WT/DS504/AB/R/Add.1  
 
10 September 2019  
(19-5219) Page: 1/47 
    
 
KOREA – ANTI -DUMPING DUTIES ON PNEUMATIC  VALVES FROM JAPAN  
 
AB-2018-3 
Report of the Appellate Body  
Addendum  
This Addendum  contains Annexes A to D to the Report of the Appellate Body  circulated as  document  
WT/DS504/AB/R . 
 
The Notices of Appeal and Other 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 submissions of the participants and third participants 
in the Appellate Body's examination of the appeal.  
 
 
_______________  
 WT/DS504/AB/R/Add.1  
 
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  LIST OF ANNEXES  
ANNEX  A 
NOTICE S OF APPEAL  AND OTHER APPEAL  
Contents  Page  
Annex  A-1 Japan 's Notice of Appeal  4 
Annex  A-2 Korea 's Notice of Other Appeal  8 
ANNEX  B 
ARGUMENTS OF THE PARTICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Japan 's appellant's submission  12 
Annex  B-2 Executive summary of Korea 's other appellant's submission  21 
Annex  B-3 Executive summary of Korea 's appellee's submission  27 
Annex  B-4 Executive summary of Japan 's appellee's submission  35 
ANNEX  C 
ARGUMENTS OF THE THI RD PA RTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of the European  Union 's third participant's submission  40 
Annex  C-2 Executive summary of the United  State s' third participant's submission  42 
ANNEX  D 
PROCEDURAL RULINGS  
Contents  Page  
Annex  D-1 Procedural ruling of 6  June 2018 regarding the European  Union's request to 
extend the third participants ' submission deadline  44 
Annex  D-2 Procedural ruling of 26  March  2019 regarding BCI  45 
 
 
 WT/DS504/AB/R/Add.1  
 
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  ANNEX  A 
NOTICE S OF APPEAL  AND OTHER APPEAL  
Contents  Page  
Annex  A-1 Japan 's Notice of Appeal  4 
Annex  A-2 Korea 's Notice of Other Appeal  8 
 
 WT/DS504/AB/R/Add.1  
 
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  ANNEX  A-1 
JAPAN 'S NOTICE OF APPEAL* 
Pursuant to Article  16.4 and Article  17 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes ("DSU") and Rule  20 of the Working Procedures for Appellate Review 
("Working Procedures"), Japan hereby notifies the Dispute Settlement Body of its decision to appeal 
certain issues of law covered in the Panel Report in  Korea – Anti-Dumping Duties on Pneumatic 
Valves from Japan (WT/DS504/R) ("Panel Report"), and certain legal interpretations developed by 
the Panel in this dispute.  
 
Pursuant to Rules  21(1) of the Working Procedures, Japan is simultaneously filing this Not ice of 
Appeal and its Appellant Submission with the Appellate Body.  
 
For the reasons to be elaborated in its submissions and oral statements to the Appellate Body, Japan 
appeals the following errors in the issues of law in the Panel Report and legal interp retations 
developed by the Panel, and requests the Appellate Body to reverse and modify the related findings, 
conclusions and recommendations of the Panel,1 and where indicated to complete the analysis.  
 
1. With respect to Japan's claim2 that Korea defined th e domestic industry producing the like 
product contrary to the requirements of Articles  3.1 and 4.1 of the Agreement on Implementation 
of Article  VI of the General Agreement on Tariffs and Trade 1994 ("Anti -Dumping Agreement"), 
Japan requests the Appellate Body:  
a. to reverse the Panel's erroneous findings and conclusion that in applying Article  6.2 of the 
DSU it found all of  this claim to be outside the Panel's terms of reference, Panel Report, 
paras.  7.60 – 7.66, and it refused to address this claim, Panel Report, para.  7.67;  
b. then to conclude that Japan's claim is consistent with Article  6.2 of the DSU and that  
Japan's claim  is within the terms of reference of this dispute ; and 
c. then to complete the analysis, and find that the definition by the Korea Trade Commission 
("KTC") of the domestic industry as including only the two petitioning firms among the 
nine domestic producers of like products did not properly represent the total domestic 
production as a whole and then did not meet the "major proportion" requirement as 
required by Articles  3.1 and 4.1 of the Anti -Dumping Agreement.  
2. With respect to Japan's claim3 that Korea found  a significant increase in the volume of imports 
contrary to the requirements of Article  3.1 and the first sent ence of Article  3.2 of the Anti -Dumping 
Agreement, Japan requests the Appellate Body:  
a. to reverse the Panel's erroneous findings and conclusion th at in applying Article  6.2 of the 
DSU it found all of this claim to be outside the Panel's terms of reference, Panel Report, 
paras.  7.89 – 7.93, and it refused to address this claim, Panel Report, para.  7.94;  
b. then to conclude that Japan's Panel Request was  consistent with Article  6.2 of the DSU 
and that  Japan's claim is within the terms of reference of this dispute ;  
c. then to complete the analysis, and find that Korea viol ated Articles  3.1 and the 
first sentence of Article  3.2 of the Anti -Dumping Agreement, by improperly finding a 
"significant increase" in subject imports considered in isolation, while: (i) disregarding the 
                                                
* This notification, dated 28  May 2018, was circulated to Members as document WT/DS504/5.  
 
1 Pursuant to Rule  20(2)(d)(iii)of  the Working Procedures, this Notice of Appeal includes an indicative 
list of the paragraphs of the Panel Report containing the alleged errors, without prejudice to the ability of Japan 
to refer to other paragraphs of the Panel Report in the context of its  appeal.  
2 Panel Request, page  2, para.  7. 
3 Panel Request, page  1, para.  1. WT/DS504/AB/R/Add.1  
 
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  lack of continuous increase of subject imports in either absolute or relative terms in each 
year of the comparison period; (ii) improperl y assuming a competitive relationship 
between domestic products and subject imports without an object ive examination based 
on positive evidence; and (iii)  improperly finding displacement of domestic sales by 
subject imports without examining whether the in creased imports replaced domestic like 
products through market competition; and  
d. as part of completing the analysis, to reverse the Panel 's mistaken interpretation of how 
to consider the volume of imports as set forth in its discussion of this issue in its causation 
findings, including paras.  7.254 -7.257.  
3. With respect to Japan's claim4 that Korea found the effects of imports on domestic prices to 
be significant contrary to the requirements of Article  3.1 and the second sentence of Article  3.2 of 
the Anti -Dumping Agreement,  Japan requests the Appellate  Body:  
a. to reverse the Panel's erroneous findings and conclusion that in applying Article  6.2 of the 
DSU it found all of this claim to be outside the Panel's terms of reference, Panel Report, 
paras.  7.123 – 7.130,  and it refused to address this claim, Panel Report, para.  7.131;  
b. then to conclude that Japan's Panel Request is consistent with Article  6.2 of the DSU  and 
that Japan's claim is within the terms of reference of this dispute; and  
c. then to complete the analys is, and find that Korea violated Articles  3.1 and the second 
sentence of Article  3.2 of the Anti -Dumping Agreement, by incorrectly determining the 
effect of imports on the domestic prices to be significant as required by the same Articles, 
both as price de pression and price suppression, while: (i) ignoring the facts of consistent 
and significant overselling of subject imports ; (ii) disregarding the dramatically diverging 
price trends; (iii) focusing on a single year of 2013, and ignoring the absence of any 
evidence of price suppression in 2011 and 2012; and (iv) incorrectly finding price 
comparability between subject imports and domestic like products without demonstrating 
any competition between them.  
4. With respect to Japan's claim5 that Korea analyzed the impact of imports on the domestic 
industry contrary to the requirements of Articles  3.1 and 3.4 of the Anti -Dumping Agreement, Japan 
requests the Appellate  Body:  
a. to reverse the Panel's erroneous findings and conclusion that in applying Article  6.2 of the 
DSU it found significant parts of this claim to be outside the Panel's terms of reference, 
Panel Report, paras.  7.165 – 7.174, and it refused to address several important aspects 
this claim, Panel Report, paras.  7.172, 7.175;  
b. then to conclude t hat Japan's Panel Request is consistent with Article  6.2 of the DSU  and 
that Japan's claim is within the terms of reference of this dispute;  
c. then to complete the analysis, and find that Korea violated Articles  3.1 and 3.4 of the 
Anti-Dumping Agreement bec ause the KTC's examination of the impact of the dumped 
imports on the state of the domestic industry was inadequate in the following aspects: 
(i) failure to link its analysis of volume and price effects with the alleged consequent impact 
from the dumped im ports; (ii) failure to demonstrate any "explanatory force" of the 
dumped imports on the state of the domestic industry; and (iii) failure to properly take 
into account positive trends; and  
d. as part of completing the analysis, to reverse the Panel 's mistaken  interpretations and 
conclusions that the authority: (i) need not establish a logical link in its analysis of impact, 
as set forth at paras.  7.328 -7.330; (ii) need not address the explanatory force of imports 
when analyzing the impact of imports, as set fo rth at para.  7.339; and (iii) could dismiss 
with insufficient consideration positive trends during the period, as set forth at 
                                                
4 Panel Request, page  1, para.  2. 
5 Panel Request, page  1, para.  3. WT/DS504/AB/R/Add.1  
 
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  paras.  7.342 -7.346, in the Panel 's discussion of these issues as part of its findings about 
causation.  
5. With respect to Japan's cl aim6 that Korea analyzed the impact of imports on the domestic 
industry contrary to the requirements of Articles  3.1 and 3.4 of the Anti -Dumping Agreement, Japan 
requests the Appellate Body:  
a. to note the Panel correctly agreed to consider one asp ect of this  claim regarding 
two specific factors, Panel Report, para.  7.169 – 7.170, including the magnitude of the 
margin of dumping, but to find the Panel erred as a matter of law by accepting as sufficient 
the mention of the margin of dumping wit hout more, Panel R eport, paras.  7.189 - 7.191, 
and thus acted contrary to the requirements of Articles 3.1 and 3.4 of the Anti -Dumping 
Agreement; and  
b. then to reverse the Panel's finding, Panel Report, paras.  7.187 – 7.192, that Japan has 
not demonstrated that Korea did not assess the relevance of the magnitude of the margin 
of dumping and the weight to be attributed to it in the injury analysis, and find that Korea 
violated Articles  3.1 and 3.4 of the Anti -Dumping Agreement by not properly assessing 
the margin of dumping.  
6. With respect to Japan's claim7 that Korea found causation without a proper foundation of 
intermediate findings regarding the volume, price effects, and impact of imports contrary to the 
requirements of Articles  3.1 and 3.5 of the Anti -Dumping Agreement, Japa n requests the 
Appellate  Body:  
a. to note Panel correctly found what it called Japan's first causation claim to be within its 
terms of reference, Panel Report, paras.  7.218 - 7.226; and  
b. to, regarding the Panel 's following errors as a matter of law in several key respects 
regarding this claim:  
i. reverse the Panel 's error in misapplying the legal standard when assessing the volume 
of subject imports, and improperly viewing its analysis for purpose of Article  3.5 as 
constrained by its narrow interpretation of the first sentence of Article  3.2, Panel 
Report, paras.  7.254 – 7.258; and find that Korea's focus on the volume of imports in 
2013 in isolation from the broader period of investigation as context fundamentally 
undermined its causation finding;  
ii. reverse the Panel 's error in misapplying the legal standard when it considered its 
findings about diverging price trends in isolation from its other findings about price 
comparability and price overselling, Panel Report, paras.  7.278, 7.295 -7.296; and find 
that Ko rea's assessment of the diverging prices and other evidence does not support 
its finding of causation;  
iii. reverse the Panel 's error in misapplying the legal standard when it considered the 
KTC's allegations of "fierce competition" for a small fraction of the domestic like 
product as a whole, and in isolation from the other evidence about alleged price effects, 
Panel Report, para.  7.294; and find that Korea's assessment of the alleged fierce 
competition does not support its finding of causation; and  
iv. reverse the  Panel 's error in misapplying the legal standard when it found that the 
findings under Article  3.2 about volume and price effects are independent of the 
findings under Article  3.4 about the impact of imports on the domestic industry, Panel 
Report, paras.  7.329, 7.330, and 7.332; and find that Korea's consideration of volume, 
price effects, and impact in isolation fundamentally undermined its causation finding.  
c. Japan also requests the Appellate Body to reverse the Panel's error by acting contrary to 
the sta ndard of review of Article  11 of the DSU when it considered Korea's arguments but 
                                                
6 Panel Request, page  1, para.  3. 
7 Panel Request, page  2, para.  6. WT/DS504/AB/R/Add.1  
 
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  failed to consider Japan's rebuttal arguments to various Korean assertions about the 
reasonable sales price, Panel Report, para.  7.278.  
7. With respect to Japan's claim8 that Ko rea found causation without an objective examination 
of the alleged causal relationship, and without objective examination of the lack of correlations 
among various factors, contrary to the requirements of Articles  3.1 and 3.5 of the Anti -Dumping 
Agreement , Japan requests the Appellate Body:  
a. to note that the Panel correctly found what it called Japan's second causation claim to be 
within its terms of reference, Panel Report, paras.  7.231 - 7.235; and  
b. to find the Panel erred as a matter of law and to reverse  the Panel's error of ignoring the 
lack of correlation in the key volume, price, and profit trends that contradicted the "causal 
relationship" as required by Articles  3.1 and 3.5, Panel Report, paras.  7.353, 7.356, 7.360; 
and find that Korea erroneously ig nored the lack of correlations that fundamentally 
undermined any conclusion that an objective examination showed the required "causal 
relationship".  
8. With respect to Japan's claim9 that Korea failed to inform the interested parties of the essential 
facts co ntrary to the requirements of Article  6.9 of the Anti -Dumping Agreement, Japan requests 
the Appellate Body:  
a. to reverse the Panel's erroneous findings and conclusion that in applying Article  6.2 of the 
DSU it found all of this claim to be outside the Panel' s terms of reference, Panel Report, 
paras.  7.515 – 7.516, and it refused to address this claim, Panel Report, para.  7.517;  
b. then to conclude that Japan's Panel Request is consistent with Article  6.2 of the DSU  and 
that Japan's claim is within the terms of r eference of this dispute; and  
c. then to complete the analysis, and find that Korea failed to inform the interested parties 
of the fourteen essential facts relating to the volume of dumped imports, price effects, the 
state of the domestic industry, and alleg ed causation factors before the issuance of the 
Korea Trade Commission, Resolution of Final Determination on Dumping and Injury to 
Domestic Industry of Valves for Pneumat ic Transmissions from Japan (20  January 2015) 
Investigation No.:  23-2013-5 ("KTC's Fin al Resolution") and the Office of Trade 
Investigation, Final Investigation Report on Dumping and Injury to Domestic Industry of 
Valves for Pneumatic Transmissions from Japan (20  January  2015), Investigation 
No. 23-2013-5 ("OTI Final Report"), as required b y Article 6.9 of the Anti -Dumping 
Agreement.  
In sum, Japan considers that the Panel erred in law in its interpretation and application of Arti cle 6.2 
of the DSU with regard to several claims, and improperly refused to address those claims. The Panel 
also e rred in law with its interpretations of Articles  3.1, 3.2, 3.4, 3.5, 4.1, and  6.9. Japan requests 
that the Appellate Body recommend that Korea bring its measures found to be WTO -inconsistent 
into conformity with its obligations under the Anti -Dumping Agree ment and the GATT 1994. Japan 
also requests that, upon reversal of the Panel's erroneous findings and conclusions identified above 
and after completing the analysis where indicated, the Appellate Body help the parties resolve this 
dispute promptly by findi ng the Korean anti -dumping measures to be contrary to the numerous 
specific obligations under the Anti -Dumping Agreement identified by Japan in this appeal. Moreover, 
doing so will help clarify numerous important issues about the obligations on national au thorities 
under the Anti -Dumping Agreement.  
 
