WT/DS505/AB/R/Add.1  
 
6 February 2020 
(20-0875) Page: 1/20 
  Original: English  
 
UNITED  STATES  – COUNTERVAILING MEASU RES ON  
SUPERCALENDERED PAPE R FROM CANADA  
AB-2018-8 
Report of the Appellate  Body 
Addendum  
This Addendum  contains Annexes A to D to the Report of the Appellate  Body circulated as  document  
WT/DS505/AB/R . 
 
The Notice of Appeal and the executive summaries of written submissions contained in this 
Addendum are attached as they were received from the participants and third participants. The 
content has not been revised or edited by the Appellate  Body, except that paragraph and footnote 
numbers that did not start at 1 in the original may have been renumbered to do so, and the text 
may have been formatted in order to adhere to WTO style. The executive summaries do not serve 
as substitutes for the su bmissions of the participants and third participants in the Appellate  Body's 
examination of the appeal.  
 
 
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LIST OF ANNEXES  
ANNEX  A 
NOTICE  OF APPEAL   
Contents  Page  
Annex  A-1 United  States ' Notice of Appeal  4 
ANNEX B  
ARGUMENTS OF THE PARTICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of the United  States ' appellant's submission  6 
Annex  B-2 Executive summary of Canada 's appellee's submission  8 
ANNEX  C 
ARGUMENTS OF THE THI RD PA RTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of Brazil 's third participant's submission  11 
Annex  C-2 Executive summary of China's third participant's submission  12 
Annex  C-3 Executive summary of the European  Union 's third participant's submission  13 
Annex  C-4 Executive summary of Japan 's third participant's submission  14 
ANNEX  D 
PROCEDURAL RULING S 
Contents  Page  
Annex  D-1 Procedural ruling of 13 September  2018 regarding the European  Union's 
request to extend the  deadline  for third participants ' submission s 16 
Annex  D-2 Procedural ruling of 28 March  2019 regarding the late filing of China's 
executive summary of its  third participant's submission  18 
Annex  D-3 Procedural ruling of 2 July 2019 regarding Canada and the United  States ' 
joint request t o allow  public observation of the oral hearing  19 
 
 
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  ANNEX  A 
NOTICE  OF APPEAL   
Contents  Page  
Annex  A-1 United  States ' Notice of Appeal  4 
 
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  ANNEX  A-1 
UNITED  STATES ' NOTICE OF APPEAL 
1. Pursuant to Article  16 of the Understanding on Rules and Procedures Governing the Settlement 
of Disputes  ("DSU") and Rule  20 of the Working Procedures for Ap pellate Review , the United  States 
hereby notifies its decision to appeal to the Appellate  Body certain issues of law covered in the report 
of the Panel in United  States – Countervailing Measures on Supercalendered Paper from Canada 
(WT/DS505/R and WT/DS505/R/Add.1) and certain legal interpretations developed by the Panel.  
2. The United  States seeks review by the Appellate  Body of the Panel 's findings that the so -called 
"ongoing conduct " measure is a "measure " that could be challenged under the DSU.1 This finding is 
in error and is based on erroneous findings on issues of law and legal interpretations. The Panel 
erred in finding that "ongoing conduct " is a measure within the DSU, including DSU Articles  7.1, 
19.1, 3.3, and 4.2. The Panel improperly relied  on the Appellate  Body's approach to "ongoing 
conduct " expressed in US – Continued Zeroing  when that approach would not support the Panel 's 
finding of an "ongoing conduct " measure. The Panel also failed to properly apply its own legal 
approach to the facts to determine the existence of the "ongoing conduct ". The United  States 
respectfully requests that the Appellate  Body reverse the Panel 's findings.  
3. The United  States seeks  review by the Appellate  Body of the Panel 's finding that the so -called 
"ongoing conduct " measure is inconsistent with Article  12.7 of the SCM  Agreement.2 This finding is 
in error and is based on erroneous findings on issues of law and legal interpretation s. The Panel 
failed to provide a basic rationale for its findings as required by Article  12.7 of the DSU. The Panel 
erred in finding a breach of Article  12.7 of SCM  Agreement  when that provision permits the use of 
facts available where the respondent significantly impedes the investigation, an alternative basis for 
using facts available that the Panel failed to analyze. The Panel 's legal conclusion is unsubstantiated 
by its ow n reasoning, which does not correspond to the "ongoing conduct " actually found by the 
Panel, nor with the determinations on the record in the proceeding. Finally, the Panel erred in finding 
that a request for information on "Other Forms of Assistance " can never be a request for "necessary 
information ". The United  States respectfully requests that the Appellate  Body reverse the Panel 's 
findings.  
4. The Panel erred in making a recommendation under DSU Article  19.1 because it erred in 
finding that the so -called "Other Forms of Assistance " measure exists and is a "measure " within the 
meaning of the DSU or because it erred in finding this alleged "measure " is inconsistent with 
SCM Agreement Article  12.7.3 Having reversed the Panel 's legal conclusion on either basis, the 
Appellate  Body should also, as a consequence, reverse the Panel 's recommendation under DSU 
Article  19.1. 
_______________  
 
