as reflected in footnote 9 ADA 
and the meaning of "injury " in Article 11.3 ADA, the definition of injury in footnote 9 is applicable to 
the entire Anti -Dumping Agreement, including in the application of Article 11.3 ADA.  
E. Injury  partially  due to dumped  imports   
10. It is sufficient for a determination under Art icle 11.3 ADA that the injury which is found to be 
likely to be experienced by the domestic industry is only partially due to the expiry of the duty.  The 
fact that the domestic industry is likely to experience injury also from other sources at the same 
time does not exclude making a finding under Article 11.3 ADA.  
F. Recurrence  and continuation  of injury  
11. The EU agrees with the position that stating that there is a "recurrence " of injury means that 
the domestic industry is not currently (that is: while t he duties in question are being applied) 
experiencing injury from dumping. However, the EU 's view is not that the case of "recurrence " 
necessarily means that the domestic industry experiences no injury at all prior to the expiry of the 
anti-dumping duty pr eviously imposed.  
12. Given the fact that Article 11.3 ADA requires a determination of likelihood of recurrence or 
continuation of both dumping and injury, it is more appropriate to understand the notion of 
"recurrence " as covering not only the situation where the domestic injury does not suffer any injury 
at all prior to the expiry of the duty, but also the situation that the domestic industry experiences 
injury from another cause than dumping.  
13. Similarly, a determin ation of "continuation " of injury is not prevented by the consideration 
that the domestic industry may be experiencing injury from other sources as well.  
14. In the EU 's view, the determination under Article 11.3 ADA is essentially a forward -looking 
one. The fact that the text of that article refers to both "recurrence " and "continuation " simply 
reflects the desire to cover the whole range of possible situations of the domestic industry while the 
anti-dumping duties are applied.  
II. USE OF FAC TS AVAILABLE (ARTICLE 6.8 ADA AND ANNEX II TO ADA)  
A. Use of "facts  available " mandatory  or discretionary?  
15. The use of "facts available " under Article 6.8 ADA is a matter of discretion of the investigating 
authority, once the conditions of that article are fulfilled.  
 
B. When  does  the authority  have  recourse  to "facts  available "? 
16. Given the mandatory nature of Article 6.8 ADA and Annex II to ADA, the applicability of the 
provisions of Annex II to ADA cannot depend on whether the investigating authority specifically 
refers to the concept of "facts available ". If that were the case, a n investigating authority could 
evade the discipline of Article 6.8 ADA and of Annex II to the Anti -Dumping Agreement simply by 
not calling what it does the use of "facts available ".  
17. In the EU 's view, therefore, the key factor which triggers the appli cability of Article 6.8 ADA 
and of Annex II to the Anti -Dumping Agreement is what the investigating authority does, rather 
than how it calls its actions.  WT/DS553/R/Add.1  
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  18. In a situation where the investigating authorities reject the information supplied by the 
responde nts upon request because of the reliability and the usability of that information, the 
investigating authorities are only allowed to do so under the conditions provided for in 
Article  6.8 ADA and paragraphs 3 and 7 of Annex II to ADA.  
C. The notion  of "necessary " information  
19. The EU considers that the substantive assessment of the rule which is being applied defines 
the broad scope of the information needed in the investigation and that what is "necessary " is then 
primarily defined by the investigating a uthority. Article 6.8 ADA and Annex II to the ADA reflect a 
procedure in which this authority is under an obligation to define the information it seeks early and 
in a clear manner.  
D. Presenting  a claim  based  on Article  6.8 ADA 
20. A Member can argue that  Article 6.8 ADA does not apply in a specific situation, and also 
argue  – in a subsidiary manner – that even if Article 6.8 ADA were to apply, its requirements would 
not be fulfilled and it would therefore not be violated.  Nothing in the DSU prevents a member from 
presenting a full case or a full defence and that may well entail making primary as well as subsidiary 
arguments – for instance by stating that a particular provision does not apply, but even if it were to 
apply it  would be infringed (or not).  