 
                                                
8 Panel Request, page 2, para. 4.  
9 Panel Request, page 2, para. 10.  WT/DS504/AB/R/Add.1  
 
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  ANNEX  A-2 
KOREA 'S NOTICE OF OTHER APPE AL* 
Pursuant to Articles  16.4 and 17 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  ("DSU") and Rule 23(1) of the Working Procedures for Appellate Review 
("Working Procedures"), the Republic of Korea ("Korea") hereby notifies the Dispute Settlement 
Body ("DSB") of its decision to appeal to t he Appellate Body certain issues of law and certain legal 
interpretations developed by the Panel in its report on Korea – Anti-Dumping Duties on Pneumatic 
Valves from Japan (WT/DS504)  ("Panel Report").  
Pursuant to Rules  23(1) and 23(3) of the Working Proce dures, Korea files this Notice of Other Appeal 
together with its Other Appellant Submission to the Appellate Body Secretariat.1 
Korea seeks the review by the Appellate Body of the Panel 's conclusions that Japan has demonstrated 
that the Korean Investigatin g Authorities acted inconsistently (i) with Articles  3.1 and 3.5 of the 
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the 
"Anti-Dumping Agreement") in their causation analysis as a result of flaws in their an alysis of the 
effect of the dumped imports on prices in the domestic market;2 and (ii) with Articles  6.5 and 6.5.1 
of the Anti -Dumping Agreement with respect to the treatment of information as confidential and the 
obligation to require the furnishing of no n-confidential summaries.3 Korea appeals these findings 
based on a series of errors of law and legal interpretation of the Panel, as summarized below. In 
addition, Korea considers that the Panel failed to make an objective assessment of the facts of the 
case as called for by Article  11 of the DSU and Article  17.6 of the Anti -Dumping Agreement and that 
this failure vitiated its above -identified findings.  
With respect to the Panel 's findings of violation under Articles  3.1 and 3.5 of the Anti -Dumping 
Agreemen t, Korea 's other appeal consists of three sets of claims.  
First, Korea request s the Appellate  Body to reverse the Panel 's finding that Japan 's "causation" 
claims under Articles  3.1 and 3.5 of the Anti -Dumping Agreement were within the Panel 's terms of 
reference.4 In making this erroneous finding, the Panel erred in law since Japan 's panel request with 
respect to Articles  3.1 and 3.5 of the Anti -Dumping Agreement failed to provide a brief summary of 
the legal basis of the complaint sufficient to present the problem clearly in accordance with 
Article  6.2 of the DSU. The Panel 's contrary findings are in error. In addition, the Panel erred  in law 
by reaching a conclusion that Japan 's panel request was consistent with Article  6.2 of the DSU only 
after "carefully review[ing]" Japan 's written submissions, rather than simply on the face of the 
request.5  
Second, should the Appellate Body find that Japan 's "independent" causation claim is properly within 
the Panel 's terms of reference, Korea requests the Ap pellate Body to reverse the Panel 's finding that 
Korea acted inconsistently with Articles  3.1 and 3.5 of the Anti -Dumping Agreement as a result of 
flaws in the analysis of the effect of the dumped imports on prices in the domestic market,6 since 
this findi ng is vitiated by a number of errors of law and legal interpretation. In particular, and without 
prejudice to the arguments developed in Korea 's Other Appellant Submission, the Panel 's 
interpretation and application of Articles  3.1 and 3.5 of the Anti -Dump ing Agreement is in error since 
the Panel (i) erroneously subsumed all of  the obligations under Articles  3.2 and 3.4 into Article  3.5 
                                                
*This notification, dated 4  June 2018, was circulated to Members as document WT/DS504/6.  
 
1 Pursuant to Rule  23(2)(c)(ii) of the Working Procedures, this Notice of Other Appeal includes a brief 
statement of the nature of this appeal, including identification of the legal errors in the Panel Report, a list of 
the legal provisions of the covered agreements the Panel erred in interpreting and applying, and an indicative 
list of the relevant paragraphs of the Panel Report containing the errors – without prejudice to Korea 's ability to 
rely on other paragraphs of the Panel Report in its appeal.  
2 Panel Report, para.  8.4(a).  
3 Panel Report, para.  8.4(b) -(c).  
4 Panel Report, paras.  7.244, and 8.2(b) -(d). 
5 Panel Report, paras.  7.222, 7.234, and 7.241.  
6 Panel Report, paras.  7.349, and 8.4(a).  WT/DS504/AB/R/Add.1  
 
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  thereby rendering inutile Articles  3.2 and 3.4;7 (ii) erred in making findings in the absence of Japan 
establishing a prima facie  case relating to the question of competition and price comparability that 
was the premise of its claim;8 (iii) erred by imposing a price effects and price comparability analysis 
that has no basis in the text of Article  3.5 and that went well beyond  what is required even under 
Article  3.2 of the Anti -Dumping Agreement;9 and (iv)  unduly made findings about the investigating 
authorities ' causation determination based only on isolated aspects of this determination and without 
considering the Panel 's contrary findings on causation as a whole.10 
Third, in reaching its findings of violation under Articles  3.1 and 3.5 of the Anti -Dumping Agreement, 
the Panel failed to make an objective examination of the matter before it as required by Article  11 
of the DSU a nd Article  17.6 of the Anti -Dumping Agreement. In particular, the Panel failed to provide 
a reasoned and adequate explanation for its finding that Japan 's claims under Articles  3.1 and 3.5 
of the Anti -Dumping Agreement were within its terms of reference an d made findings on the 
sufficiency of the brief summary of the legal basis of the complaint that were internally inconsistent 
and contradictory. Furthermore, in reaching its finding  of violation of Articles  3.1 and 3.5 of the 
Anti-Dumping Agreement, the Pa nel failed to make an objective examination of the matter before it 
as required by Article  11 of the DSU and Article  17.6 of the Anti -Dumping Agreement since, among 
others, the Panel made the case for Japan, failed to provide a reasoned and adequate explanation 
that its findings were supported by a sufficient evidentiary basis, and made findings that were 
internally inconsistent and cont radictory.  
For the reasons to be further elaborated in its submission to the Appellate Body, Korea requests the 
Appellate Body to reverse and declare moot and of no legal effect, the findings, conclusions and 
recommendations of the Panel, with respect to the above -identified errors of law and legal 
interpretations contained in the Panel Report. In particular, Korea requests the Appellate Body to 
reverse the Panel 's finding in paragraphs  7.244 and 8.2(b) -(d) of the Panel Report that certain of 
Japan 's claim s relating to Articles  3.1 and 3.5 of the Anti -Dumping Agreement were within its terms 
of reference. In addition, Korea requests the Appellate Body to reverse and declare moot and of no 
legal effect the Panel 's finding in, among others, paragraphs  7.349 an d 8.4(a) of the Panel Report 
that Korea acted inconsistently with Articles  3.1 and 3.5 of the Anti -Dumping Agreement.  
With respect to the Panel 's finding that Korea acted inconsistently with Articles  6.5 and 6.5.1 of the 
Anti-Dumping Agreement relating to the treatment of confidential information and the provision of 
non-confidential summaries, Korea 's request for reversal of the Panel 's finding consists of the 
following three part claim.  
First, Korea submits that the Panel 's finding that Japan 's panel req uest with respect to its claims 
under Article  6.5 and 6.5.1 of the Anti -Dumping Agreement presented the problem clearly in 
accordance with Article  6.2 of the DSU is in error and should be reversed.11 Japan 's panel request 
suffered from the same shortcomings  as other claims which the Panel correctly rejected as outside 
its terms of reference.  The Panel 's finding to the contrary is based on an erroneous application of 
the law to the facts as the panel request, when examined on its face, fails to present the pr oblem 
with the required clarity through linking any specific aspects of the challenged measures, or of the 
underlying investigation, to any of the specific obligations in these provisions.  In addition, the Panel 
erred in law when examining Japan 's complian ce with Article  6.2 of the DSU by taking into account 
the scope of the allegations under Articles  6.5 and 6.5.1 as presented in Japan 's written 
submissions.12  
Second, the Panel erroneously interpreted Article  6.5 of the Anti -Dumping Agreement as requiring 
investigating authorities to make express statements as to whether good cause is shown with respect 
to confidential information and erred in applying the law to the facts when it found that the 
                                                
7 Panel Report, paras.  7.250 -258 (Volume), 7.259 -323 (Prices), and 7.324 -347 (Impact).  
8 Panel Report, para.  7.259. The Panel confirms that Japan 's relevant claim was that there is no 
competitive relationship between the dumped imports and the domestic like product, such that their prices are 
not comparable. The Panel rejected this claim and thus there was no basis for additional findings absent a 
prima facie case. See, e.g. Panel report paras.  7.295 (c), 7.315, 7.318, 7.320 confirming that there was such 
competition between both products.  
9 Panel Report, paras.  7.266 -7.272, and 7.297 -7.323.  
10 Panel Report, para.  7.323, 7.349 without consideration o f Panel Report, para. 7.361, para. 7.389.  
11 Panel Report, paras.  7.418, and 8.2(e).  
12 Panel Report, para.  7.416.  WT/DS504/AB/R/Add.1  
 
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  submitters did not show good ca use for the confidential treatment of that information.13 In particular, 
the Panel erred in law when it considered that absent an express "indication" on the record that the 
Korean Investigating Authorities took into account whether the information in quest ion fell into any 
of the categories for confidential information set forth under Korean law, no good cause was shown 
to exist.14 This finding is in error since, absent a legal obligation to do so, the Korean Investigating 
Authorities could not be faulted fo r not making specific statements or indicating its consideration 
about each of the requests for confidentiality.  
Third, the Panel also erred in law when applying Article  6.5.1 of the Anti -Dumping Agreement to the 
facts of the dispute by finding that Korea  failed to require the applicants to furnish the required 
non-confidential summaries.15 The applicants submitted "non -confidential summaries" of the 
confidential information, prepared by designating the information that they deemed were entitled to 
confiden tial treatment in accordance with Korean law and the guidelines for filling out the 
questionnaires. In the public versions of the submissions, certain non -confidential descriptive 
narratives are found with respect to all confidential information, and these  narratives permitted a 
reasonable understanding of the substance of the information and thus enabled interested parties 
to defend their interests. The Panel 's findings to the contrary are in error and should be reversed.  
For the reasons to be further elaborated upon in its submission to the Appellate Body, Korea 
therefore requests the Appellate Body to reverse the Panel 's findings that Japan 's claims under 
Articles  6.5 and 6.5.1 were within its terms of reference, as set forth in, among others,  
paragraphs  7.418 and 8.2(e) of the Panel Report. In addition, Korea requests the Appellate Body to 
reverse and declare moot and of no effect the Panel 's finding o f violation of Articles 6.5 and  6.5.1 of 
the Anti -Dumping Agreement, as set forth in, in p articular, paragraphs  7.451 and  8.4(b) -(c) of the 
Panel Report.  
 
_______________  
 
 
                                                
13 Panel Report, para.  7.441.  
14 Panel Report, paras.  7.438 - 7.440.  
15 Panel Report, paras.  7.450, 7.451, and 8.4(c).  WT/DS504/AB/R/Add.1  
 
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  ANNEX  B 
ARGUMENTS OF THE PAR TICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Japan 's appellant's submission  12 
Annex  B-2 Executive summary of Korea 's other appellant's submission  21 
Annex  B-3 Executive summary of Korea 's appellee's submission  27 
Annex  B-4 Executive summary of Japan 's appellee's  submission  35 
 
 
 
 
 WT/DS504/AB/R/ Add.1  
 
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  ANNEX  B-1 
EXECUTIVE SUMMARY OF  JAPAN 'S APPELLANT'S SUBMI SSION1 
1. The Panel Report in Korea – Anti-Dumping Duties on Pneumatic Valves from Japan  is very 
unusual. Although Japan's Panel Request presented 12 specific claims, the Panel decided not to 
address in whole or substantial part 7 out of these 12 claims on the grounds that Japan's "brief 
summary of the legal basis of the complaint{s}" wa s not "sufficient to present the problem clearly". 
The Panel made these findings notwithstanding that Japan used essentially the same language used 
by many other WTO Members in their challenges to anti -dumping measures under the same 
provisions raised by J apan. The Panel largely ignored this past practice, and the extensive Appellant 
Body precedent on the requirements of Article  6.2 of the DSU. Rather than apply the legal standard 
from the text of Article  6.2, the Panel instead used an Appellate Body phrase  — the need to explain 
"how or why" — to disregard the well -established legal principle that a Member need only describe 
its claim, and need not present the arguments in support of its claim to satisfy Article  6.2.  
2. This dispute is also about a deeply flaw ed anti -dumping determination imposed by Korea that 
did not respect the obligations of the Anti -Dumping Agreement. The Panel agreed with some of 
Japan's claims, but never addressed the merits of many of Japan's claims. Japan is asking that the 
Appellate Bo dy reverse the Panel's erroneous application of Article  6.2 of the DSU as regards five of 
its claims, find that Japan's Panel Request in fact complied with Article  6.2, and then complete the 
analysis on the merits of these claims.  
I. THE PANEL  ERRED IN IT S INTERPRETATION OF ARTICLE  6.2 OF THE D SU AND 
REFUSED TO CONSIDER MANY OF JAPAN'S CLAI MS  
 A. The Panel 's Legal Errors  
3. Article  6.2 of the DSU sets forth two interconnected requirements for a panel request: to 
"identify the specific measures at issue" and to "provide a brief summary of the legal basis of the 
complaint". As regards this second requirement, the panel request does not need to show the entire 
"legal basis" of the complaint, rather needs to provide only a "summary of" such legal basis, and 
that summary need only be "brief". Both of these items together should be "sufficient to present the 
problem clearly".  
4. The Appellate Body has identified a number of principles that clarify this obligation. First, the 
panel request must not only "identify the specific measures at issue", but also "plainly connect" 
those measures to the alleged inconsistencies that constitut e the "legal basis". Second, a merely 
listing of the provision may not be sufficient; but while a mere listing is usually insufficient, it is not 
necessarily  insufficient. Third, in respect of provisions containing multiple obligations, a panel 
request mus t sufficiently specify or otherwise make clear which of the multiple obligations are at 
issue. Fourth, it is also critical to consider the "nature and scope" of the particular obligation at issue: 
some are broad and general, and thus require more explanati on; others are narrow and well -defined 
on their face, and thus require less explanation.  
5. In addition, while the Appellate Body has sometimes used the phrase "how or why" to clarify 
the nature of the obligation to "present the problem clearly", this phrase  "how or why" does not 
change the core principles setting forth what is necessary to comply with Article  6.2. First, there is 
a fundamental distinction between explaining the claim and presenting arguments in support of that 
claim. The "how or why" relates  to the "legal basis", but explaining the "how or why" does not require 
providing the arguments in support of the claim. Second, multiple arguments do not turn a single 
claim into multiple claims. Third, a careful case -by-case analysis of each claim needs to be 
conducted, keeping in mind: (1) the "nature of the measure", and (2) the "nature and scope" of the 
legal provisions.  
                                                
1 The Appellant Submission being summarized has 60,130 words.  This Executive Summary has 5,948 
words, and thus complies with the Appellate Body guidance for executive summaries.  WT/DS504/AB/R/ Add.1  
 
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  6. The Panel paraphrased, and tried to follow the legal standards as set out in the past Appellate 
Body decisions; however, the Panel fu ndamentally misunderstood these legal principles, made errors 
when applying its flawed understanding of the legal principles to this case, and erroneously treated 
Japan's claims as outside the Panel's terms of reference.  
7. First, i n examining each of the cl aims contained in Japan's Panel Request, the Panel did not 
consider the nature of that obligation. The Panel focused inordinately on Article  3.1 of the 
Anti-Dumping Agreement, ignoring the remaining language related to other relevant provisions such 
as Art icles 3.2, 3.4, 3.5 and 4.1. Japan's Panel Request never identified Article  3.1 alone as the 
"legal basis of the complaint". On the contrary, Japan's Panel Request also identified one or more of 
other more specific provisions in conjunction with the obliga tions from the overarching chapeau set 
forth in Article  3.1. The use of the language of the other provisions thus described the deficiencies 
of the specific measures at issue with reference to those specific provisions.  
8. Second, the Panel also failed to con sider at all the individual claims in light of the nature of 
the specific measure being challenged. This failure by the Panel is particularly ironic in this case, 
since the Korean anti -dumping measure at issue often actually cross -referenced the particular  
obligation under the Anti -Dumping Agreement. Moreover, four out of five of Japan's legal claims 
correspond to specific sections of the Korean anti -dumping measure that list or paraphrase the same 
provision of the Anti -Dumping Agreement identified by Japan  in its Panel Request.  
9. Third, rather than rely on the need to consider the nature of the obligation and the nature of 
the measure, the Panel used the phrase "how or why" as one single standard that somehow requires 
Japan to show not only a "claim", but als o the "argument" in support of that claim. The Panel also 
mistakenly observed that the language used by Japan is not precise enough to serve such "double 
function" of a panel request. But this line of reasoning ignores the ordinary meaning of the key 
phras e "legal basis" in Article  6.2, which refers to the claims and not the arguments.  
10. Fourth, the Panel also mistakenly used the arguments that Japan presented later during the 
panel proceeding to attack the sufficiency of Japan's Panel Request. Compliance wit h the 
requirement of Article  6.2 must be determined on the face of the panel request, and a panel request 
should be evaluated based on what existed at the time the request was made. The Panel noted that 
Japan raised many "allegations", implying Japan someh ow expanded its claims. But Japan did not 
change its claims, or add any new claims. In its First Written Submission, Japan only presented 
arguments  in support of the claims .  
11. These four legal errors permeate the Panel's findings. The Panel's approach to ea ch of these 
five claims is not particularized to each claim, and careful case -by-case consideration required to 
properly apply the requirements of Article  6.2 of the DSU is absent. The following table shows where 
the Panel committed each of these errors:  
Summary of Panel's Legal Errors  
Japan's Claim  Failure to 
Consider the 
Nature of the 
Obligation  Failure to 
Consider the 
Nature of the 
Measure  Improper 
Reliance on 
"How or Why"  Improper 
Reliance on 
Later 
Arguments  
Article  3.2 – significant 
increase of imports  Para. 7.91  Paras. 7.89 
through 7.94  Paras. 7.89, 7.91  Para. 7.93  
Article  3.2 – effect of 
imports on prices  Para. 7.126  Paras. 7.123 
through 7.131  Paras. 7.123, 
7.125, 7.126, 
7.127, 7.129  Para. 7.130  
Article  3.4 – impact of 
imports on domestic 
industry  Paras. 7.168, 
7.173  Paras. 7.165 
through 7.175  Paras. 7.165, 
7.167, 7.173  Para. 7.172  
Article  4.1 – defining the 
domestic industry  Para. 7.64  Paras. 7.60 
through 7.67  Paras. 7.60, 7.61, 
7.64 Para. 7.66  
Article  6.9 – disclosing 
essential facts  Para. 7.514  Paras. 7.511 
through 7.516  Paras. 7.512, 
7.514  Para. 7.516  WT/DS504/AB/R/ Add.1  
 