 
 
 
  This notification , dated 27  August  2018,  was circulated to Members as document WT/DS 505/6.  
 
1 US – Supercalendered Paper (Panel) , paras.  7.301 –7.329 and 7.332.  
2 US – Supercalendered Paper (Panel) , para.  7.333.  
3 US – Supercalendered Paper (Panel) , para.  8.6. WT/DS505/AB/R/Add.1  
 
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  ANNEX  B 
ARGUMENTS OF THE PARTI CIPANTS  
Contents  Page  
Annex  B-1 Executive summary of the United  States ' appellant's submission  6 
Annex  B-2 Executive summary of Canada 's appellee's submission  8 
 
 
 
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  ANNEX  B-1 
EXECUTIVE SUMMARY OF  THE U NITED  STATES ' APPELLANT'S SUBMISSI ON1 
1. The United  States presents this appellant submission pur suant to Rule  21 of the 
Working  Procedures for Appellate Review. The United  States  appeals certain legal findings and 
erroneous interpretations of the Agreement on Subsidies and Countervailing Measures 
("SCM Agreement") and the Understanding on Rules and Procedures Governing the Settlement of 
Disputes  ("DSU") in the United  States  – Countervailing Measures on Supercalendered Paper from 
Canada  panel report. Specifically, the United  States  appeals the Panel's findings that the challenged 
so-called "other forms of assistance measure" constitutes "ongoing conduct" that is a measure within 
the meaning of the DSU and is inconsistent with Article  12.7 of the SCM  Agreement .  
2. The origins of this dispute lie in Canada's decision to provide massive subsidies to rescue a 
politically important, but financially troubled paper mill from bankruptcy. In re sponse to that 
situation and after conducting a thorough and rigorous investigation, the U.S.  Department of 
Commerce ("Commerce") appropriately imposed countervailing duties on subsidized imports of 
supercalendered paper to the U.S.  market from Canada. Des pite these legitimate countervailing 
duties, the Panel in its report made extensive legal errors concerning the SCM Agreement and the 
DSU. This submission describes but a few of those errors.2 
3. In Section  II of this submission, we address the Panel's errors  concerning the purported 
existence of the so -called "ongoing conduct" as a measure. First, we demonstrate that the Panel 
erred in finding the existence of a measure it refers to as "ongoing conduct." Namely, we explain 
that what the Panel identified as a measure is not a measure wit hin meaning of the DSU. Second,  we 
demonstrate that what the Panel identified as a measure is not a measure of "ongoing conduct" as 
understood by prior panel and Appellate  Body reports. Third, we show that the Panel misapplied i ts 
chosen legal approach for determining the existence of the purported "ongoing conduct." The Panel 
invented a measure by piecing together parts of countervailing duty proceedings with factually 
dissimilar determinations and labeling it as one measure cap able of being subject to a broad 
challenge. As described in Section  II, we show that the Panel's reliance on excerpted text drawn 
from non -successive, factually dissimilar countervailing duty determinations does not prove the 
existence of a measure that is  subject to WTO  dispute settlement. Rather, the excerpts relied upon 
by the Panel in context confirm that no "ongoing conduct" measure exists. Accordingly, there is no 
legal basis for the Panel's findings to the contrary.  
4. In Section  III of this submission , we demonstrate that the Panel erred in finding that the 
so-called "ongoing conduct" is inconsistent with Article  12.7 of the SCM  Agreement . We show that 
the Panel's findings suffer from four fundamental problems. First, we show that the Panel failed to 
provide a basic rationale for its findings as required by Article  12.7 of the DSU. This error vitiates its 
conclusion and calls for reversal. Second, we demonstrate that the Panel committed legal error by 
ignoring that Article  12.7 of SCM  Agreeme nt provides for the use of facts available where the 
respondent significantly impedes the investigation. That is, the Panel erred in finding a breach of 
Article  12.7 where it had only analyzed whether "necessary" information had not been provided by 
an int erested party; rather, an alternative basis for using facts available existed. Third, we 
demonstrate that the Panel's reasoning does not correspond to the "ongoing conduct" actually found 
by the Panel, nor with the determinations on the record in the proce eding; therefore, the Panel's 
legal conclusion must be reversed as simply unsubstantiated by its own reasoning. Finally, we show 
 