III. CLAIM UNDER ARTICLES 6.5 AND 6.5.1. OF THE ANTI -DUMPING AGREEMENT  
21. Article 6.5 ADA specifically provides that information shall be treated as confidential "upon 
good cause  shown ". Article 11.4 ADA provides that the pr ovisions regarding evidence and procedure 
in Article 6 ADA shall be applicable in a review procedure pursuant to Article 11.3 ADA.  
22. The EU does not consider that the use of pre -determined categories of information is as such 
contrary to Article 6.5 ADA,  provided that the categories are sufficiently precise and cover only 
information which can in fact be considered as by its nature confidential. Under these conditions, 
such categories can indeed be considered to be a tool by which an "implicit " claim and motivation 
("good cause ") for confidential treatment by the submitter is made.  
23. It is more problematic that these categories are administered by the authority in such a way 
that information falling into their scope is automatically treated as meriting c onfidential treatment. 
Only the use of such categories which are sufficiently precise and circumscribed so as to clearly only 
entail information where confidential treatment is justified would satisfy the requirements of 
Article  6.5 ADA. The use of overly broad categories would fall foul of the requirement that the 
authority objectively assess the claim made by the submitter.  
IV. REQUIREMENT FOR AN INVESTIGATING AUTHORITY TO SPECIFICALLY ADDRESS A 
MATTER RAISED BY A RESPONDENT  
24. If an interested party ra ises a relevant matter with sufficient evidence and argumentation in 
a sunset review under Article 11.3 ADA, the investigating authority is in principle required to address 
it explicitly in its determination.  
25. There is no single factor which determines  whether an interested party has adduced enough 
evidence and argumentation on a given matter to warrant an explicit consideration. Rather, a 
case- by-case assessment is in order.  
V. CHALLENGE OF A CERTAIN FACT BY THE RESPONDENT  
26. The EU considers that t he fact that an interested party does not challenge a certain matter 
does not, as such, influence the legality of the authority 's determination. However the fact that a 
certain aspect has not been challenged or not challenged with sufficiently precise evid ence or 
argumentation can influence whether the authority must address a particular argument explicitly.  
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  VI. FAILURE TO CHALLENGE "LIKE PRODUCT DEFINITION" AND ARGUMENTS ABOUT 
THE CONDITIONS OF COMPETITION  
27. Given the fact that a "like product definition " can lead to a range of relevant products, a failure 
to challenge this definition cannot be a legal bar to validly advancing arguments concerning 
"conditions of competition ". The substantive argument which is being made (i.e. that certain types 
of steel bars do not effectively compete with the domestic industry and cannot therefore have led to 
injury to that industry) is independent of the "like product definition ". 
 
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  ANNEX C -2 
INTEGRATED EXECUTIVE SUMMARY OF THE  
ARGUMENTS OF THE UNITED STATES  
EXECUTIVE SUMMARY OF U.S. THIRD PARTY ORAL STATEMENT  
I. CUMULATIVE ASSESSMENT IN SUNSET REVIEWS PURSUANT TO ARTICLE 11.3 OF 
THE ANTI -DUMPING AGREEMENT  
1. Japan suggests that an investigati ng authority may be required to consider certain differences 
between imports and the domestic like product in evaluating their competitive relationship to justify 
a cumulative assessment in a sunset review consistent with Article 11.3 of the 
Anti-Dumping  Agreement and Article VI of the GATT 1994.  
2. Article 11 of the Anti -Dumping Agreement concerns the duration and review of anti -dumping 
duties, or sunset reviews. In particular, Article 11.3 requires an order to be terminated five years 
after its imposition , unless a Member conducts a review to determine whether revocation would be 
likely to lead to continuation or recurrence of dumping and injury. If a Member in conducting a 
sunset review concludes that revocation would be likely to lead to continuation or recurrence of 
dumping and injury, then the Member may continue the order.  