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  12. The Panel's approach imposes needless burdens on the parties. The Panel did not rule on these 
issues until the very end of the process even though Korea raised its objections early in dispute. 
This resulted in unnecessarily burdening Japan by requiring it to present detailed arguments for 
claims the Panel refused to consider, and then using those arguments to challenge Japan 's claims.  
13. Furthermore, the Panel's approach will disrupt settled expectations of the WTO Members. 
Japan's Panel Request was completely consistent with the general practice of other WTO Members 
in framing such claims. Disrupting these settled expectations will have c onsequences detrimental to 
the operation of the dispute settlement system. First, the logic of the Panel's approach will encourage 
numerous and unnecessary challenges in the vast  majority of challenges to anti -dumping measures. 
Second, any effort to add mo re details to panel requests might well prove counterproductive, 
increasing the risk of panels construing the claims more narrowly. Third, this Panel did not provide 
any concrete guidance as to the additional level of detail that would be necessary.  
 B. The Appellate Body should complete the analysis of the issues mistakenly 
rejected as outside the terms of reference by the Panel  
14. The Panel erroneously refused to consider claims number 1 -3, 7 and 10 from Japan's Panel 
Request. For each of these claims, the Appellate Body should complete the analysis.  
15. The most important factor in deciding to complete the analysis has been the existence of 
sufficient undisputed facts. The Appellate Body must rely on either facts that are undisputed by the 
parties, or facts tha t have been found by the panel. The Appellate Body has also been willing to 
complete the analysis and examine claims under provisions that the panel has not examined at all, 
when the provision that was not examined by the panel is "closely related" to a pr ovision actually 
examined by the panel and both provisions are "part of a logical continuum".  
16. In this case, the various provisions at issue are closely related and very much part of a logical 
continuum. The Appellate Body has previously found Article  3 to consist of a "logical progression" of 
the investigating authority's examination leading to its determination of whether dumped imports 
are causing material injury to the domestic industry. Four of Japan's five claims relate to different 
building blocks tha t lead to the ultimate conclusion of causation under Articles  3.1 and 3.5, a claim 
that was addressed by the Panel at some length. And the final claim under Article  6.9 relates to the 
key facts that were part of this analysis under Article  3 but were not d isclosed.  
17. These claims often depend on the same underlying facts, which are not in dispute. The 
Appellate body has completed the analysis on the basis of the investigating authority's final 
determination on the panel record, finding it a sufficient factua l basis for completing the analysis — 
even in the absence of other express findings by the panel or undisputed evidence. The anti -dumping 
measure at issue resulted from a KTC determination based on a report prepared by OTI. These two 
documents present all of the undisputed facts necessary to resolve the substantive issues in this 
dispute.  
II. THE PANEL ERRED IN R EFUSING TO CONSIDER JAPAN'S CLAIM UNDER ARTICLES  3.1 
AND 4.1 OF THE ANTI -DUMPING AGREEMENT RE GARDING THE PROPER D EFINITION OF 
THE DOMESTIC INDUSTRY  
18. Japan 's claim regarding the improper definition of the domestic industry was within the terms 
of reference. Paragraph 7 of Japan's Panel Request expressly identifies Articles  3.1 and 4.1 as the 
specific provisions at issue for this claim. These tw o provisions together result in a narrow, 
well-defined obligation. Considering the nature of this obligation, Japan's claim that Korea's 
definition of the domestic industry did not reflect an objective examination based on positive 
evidence presented the p roblem raised by this claim clearly. Paragraph 7 of Japan's panel request 
also plainly connected the measure to the alleged inconsistency by referring specifically to "defining 
the domestic industry", an issue explicitly addressed by the Korean measures.  
19. The Appellate Body should complete the analysis and address Japan's claim under Articles  3.1 
and 4.1 because this claim rests on undisputed facts, and is closely related to the Article  3 claims 
the Panel did address. There is no dispute that the KTC define d the industry to consist of only two 
out of nine companies, and that the KTC took no steps to ensure the representativeness of these 
two companies.  WT/DS504/AB/R/ Add.1  
 
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  20. Korea's measures were inconsistent with Articles  3.1 and 4.1 of the Anti -Dumping Agreement 
because the KTC failed to make an objective examination based on positive evidence when it defined 
the domestic industry as limited to the two firms that filed the petition. The KTC failed to ensure 
that the process of defining the domestic industry did not give rise to a  material risk of distortion.  
21. The Korean Investigating Authorities did not meet the qualitative element of the "major 
proportion" requirement by failing to ensure that the domestic industry definition is representative 
of the total domestic production. Of  the nine domestic producers, the KTC's definition of the domestic 
industry included only two petitioning firms, firms that together accounted for just over half of the 
total domestic production. The KTC's discussion of certain information regarding two do mestic 
producers that were not formally included in the definition of the "domestic industry" was not 
adequately reasoned, and failed to resolve the material risk of distortion. The KTC's approach to the 
domestic industry definition predominantly focused o n the numerical threshold, i.e., the quantitative 
aspect, and made no effort whatsoever to ensure the qualitative aspect of the "major proportion" 
requirement.  
22. The quantitative assessment of the Korean Investigating Authorities was not based on positive 
evidence and did not involve objective examination. The analysis, based on only about half of the 
domestic production, posed a material risk of distortion, especially since the definition included only 
the applicants seeking the imposition of anti -dumping d uties. The KTC failed to make any qualitative 
assessment to ensure this potentially biased definition of the domestic industry could nevertheless 
be used as the basis for an appropriate analysis of injury as required under Article  3.  
III. THE PANEL ERRED IN REFUSING TO CONSI DER JAPAN' S CLAIM UNDER ARTICL ES 3.1 
AND 3.2 OF THE ANTI -DUMPING  AGREEMENT REGARDING  THE FINDING OF SIGN IFICANT 
VOLUME EFFECTS  
23. Japan 's claim regarding the lack of any significant volume of imports was within the terms of 
reference. Para graph 1 of Japan's Panel Request expressly identifies Articles  3.1 and 3.2 as the 
specific provisions at issue for this claim. Japan's language focused expressly on the first sentence 
of Article  3.2 and the analysis of any significant increase in the volum e of imports. Paragraph  1 of 
Japan's Panel Request plainly connected the measure to the alleged inconsistency by referring 
specifically to the "significant increase of the imports", an issue the Korean authorities understood 
full well as the KTC's Final Re solution expressly cites to Article  3.2 when discussing this obligation.  
24. The Appellate Body should complete the analysis and address Japan's claim under Article  3.1 
and the first sentence of Article  3.2 because this claim rests on undisputed facts, and is closely 
related to and overlaps with the claims the Panel did address. There is no dispute about the volume, 
market share, or trends in imports, or about what the KTC said about those facts.  
25. The Korean Measures are inconsistent with Article 3.1 and the Fir st Sentence of Article  3.2. 
Considering the "logical progression" between the obligations in Articles 3.2, 3.4 and 3.5, as the 
Appellate Body established, and its context referring to a "significant"  increase, clearly the 
first sentence of Article 3.2 requ ires the authority to objectively examine the market interactions 
between dumped import volumes and of domestic like product volumes, and additional positive 
evidence of their competitive relationship.  
26. However, the KTC's limited and flawed volume determin ation did not constitute an objective 
examination of positive evidence. Specifically, the KTC 's Final Resolution improperly found a 
"significant increase": (i) despite the lack of continuous increase of subject imports in either absolute 
or relative terms;  (ii) improperly assuming a competitive relationship between domestic and 
imported products without an objective examination based on positive evidence; and (iii)  improperly 
finding displacement of domestic sales by subject imports without examining whethe r the increased 
imports actually replaced domestic products through market competition.  
IV. THE PANEL ERRED IN R EFUSING TO CONSIDER JAPAN'S CLAIM UNDER ARTICLES  3.1 
AND 3.2 OF THE ANTI -DUMPING AGREEMENT RE GARDING THE FINDING OF SIGNIFICANT 
PRICE EFFECTS  
27. Japan's claim regarding the lack of significant price effects was within the terms of reference. 
Paragraph 2 of Japan's Panel Request expressly identifies Articles  3.2 and 3.1 as the provisions at WT/DS504/AB/R/ Add.1  
 
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  issue for this claim. Under the second sentence of Article  3.2, Korea is required to consider whether 
there has been price undercutting, price depression, or price suppression to a significant degree 
based on an objective examination of positive evidence as required under Article  3.1. Although the 
second sentence o f Article  3.2 provides three alternative approaches to price effects, Japan's Panel 
Request focused on price depression and price suppression. Paragraph  2 of Japan's Panel Request 
plainly connected the measure to the alleged inconsistency by referring spec ifically to the "analysis 
of the effect of the imports .  . . on prices", an issue well understood by the Korean authorities as 
confirmed by the text of both KTC's Final Resolution and the OTI Final Report.  
28. The Appellate Body should complete the analysis and address Japan's claim under Article  3.1 
and the second sentence of Article  3.2 because this claim rests on undisputed facts, and is closely 
related to and overlaps with the claims the Panel did address. T here is no dispute about the existence 
or magnitude of overselling, the diverging price trends, the KTC focus on a single year, or about 
what the KTC said about those facts.  
29. The KTC provided a limited and inadequate discussion of whether "the effect of" su bject 
imports was to cause price depression or price suppression, or whether the alleged price effects took 
place "to a significant degree". The proper approach for analyzing price effects under Article  3.2 
requires the investigating authority to objective ly examine any positive evidence pertaining to: 
(i) interaction in the market between the price of the subject imports and that of the like domestic 
products; and, (ii) the degree of the competitive relationship between the subject imports and the 
domestic  like products. Articles  3.1 and 3.2 require Members to provide a reasonable explanation 
based on positive evidence for their conclusions about the price effects of the subject imports. There 
is also a need to address the counterfactual question of whether  there are truly price effects; that 
is, whether the price of domestic like products would have been higher if the subject imports had 
been sold at their normal value rather than at dumped prices.  
30.  The KTC did not address any part of the core question befo re it: to consider what would have 
happened to domestic prices in the absence of dumping. In finding the price effects of the dumped 
imports on the domestic like products, the KTC ignored even the significant overselling of the 
dumped imports, and the abse nce of correlations between the prices of the subject imports and 
those of the domestic like products during the period of investigation. The KTC also failed to ensure 
comparability between the prices of specific products or product segments of the dumped imports 
and the domestic like product . 
31. Regarding price depression, the KTC also largely ignored the dramatically diverging price 
trends. It ignored situations when subject imports and domestic prices were moving in different 
directions and when the magnitu des of differences were substantially different. These facts strongly 
suggested the lack of interaction in the market between the price of the subject imports and that of 
the domestic products.  
32. Regarding price suppression, the KTC also ignored the absence  of any evidence of price 
suppression in 2011 and 2012, and drew improper conclusions from the limited evidence in 2013. 
In fact, contrary to the KTC findings, the OTI data on "reasonable selling price" actually undermined 
any finding of price suppression.  Like its price depression analysis, the KTC's price suppression 
analysis wholly ignored the consistent and significant price overselling by subject imports. It also 
failed to consider the diverging price trends between the two. Both of these failures fund amentally 
undermined the KTC's finding of a relationship between subject import and domestic prices.  
33. Regarding the price comparability between subject imports and domestic like products, the 
KTC did not demonstrate any actual and specific competition betw een them as required to establish 
the required "explanatory force". The KTC instead largely relied on its broader "like product" finding. 
The KTC and OTI findings largely ignored the diverging price trends, different physical 
characteristics, and consumer opinions and other evidence suggesting the absence of any such 
competitive relationship.  WT/DS504/AB/R/ Add.1  
 
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  V. THE PANEL ERRED IN R EFUSING TO CONSIDER PARTS OF JAPAN'S CLA IM UNDER 
ARTICLES 3.1 AND 3.4  OF THE ANTI -DUMPING  AGREEMENT REGARDING  THE PROPER 
FINDING OF ADVERSE I MPACT 
34. Japan 's claim regarding the improper finding of any adverse impact was within the terms of 
reference. Paragraph 3 of Japan's Panel Request refers specifically to the examination of the impact 
of these imports on domestic producers by evaluating all rele vant economic factors and indices, and 
expressly identified Articles  3.4 and 3.1 as the provisions at issue. The Panel refused to consider 
most of Japan's claim, including the failures (a) to link the analysis of volume and price effects to 
the analysis of  impact; (b) to demonstrate any explanatory force of the dumped imports on the state 
of the domestic industry; and (c) to take into account positive trends, all part of a proper finding of 
"the impact of these imports". Paragraph 3 of Japan's Panel Request  plainly connected the measure 
to the alleged inconsistency by referring specifically to the "analysis of the impact of the imports". 
However, in contravention of the plain language of Japan's Panel Request, the Panel arbitrarily 
determined that this claim  was "limited to the allegation that KTC failed to evaluate two of the 
specific factors listed in Article  3.4". 
35. The Appellate Body should complete the analysis and address the remaining parts of Japan's 
claim under Articles  3.1 and 3.4 because this claim r ests on undisputed facts, and the remaining 
parts of the claim not addressed by the Panel are closely related to the claims the Panel did address.  
36. Article  3.4 requires an "examination" of certain specified factors. The Appellate Body has 
established that the volume, price effects, and impact inquiries are " closely interrelated"  
(EC – Tube or Pipe Fittings , para. 115); the various paragraphs of Article  3 "contemplate a logical 
progression of inquiry"; and Article  3.4 requires "an examination of the explana tory force of subject 
imports for the state of the domestic industry" ( China – GOES , paras. 128 and 149).  
37. The Korean measures are inconsistent with Articles  3.1 and 3.4 because the KTC's 
examination of the impact of the dumped imports on the state of the domestic industry was 
inadequate. Beyond the many logical disconnects in the analysis of volume and price effects under 
Article  3.2, the KTC Final Resolution more generally failed to show any explanatory force from 
subject imports regarding the trends rela ted to the condition of the domestic industry. Rather, the 
KTC discussion of impact was more suggestive of other factors having explanatory force, not subject 
imports.  
38. The KTC failed to conduct "an examination of the explanatory force of subject imports f or the 
state of the domestic industry", as required under Article  3.4. Japan's argument comprises at least 
three interrelated points. First, subject imports consistently oversold domestic products. Second, 
there is no evidence that subject imports displace d domestic products. Third, the market share of 
subject imports actually declined in 2013 by almost three points compared to 2010.  
39. The Panel's finding regarding the "logical link" issue of whether Korea failed to link its volume 
and price effects analyses with the alleged consequent impact of the imports on the domestic 
industry ignores the guidance provided by the Appellate Body. Sim ilarly, in addressing the issue of 
whether Korea adequately considered the positive trends, the Panel erroneously conflated mere 
acknowledgement of increasing trends with an adequate explanation of those trends and how they 
relate to the ultimate conclusio n. 
VI. THE PANEL ERRED IN R EJECTING JAPAN'S ARG UMENT THAT THE KOREA N 
AUTHORITIES DID NOT EVALUATE THE MAGNITU DE OF THE MARGIN OF DUMPING AS 
REQUIRED BY ARTICLE  3.4 
40. The Panel did not address most of Japan's claim under Article  3.1 and 3.4, addressing only 
the magnitude of the margin of dumping. Japan disagrees with the Panel to the extent that the Panel 
seems to assume that a mere conclusory statement that the dumping margin is not insignificant 
suffices to demonstrate that the investigating authority evalua ted the magnitude of the margins of 
dumping.  
41. Under Article  3.4, an investigating authority is required to evaluate the magnitude of the 
margin of dumping and to assess its relevance and the weight to be attributed to it in the injury 
assessment. However, t he KTC Final Resolution was severely deficient in its limited discussion of the WT/DS504/AB/R/ Add.1  
 