1 Pursuant to the Guidelines in Respect of Executive Summaries of Written Submissions , WT/AB/23 
(March  11, 2015), the United  States indicates that this executive summary contains a total of 755  words 
(including foo tnotes), and this U.S. appellant submission (not including the text of the e xecutive summary) 
contains 8,654  words (including footnotes).  
2 In light of recent developments, the United  States has not found it necessary to appeal the many 
Panel legal finding s on the countervailing duties on supercalendered paper with which the United  States 
strenuously disagrees. Reversal of those findings is not necessary to resolve this dispute. Instead, the 
United  States limits its appeal to the Panel's findings relating t o the alleged "ongoing conduct " or "Other Forms 
of Assistance " measure.  WT/DS505/AB/R/Add.1  
 
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  that the Panel's finding that a request for information on "Other Forms of Assistance" can never be 
a request for "necessary in formation" is legal error.  
5. Accordingly, the Panel's findings have no legal basis under the WTO  covered agreements. The 
United  States requests that the Appellate  Body reverse the Panel's findings that the challenged 
so-called "other forms of assistance meas ure" exists and is a "measure" within the meaning of the 
DSU and further requests that the Appellate  Body reverse the Panel's finding that the alleged 
"measure" is inconsistent with Article  12.7 of the SCM  Agreement .  
 
 
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  ANNEX B -2 
EXECUTIVE SUMMARY OF  CANADA'S APPELLEE'S  SUBMISSION1 
1. The Agreement on Subsidies and Countervailing Measures ("SCM  Agreement") was intended 
to strike a balance between the right to impose duties to offset subsidization, and the obligations 
that discipline the use of countervailing measures to ensure that such measures are not abused by 
investigating authorities.2 Before the Panel, Canada demonstrated that the United  States' 
Other  Forms of Assistance -AFA measure upset this balance in a manner that was inconsistent with 
Article  12.7 of the SCM  Agreement .  
2. The Panel agreed with Canada. It found that, s ince 2012, the U.S.  Department of Commerce 
("Commerce") has repeatedly applied the Othe r Forms of Assistance -AFA measure to countervail 
information it discovers during verification on the basis that the information could be a potential 
subsidy.3 During its countervailing duty investigations and reviews, Commerce asks respondents, as 
a matter  of practice, a question that requests the disclosure of any "other forms of assistance" 
received by the company. If Commerce subsequently discovers information during verification that 
it deems responsive to this question, it applies Adverse  Facts Availab le ("AFA") to the respondent 
and determines that this information is a countervailable subsidy, without assessing whether it was 
"necessary" within the meaning of Article  12.7 of the SCM  Agreement , and without permitting the 
respondent to provide informati on and supplement the factual record.4 
3. In the Commerce investigations and reviews cited as evidence of the measure, the Panel found 
that Commerce only accepted sufficient evidence to find that it had discovered information that it 
deemed to be potential "a ssistance", and failed to provide respondents with due process.5 In fact, 
upon discovering such additional information, Commerce does not assess whether the information 
is necessary to complete its determination and refuses to accept any other relevant inf ormation onto 
its record, including evidence that the discovered information is not countervailable.6 Instead, 
Commerce systematically applies its Other Forms of Assistance -AFA measure to deem (or, in 
Commerce's words, infer,7) that the discovered information provided a financial contribution, that 
conferred a benefit, and was specific, without providing respondents any opportunity to refute this 
application of AFA.8 On the fact ual record before it, the Panel concluded that the Other Forms of 
Assistance  AFA measure was properly evidenced, including by nine determinations since 2012.9 The 
Panel found that the record supported finding, in line with Commerce's own statements, that 
Commerce has repeatedly applied the measure and is likely to continue to apply it in future 
investigations and reviews.10 
4. The United  States attempts to distract from these findings by claiming that this dispute relates 
to "massive" subsidies provided "to res cue […] a financially troubled paper mill from bankruptcy".11 
 