3. Unlike Article 3 of the Anti -Dumping Agreement (Determination of Injury), which explicitly 
provides certain preconditions for making a cumulative assessment in the context of ori ginal 
investigations, Article 11.3 does not prescribe the methodology by which a sunset review must be 
conducted. Nor does Article VI of the GATT 1994 require any specific analysis for the assessment of 
injury in sunset reviews.  
4. Consistent with the app licable standard of review in Article 17.6 of the 
Anti-Dumping  Agreement and Article 11 of the DSU , the Panel need only consider whether the 
Korean  investigating authority 's evaluation of the facts was unbiased and objective . Article 17.6 
provides that a p anel:  
[S]hall 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  … 
5. What is adequate will depend on the facts and circumstances of the case, recognizing that an  
investigating authority may have to consider conflicting arguments and evidence . The 
Appellate  Body recognized in  US – Anti-Dumping  Measures  on Oil Country  Tubular  Goods  that 
because "Article 11.3 does not prescribe any particular methodology to be follow ed by an 
investigating authority in conducting a sunset review ", investigating authorities need only "arrive at 
a reasoned and adequate conclusion " with respect to cumulation, which may "in certain cases " 
require "an examination of whether imports are in t he market together and competing against each 
other ". 
6. Consequently, an investigating authority may make a cumulative assessment in a sunset 
review so long as the decision to cumulate is based upon an unbiased and objective evaluation of 
the facts.  
II. EVALUATION OF PRODUCT DIFFERENCES IN SUNSET DETERMINATIONS  
7. The United States will next addre ss Japan 's argument that the Korean investigating authority 
acted inconsistently with Article 11.3 of the Anti -Dumping Agreement by not analyzing "the effects 
of the product under investigation on the domestic like products ... on a type -by-type basis " including WT/DS553/R/Add.1  
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  "a comparison of prices and other factors between the product under investigation and the domestic 
like products for general -purpose steel a nd special steel in separate analyses ".  
8. The United States understands that the  Korean investigating authority defined  a single 
domestic like product, as well as a  single domestic industry corresponding to the domestic producers 
"as a whole " of the like  products.  
9. Given its definition of a single domestic industry, the Korean investigating authority was only 
required to make a single determination as to whether revocation of the orders was likely to result 
in the continuation or recurrence of injury to  the industry .  
10. As explained by the panel in EU – Footwear  (China)  in the context of material injury, 
"consideration of the performance of a particular type as opposed to other types within one like 
product is not necessarily relevant " because "the ind ustry is defined as producers of the like product, 
and the determination to be made is whether the industry as a whole is materially injured by dumped 
imports ". 
11. However, depending on the facts and circumstances, a n analysis of different types of 
merchandise produced by a single domestic industry may be  appropriate  in the context of  a sunset 
determination . For example, if an investigating authority assesses the significance of likely price 
undercutting by comparing the average unit values  (AUVs) of subject imports to the AUVs of the 
domestic like product , and the AUVs are based on baskets whose product mixes are not comparable, 
an investigating au thority may control for differences in physical characteristic s affecting price 
comparability .  
12. Investigating authorities may also need to consider the degree of competitive overlap between 
subject imports and the domestic like product where the "differentiation of goods ... affects the 
competition between them in ways that have an impact on the assessment of " likely injury.  
EXECUTIVE SUMMARY OF U.S. THIRD PARTY RESPONSES TO QUESTIONS  
I. THE PROPER INTERPRETATION OF ARTICLE 11.3 OF THE 
ANTI -DUMPING  AGREEMENT  
13. Japan suggests that the Korean investigating authority  failed to address certain evidence 
presented by the interested parties in the underlying investigation. Whether an investigating 
authority must  address an interested party 's argument in its public notice of an affirmative sunset 
review determination, cont inuing an anti -dumping duty order, will depend on whether the 
party 's argument is "relevant " and "considered materia l by the investigating authorit[y] " within the 
meaning of Article 12  of the Anti -Dumping Agreement , which applies to reviews  pursuant to 
Article 11.  