- 18 - 
 
  margins of dumping. There is no discussion at all by the Korean authorities of how they conducted 
this "evaluation" or why they reached this conclusion, and on what factual bas is they did so. The 
KTC provided no meaningful analysis of the margin of dumping or how that margin related to the 
ultimate impact of the dumped imports on the domestic industry.  
42. In this particular case, overselling was consistent and significant. In their  investigations, 
authorities often draw connections between the margin of dumping and the effects of the 
underselling. But in a case where import prices are overselling the domestic prices, the authorities 
cannot assume without more that the "margin of dum ping" is having any impact on the domestic 
industry at all. The "evaluation" of this factor is particularly important to understand what the state 
of the domestic industry would have been without any dumping. The burden is on the authorities to 
say somethi ng substantive about the "magnitude of the margin of dumping" and how it relates to 
the ultimate conclusion that the imports were having some adverse impact within the meaning of 
Article  3.4. 
VII. THE PANEL ERRED IN I TS APPROACH TO RESOL VING JAPAN'S CAUSAT ION CLAIMS 
UNDER ARTICLES 3.1 A ND 3.5  
 A. The Panel Erred in Its Approach to Resolving Japan's Independent Causation 
Claim  
43. With regard to the first causation claim, the Panel applied the wrong legal standard and 
ignored the interconnection nature of the v arious findings under Article  3. Japan stressed a series of 
flaws that rendered the KTC's final conclusion about the existence of a "causal relationship" deeply 
flawed and thus inconsistent with Articles  3.1 and 3.5.  
44. First, the Panel did not consider volu me as an essential building block for any finding of 
causation. The Panel focused too narrowly on the requirements of the first sentence of Article  3.2 
regarding volume and not on the proper analysis under Article  3.5 regarding causation. The point is 
not whether the decline in imports earlier in the period "in itself" precludes a finding of causation, 
or that the small overall increase "necessarily contradicted or undermined" the finding of causation. 
Neither is the point whether either of the two volume -related arguments raised by Japan "itself", 
"necessarily", or "independently" disproved causation. Rather the point of proper causation analysis 
under Article  3.5 is for the Panel to consider these facts and other facts as part of a holistic analysis 
of the  KTC's finding of causation and how the KTC explained that finding. Japan's stresses that even 
if these facts were to be deemed sufficient to satisfy the specific obligations of the first sentence of 
Article  3.2, these facts about the volume of imports are  not sufficient to provide appropriate building 
blocks for the KTC's ultimate conclusion of causation.  
45. Second, the Panel did not consider price effects as an essential building block for any finding 
of causation. The Panel did not repeat the same legal er ror it made when considering volume, and 
did not focus too narrowly on the requirements of the second sentence of Article  3.2 regarding price 
to the exclusion of the ultimate conclusion about causation under Article  3.5. But the Panel made 
different errors . The Panel erred by concluding the diverging price trends "do not in themselves 
demonstrate" the KTC causation finding is inconsistent with Articles  3.1 and 3.5. In reaching this 
conclusion, the Panel viewed the KTC explanations in isolation. The Panel al so mistakenly concluded 
that isolated instances of lower priced sales, characterized by the KTC as "fierce competition", 
somehow "lends support" to the KTC's price suppression and depression findings. The Panel's 
conclusion based on its vague formulation o f "lends support" is wrong for two key reasons: (a) the 
Panel never explained how these isolated examples demonstrated that all domestic like products are 
in competition with the dumped imports and thus met the legal standard under either Article  3.2 or 
Article  3.5; and (b) the Panel never put these isolated examples into the context of the other 
evidence it was considering as req uired by Articles  3.1 and  3.5. 
46. Third, the Panel did not consider impact as an essential building block for any finding of 
causation by focusing too narrowly on the requirements of Article  3.2 concerning volume and price 
and Article  3.4 regarding impact and  not on the proper analysis under Article  3.5 regarding 
causation. The Panel misunderstood the required "logical progression" of the analysis under Article  3. 
The Panel ignored that the analysis of the relationship between imports and the domestic industry  
under Article  3.4 is "analytically akin to the type of link" contemplated by the analysis under the 
second sentence of Article  3.2. WT/DS504/AB/R/ Add.1  
 
- 19 - 
 
  47. Fourth, the Panel acted contrary to its standard of review under Article  11 of the DSU and 
Article  17.6 of the Anti -Dumping  Agreement by failing to consider Japan's rebuttal arguments on a 
key issue regarding the "reasonable sales price". Had it considered Japan's rebuttal, the Panel would 
have realized that the Korean authorities never explained why the profit margins selecte d were in 
fact a reasonable proxy for the prices that the Korean producers should have been able to charge 
as "reasonable sales prices".  
 B. The Panel Also Erred in its Approach to Resolving Japan's Claim about the 
Failure to Demonstrate a Causal Relations hip 
48. Japan's second causation claim involved the failure of the KTC to establish a proper causal 
link, focusing on the lack of correlation among various factors. The Panel improperly refused to 
address the lack of meaningful correlation at all, in the conte xt of the obligation under Article  3.5. 
The determination of causal relationship under Article  3.5 encompasses more than the underlying 
considerations under Article  3.2 and Article  3.4. The authority must still consider "all relevant 
evidence" that establi shes or negates a causal relationship. However, rather than address this issue 
presented by Japan, the Panel ignored it.  
49. The Panel said only that insufficient correlation "would not preclude" a finding of causal 
relationship, depending on "other facts con sidered" and the "explanations given" by the authority. 
Yet neither the KTC Final Resolution nor the Panel discussed what facts or what explanations 
countered the lack of volume correlation and price correlation identified by Japan. Japan's basic point 
was simply that the lack of sufficient correlation called into doubt the existence of any causal 
relationship.  
50. Specifically, there was insufficient correlation in any of the key trends. There was insufficient 
correlation in the key volume trends to "demonstr ate" a causal relationship. There was also 
insufficient correlation in key pricing trends to "demonstrate" a causal relationship. Whether 
measured based on simple averages or the price fluctuation index method, prices followed very 
different trends. Moreov er, Korea's flawed analysis of correlations in price trends was made worse 
by the failure to ensure price comparability in their determination of causation. Finally, there was 
insufficient correlation in the trends regarding the domestic industry's conditi on to "demonstrate" a 
causal relationship.  
51. The Panel incorrectly imputed to Japan a premise about profit trends. The Panel argued that 
Japan must be assuming that the failure of domestic profitability to improve means "there can be 
no injury caused by dum ped imports". But that was not Japan's point. Japan never argued "there 
can be no injury", but simply pointed out yet another example of the lack of correlation that called 
into question the finding of a causal relationship. Moreover, the Panel embraced wi thout any 
discussion a logically inconsistent KTC explanation of profit trends. Overall the Panel seemed more 
interested in quickly dismissing this claim than in seriously considering the extent to which the KTC 
reasonably addressed the lack of correlation  in volume, prices, and profits.  
VIII.  THE PANEL ERRED IN R EFUSING TO CONSIDER JAPAN'S CLAIM UNDER ARTICLE  6.9 
OF THE ANTI -DUMPING AGREEMENT REGARDING THE DISCLOSURE OF ES SENTIAL FACTS  
52. Japan 's claim regarding the failure to disclose essential facts was wi thin the terms of reference. 
Paragraph 10 of Japan's Panel Request refers specifically to the failure to disclose essential facts, 
and expressly identified Article  6.9 as the provision at issue. The obligation to disclose essential facts 
is narrow and well -defined on its face. Considering the nature of the obligation, Japan's claim that 
Korea failed to disclose the essential facts to all interested parties is "sufficient to present the 
problem clearly". Paragraph 10 of Japan's Panel Request also plainly con nected the measure to the 
alleged inconsistency by referring specifically to Korea's failure to "inform the interested parties of 
the essential facts under consideration".  
53. The Appellate Body should complete the analysis and address Japan's claim under Arti cle 6.9 
because this claim rests on undisputed facts. The only question before the Panel was the status of 
the KTC Final Resolution, but this was not a factual issue but a legal question as to whether the KTC 
Final Resolution constitutes a "final determina tion" of injury for purposes of Article  6.9. There is no 
dispute about what was disclosed prior to the KTC Final Resolution. Furthermore, this claim is closely 
related to the claims the Article  3 claims the Panel did address as the "essential facts" not di sclosed WT/DS504/AB/R/ Add.1  
 
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  are intertwined with the claims under Articles  3.1, 3.2, 3.4 and 3.5, and arguments in support of 
those claims.  
54. The KTC breached Article  6.9 of the Anti -Dumping Agreement by failing to disclose the 
"essential facts" that formed the basis of its inj ury determination before making the final 
determination. Article  6.9 requires the authority to disclose "essential facts" before a "final 
determination" is made. Korea argued that "a final determination" means a decision to impose 
duties, and therefore, th at the KTC's Final Resolution was not a "final determination" within the 
meaning of Article  6.9. Article  6.9 read in the context of the Anti -Dumping Agreement more 
generally, however, makes clear that the term "a final determination" refers back to "a fina l 
determination" under either Article  2 for dumping or Article  3 for injury, which then leads to the final 
"decision" under Article  9 to impose and begin collecting duties. Consequently, the KTC's Final 
Resolution constituted the "final determination" for purposes of Article  6.9, as it encompassed the 
conclusion of the investigation of dumping and injury.  
55. The KTC violated Article  6.9 because of the inadequate manner in which  it disclosed certain 
information to the Japanese respondents. Some of the failures were to disclose any information at 
all, even though the KTC would ultimately rely on that information to make key findings. Some other 
failures were to provide no adequate  public summary of certain information, which essentially left 
the parties with no disclosure. For both categories the KTC deprived the Japanese respondents of 
the opportunity to defend their interests.  
 
 WT/DS504/AB/R/Add.1  
 
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  ANNEX  B-2 
EXECUTIVE SUMMARY OF  KOREA'S OTHER APPELLANT'S SU BMISSION1 
I. INTRODUCTION  
1. Pursuant to Articles  16.4 and 17 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes ("DSU") and Rule 23 of the Working Procedures for Appellate Review, the 
Republic of Korea ("Korea") appeals certain issues of law and interpretation developed by the Panel 
in Korea – Anti-Dumping Measures on Pneumatic Valves from Japan (WT/DS504/R) ("Panel Report").  
2. The Panel Report that is the subject of the present appeal contains a number of errors of law 
and legal interpretation of the provisions of the Agreement on Implementation of Article  VI of the 
General Agreement on Tariffs and Trade 1994 (the "Anti -Dumping A greement") and the DSU, which 
led the Panel to erroneous findings and conclusions.  
3. Korea considers that the Panel 's findings of violation of Articles  3.1 and 3.5 of the 
Anti-Dumping Agreement, as well as of Articles  6.5 and 6.5.1 of the Anti -Dumping Agree ment2 are 
to be reversed. Korea develops four claims in this respect.  
II. CLAIM  1: THE PANEL ERRED W HEN FINDING THAT JAP AN'S PANEL REQUEST WITH  
RESPECT TO CERTAIN O F ITS CLAIMS UNDER A RTICLES  3.1 AND 3.5 OF THE 
ANTI -DUMPING AGREEMENT WA S CONSISTENT WITH ARTI CLE 6.2 OF THE DSU  
4. The Panel erred when finding that Japan 's panel request with respect to its claims under 
Articles  3.1 and 3.5 of the Anti -Dumping Agreement complied with the obligation under Article  6.2 
of the DSU to provide a brief summary of the legal basis of the complaint sufficient to present the 
problem clearly and that these claims were thus within the Panel 's terms of reference.3 In particular, 
as was the case for the claims of Japan that the Panel considered not to have met t he standard of 
Article 6.2 of the DSU, Japan 's panel request  in respect of its three causation claims also simply 
paraphrased the text of Articles 3.1 and 3.5 without offering any "how" and "why" the measures 
violated this causation obligation.  
5. Japan 's panel request fails to provide a brief summary of the legal basis of the complaint 
sufficient to present the problem clearly. The Panel 's analysis supporting its contrary finding is 
circular and fails to address the relevant question of whether the panel req uest, when examined on 
its face, makes any attempt to present the problem with the required clarity by linking any specific 
aspects of the challenged measures, or of the underlying investigation, to any of the specific 
obligations in these provisions. Give n the multi -faceted nature of Articles 3.1 and 3.5 and the 
complex factual basis of the challenged measures, there was no basis for the Panel 's conclusion that 
Japan 's abstract paraphrasing of the obligation in Articles 3.1 and 3.5 was sufficient to presen t the 
problem clearly.  
6. In addition, the Panel erred in law when deciding to "carefully review" Japan 's written 
submissions to examine the consistency of its panel request with the requirement of Article 6.2 of 
the DSU. It is established WTO law that compli ance with the requirement of Article 6.2 must be 
demonstrated "on the face of the request for the establishment of a panel", as it existed at the time 
of filing and on the basis of the language used. The Panel failed to adhere to these principles as it 
did not examine the panel request "on its face" and "at the time of filing", but rather felt it was 
necessary to look at "subsequent submissions" to fill the gap left by the lack of explanation in Japan 's 
panel request. This constitutes another error of law.  
7. Korea requests the Appellate Body to reverse the Panel 's findings that certain of Japan 's claims 
relating to Articles 3.1 and 3.5 of the Anti -Dumping Agreement were within its terms of reference 
                                                
1 Total number of words of the Other Appellant Submission  = 46,011; total number of words of the 
Executive Summary = 4032.  
2 Panel Report, para. 8.4.  
3 Panel Report, paras. 7.226 -7.227, 7.234 -235, 7.241, 7.244, and 8.2(b) -(d). WT/DS504/AB/R/Add.1  
 