1 Pursuant to the Guidelines in Respect of Executive Summaries of Written Submissions , WT/AB/23 
(March  11, 2015), Canada indicates that this executive summary contains a total of 1, 146 words (including 
footnotes), and this appellee submission (not including the text of the executive summary) 
contains  13,350  words (including footnotes).  
2 Appellate  Body Reports, US – Carbon Steel (India) , para. 4.542; US – Anti-Dumping and 
Countervai ling Duties (China) , para.  301; and US – Softwood Lumber IV , para.  64. 
3 Panel Report, US – Supercalendered Paper , paras.  7.307 -7.327.  
4 Panel Report, US – Supercalendered Paper , paras . 7.333 and 7.174 -7.176. It is also noteworthy that 
Commerce does not in itiate an investigation into any of the discovered assistance, yet countervails them as 
new programs.  
5 Panel Report, US – Supercalendered Paper , para s. 7.316 and  7.333.  
6 See e.g. Panel Report, US – Supercalendered Paper , Table  2: Application of facts available by the 
USDOC (following para.  7.313)  and para.  7.317.  
7 Panel Report, US – Supercalendered Paper , Table  2: Application of facts available by the USDOC 
(following para.  7.313 ) and para.  7.317.  
8 Panel Report, US – Supercalendered Paper , Table 2: Application of facts available by the USDOC 
(following para.  7.313 ) and paras.  7.174 -7.176 and 7.333.  
9 Panel Report, US – Supercalendered Paper , paras.  7.316 -7.324.  
10 Panel Report, US – Supercalendered Paper , paras.  7.324 -7.329.  
11 United  States ' appellant submission, para.  2. WT/DS505/AB/R/Add.1  
 
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  This is false. None of the issues in this appeal concern the alleged subsidies to Port Hawkesbury 
Paper LP mill, to which the United  States refers.12  
5. The United  States asserts that the Panel made  a lengthy list of legal errors in concluding that 
the Other Forms of Assistance -AFA measure contravenes Article  12.7 of the SCM  Agreement. The 
U.S. arguments fall into two categories.  
6. First, it claims that the Panel erred in concluding that the measure e xisted, or could exist, as 
"ongoing conduct". In Canada's view, the majority of these arguments relate to the Panel's findings 
of fact, and are not properly before the Appellate  Body.13 The remainder of the arguments advanced 
by the United  States are incons istent with the previous decisions of panels and the Appellate  Body 
concerning the broad scope of a "measure" that can be challenged under the Understanding on rules 
and procedures governing the settlement of disputes ( "DSU").14 In particular, t he U.S.  argument 
that the Other Forms of Assistance -AFA measure cannot be challenged as "ongoing conduct" 
improperly revisits settled interpretations of the DSU, and such an argument has no basis in the 
DSU.  
7. Second, the United  States also argues that the Panel erred in finding that the measure is 
inconsistent with Article  12.7 of the SCM  Agreement. The Panel's a nalysis with respect to Article  12.7 
is thorough, and the Panel correctly took its guidance from prior Appellate  Body decisions. The Panel 
also did not i mproperly ignore the fact that this provision provides for the use of facts available 
where a respondent  significantly impedes an investigation; the Other Forms of Assistance -AFA 
measure identified by Canada did not concern such a finding. In addition, the  Panel correctly 
concluded that Commerce infers that a failure to respond fully to the broad "other forms of 
assistance" question results in a failure to provide necessary information in a manner inconsistent 
with Article  12.7 of the SCM  Agreement. Finally , contrary to U.S. argument, the Panel properly relied 
on previous Appellate  Body decisions to interpret the term "necessary information" for the purpose 
of Article  12.7 of the SCM  Agreement, and correctly concluded that Commerce could not determine 
that t he information was necessary without first providing respondents with due process rights . 
_______________  
 
 
 
 
12 In any event, the Panel found that the majority of Commerce 's conclusions with respect to the alleged 
subsidization of the Port Hawkesbury Paper LP mill, which are not at issue in this  appeal were 
WTO-inconsistent.  
13 The United  States advances these claims despite its "Statements by the United  States at the Meeting 
of the WTO  Dispute Settlement Body", Geneva, August  27, 2018, where the United  States argues that 
authority  of the Appellate  Body to review panel fact -finding, which is in its view "contrary to the DSU," has 
added complexity, duplication, and delay to every WTO dispute.  
14 For example, the Panel appropriately relied on Appellate  Body Reports, US – Corrosion -Resistant Steel 
Sunset Re view, para.  81; US – Softwood Lumber IV (Article  21.5 – Canada) , para.  67; US – Anti-Dumping 
Methodologies (China) , paras.  5.122 and 5.132; US – Continued Zeroing , para.  191; and Argentina – Import 
Measures , paras.  5.108 -5.110.  WT/DS505/AB/R/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF THE THI RD PARTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of Brazil 's third participant's submission  11 
Annex  C-2 Executive summary of China's third participant's submission  12 
Annex  C-3 Executive summary of the European  Union 's third participant's submission  13 
Annex  C-4 Executive summary of Japan 's third participant's submission  14 
 