14. Article 12.2.2 requires investigating authorities to issue a public notice of final affirmative 
determinations containing "the reasons for the acceptance or rejection of relevant arguments or 
claims made by the expor ters or importers ". The chapeau of Article 12.2 requires investigating 
authorities to "set forth " in such notices "in sufficient detail the findings and conclusions reached on 
all issues of fact and law considered material by the investigat ing authorities ". Therefore, Article 12 
does not require  investigating authorities to address in their public notices of final determinations 
each and every argument raised by interested parties over the course of an investigation or review, 
but only those arguments that are relevant and considered material by the investigating authority .  
15. Accordingly, the panel i n EU – Footwear  (China)  rejected the view that whether information 
and reasons for the acceptance or rejection of arguments must be provided should be judged from 
the perspective of the interested p arties . The panel explained  that arguments "of importance to 
individual in terested parties " may not be "'material ' within th e meaning of Article 12.2.2 ". 
Similarly , in China  – GOES , the Appellate Body reasoned that "[t]he obligation of disclosur e under 
Article [ ]  12.2.2 … is framed by the requirement of 'relevance' , which entails the disclosure of the 
matrix of facts, law and reasons that logically fit together to render the decision to impose final 
measures ". WT/DS553/R/Add.1  
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  16. In sum, a n investigating author ity need not address an argument made by an interested party 
that the authority deems not relevant  or material  to its determination, irrespective of the importance 
of the argument to the interested party  or the amount of evidence and argumentation it has a dduced 
with respect to the argument .  
17. With respect to the Korean investigating authority 's decision to cumulate in the sunset review 
at issue, Korea observes that Japan has not challenged the definition of the like product in this 
dispute, and suggests  that the Japanese interested parties should have raised objections to the like 
product definition in the underlying investigation. The fact that a complaining party could have raised 
an additional claim would not itself prevent a panel from making a findi ng of inconsistency with a 
claim that has been raised. Further, interested parties need not necessarily object to or challenge a 
matter in a sunset review proceeding to preserve a Member 's right to claim in dispute settlement 
proceedings that an investigat ing authority acted inconsistency with respect to Article  11.3. 
However, if interested parties have failed to raise particular issues during the underlying 
investigation, the Panel could take such failure into an account in evaluating whether the 
determina tion by the investigating authority contains a sufficient degree of detail in reaching 
conclusions on the issues of law and fact.  For example, if certain issues were not raised by interested 
parties during the investigation, an explanation regarding certai n aspects of the determination may 
be less detailed than in a situation when interested parties have raised arguments regarding such 
issues before the investigating authority.  
18. With respect to an investigating authority 's examination under Article 11.3 , the definition of 
"injury " in footnote 9 of the Anti -Dumping Agreement is applicable for the whole 
Anti-Dumping  Agreement (unless otherwise specified), including in the context of sunset reviews 
pursuant to Article   11.3. Footnote 9 provides : 
Under this A greement the term 'injury ' shall, unless otherwise specified, be taken to 
mean material injury to a domestic industry, threat of material injury to a domestic 
industry or material retardation of the establishment of such an industry and shall be 
interprete d in accordance with the provisions of [Article 3].  
19. While the definition of "injury " in footnote 9 provides that the term "shall be interpreted in 
accordance with the provisions of [Article 3] ", it does not follow  that an investigating authority  must 
comply with the  requirements for original investigations set out in  Article 3, including the obligation 
to consider "other known causes " of injury under Article 3.5.  
20. The Anti -Dumping Agreement distinguishes between original determinatio ns of injury 
pursuant to Article 3 and determinations of the likelihood of continuation or recurrence of injury 
pursuant to Article 11.3. Thus, the applicability of the definition of "injury " in footnote 9 of the 
Anti-Dumping Agreement to the term as used in Article 11.3 does not suggest an obligation for 
investigating authorities  to follow the requirements of Article 3, including the requirement in 
Article  3.5 to  consider "any known factors other than the dumped imports which at the same time 
are injuring the domestic industry ". 