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  (as set forth in paragraphs 7.226, 7.235, 7.243, 7.244(a) -(c) and 8.2(b) -(d) of the Panel Report), 
and, as a consequence, to declare moot and of no effect the Panel 's finding of violation of Articles  3.1 
and 3.5 of the Anti -Dumping Agreement (as set forth in, inter alia , paragraph 8.4(a) ). 
III. CLAIM 2: THE PANEL ERRED WHEN  FINDING THAT KOREA ACTED INCONSISTENTLY  
WITH ARTICLES 3.1 AN D 3.5 OF THE ANTI -DUMPING AGREEMENT  
8. Should the Appellate Body find that Japan 's "independent" causation claim is properly within 
the Panel 's terms of reference, Korea submits that the Panel erred when finding that Korea acted 
inconsistently with Articles 3.1 and 3.5 of the Anti -Dumping Agreement4 since (i) it erroneously 
subsumed all of the obligations under Articles 3.2 and 3.4 into Article 3.5; (ii) it erred in relieving 
Japan of its burden of proof relating to the question of price comparability; (iii) it imposed a price 
comparability analysis that has no basis in the text of Article 3.5 and went well beyond what is 
required even under Article 3.2; and (iv) it made findings a bout the investigating authorities ' 
causation determination based only on isolated aspects of this determination.  
9. First, the Panel erred in law by reading an independent requirement into Article  3.5 of 
conducting a fully -fledged analysis of the volume, pri ce effects and overall impact of dumped imports 
on the domestic industry. The Appellate Body has referred to Article  3.1 as an "overarching" 
provision and to Articles  3.2, 3.4 and 3.5 as together setting forth a "logical progression of enquiry" 
that culmin ates in a causation of injury finding. This implies that Articles  3.2 and 3.4, on volume, 
price effects and overall impact of the dumped imports on the domestic industry, on the one hand, 
and Article 3.5, on causation, on the other hand, are separate, albe it related, provisions that each 
set forth their own, separate parts of the obligation to demonstrate that dumped imports are causing 
injury to the domestic industry. The obligation to consider the volume of dumped imports, the price 
effects of the dumped imports and the obligation to examine the consequent impact of these imports 
on domestic producers of such products are set forth in Articles 3.1, 3.2 and 3.4 of the Anti -Dumping 
Agreement, not in Article  3.5 of the Anti -Dumping Agreement. The Panel 's appr oach of reading all 
of the obligations of Articles 3.2 and 3.4 into Article 3.5 is thus in error.  
10. An interpretation of Article 3.5 that comprehensively sets forth the entire obligation of 
demonstrating injury and causation would render redundant the obliga tions of Articles  3.2 and 3.4, 
in violation of the principle of effective treaty interpretation. That is, however, exactly what the Panel 
did. It effectively interpreted Article 3.5 as setting forth an independent, comprehensive obligation 
to examine the v olume, price effects and consequent impact of the dumped imports as part of the 
causation obligation of Article 3.5. Its finding under Articles 3.1 and 3.5 that are based on Korea 's 
price effects analysis are thus based on an error of law and should be rev ersed.  
11. Second, the Panel erred in relieving Japan of its burden of proving that there was a problem 
of price comparability between the dumped imports and the like domestic products. In the underlying 
investigation, KTC properly addressed the issues and con cerns raised by the interested parties 
relating to the question of price comparability. Among others, KTC found that the dumped imports 
and the domestic like products were in competition with one another in the Korean market during 
the period of investigat ion. In this dispute, Japan argued that KTC failed to ensure price 
comparability because it erred in finding a competitive relationship between the dumped and the 
domestic products. When the Panel rejected Japan 's argument and found that the two products w ere 
in competition, it should have been for Japan to demonstrate that any further concerns over the 
specific price comparisons that were made as part of the overall price effects analysis undermined 
the general price comparability that was found to exist. Japan did not present a prima facie  case to 
this effect as the Panel shifted the burden of proof asking Korea to demonstrate that the specific 
price comparisons ensured a fair comparison.  
12. Third, assuming that the Panel was correct in examining the price ef fects under Article  3.5 
(quod non ), it committed in any event a legal error by requiring a demonstration of price 
undercutting for the product as a whole and by requiring a weighted average to weighted average 
or transaction to transaction comparison betwe en comparable models when no such methodology is 
required by the text of Article 3.5 of the Anti -Dumping Agreement, nor by Article  3.2 for that matter. 
Article 3.5 is completely silent on the nature of the price effects analysis that allegedly would be 
required. To the extent that any obligation can be found in Article 3.5, it consist of a reference to 
                                                
4 Panel Report, para. 7.349.  WT/DS504/AB/R/Add.1  
 
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  "paragraph 2" of Article 3, whic h also does not impose a specific methodology for demonstrating 
price effects and does not require a price undercutting analysis for the product as a whole.  
13. In the present case, the Panel examined different aspects of KTC 's price effects findings in 
clinical isolation, and ultimately faulted Korea for failing to demonstrate that the selective 
underselling applied to the domestic like product "as a whole". Although no price undercutting finding 
was made by the investigating authority, the Panel considered th at KTC should have examined the 
extent to which domestic prices as a whole were affected by individual instances  of lower dumped 
import prices. Similarly, KTC examined certain prices of certain models in support of its conclusion 
that, despite the on avera ge higher prices of dumped imports, there was competitive interaction 
between the dumped imports and the domestic like products which confirmed the explanatory force 
of the dumped imports in the price suppression and depression that was found to exist. The  Panel 
faulted KTC for not having made a weighted average to weighted average or transaction to 
transaction model comparison when no such obligation exists under Article 3.2, let alone under 
Article 3.5 of the Anti -Dumping Agreement.  
14. The complete silence on the kind of price effects analysis that would allegedly be required by 
Article 3.5 stands in stark contrast with the Panel 's very specific findings relating to detailed aspects 
of the much broader price effects analysis that was undertaken by KTC. Thus,  the Panel 's 
interpretation and application of Article 3.5 as requiring a particular price effects analysis lacks any 
textual basis and imposes an obligation that is not even conta ined in Article 3.2 of the Anti -Dumping 
Agreement. The Panel 's finding of vi olation of Articles 3.1 and 3.5 of the Anti -Dumping Agreement 
is based on a legal error relating to the obligations set forth in Articles 3.1 and 3.5 of the 
Anti-Dumping Agreement and should be reversed.  
15. Fourth, assuming that the Panel was correct to ente rtain all of the price -related claims that 
should have been examined under Article 3.2 in the context of the Article 3.5 analysis ( quod non ), 
and assuming that the Panel was correct to consider that there were certain gaps in the price 
comparability and ov erselling analyses of KTC ( quod non ), that still would not justify the Panel 's 
finding of inconsistency with Article 3.5 absent a holistic examination of these alleged flaws in the 
context of the causation analysis as a whole. Indeed, Article 3.5 requires a causation analysis that 
holistically assesses whether a genuine and substantial relationship of cause and effect has been 
demonstrated to exist between the dumped imports and the injury to the domestic industry. The 
alleged flaws found with respect to ce rtain aspects of KTC 's price effect analysis could only amount 
to a violation of Articles 3.1 and 3.5 if those alleged flaws, when taken together with all the other 
relevant analyses on volume, price, impact, etc., sufficiently and plainly disprove the cau sal link that 
KTC found to exist in the underlying investigation. It was incumbent on the Panel to examine how 
and to what extent the alleged minor flaws in respect of one aspect of the price analysis undermined 
the overall causation analysis. The Panel fa iled to do so. Thus, the Panel erred in law by making 
findings about the investigating authorities ' causation determination under Articles 3.1 and 3.5 based 
only on isolated aspects of the determination. Its finding of violation of Articles 3.1 and 3.5 sho uld 
thus be reversed.  
16. In sum, Korea requests the Appellate Body to reverse the Panel 's findings that Korea violated 
Articles 3.1 and 3.5 of the Anti -Dumping Agreement as set forth in paragraphs 7.272 , 7.322, 
7.323(a) and (c), 7.349, and 8.4(a)  of the Panel  Report.  
IV. CLAIM 3: THE PANEL F AILED TO MAKE AN OBJ ECTIVE ASSESSMENT OF  THE MATTER  
IN VIOLATION OF ARTI CLE 11 OF THE DSU AN D ARTICLE 17.6 OF TH E 
ANTI -DUMPING AGREEMENT  
17. The Panel failed to conduct an "objective assessment" of the matter before it in viola tion of 
Article 11 of the DSU and Article 17.6 of the Anti -Dumping Agreement when reaching the conclusion 
that Japan 's causation claims were within its terms of reference and that Korea acted in violation of 
Articles 3.1 and 3.5 of the Anti -Dumping Agreeme nt. 
18. First, Korea considers that the finding on the terms of reference under Article 6.2 of the DSU 
that was made by the Panel in the context of the three claims under Articles 3.1 and 3.5 was not 
the result of an objective assessment of the matter. The Pan el's unexplained, arbitrary and 
contradictory statements about the alleged sufficiency of Japan 's panel request with regard to these 
claims reflected an inappropriate desire on the part of the Panel to salvage at least some of Japan 's WT/DS504/AB/R/Add.1  
 
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  claims. In fact, a proper interpretation of Article 6.2 DSU as applied by the Panel to all of the other 
claims of Japan, would have resulted in a finding that also the claims under Articles 3.1 and 3.5 were 
not properly before the Panel because they also m erely paraphrased the obligation set forth in these 
legal provisions. The Panel thus failed to provide an adequate and reasonable explanation supporting 
its finding as it acted in violation of the legal standard it set out itself in relation to the other c laims. 
Its findings in relation to the application of the test under Article 6.2 of the DSU are internally 
inconsistent. For all of these reasons, the Panel 's finding that Japan 's causation claims are properly 
within its terms of reference results from a l ack of objective assessment in violation of Article  11 of 
the DSU and Article 17.6 of the Anti -Dumping Agreement and should be reversed for that reason as 
well. 
19. Second, the Panel made the case for the complaining party and engaged in a de novo  review. 
In particular, it addressed the legal argument actually developed by Japan under Articles  3.1 and 
3.5 concerning an alleged lack of competition between the imported and the like domestic products 
and found in favor of Korea. It then, however, continued to addr ess a claim not made by Japan as 
the Panel constructed an argument about the lack of "fair comparison" as a result of the 
transaction -to-average comparison of prices. However, this was never the argument, let alone the 
claim, made by Japan. In so doing, th e Panel made the case for Japan, determining that a violation 
existed based on a claim that was never made or developed by Japan. The Panel did not review the 
determination that was actually made but constructed its own price effects analysis and engaged i n 
a de novo  analysis of the determination that was never made. The Panel thus acted in a manner 
inconsistent with Article 11 of the DSU  and Article 17.6 of the Anti -Dumping Agreement.  
20. Third, the Panel willfully ignored and disregarded certain evidence tha t was presented by 
Korea supporting its determination of the dumped imports ' price effects. The Panel focused 
exclusively on the evidence relating to the instances of aggressive pricing and underselling and 
disregarded the relevant evidence for corroborati ng the existence of competition between the 
dumped and the domestic products that the investigating authorities relied on for their findings of 
price suppression and depression. Indeed, KTC 's price effects findings were based on many facts on 
the record ot her than the alleged instances of price underselling and aggressive marketing. An 
objective assessment by the Panel would have considered the determination as presented and 
examined by the investigating authorities. By reducing the price effects analysis d one by KTC and 
thereby disregarding significant amounts of evidence on the record, the Panel distorted the 
determination that was actually made which rendered its assessment neither objective nor fair, in 
violation of Article 11 of the DSU and Article 17.6  of the Anti -Dumping Agreement.  
21. Fourth, the Panel made findings that were internally inconsistent and contradictory. In relation 
to two of the three claims by Japan under Articles 3.1 and 3.5 of the Anti -Dumping Agreement, the 
Panel upheld KTC 's causation  and non -attribution analysis as consistent with these provisions, but 
in relation to the third claim found that the "causation analysis, as a result of flaws in their analysis 
of the effect of the dumped imports on prices in the domestic market" violated Articles 3.1 and 3.5. 
The Panel fails to provide any explanation of how these contradictory and internally inconsistent 
findings could be squared. A WTO panel does not comply with its obligation under Article 11 of the 
DSU and Article 17.6 of the Anti -Dump ing Agreement if, as in this case, its findings are internally 
incoherent and inconsistent.  
22. Finally, even at the very basic level of the analysis of the facts relating to the price comparisons 
and the overselling, the Panel 's analysis was not supported by  the facts on the record and reflects a 
disregard of relevant, material evidence. The Panel 's effective disregard of relevant record evidence 
and its erroneous findings demonstrate a lack of objective examination in violation of Article  11 of 
the DSU and A rticle 17.6 of the Anti -Dumping Agreement.  
23. In sum, Korea requests the Appellate Body to find that the Panel failed to make an objective 
assessment of the matter as required by Article 11 of the D SU and Article 17.6 of the Anti -Dumping 
Agreement in relation  to whether Japan 's causation claims were properly within its terms of reference 
and in relation to its finding that Korea violated A rticles 3.1 and 3.5 of the Anti -Dumping Agreement 
as set forth in, inter alia , paragraphs 7.226, 7.235, 7.243, 7.244(a) -(c), 7.272, 7.322, 7.323(a) and 
(c), 7.349  of the Panel Report and for that reason as well requests the Appellate Body to reverse 
the Panel 's conclusions in paragraph 8. 2(b), (c) and (d) and paragraph  8.4(a ) of the Panel Report.  WT/DS504/AB/R/Add.1  
 
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  V. CLAIM 4: THE PANEL ERRED WHEN FINDING T HAT KOREA ACTED INCO NSISTENTLY 
WITH ARTICLES 6.5 AN D 6.5.1 OF THE ANTI -DUMPING AGREEMENT  
24. Korea submits that the Panel erred when finding that Korea act ed inconsistently with 
Articles  6.5 and 6.5.1 of the Anti -Dumping Agreement,5 because (i) it erroneously found that Japan 's 
panel request with respect to these claims presented the problem clearly in accordance with 
Article  6.2 of the DSU; (ii) it erroneously interpreted Article 6.5 as requiring investigating authorities  
to make express "statements" as to whether good cause is shown with respect to confidential 
information; and (iii) it erroneously applied the law to the facts by finding that there was no good 
cause for the treatment of certain information as confidential , and that KTC failed to require the 
applicants to furnish the required non -confidential summaries.  
25. First, Japan 's panel request failed to provide the requisite brief summary of the legal basis of 
the complaint sufficient to present the problem clearly. Th e Panel 's finding to the contrary is based 
on erroneous application of the law to the facts as the panel request, when examined on its face, 
fails to present the problem with the required clarity through linking any specific aspects of the 
challenged measu res, or of the underlying investigation, to any of the specific obligations in these 
provisions. The panel request merely paraphrases the text of the relevant provisions without 
anything additional. Given the multi -faceted nature of Articles 6.5 and 6.5.1 and the complex nature 
of anti -dumping investigations (in which large volumes of confidential information are received and 
examined by the investigating authority), there was an obligation on Japan to present the problem 
clearly as opposed to the abstract,  paraphrasing of these provisions. Thus, there was no basis for 
the Panel 's conclusion that Japan 's panel request satisfied the minimum requirement of Article  6.2 
of the DSU.  
26. In addition, the Panel erred in law when examining Japan 's compliance with Articl e 6.2 of the 
DSU by taking into account the scope of the allegations under Articles 6.5 and 6.5.1 as presented in 
Japan 's written submissions. It is established WTO law that compliance with the requirement of 
Article 6.2 must be demonstrated "on the face o f the request for the establishment of a panel", as 
it existed at the time of filing and on the basis of the language used. The Panel failed to adhere to 
these principles as it did not examine the panel request "on its face" and "at the time of filing", bu t 
rather felt it was necessary to look at "subsequent submissions" to fill the gap left by the lack of 
explanation in Japan 's panel request. This constitutes another error of law.  
27. Korea requests the Appellate Body to reverse the Panel 's findings that Japan 's claims under 
Articles 6.5 and 6.5.1 were within its terms of reference, as set forth in paragraphs 7.418 and  8.2(e ), 
and, as a consequence, to declare moot and of no effect the Panel 's finding of violation of Articles  6.5 
and 6.5.1 of the Anti -Dumping Agreement (as set forth in paragraphs 7.451 and  8.4(b) -(c)). 
28. Second, should the Appellate Body find that Japan 's claims under Articles 6.5 and 6.5.1 were 
properly within the Panel 's terms of reference, Korea submits that t he Panel erroneously interpreted 
Article 6.5 as requiring investigating authorities to make express "statements" as to whether good 
cause is shown for the confidential information. There is no such obligation in the relevant provision 
as interpreted based on the applicable rules of treaty interpretation. Based on the text of Article  6.5 
of the Anti -Dumping Agreement, the obligation on investigating authorities is to treat any 
information as confidential "upon good cause shown" by the provider of the informa tion. Thus, an 
authority must satisfy itself (i.e. "ensure") that good cause is shown before treating the information 
in question as confidential.  
29. Third, given the error in legal interpretation, the Panel also erred by finding that KTC failed to 
show that good cause were shown for certain pieces of information as there was no evidence on the 
record "linking the information for which confidential treatment was granted to the categories of 
confidential treatment identified in Korean law". In light of the fact  that Article 6.5 only requires 
investigating authorities to satisfy themselves that good cause is shown before treating the 
information in question as confidential, KTC was not obliged to make specific statements about each 
of the requests for confidentia lity other than to s atisfy itself that good cause was shown before 
treating the information in question as confidential.  
30. Finally, the Panel also erred in its application of Article 6.5.1 to the facts of the dispute by 
finding that KTC failed to require the  applicants to furnish the required non -confidential summaries. 
                                                
5 Panel Report, para.  7.451.  WT/DS504/AB/R/Add.1  
 
- 26 - 
 
  In the underlying investigation, the applicants submitted "non -confidential summaries" of the 
confidential information, prepared by designating the information that they deemed were entitled t o 
confidential treatment (i.e. by leaving blank or, sometimes, replacing with "XXX") in accordance with 
Korean law and the guidelines for filling out the questionnaires. When the Korean Investigating 
Authorities received such non -confidential summaries des ignating the information that should be 
treated as confidential, it objectively considered that "good cause" was shown – in accordance with 
the relevant Korean laws and pursuant to relevant WTO jurisprudence. Thus, the applicants provided 
the required non -confidential summaries for the relevant confidential information, and these 
summaries were in sufficient detail to permit reasonable understanding of the substance of the 
confidential information.  
31. In sum, Korea requests the Appellate Body to reverse the Pa nel's findings that Korea violated 
Articles  6.5 and 6.5.1 of the Anti -Dumping Agreement as set forth in paragraphs  7.451 and 
8.4(b) -(c) of the Panel Report.  
 