 
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  ANNEX  C-1 
EXECUTIVE SUMMARY OF  BRAZIL'S THIRD PARTI CIPANT'S SUBMISSION  
I. "FACTS AVAILABLE" IN TENDS TO OVERCOME AB SENCE OF INFORMATION  NEEDED 
TO COMPLETE A DETERM INATION  
1. A request for information on "other forms of assistance" can be a request for "necessary 
information". However, as th e question may be overly broad, it could be difficult to discern what the 
"necessary" information is.  
2. Having discovered new information, investigating authorities can rely on best information 
available, without having to open a new line of investigation.  However, they  should first determine 
which information is necessary1. 
3. Authorities are furthermore expected to explain whether and how the newly discovered 
information led or contributed to a determination.  
4. Finally, "facts available" should be complementary to other evidence presented, which should 
be taken into account, eve n if the information provided is not complete2. 
II. INCOMPLETE ANSWE RS SHOULD NOT NECESS ARILY BE INTERPRETED  AS 
IMPEDANCE OF INVESTI GATION  
5. While Article  12.7 provides that investigating authorities can rely on facts available, 
Article  12.1 entails a due pr ocess obligation to ask specifically for the information deemed necessary 
before assuming the investigated party is denying to disclose it.3  
6. Article  6.8 of the Anti -Dumping Agreement and its Annex  II provide interpretive guidance on 
the specific requirements that must be satisfied in order for an authority to resort to facts available 
under Article  12.7 of the SCM  Agreement.  
 
 
 
1 Mexico – Anti-Dumping Meas ures on Rice , Appellate  Body Report, para.  295. 
2 Mexico – Anti-Dumping Measures on Rice , Appellate  Body Report, para.  294. 
3 Mexico – Anti-Dumping Measures on Rice , Appellate  Body Report, paras.  290-295. WT/DS505/AB/R/Add.1  
 
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  ANNEX C -2 
EXECUTIVE SUMMARY OF  CHINA'S THIRD PARTIC IPANT'S  SUBMISSION  
1. China focuses its submission on the issue of systemic importance: whether the "ongoing 
conduct " challenged by Canada in this dispute can be subject to WTO dispute set tlement.   
2. China considers that the proper adjudication of the "ongoing conduct " related issues has 
far-reaching implications for the appropriate  functioning of the SCM Agreement  and the DSU , and 
for the maintaining of the delicate balance built in the said agreements.  
3. In China 's view, it is now well settled Appellate  Body jurisprudence that the scope of measures 
susceptible to challenge in W TO dispute settlement is broad . "Ongoing conduct " does involve 
elements in relatio n to future application, but that does not mean that ongoing conduct is a certain 
type of future measure. In addition, the fact that a measure is "ongoing" does not mean that  the 
measure does not "exist". Furthermore , the legal standard for proving the fut ure application of a 
measure is not "certainty ".  
4. Against this legal background, China submits that the Panel in this dispute correctly relied on 
the broad meaning of a "measure " under the DSU and the Appellate  Body's jurisprudence  and 
concluded that "ongoing conduct " can be a measure subject  to WTO dispute settlement.  
 