21. The Appellate Body in  US – OCTG  Sunset  Reviews  also rejected the view that the applicability 
of the definition of "injury " in footnote 9 has the effect of extend ing all obligations applicable to 
original investigations under Art icle 3 to sunset reviews under Article 11.3. As the Appellate Body 
explained , "[g]iven the absence of textual cross -references, and given the different nature and 
purpose of these two determinations, we are of the view that, for the "review " of a determina tion of 
injury that has already been established in accordance with Article 3, Article 11.3 does not require 
that injury again be determined in accordance with Article 3 ". 
22. Further, Article 11.3  of the Anti -Dumping Agreement  provides that an investigating authority 
must determine that the "expiry of the duty would be likely to lead to continuation or recurrence of 
dumping and injury ". The text of that provision does not require  investigating aut horities to establish 
that the entire likelihood -of-injury  to the domestic industry is attributable to  subject imports.  
Therefore, i t is possible for an investigating authority to render an affirmative determination under 
Article 11.3 even where factors other than subject imports render a domestic industry vulnerable to 
the continuation o r recurrence of material injury after revocation such that subject imports would 
not be the sole cause of an industry 's distress.  WT/DS553/R/Add.1  
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  II. THE INTERPRETATION AND APPLICATION OF ARTICLE 6.8 OF THE 
ANTI -DUMPING  AGREEMENT IN THE CONTEXT OF SUNSET REVIEWS  
23. The use of the word "may" in Article 6.8 indicates that, while authorities have the ability to 
use facts available under appropriate circumstances, they are not required to do so . Other provisions 
of Article 6 of the Anti -Dumping Agreement that provide mandatory obligations on authorities, such 
as Articles 6.3, 6.4, 6.5, 6.9, 6.10, 6.12, and 6.13, all use the word "shall". The permissive nature 
of Article 6.8 is further confirmed by the guidance in Annex II, w hich provides  in non -mandatory 
terms  that investigating authorities "will be free " to make determinations on the basis of the facts 
available.  
24. In resorting to "facts available " under Article 6.8, the missing info rmation must be 
"necessary ". The use of the term "necessary " as a qualifier carries significance because it ensures 
that Article 6.8 is "not directed at mitigating  the absence of 'any' or 'unnecessary ' information, but 
rather is concerned with overcoming the absence of information r equired to complete a 
determination ". If such "necessary " information is absent, "the process of identifying the 'facts 
available ' should be limited to identifying replacements for the 'necessary information ' that is 
missing from the record ". 
25. When an i nvestigating authority must re ly on "facts available " under Article 6.8,  "[t]here has 
to be a connection between the 'necessary information ' that is missing and the particular 'facts 
available '" on which a determination is based . 
26. The application of "facts available " under the circumstances described by Article 6.8 is at the 
discretion of the investigating authority. Where that authority has been exercised, the requirements 
of Article 6.8 and Annex II will apply. An investigating authority may reject information because it 
is not relevant or inaccurate. Article 6.8  further permit s an investigating authority to reply on facts 
available  where the respondent party has been non -cooperative and wher e the information 
requested is necessary and the information provided is either deficient or unreliable . 
27. A claim under Article 11.3 must be assessed on its own merits and does not formally relate to 
an evaluation under Article 6.8. In analyzing likely injury, an investigating authority may rely on any 
source of data available to it, so long as the investigating authority 's analysis is based on positive 
evidence and an objective examination. Therefore, the task of the Panel would be to determine 
whether the investigating authority 's findings with respect to the likelihood of continuation or 
recurrence of injury were supported by the record evidence such that a reasonable and unbiased 
authority could have reached the same conclusion. This evaluation will d epend on the particular facts 
and circumstances of the case, including, for example, the findings made by the authority with 
respect to the reliability and probative value of the evidence.  
__________