 
 WT/DS504/AB/R/Add.1  
 
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  ANNEX  B-3 
EXECUTIVE SUMMARY OF  KOREA'S APPELLEE'S SUBMISSION1 
1. Japan appeals a number of the Panel's findings under Article  6.2 of the DSU that several of its 
claims were outside the Panel's terms of reference, requesting reversal of such findings and a 
completion of the analysis by the Appellate Body in respect of such claims. Japan also appeals a 
number of findings of the Panel that Japan failed to demonstrate that Korea acted inconsistently 
with its obligations under the Anti -Dumping Agreement.  
2. Korea cons iders that all of Japan 's claims on appeal are without merit and should be rejected. 
Specifically, Korea requests the Appellate Body (i) to uphold the findings of the Panel under 
Article  6.2 of the DSU with respect to the claims under appeal, (ii) to rejec t Japan 's requests to 
complete the analysis given that there are not sufficient factual findings by the Panel and undisputed 
facts on the Panel record, and (iii) should the Appellate Body decide to nevertheless consider the 
merits of Japan 's substantive cl aims, reject Japan 's claims that Korea acted inconsistently with its 
obligations under the Anti -Dumping Agreement. In addition, Korea requests the Appellate  Body to 
reject the two claims on appeal by Japan that relate to findings the Panel did make, reject ing Japan 's 
claims under Articles  3.1 and 3.4 of the Anti -Dumping Agreement and Articles  3.1 and 3.5 of the 
Anti-Dumping Agreement, and thus to uphold the findings of the Panel in this respect.  
I. JAPAN 'S APPEAL RELATED TO THE CLAIMS NOT CONSI DERED TO BE WITHIN T HE 
PANEL 'S TERMS OF REFERENCE  IS TO BE REJECTED  
I.1. Japan 's claims that the Panel erred in law in respec t of its findings pursuant to 
Article  6.2 of the DSU are without merit  
3. The focus of Japan 's appellant submission is on the Panel 's findings under Article  6.2 of the 
DSU. In particular, Japan challenges the Panel 's findings under Article  6.2 of the DSU with  respect 
to Japan 's claims under Articles  3.1, 3.2, 3.4, 4.1 and 6.9 of the Anti -Dumping Agreement which led 
the Panel to consider that the five related claims of Japan were not within the Panel 's terms of 
reference. Japan takes issue with the Panel 's find ings that more than merely paraphrasing the 
provisions of the Anti -Dumping Agreement in question was required in order to satisfy the burden 
of a complainant to "present the problem clearly" in accordance with Article  6.2 of the DSU. For each 
of the claims  that were considered not to be within the Panel 's terms of reference, Japan develops 
the same four arguments to demonstrate that each of the challenged findings of the Panel under 
Article  6.2 of the DSU are in error. All four arguments are equally flawed.   
4. As a preliminary point, Korea submits that Japan has wrongly characterized its appeal claims 
under Article  6.2 as concerned with the legal interpretation and application of the law of the facts 
by the Panel. In fact Japan 's claims are essentially concern ed with the Panel 's alleged lack of 
reasoned and adequate explanation, its alleged failure to consider certain facts, the allegedly "unfair" 
nature of the Panel 's approach, etc. Such claims seem to be claims that should have been presented 
as part of a cha llenge under Article 11 of the DSU that the Panel failed to undertake an objective 
assessment of the matter. However, Japan failed to include such a claim in its Notice of Appeal with 
respect to the Panel 's findings under Article 6.2 of the DSU. On that ba sis alone, the Appellate Body 
should reject Japan 's claims relating to the Panel 's findings under Article  6.2 of the DSU and the 
related requests to complete the analysis.  
5. In any case, Japan 's claims of legal error are equally baseless.  
6. First, Japan errs when it asserts that the Panel failed to consider the nature of the measure. 
Japan argues that in anti -dumping disputes, the investigating authority knows exactly what the claim 
is about give n the frequent references in the report of the authorities to the relevant legal obligations 
under the WTO Anti -Dumping Agreement. There is no basis for this assertion. The standard of 
Article  6.2 of the DSU is not different for anti -dumping disputes. Nor is there any basis for the 
                                                
1 Total number of words of  the Appellee Submission  (including footnotes but excluding executive 
summary) = 69,232; total number of words of the Executive Summary = 5,600.  WT/DS504/AB/R/Add.1  
 
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  argument of Japan that the Panel failed to consider the nature of the measure when making its 
findings under Article  6.2 of the DSU. In its submissions before the Panel, Korea provided specific 
arguments relating to the complex n ature of an anti -dumping measure that consists of many 
intermediate findings and a great number of facts and arguments on the record. Precisely in such 
circumstances it is important to be sufficiently clear in the panel request about which of these 
interme diate findings are being challenged and why. In that respect, anti -dumping measures are at 
least as complex, if not more complex, than other disputes about tax discrimination or import 
restrictions. Furthermore, t he Appellate Body has stressed that it cann ot be assumed that the range 
of issues raised in an anti -dumping investigation will be the same as the claims that a Member 
chooses to bring in WTO dispute settlement. Thus, any pre -existing knowledge of the facts of the 
underlying investigation is not a f actor for determining the sufficiency of the claims made in a request 
for the establishment of a panel.2 Yet, that is exactly what Japan is erroneously arguing that the 
Panel should have done: to read the panel request in light of the pre -existing knowledg e of the facts 
and issues by the investigating authority. The Panel was correct not to adopt this approach.  
7. Second, Japan errs when it asserts that the Panel failed to consider the nature of the legal 
obligation. Japan argues that the Panel failed to exam ine the specific violations alleged in the panel 
request of Japan. According to Japan, the legal obligations it alleged to have been violated were 
clear and did not set forth multiple obligations. Japan 's claim is baseless. The record shows that 
Korea expl ained that the claims of Japan referred to a number of legal obligations that could be the 
basis for a number of different claims of violations, none of which were clearly identified or 
summarized in Japan 's panel request. There is no basis for the allegat ion that the Panel failed to 
consider the nature of the legal obligation. In fact, it is because of the multi -faceted nature of such 
obligations - which were pointed out by Korea in its submissions - that the Panel considered that 
Japan 's panel request fai led to summarize the "how or why" of the violation.  
8. Third, Japan errs when it alleges that the Panel confused the required brief summary of the 
"how or why" of the violation with a requirement to present a summary of the arguments supporting 
the claim. In fact, the Panel clearly indicates in its report that a complainant is not required to 
present a summary of the arguments supporting the claim but is required to provide not simply an 
indication of the legal basis of the complaint, but a brief summary of th e legal basis "sufficient to 
present the problem clearly". As per the guidance of the Appellate Body, the Panel correctly 
examined whether Japan 's panel request provided a brief summary of the "how or why" of the 
alleged violation. There is no basis for Ja pan's assertion that, in so doing, the Panel erroneously 
required a summary of the arguments of Japan. Japan is effectively arguing that it can comply with 
Article 6.2 of the DSU by simply indicating the legal basis of the claim and paraphrasing the 
obliga tion, exactly as it did in its request for consultations. The Panel found that this approach is 
incorrect and that something more is required in terms of presenting the problem clearly.  
9. Fourth, Japan errs when it alleges that the Panel committed legal err or by looking at Japan 's 
submissions to confirm its conclusion that the panel request failed to meet the "brief summary" 
standard of Article 6.2 of the DSU. Korea agrees that a panel is to examine the consistency of the 
panel request on its face and that a n incomplete panel request cannot be "cured" by a complainant 's 
subsequent submissions. However, in this case, the Panel did not seek to "cure" the panel request 
by looking at the subsequent submissions. Rather, it examined such submissions to confirm its view 
that the measure consisted of various intermediate findings and that the claims of violation related 
to specific aspects of the measure and focused on certain aspects of the legal obligation alleged to 
have been violated. The analysis of the submissio ns of Japan thus appeared to have been undertaken 
to confirm the Panel 's conclusion based on an analysis of the panel request on its face that Japan 's 
panel request was unduly generic and did not briefly summarize the claims of Japan.   
10. In sum, all four ar guments of Japan with respect to the Panel 's findings under Article  6.2 of 
the DSU are baseless.  
11. In addition, Korea notes that Japan acknowledges that the panel request was not generic by 
accident. Rather, it argues that the "demanding" approach of the Pa nel would force complainants to 
be more specific in their panel requests and that this could be unfair since it would mean that the 
complainant could not later in the course of the proceeding develop new, albeit related, claims since 
these were not express ly set out in the panel request. In particular, Japan acknowledges that its 
panel request was drafted to be sufficiently broad in nature, to ensure it would not be limited in later 
                                                
2 Appellate Body Report, Thailand – H-Beams , paras.  94-95. WT/DS504/AB/R/Add.1  
 
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  stages of the panel proceeding to specific allegations under each claim.3 Japan is aware of the fact 
that a properly presented panel request that informs the respondent of the specific case it has to 
answer will limit the freedom of the complainant to develop its argument. The vagueness of Japan 's 
panel request was therefore deli berate and strategic to ensure it was not restricted. However, Japan 
should not be rewarded for being strategically vague but rather faulted for having failed to provide 
the required brief summary sufficient to present the problem clearly. Article 6.2 play s an important 
due process role and is not simply a nuisance that should be circumvented. Indeed, the strategic 
advantage which Japan has sought to obtain is the source of the infringement to Korea 's due process 
rights. Korea considers that this is exactly  why the Panel was right to be as demanding as it was in 
respect of the sufficiency of the panel request with Article 6.2 DSU. A defendant, as well as the third 
parties for that matter, is entitled to know the case it has to answer. The deliberately vague nature 
of a panel request in order to give the complainant the freedom to develop specific claims at a later 
stage is exactly what Article 6.2 of the DSU is there to prevent. Japan 's defense confirms that the 
Panel was correct in its approach.  
12. In this dis pute, Japan has been advocating and continues to advocate a standard under 
Article  6.2 of the DSU that is divorced from the jurisprudence as developed over time by the 
Appellate  Body. Japan is arguing for a standard where it is sufficient for the complainant to list 
merely in the panel request the relevant provisions of the Anti -Dumping Agreement and essentially 
paraphrase the text of these provisions. But that is not the relevant  legal standard under Article  6.2 
of the DSU. More is required of complainants to "provide a brief summary of the legal basis of the 
complaint sufficient to present the problem clearly". Indeed, Article  6.2 of the DSU is an essential 
provision that safegua rds a fundamental aspect of the due process rights of respondents in WTO 
disputes. Its purpose is to notify the respondent of the nature of the complainant 's case with respect 
to the specific measure challenged. It is well -established that, to safeguard th e respondent 's due 
process rights, the panel request must "explain succinctly how or why the measure at issue is 
considered by the complaining Member to be violating the WTO obligation in question".4 The panel 
request must provide sufficient narrative desc ription of each claim so that the respondent can "know 
what case it has to answer… so that it can begin preparing its defence".5  
13. The Panel correctly noted, and repeated at several occasions, that Japan 's panel request 
makes "essentially generic" reference s to provisions of the Anti -Dumping Agreement as " nothing in 
the panel request links the claim to the particular circumstances of the investigation at issue".6 
Indeed, Japan 's panel request simply identifies the measure, does not provide any additional 
narrative description of the relevant findings, and then just identifies the legal basis of the complaint, 
paraphrasing what is set forth in the provision that Japan alleges to be violated. There was no brief 
summary of any kind, let alone a brief summary suf ficient to present the problem clearly. The Panel 
did not set out a new standard for examining the sufficiency of a panel request under Article  6.2 of 
the DSU, but simply applied the established jurisprudence to the facts of this case in which there 
was no  narrative of any kind by Japan. Japan errs in trying to turn this case -specific finding into a 
systemic concern.   
14. For these reasons, Korea respectfully requests the Appellate Body to reject Japan 's claims that 
the Panel 's finding that five of Japan 's claims under Articles  3.1, 3.2, 3.4, 4.1, and 6.9 of the 
Anti-Dumping Agreement were in error and thus to uphold the Panel 's finding that Japan 's panel 
request in respect of these claims failed to "present the problem clearly" as required by Article  6.2 
of the DSU, and that these claims were thus not within the Panel 's terms of reference.  
                                                
3 See, e.g. Japan’s appellant submission, para.  323; and Japan’s response to Panel Question  11 (as 
commented on in Korea’s second written submission, Annex, paras.  8-9). 
4 Appellate Body Report, China – Raw Materials , para. 226 (referring to Appellate Body Report,  
EC – Selected Customs Matters , para. 130 (italics in original)); see also Appellate Body Report,  
US – Countervailing Measures (China) , para.  4.9. 
5 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 162 (quoting 
Appellate  Body Report, Thailand – H-Beams , para. 88).  
6 See, e.g., Panel Report, paras.  7.64, 7.91, 7.129, 7.514.  WT/DS504/AB/R/Add.1  
 
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  I.2. Japan 's requests for the Appellate Body to complete the legal analysis are to be 
rejected  
15. In the event the Appellate  Body reverses any of the Panel 's findings under Ar ticle 6.2 of the 
DSU, Korea considers that Japan 's request to complete the analysis should be rejected due to a lack 
of sufficient factual findings of the Panel and undisputed facts on the Panel record.  
16. It is established jurisprudence at the WTO that the Appellate  Body may only complete the 
analysis to the extent that there are sufficient factual findings made in the panel report or undisputed 
facts on the panel record.7 It is essentially required that the panel fully explores the issue in question 
in orde r for the Appellate Body to complete the legal analysis.8 General observations by the panel 
are unlikely to contain sufficient factual findings or undisputed facts that would allow the 
Appellate  Body to complete the analysis.9 
17. In this dispute, the Panel re port merely contains a brief and incomplete description of certain 
relevant facts, essentially summarizing some but obviously not all of the factual findings made by 
the investigating authorities. Japan disputes these factual findings and argues that the i nvestigating 
authorities erred when making these findings in light of a number of other facts, most of them not 
included in the Panel 's description of the facts. Therefore, the facts as reflected in the report of the 
Panel are incomplete and disputed. Clea rly, they cannot form the basis for completing the analysis. 
In addition, with respect to those claims that were not within the Panel 's terms of reference, there 
was no analysis at all by the Panel and therefore no analysis "to complete" by the Appellate  Body 
after correction of the alleged legal error. The Panel did not explore the substantive issue and did 
not make any factual findings, let alone sufficient factual findings that would allow the Appellate  Body 
to complete the analysis. And the very few fin dings that were made under Japan 's claim of violation 
of Articles  3.1 and 3.5 of the Anti -Dumping Agreement are being appealed and are in any case 
insufficient for purposes of completing the analysis under other provisions such as Articles  3.1, 3.2, 
3.4, 4 .1 or 6.9 of the Anti -Dumping Agreement.  
18. Japan 's request for the Appellate Body to complete the legal analysis is effectively requesting 
the Appellate  Body to engage in the role of a panel as the trier of fact and law. However, that is not 
the mandate of the Appellate Body under Article  17 of the DSU.  
19. For these reasons, Korea respectfully requests the Appellate Body to reject Japan 's request to 
complete the legal analysis with respect to the five claims that were found not to be within the 
Panel 's terms of reference.  
I.3. Japan 's claims of violation of the Anti -Dumping Agreement by Korea with respect to 
the claims not within the Panel 's terms of reference are in any case unsubstantiated and 
baseless  
20. In the event the Appellate Body finds it possi ble to complete the legal analysis, 
notwithstanding Korea 's arguments to the contrary, Korea submits that the Appellate  Body should 
find that Japan has failed to demonstrate that Korea acted inconsistently with its obligations under 
the Anti -Dumping Agreem ent. 
21. At the outset, Korea notes that the substantive arguments advanced by Japan in its appellant 
submission are essentially a summary version of the same arguments that it developed before the 
Panel. Korea notes that Japan 's substantive claims are undevel oped in its appellant submission. 
Japan simply lumps together in a summary fashion a number of assertions and allegations made 
before the Panel, dropping footnotes to its submissions before the Panel. Japan does not develop a 
proper legal argument and fail s to link its claims and arguments to the alleged "undisputed facts" 
on the record. In order to respond more fully to each of these allegations, Korea would almost be 
obliged to first develop Japan 's claim and its factual basis before rebutting it by point ing to other 
facts on the record. This is not the task of Korea obviously.  
                                                