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  ANNEX C -3 
EXECUTIVE SUMMARY OF  THE E UROPEAN  UNION 'S THIRD PARTICIPANT 'S SUBMISSION1 
A. "MEASURE AT ISSUE"  
1. The European  Union considers that the range of measures subject to dispute settlement is 
broad. There is no exhaustive catalogue of challengeable measures. The evidentiary standard to be 
met by the complainant is set by its own character isation, as the Appellate  Body has pointed out in 
Argentina – Import measures  and confirmed in US – Anti-Dumping Methodologies (China) . The types 
of unwritten measures that have been found to exist in previous case law are examples; measures 
need not fit s quarely into one of these boxes.  
2. "Ongoing conduct" is one type of unwritten measure that has been found by the 
Appellate  Body to be challengeable, and there are no cogent reasons to depart from these findings. 
The standard for future application is "likeli hood", and not certainty, as stressed (for "norms of 
general and prospective application") by the Appellate  Body in US – Anti-Dumping Methodologies 
(China).  
B. FACTS AVAILABLE  
3. As regards the United  States' claim under Article  12.7 of the DSU, the European  Union points 
to previous case law which has stated that panels must set forth explanations and reasons sufficient 
to disclose the essential, or fundamental, justification for their findings and recommendation. 
A panel's 'basic rationale' might also be foun d in reasoning set out in other documents, such as 
referenced panel or Appellate  Body reports – or referenced reasoning on other measures at stake in 
the same dispute, if the factual situation and legal issues are comparable.  
4. As regards Article  12.7 of th e SCM  Agreement, the European  Union agrees with the Panel that 
requests for information must be sufficiently precise as to what information is needed. However, the 
notion of "necessity" must be assessed from an ex ante perspective. Even if it becomes clear  
afterwards that the information requested was not objectively decisive for the determination, the 
investigating authority must have the right to request it in the first place, in order to evaluate 
whether or not it is relevant – provided it is not clear f rom the beginning that the request relates to 
irrelevant information.  
5. The European  Union also agrees with the distinction by the Panel between the right to ask 
questions, and the consequences of incomplete answers. Not any broad question that is legitimate  
from an ex ante  perspective will justify automatic negative inferences in case of incomplete answers. 
Negative inferences have to be justified on a case -by-case basis, taking all relevant procedural 
circumstances into account. This position is warranted in light of previous case -law on the relevance 
of procedural circumstances in which necessary information is missing, context from Annex  II to the 
Anti-Dumpin g Agreement, and the necessary balance between efficient investigations and due 
process rights.  
 
 
 
1 Total number of words (including footnotes but excluding executive summary) = 4751; total number 
of words of the executive summary =  441. WT/DS505/AB/R/Add.1  
 
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  ANNEX C -4 
EXECUTIVE SUMMARY OF  JAPAN'S THIRD PARTICIPANT 'S SUBMISSION  
1. On the existence of a measure characterized  as "ongoing conduct ", the United  States  argued 
that the complain ant needs to demonstrate  that a Member ha s adopted a decision to follow the past 
actions  in the future .1 While  such action would certainly constitute strong evidence of the likelihood 
of continuance , it would not constitute an additional requirement.  
2. The United  States stated that the zeroing methodology in US – Continued Zeroing  case had a 
clearer indication of "general  and prospective application " and "rote application " than the measure 
at issue. However, the requirements to establish "ongoing conduct " are repeated application and of 
the likelihood of continuance , rather than "general  and prospective application " and "rote 
application ".2  
3. On "significant impedance " under Article  12.7 of the SCM Agreement,  the due process rights 
of interested parties who significantly impede the investigation may still need to be taken into 
accoun t since facts available shall not be used as punishment,3 and thus, no deviation from the 
unbiased and objective fact -finding is permitted.  
4. The Panel 's finding under Article  12.7 highlighted the absence of a linkage between newly 
discovered subsid ies and the subject merchandise  before resorting to facts available.4 The due 
process requires respondent to know (and to be given appropriate opportunity to rebut) at least the 
basic nature of the discovered subsidies, including whether or not such subsidies are relevant to the 
subject merchandise. Japan agrees with the Panel that practical difficulties to confirm the basic 
nature of the discovered information cannot outweigh the due process rights.5  
_______________  
 
 
 
 
1 United  States'  appellant 's submission, paras.  10 and 15.  
2 Appellate  Body Report, Argentina – Import Measures , para.  5.108.  
3 Appellate  Body Report, US – Carbon Steel (India) , paras.  4.419 and 4.422.  
4 Panel Report, para.  7.176.  
5 Panel Report, paras.  7.177 and 7.333.  WT/DS505/AB/R/Add.1  
 
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  ANNEX D  
PROCEDURAL RULING S 
Contents  Page  
Annex  D-1 Procedural ruling of 13 September  2018 regarding the European  Union 's 
request  to extend the deadline for third participants' submissions  16 
Annex  D-2 Procedural ruling of 28 March  2019 regarding the late filing of China's 
executive summary of its  third participant's submission  18 
Annex  D-3 Procedural ruling of 2 July 2019 regarding Canada and the United  States ' 
joint request to allow  public observation of the oral hearing  19 
 