7 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para.  342. 
8 Appellate Body Reports, Colombia – Textiles , para.  5.30; and  US – Countervailing and Anti -Dumping 
Measures (China) , para.  4.124.  
9 Appellate Body Report, EC – Selected Customs Matters , paras.  278-287. WT/DS504/AB/R/Add.1  
 
- 31 - 
 
  22. In any case, in terms of substance, Korea submits that Japan 's allegations are all groundless.  
23. First, in respect of the claim pursuant to Articles  3.1 and 4.1 of the Anti -Dumping Ag reement 
regarding the domestic industry definition, Korea submits that the definition of the domestic industry 
by the Korean Trade Commission ("KTC") was based on the fact that it received questionnaire 
responses from domestic producers accounting for more  than 55% of total domestic production. 
These producers satisfied the "major proportion" requirement both by quantitatively covering the 
majority of producers and by qualitatively being defined on the basis of an objective process that 
did not involve any risk of material distortion and by sufficiently representing the total production of 
the domestic producers as a whole.  
24. Second, in respect of the claim pursuant to Articles  3.1 and 3.2 of the Anti -Dumping 
Agreement regarding the consideration of the volume of the dumped imports, Korea submits that 
KTC's analysis was based on findings of both absolute and relative increases in dumped imports. In 
particular, the volume of dumped imports increased in a bsolute terms by 78.9% in 2013 compared 
to 2012, and over the entire POI by [[9.7]]%. The finding was also corroborated by the fact that the 
dumped imports significantly increas ed their market share  in the Korean market from [[59]]% in 
2012 to [[70]]% in 2 013, at the expense of the domestic industry whose market share dropped 
from [[39]]% to [[27]]% in the same period. Relatedly, KTC noted that the du mped imports ' drastic 
price reduction and market share increase took place between 2012 and 2013 when the do minant 
Japanese exporter, [[SMC]], implemented an aggressive policy to expand its global market share 
from 32% to 50%. All of these findings demonstrate that KTC 's consideration of the volume of 
dumped imports under Articles 3.1 and 3.2 was proper.  
25. Third, in respect of the claim pursuant to Articles  3.1 and 3.2 of the Anti -Dumping Agreement 
regarding the consideration of the price effects of the dumped imports, Korea submits that 
KTC's analysis was consistent with the obligation to consider the price effect s of the dumped imports. 
The investigating authorities dynamically considered the evolution of prices of both the dumped 
imports and the like domestic products, as well as the impact of the dumped products on the price 
of the like domestic products. It was  found that prices were suppressed during the POI and even 
decreased at the end of the POI. While demand increased and costs increased as well, prices of the 
domestic products stayed low and even decreased. At the same time, prices of the dumped imports 
significantly decreased and the dumped imports gained back the market share it had previously lost 
before the dumping period of investigation. There was therefore a reasonable and reasoned basis 
for the findings of the investigating authorities. This analysi s was based on a finding of 
substitutability and competitiveness between the dumped imports and the like products, which the 
Panel confirmed were in a competitive relationship.  In addition, KTC calculated a "reasonable sales 
price", which provided a reason able basis for considering that the dumped imports were depressing 
or suppressing domestic prices to a significant degree . Thus contrary to Japan 's naked assertions, 
KTC explained, in a reasonable and reasoned manner, that the dumped imports imposed compet itive 
price pressure on the prices of the domestic like products leading to price suppression and even 
price decreases at the end of the period of investigation.  
26. Fourth, in respect of the claim pursuant to Articles  3.1 and 3.4 regarding the impact of the 
dumped imports on the domestic industry, Korea submits that KTC examined and adequately 
explained the explanatory force of the dumped imports when analyzing the state of the domestic 
industry. The authorities found that at least twelve of the indicative fac tors in Article  3.4 trended 
negatively, in particular during the period in which dumping was found to exist. Thus, record 
evidence shows that, through its analysis and findings, KTC derived the requisite understanding of 
the impact of the dumped imports on the state of the domestic industry. Japan errs when it argues 
that the investigating authorities should have examined the extent to which the injury factors were 
affected not just by the dumped imports but rather by the volume and pri ce effects of the dumped 
imports. Although there is a logical progression of enquiry under Articles 3.2, 3.4 and 3.5 as part of 
an injury analysis, that does not mean that a full -fledged and holistic causation analysis is required 
under Article 3.4, nor th at it must be demonstrated that the price effects in particular explain the 
negative trends in the injury factors.  
27. Fifth, and finally in respect of the claims that were not considered to be within the Panel 's 
terms of reference, Japan 's claim that Korea f ailed to meet the obligation under Article  6.9 regarding 
disclosure of the essential facts is equally baseless. The Korean investigating authorities released 
several documents that ensured compliance with Article 6.9, in sufficient time for interested part ies 
to defend their interests. In particular, the KTC's Final Resolution and the Final Investigation Report WT/DS504/AB/R/Add.1  
 
- 32 - 
 
  by the Office of Trade Investigation ("OTI") constitute the last and complete piece of the disclosure 
documents for the purpose of Article 6.9. Thes e documents undoubtedly disclosed all essential facts 
that formed the basis for the Final Decision by the Ministry of Strategy and Finance ("MOSF"). In 
fact, the Japanese respondents had full opportunities to review these disclosure documents and to 
defend  their interests. MOSF took the final decision whether to impose duties only seven months 
after the final disclosure of the essential acts by KTC and OTI, and after having received further 
comments from interested parties based on these disclosure document s. Moreover, Korea submits 
that the 14 separate pieces of facts Japan argues were not properly disclosed although they 
constituted "essential facts", were in fact not "essential". Japan even acknowledges this by 
confirming that the information in question concerned "intermediate" findings for the overall finding 
of injury.  
28. For these reasons, Korea respectfully requests the Appellate Body to reject Japan 's substantive 
claims of violation, even if the Appellate Body considers it is able to complete the analys is with 
respect to the five claims that the Panel considered not to be within its terms of reference and thus 
to find that Japan has failed to demonstrate that Korea acted inconsistently with Articles, 3.1, 3.2, 
3.4, 4.1 and 6.9 of the Anti -Dumping Agreeme nt. 
II. JAPAN 'S CLAIMS OF LEGAL ER ROR BY THE PANEL IN RESPECT OF ITS FINDI NGS 
UNDER ARTICLES 3.1 A ND 3.4 OF THE ANTI -DUMPING AGREEMENT AND  ARTICLES 3.1 
AND 3.5 OF THE ANTI -DUMPING AGREEMENT AR E TO BE REJECTED  
29. Japan also appeals two sets of findings that th e Panel made in respect of Japan 's claims under 
Articles 3.1 and 3.4 of the Anti -Dumping Agreement and Articles  3.1 and 3.5 of the Anti -Dumping 
Agreement. The Panel considered these claims to be within its terms of reference, but found that 
Korea did not a ct inconsistently with these legal provisions in its analysis of injury factors and in its 
causation and non -attribution analysis.  
II.1. Japan 's claim of legal error by the Panel in respect of the evaluation of the 
magnitude of the margin of dumping under  Articles 3.1 and 3.4 is without merit  
30. Japan claims that the Panel erred in law in respect of its finding under Articles  3.1 and 3.4 
rejecting Japan 's claim of violation with respect to the Korean investigating authorities ' evaluation 
of the magnitude of t he margin of dumping. Japan 's claim on appeal is to be rejected.  
31. The Panel correctly found that KTC  complied with its obligation by engaging in a substantive 
analysis of the impact of the margin of dumping on the domestic industry. Indeed, KTC examined 
and adequately explained that the margin of dumping was significant and thus considered the 
magnitude of the margin of dumping as part of its injury analysis. It found that the dumping margins 
ranging between 12 to 32% were significant, and consequently that dumping had had a significant 
impact on prices of the domestic like products. Japan errs when it as serts that more was required 
and that the analysis of this factor would have required the authorities to examine the state of the 
domestic industry in case the imports had been sold at normal value and thus "without any 
dumping".10 
32. Japan claims that the bur den is on the authorities to "say something 'substantive ' about the 
'magnitude of the margin of dumping ' and how it relates to the ultimate conclusion that the imports 
were having some adverse impact within the meaning of Article 3.4",11 but does not explai n what 
that "something substantive" is. Nor does it explain why the analysis of one factor should in fact 
encapsulate the entire injury and causation analysis. Japan fails to demonstrate any legal error in 
the Panel 's analysis given that it is undisputed t hat the authorities did evaluate this factor and did 
make findings confirming that the magnitude of the margin of dumping was significant and impactful.  
33. For the reasons stated above, Korea respectfully requests the Appellate Body to reject Japan 's 
claim on  appeal under Articles  3.1 and 3.4 of the Anti -Dumping Agreement and to uphold the 
relevant findings of the Panel in this respect.   
                                                
10 Japan’s appellant  submission , para.  267. 
11 Japan’s appellant submission, para.  268. WT/DS504/AB/R/Add.1  
 
- 33 - 
 
  II.2. Japan 's claim of legal error by the Panel in respect of the causation and 
non-attribution analysis under Articles 3.1  and 3.5 is undeveloped and without merit  
34. Japan claims that the Panel erred in law when it found that Korea did not act inconsistently 
with Articles  3.1 and 3.5 in its causation and non -attribution analysis. In particular, Japan claims 
that the Panel erred  in its interpretation of Articles  3.1 and 3.5 in the context of the analysis of 
Japan 's "independent" causation claim. In addition, Japan asserts that in the context of that same 
analysis the Panel failed to make an objective assessment of the matter in v iolation of Article  11 of 
the DSU. Finally, Japan alleges that the Panel erred in its approach to resolving Japan 's claim about 
the failure to demonstrate a causal relationship more generally. All three claims are to be rejected.  
35. Korea submits that the Pan el was correct in its legal approach and in its application of the law 
to the facts.  
36. First, Japan 's claim that the Panel erred in law by failing to consider the volume, price effects, 
and impact of the dumped imports on the domestic industry in examining the "independent" 
causation claim is undeveloped and in any case without merit. It is difficult to understand fully the 
nature of Japan 's appeal claim. In fact, the arguments that Japan is presenting in this respect 
suggest that Japan should have brought an Article  11 DSU claim. Indeed, Japan asserts that the 
Panel was internally inconsistent in its approach as it allegedly "ignored its own findings"12 and 
"never explained"13 its findings or simply failed to make "an objective examination"14 of positi ve 
evidence by considering facts in isolation. However, Japan fails to bring such an Article  11 DSU claim 
in respect of these aspects of the Panel 's analysis. That is one reason for rejecting Japan 's claim. In 
any case, Japan 's claims of error are baseless . Japan fails to explain why the Panel 's approach which 
was largely based on examining volume, price effects and overall impact of the dumped imports, 
was "myopic"15 or "too narrowly"16 focused and how the Panel would have erred in law. The Panel 
was simply following the text of Article 3.5 of the Anti -Dumping Agreement, which expressly refers 
to the effects of dumping, as set forth in paragraphs  2 and 4. The Panel otherwise addressed the 
specific claims and arguments that were made by Japan and rejected most  of these.  
37. In addition, Japan 's separate claim under Article  11 of the DSU with respect to the Panel 's 
alleged failure to consider Japan 's rebuttal argument on the issue of the "reasonable sales price" is 
equally flawed. Japan acknowledges that it "did no t focus"17 on any such rebuttal arguments as part 
of its claims on causation which were part of the Panel 's terms of reference. Since Japan never raised 
such rebuttal argument in the context of the claim in question, it is unclear on what basis the Panel 
could be accused of having "ignored"18 these rebuttal arguments. In any case, it does not suffice 
under Article 11 of the DSU to assert that an argument, let alone a rebuttal argument, was not 
addressed by the Panel to conclude that the Panel failed to make a n objective assessment of the 
matter. Japan has failed to demonstrate that the alleged disregard of this argument constituted an 
egregious error that calls into question the good faith of the Panel. Japan 's bare assertion of an 
alleged failure to respect t he proper standard of review is thus undeveloped and in any case baseless.  
38. Finally, Japan claims that the Panel failed to address the alleged lack of correlation among 
various factors when evaluating Japan 's other claim about the cau sal relationship under  Articles  3.1 
and 3.5 of the Anti -Dumping Agreement. Japan 's claim is merely a repetition of the failed argument 
it made before the Panel and is to be rejected. Japan 's claim is again more akin to an Article  11 DSU 
claim as it asserts that the Panel "impro perly refused to address the lack of meaningful correlation"19 
and "ignored"20 Japan 's arguments. However, Japan did not bring an Article  11 DSU claim in respect 
of these matters. In any case, Japan 's claim is not supported by the facts on the record. The fi ndings 
of the Panel clearly show that it examined the question of correlation and considered that the 
investigating authorities provided a reasoned and adequate explanation of the existence of 
correlation during the period of investigation. Japan disagrees . However, that does not make the 
Panel 's contrary finding an error of law. Japan does not develop any legal claims but simply asserts 
                                                
12 Japan’s appellant submission, para.  284. 
13 Japan’s appellant submission, para.  286. 
14 Japan’s appellant submission, para.  287. 
15 See, e.g. Japan’s appellant submission, para.  281. 
16 See, e.g. Japan’s appellant su bmission, paras.  277, 282.  
17 Japan’s appellant submission, para.  295. 
18 Japan’s appellant submission, para.  295. 
19 Japan’s appellant submission, para.  299. 
20 Japan’s appellant submission, para.  299. WT/DS504/AB/R/Add.1  
 
- 34 - 
 
  that "Japan 's point [that there was not sufficient correlation] is correct, and it was legal error for the 
Panel to dismi ss it".21 Korea disagrees.  
39. For the reasons stated above, Korea respectfully requests the Appellate Body to reject Japan 's 
claim on appeal under Articles  3.1 and 3.5 of the Anti -Dumping Agreement as well as its limited 
claim under Article  11 of the DSU and to uphold the relevant findings of the Panel in this respect.  
III. CONCLUSION  
40. Korea respectfully requests the Appellate Body to reject in their entirety Japan 's claims on 
appeal as reflected in its Notice of Appeal and as developed in its appellant submission, and to uphold 
the Panel 's findings in respect of the matters covered by Japan 's claims on appeal.  
 
 
 
                                                
21 Japan’s appellant submission, para.  300. WT/DS504/AB/R/Add.1  
 
- 35 - 
 
  ANNEX  B-4 
EXECUTIVE SUM MARY OF JAPAN'S APPE LLEE'S SUBMISSION1 
1. Korea seems determined to shield the deeply flawed KTC  determination of injury from any 
critical scrutiny. Korea's position is that Japan's Panel Request should have been rejected in its 
entirety, and the Panel should not have addressed any of Japan's substantive claims. Korea's 
arguments are basically that t he Panel findings were internally inconsistent, and that Japan's request 
did not provide any "how or why". Japan's Appellant Submission has already demonstrated the 
serious and pervasive errors in the Panel's approach to Article 6.2 of the DSU with regard to those 
claims found not to be within the terms of reference, and has extensively addressed the Panel's 
fundamental error in allowing the phrase "how or why" to replace the actual standard of Article  6.2. 
2. Korea's attack on the substance of the Panel's findings also has little credible basis. Korea 
misunderstands the proper standard under Articles 3.1 and 3.5  of the Anti -Dumping Agreement  to 
find that dumped imports are "causing injury". The Panel was correct to find that a flawed finding of 
price effects eliminates a fundamental building block of a proper finding of "causing injury", and thus 
renders that finding of causation invalid and inconsistent with Articles 3.1 and 3.5. Korea tries to 
bolster its arguments with complaints that the Panel ig nored the proper standard of review under 
Article  11 of the DSU, but these arguments are nothing more than recycled arguments on the merits, 
and do not provide any basis to conclude the Panel applied the wrong standard of review. And 
Korea's arguments abou t Article  17.6 of the Anti -Dumping Agreement largely repeat its arguments 
about Article  11. 
I. THE PANEL CORRECT LY FOUND JAPAN'S CLA IMS UNDER ARTICLES 3 .1 AND 3.5 OF 
THE ANTI -DUMPING  AGREEMENT TO BE WITHIN ITS TER MS OF REFERENCE IN 
ACCORDANCE WITH ARTI CLE 6.2 OF THE DSU  
3. All of Japan's claims in its Panel Request were properly within the Panel's terms of reference 
in accordance with Article 6.2 of the DSU. T he Panel's analysis as to whether Japan's claims were 
properly before the Panel was deficient in multi ple respects. But whereas the Panel limited its errors 
to some of Japan's claims, while finding the others to be within the terms of reference, Korea now 
seeks to expand the Panel's errors rather than to correct them.  
4. All of the claims brought by Japan in its Panel Request satisfy the specific legal standard set 
forth by Article  6.2 of the DSU, which sets forth two requirements: to "identify the specific measures 
at issue" and to "provide a brief summary of the legal basis of the complaint", which, taken to gether, 
should be "sufficient to present the problem clearly". The analysis as to whether a claim satisfies the 
requirements of Article  6.2 "must be made on a case -by-case basis, taking into account the nature 
of the measure at issue and the manner in whic h it is described in the panel request, as well as the 
nature and scope of the provision(s) of the covered agreements alleged to have been violated". 
Notwithstanding the foregoing, the Panel incorrectly relied on the phrase "how or why" as the 
standard for  determining whether the claims by Japan were outside of its terms of reference.  
5. Article  6.2 of the DSU does not contain an obligation to provide the arguments in support of 
a claim in the terms of reference. Moreover, a panel request should be interpreted  as a whole as it 
existed on the date of its submission. Although Korea seems to agree with these principles, in its 
analysis, Korea disregards them and builds its appeal on the basis that Japan did not explain "how 
or why" the measures were inconsistent w ith the WTO Agreements.  
6. Instead of submitting one general claim that Korea's anti -dumping measures were inconsistent 
with Articles 3.1 and 3.5, Japan presented three different claims, each referring to a distinct 
obligation set forth in Article  3.5. In do ing so, the language of Japan's claims 4, 5, and 6, identified 
very specifically which of these obligations each claim referred to. Claim 4 focused on the "causal 
relationship" between imports and the condition of the domestic industry. Claim 5 focused on other 
known factors and non -attribution. Claim 6 focused on the ultimate finding of "causing injury" based 
                                                