 
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  ANNEX D -1 
PROCEDURAL RULING  OF 13  SEPTEMBER  2018 
1. On Tuesday,  4 September  2018, the Chair of the Appellate  Body received a communication 
from the European  Union requesting that the Division hearing this appeal modify the deadline for 
the filing of third participants' submissions and executive summaries in this appeal. In its let ter, the 
European  Union noted that the Working Schedule set the date for the submission of 
appellees'  submissions as Friday,  14 September  2018, and the date for the filing of the 
third participants' submissions as Monday,  17 September  2018. The European  Union highlighted 
that this allowed third  participants less than one working day to consider and react to the 
appellees'  submissions in their third participants' submissions. The European  Union requested that 
the Division extend the deadline for the filing o f the third  participants' submissions to 
Friday,  21 September  2018, thus allowing third  participants four full working days following the 
submission of the appellees'  submissions. The European  Union noted that the date of the hearing 
had not yet been determined and asserted that therefore the requested change would not cause any 
inconvenience to the Appellate  Body and other participants in this appeal.  
2. On 5 September  2018, on behalf of the Division hearing this appeal, the Chair of the 
Appellate  Body i nvited Canada and the United  States, as well as the other third participants in this 
appeal to comment in writing on the communication from the European  Union by 5  p.m. on 
Monday,  10 September  2018.  
3. On 4, 5, 7 and 10  September  2018, communications were rec eived from Canada, China, 
Brazil, Mexico, Korea, Japan, India, and the United  States indicating that they had no objections to 
the European  Union's request for an extension.  
4. We recall that Rule  24 of the Working Procedures for Appellate Review ("Working Procedures") 
foresees the filing of third participants' submissions within 21  days as of the filing of the Notice of 
Appeal regardless of whether the period between the due date for filing of appellee submissions and 
the date for filing third par ticipants' submissions runs over a weekend. At the same time, we take 
into consideration the exceptional circumstances of persistent vacancies on the Appellate  Body 
coupled with the large number of pending appeals, which leads to a significantly longer per iod of 
time between the filing of submissions and the oral hearing in this appeal. We further note that the 
participants and other third participants have not raised any objection to the European  Union's 
request. Accordingly, we consider that granting an e xtension to the deadline for the filing of the third 
participants' submissions would not prejudice their due process rights. In the light of the above 
considerations, I would like to inform you that the Division hearing this appeal has decided, pursuant 
to Rule 16(2) of the Working Procedures, to extend the deadline for filing third  participant's 
submissions , notifications and executive summaries under Rule  24(1) and (2) of the 
Working  Procedures to Friday,  21 September  2018. The revised Working Schedule is  attached to this 
Ruling.  
Pursuant to Rule  26 of the Working Procedures, the revised Working Schedule for this appeal is as 
follows : 
 
 
Modified Dates for the Submission of Documents  
 
Process  Rule Date  
Notice of Appeal  Rule 20 Monday,  27 August  2018 
Appellant 's submission  and Rule 21(1)  Monday,  27 August  2018 
executive summary  
Notice of Other Appeal   Rule 23(1)  Monday,  3 September  2018 WT/DS505/AB/R/Add.1  
 
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  Other appellant 's submission  and Rule 23(3)  Monday,  3 September  2018 
executive summary  
Appellee 's submission (s) and  Rules 22  Friday,  14 September  2018 
executive summary(ies)  and 23(4)  
Third participants' submissions  and Rule 24(1)  Monday,  17 September  2018 
executive summaries   Friday,  21 September  2018  
Third participants'  notifications   Rule 24(2)  Monday, 17 September 2018  
  Friday,  21 September  2018  
 
 
 WT/DS505/AB/R/Add.1  
 
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  ANNEX D -2 
PROCEDURAL RULING  OF 28  MARCH  2019 
1. On Thursday,  14 March  2019, the Appellate  Body received a communication from the 
Permanent Mission of China, containing the executive summary of China's third participant's 
submission in the present appeal. China originally filed its third participant's submission on 
21 September  2018. The covering le tter, sent on the same day, stated that both the submission and 
the executive summary were enclosed. The communication received on 14  March  2019 indicates 
that the executive summary was inadvertently omitted from the third participant's submission. The 
communication also indicated that on 14  March  2019 copies of the executive summary were 
provided to the participants and the other third participants.  
2. On 19  March  2019, the Presiding Member of the Division hearing this appeal invited, on behalf 
of the Divisio n hearing this appeal , Canada and the United  States, as well as the other 
third participants in this appeal to provide comments in writing on China's request by 
5 p.m. on Thursday, 21  March 2019.  
3. On 21  March  2019, communications were received from Canada and Mexico. Canada indicat ed 
that it had no objections for China to submit the executive summary of its third  participant's 
submission at this stage of the appeal. Mexico noted that , as China's third participant's submission 
was filed on time , the participants ' and other third participants ' due process rights were not affected. 
Mexico also noted that document WT/AB/23  of 11 March  2015 regarding "executive summaries  of 
written submission in appellate proceedings" is a guideline that, while useful, "should not be strictly 
applied given the circumstances of the present case ". 
4. Having considered the communications received and the circumstances of this appeal, the 
Division hearing this appeal accepts the executive summary of China's  third participant's sub mission 
and decides that it will be annexed, as other executive summaries of the submissions in this appeal, 
as an addendum to the Appellate  Body report in this dispute.  
 
 WT/DS505/AB/R/Add.1  
 
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  ANNEX D-3 
PROCEDURAL RULING  OF 2 JULY 2019 
1. On 18 April 2019, we received a joint communication from the participants in the present 
appeal. Canada and the United  States request that all WTO  Members and the public be allowed to 
observe t he oral statements and oral responses to questions of the participants and third participants 
that agree to make their statements and responses at the oral hearing public. In this respect, Canada 
and the United  States make the request "on the understanding  that any information that has been 
designated as confidential in the documents filed by any participant in the [P]anel proceedings would 
be adequately protected in the course of the Appellate  Body's oral hearing". They propose that public 
observation of the oral hearing be permitted via simultaneous closed -circuit television broadcasting , 
with the option for the transmission to be turned off when issues involving confidential information 
are discussed, or if  a third participant indicate s that it wi shes to keep its oral presentation 
confidential.  
2. On 13  May 2019, we invited third participants to comment on this request by 16  May 2019. 
Only Mexico responded. Mexico indicated that, without prejudice to its systemic position on the 
matter, it did not object to a llowing public observation of the oral hearing in these proceedings. 
Mexico requested that the necessary precautions be taken so that, if Mexico decided to participate 
in the oral hearing, its oral statement and responses to questions asked at the hearing would not be 
subject to public observation.  
3. In the past, the Appellate  Body has allowed public observation of certain oral hearings. In this 
appeal, the participants jointly request the Appellate  Body to allow observation by all WTO  Members 
and the general public of the oral hearing by means of simultaneous closed -circuit television 
broadcasting , with the option for the transmission to be turned off  when issues involving confidential 
information are discussed, or if  a third pa rticipant indicate s that it wi shes to keep its oral statement 
and responses to questions confidential.  In our view, these modalities would operate to protect 
confidential information in the context of a hearing that is open to public observation.1  
4. We ther efore authorize  public observation of the oral hearing in this appeal on the terms set 
out below . Accordingly, pursuant to Rule  16(1) of the Working Procedures  for Appellate Review , we 
adopt the following additional procedures for the purpose of these appe llate proceedings:  
a. The oral hearing will be open to public observation by means of simultaneous closed -circuit 
television broadcasting, shown in a separate room to which duly registered delegates of 
WTO Members and members of the general public will have a ccess.  
b. Oral statements and responses to questions by the third participants that have indicated 
their wish to maintain the confidentiality of their submissions, as well as – at the request 
of any participant – any discussion of information that the partic ipants designated as 
confidential in documents submitted to the Panel, will not be subject to public observation.  
c. Any request by a third participant wishing to maintain the confidentiality of its 
oral statements and responses to questions at the oral hearing should be received by the 
Appellate  Body Secretariat at least 10  days before the first day of the oral hearing.  
d. An appropriate number of seats will be reserved in the separate room where the 
closed -circuit television broadcast will be shown for del egates of WTO Members that are 
not participants or third participants in these proceedings. WTO delegates wishing to 
observe the oral hearing will be requested to register in advance with the Appellate  Body 
Secretariat.  
e. Notice of the oral hearing will be p rovided to the general public on the WTO website. 
Members of the general public wishing to observe the oral hearing will be required to 
 
1 See procedural ruling in Annex  6 to the Appellate  Body Reports, US – COOL (Article  21.5 – Canada 
and Mexico) , WT/DS384/AB/RW / WT/DS386/AB/RW, adopted 29  May 2015, DSR 2015:IV, p.  1725. WT/DS505/AB/R/Add.1  
 
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  register in advance with the Appellate  Body Secretariat, in accordance with the instructions 
set out in the WTO website notice.  
 
__________