1 The Appell ee Submission being summarized has 28,265 words. This Executive Summary has 
2,803 words, and thus complies with the Appellate Body guidance for executive summaries . WT/DS504/AB/R/Add.1  
 
- 36 - 
 
  on all facts, including the facts about volume, price effects, and impact; specifically, it focused on 
the ultimate conclusion of causation, and whet her that ultimate conclusion had a proper foundation 
in the underlying facts about volume, price effects, and impact. Because each of these claims refers 
to one specific obligation within Articles 3.1 and 3.5, there is no ambiguity or misunderstanding, and  
they present the problem clearly given the nature and scope of the obligations.  
II. THE PANEL CORREC TLY FOUND THAT KOREA  HAD ACTED INCONSIST ENTLY WITH 
ARTICLES 3.1 AND 3.5  OF THE ANTI -DUMPING  AGREEMENT  
7. Korea interprets the obligations of Article  3.5 too n arrowly, leaving this key provision with 
little substantive meaning. Findings about volume, price effects, and impact pursuant to Articles  3.2 
and 3.4 are important building blocks, but do not answer the distinct question about "causal 
relationship" that m ust be addressed under Article  3.5. Nor do the findings under Articles  3.2 and 
3.4 immunize those issues from further scrutiny as part of the analysis under Article  3.5. For any 
alleged findings under Articles 3.2 and 3.4 must be "linked" and follow a "log ical progression" through 
the causation analysis under Article 3.5. Thus, flaws in an earlier analytic step may also infect the 
final step of finding that imports were in fact causing injury.  
8. The Panel correctly found that Articles 3.1 and 3.5 require mor e than confirming that the 
authority had complied with the second sentence of Article  3.2 regarding price effects. Price effects 
under the second sentence of Article  3.2 are certainly part of the causation analysis, but that analysis 
alone does not complet e what is required by Articles 3.1 and 3.5 to reach an ultimate conclusion 
about "causing injury ."  
9. The Panel correctly found that price comparability was a fundamental part of price effects 
under Article  3.2 and causation under Articles 3.1 and 3.5. The e xistence of some degree of general 
competition or "likeness" is not enough nor does it establish the existence of a genuine competitive 
relationship. If the authority is comparing prices, and using those comparisons to draw inferences 
about price effects a nd causation – as the KTC did in this case – the authority must ensure that it is 
comparing prices that are in fact comparable. Japan made this argument before the Panel, the Panel 
found the argument to be legally and factually correct, and thus reached a procedurally and 
substantively proper conclusion that the KTC failed to ensure the comparability of prices it was 
comparing.  
10. The Panel correctly faulted the KTC for failing to recognize the extent to which the evidence 
of pervasive overselling for the prod uct overall fatally undermined the KTC's price effects analysis 
and determination of causation and was thus contrary to Articles 3.1 and 3.5. The KTC relied on 
individual and isolated instances of underselling and competitive pric ing behaviour to reach a 
conclusion that imports caused price suppression and depression for the domestic like product as a 
whole. The Panel found that the KTC failed to provide an explanation and analysis of how and to 
what extent the prices of the domestic like product as a whole  were actually affected in light of the 
undisputed and consistent overselling by the subject imports, even though such explanation and 
analysis is necessary.  
11. The Panel correctly found that the flaws in the KTC's analysis of price effects under Article  3.2 
and the integration of these findings in the KTC's analysis of causation were so substantial as 
necessarily to render its determination of causation inconsistent with Articles  3.1 and 3.5. The Panel 
did not, as Korea claims, characterize some flaws in cert ain parts of KTC's price effect analysis as 
constituting a violation of Article  3.5 in isolation. Rather, the Panel found the basis for the KTC's 
price effects analysis and findings of price suppression and depression was so fundamentally flawed 
that it co uld not sustain the KTC determination that dumped imports were "causing injury" under 
Article  3.5. The KTC failed to consider adequately the important evidence of consistent overselling 
and failed to ensure price comparability in reaching its conclusion on  causation. These errors did 
"plainly disprove" the alleged causation.  
12. In its Other Appellant Submission, Korea repeats the KTC's flawed findings of price suppression 
and depression from its Final Resolution, cites the individual examples of alleged "aggre ssive pricing 
behaviour," and attempts to provide a more reasoned explanation of how individual examples 
support its broader price effects determination. Korea's arguments, however, ignore key parts of 
the Panel's findings on causation, ignore the other ke y evidence that the KTC also disregarded, and WT/DS504/AB/R/Add.1  
 
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  should be dismissed; Korea faults the Panel for failing to conduct the complete and reasoned analysis 
the Panel in fact actually provided.  
13. Korea's argument about Article  3.5 in its Other Appellant Submission a ppears to contradict 
what Korea argued before the Panel in response to Japan's claims that the Korean authorities' 
findings were inconsistent with Articles 3.2 and 3.4. Having argued for the analysis not to be part of 
Articles 3.2 and 3.4, now Korea wants to put the analysis back in those provisions. Japan welcomes 
Korea's arbitrary change in its legal position as substantive support for Japan's claims on appeal 
about Articles 3.2 and 3.4, and the Panel's overly narrow view of those provisions.  
III. THE PAN EL PROPERLY  MADE AN OBJECTIVE A SSESSMENT OF THE MAT TER AS 
REQUIRED BY ARTICLE  11 OF THE DSU AND AR TICLE  17.6 OF THE AN TI-DUMPING 
AGREEMENT  
14. There was no violation of Article  11 of the DSU. Not every error gives rise to a violation of 
Article  11. Korea's cla im under Article  11 of the DSU is really just a repackaged version of its 
disagreement with the Panel findings on the merits of these issues, and has not been supported by 
specific and independent arguments.  
15. First, the Panel findings about the terms of ref erence were correct, and did not reflect the lack 
of any objective assessment. The Panel applied Article  6.2 of the DSU  to various claims and reached 
different conclusions. But the mere fact that the Panel reached different conclusions does not 
establish a  violation of Article  11 of the DSU.  
16. Second, the Panel did not "make Japan's case" regarding the lack of competition. Contrary to 
Korea's argument, the existence of a competitive relationship depends very much on the "the details 
of the comparison." The Pa nel was well within its authority to critically examine Korea's evidence, 
and such careful and critical examination is very much part of the Panel's job under Article  11, and 
the Panel can properly consider what the evidence shows, but also what the eviden ce does not show.  
17. Third, the Panel did not disregard any evidence about the effect of imports presented by Korea 
that had been part of the KTC analysis. The Panel properly focused on what the KTC said in its 
determination, and not on post hoc  arguments pr esented by Korea that could not be found in the 
KTC determination. This part of Korea's argument is simply a subsidiary claim and subsidiary 
arguments alone cannot establish a violation of Article  11. 
18. Fourth, the Panel findings were not internally inconsis tent. This argument by Korea ignores 
the fact that the Panel was addressing three separate claims, each with a distinct focus. That the 
Panel may have disagreed with parts of Japan's arguments on other issues relating to distinct claims 
grounded in differe nt parts of Article  3.5 of the Anti -Dumping Agreement  does not create any internal 
inconsistently. This argument is another "subsidiary argument" that alone cannot establish a 
violation of Article  11. 
19. Fifth, contrary to Korea's argument, the Panel did not disregard any evidence about price 
comparisons and overselling. The two specific items of evidence allegedly ignored — the comparison 
of average price trends, and Exhibit KOR -57 — were in fact fully considered by the Panel. Regarding 
price trends, Korea's own submission cites to the portion of the report where the Panel considered 
this point, making clear that the Panel is referring specifically to a KTC finding of price undercutting 
in the sense of the second sentence of Article  3.2. Regarding Exhibit KOR -57, the Panel correctly 
rejected Korea's efforts to present post hoc  justifications with no basis in the KTC Determination as 
written.  
20. There was no violation of Article  17.6 of the Anti -Dumping Agreement. A careful review by the 
Panel is consistent with th e proper standard of review, and is not an improper de novo  review. Korea 
has not distinguished the standard of review under Article  17.6 of the Anti -Dumping Agreement from 
the standard of review under Article  11 of the DSU and has not provided any argumen t that 
Article  17.6 of the Anti -Dumping Agreement imposes a different standard than Article  11 of the DSU. 
Both preclude a panel from engaging in de novo  review. Korea presented four specific arguments, 
but none of these arguments show the Panel actually e ngaged in improper de novo  review.   WT/DS504/AB/R/Add.1  
 
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  IV. THE PANEL CORRECTLY  FOUND THAT KOREA HA D ACTED INCONSISTENT LY WITH 
ARTICLES 6.5 AND 6.5 .1 OF THE ANTI -DUMPI NG AGREEMENT  
21. Japan's claim 8 — that Korea treated certain information as confidential without good cause 
— and claim 9 — that Korea did not furnish non -confidential summaries of confidential information, 
and where it did, such summaries were deficient — provide a "brief summary of the legal basis" and 
"present the problem clearly" and were therefore properly bef ore the Panel. Japan expressly 
identified Articles 6.5 and 6.5.1 of the Anti -Dumping Agreement as the specific provisions at issue 
for these two claims. Moreover, Japan identified the obligation to treat as confidential information 
provided as confidential  by the parties "upon good cause shown" (claim 8 related to Article  6.5), and 
the obligation to furnish non -confidential summaries "in sufficient detail" (claim 9 related to 
Article  6.5.1). The language used by Japan in claims 8 and 9 presented the problem  clearly by 
connecting the measure at issue and the alleged inconsistencies, in light of the nature and scope of 
the particular obligations, and regardless of Korea's "how or why" standard. Moreover, the Panel's 
determination that the claims were within it s terms of reference, was based on the language of the 
Panel Request, not any subsequent submissions by Japan.  
22. The Panel properly found that Korea acted inconsistently with Article  6.5 when it granted 
confidential treatment without any showing of good cau se that would justify the confidential 
treatment required from the applicants. The Panel also correctly found that the KTC failed to require 
that the submitting parties provide a sufficient non -confidential summary of certain information, 
thus acting incon sistently with Articles 6.5.1 of the Anti -Dumping Agreement.  
23. The requirement under Article  6.5 to show good cause applies to all information for which 
confidential treatment is sought, whether it is by nature confidential or submitted on a confidential 
basis. The requirement is " upon good cause shown ", and so the status as confidential information 
exists only "upon" the meeting of the condition; and that good cause must be affirmatively "shown". 
Absent some showing  of "good cause", a panel has no way to rev iew what the authority has done 
and whether it complies with Article  6.5.  
24. Thus, the text of Article  6.5 requires more than an "implicit assertion". As the Panel correctly 
found, there is no evidence on the record that a showing of good cause was required or made by 
the applicants before the KTC granted confidential treatment. Despite Korea's claim, there was an 
absence of anything  in the record, linking the information for which confidential treatment was 
granted to the categories of confidential treatment  identified in Korean law. Moreover, the existence 
of legislation containing defined categories of information that will normally be treated as confidential 
does not relieve the investigating authority of its obligation under Article  6.5 to determine that "good 
cause" has been "shown" to justify the confidential treatment requested by the submitting party.  
25. The requirement under Article  6.5.1 is to ensure non -confidential summaries contain 
"sufficient detail" to know the substance of the information, and thus to allow a party to defend its 
interests. The non -confidential summaries submitted by interested part ies did not contain sufficient 
detail to permit a reasonable understanding of the substance of the confidential information. Thus, 
the Panel properly concluded that the KTC violated Article  6.5.1 as the communications identified by 
Japan cannot be said to have contained a summary in sufficient detail to "permit a reasonable 
understanding of the substance of the information submitted in confidence."  
 
 
_______________  
 
 WT/DS504/AB/R/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF THE THI RD PARTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of the European  Union 's third participant's submission  40 
Annex  C-2 Executive summary of the United  State s' third participant's submission  42 
 
 
 WT/DS504/AB/R/Add.1  
 
- 40 - 
 
  ANNEX  C-1 
EXECUTIVE SUMMARY OF  THE EUROPEAN  UNION'S THIRD PARTIC IPANT'S SUBMISSION1 
A.  Article  6.2 DSU  
1. The European  Union considers that the crucial point in the present dispute is the degree of 
specificity required for the clear presentation of the problem, pursuant to Article  6.2 of the DSU. The 
Appellate  Body has specified that the brief summary "aims to exp lain succinctly how or why the 
measure at issue is considered (…) to be violating the WTO obligation in question." In the 
European  Union's understanding, this "how or why" is not an additional condition; it is rather a 
clarification of the notion of "brief  summary sufficient to present the problem clearly".  
2. A mere listing of the treaty provisions claimed to have been violated can be, but is not always 
sufficient to present the problem clearly.  
3. For example, mere listing can be insufficient where the article s listed establish not one single, 
distinct obligation, but rather multiple obligations. In light of the rationale underlying this example 
(to allow the respondent to identify what "the problem is" so that it can duly defend itself), the 
European Union con siders that, in principle, anything that has as its effect that the mere reference 
to an allegedly violated treaty provision doesn't allow the complainant to identify what is concretely 
the case brought against it can potentially make the mere listing insu fficient.  
4. The nature and scope of the obligations at stake play a crucial role. Thus, the Appellate  Body 
will have to look closely at the complexity or not of the obligations at stake in the present case, in 
particular those of Article 3 of the Anti -Dumpi ng Agreement; and the impact of the fact that Japan's 
claims were combined  claims of violations of the overarching general obligation under Article  3.1, 
and the subsequent paragraphs of Article  3, as well as Article  4. 
5. Furthermore, the European Union considers that a possible complexity concerning the 
measure at issue can have a bearing on the assessment whether the summary of the legal basis is 
sufficient to present the problem clearly. While for the identification  of the measure at issue, requests 
for establishment do not require the "specific aspects" of the "specific measures" to be identified, it 
should not be ruled out that this could be necessary, in certain circumstances, to "present the 
problem clearly"; in parti cular in cases where a broad and complex measure is alleged to violate a 
broad, multi -faceted or complex obligation.  
B. Article  3.5 ADA  
6. The European Union considers that since the examination under Article 3.5 encompasses "all 
relevant evidence" before th e investigating authority, including the volume of dumped imports and 
their price effects listed under Article 3.2, as well as all relevant economic factors concerning the 
state of the domestic industry as listed in Article 3.4, the Panel was entitled to t ake into account the 
volumes, prices effects and impact considered under Articles 3.2 and 3.4 for the purpose of 
determining causation under Article 3.5  
7. Moreover, an investigating authority is required to consider cumulatively all relevant evidence 
and pr operly weigh positive and negative factors when considering causation.  
8. When assessing causation under Article  3.5 an investigating authority is entitled to carry out 
price comparisons that are generally used under Article  3.2.  
9. The European  Union also cons iders that the lack of correlation does not preclude the existence 
of a causal link, provided that a very compelling analysis is provided.  
                                                
1 Total number of words (including footnotes but excluding executive summary) = 6824; total number of 
words of the executive summary = 610.  WT/DS504/AB/R/Add.1  
 
- 41 - 
 
  10. Furthermore, when a panel identifies an error in the causation determination of an 
investigating authority, it cannot  further assess that error taking into account the entire evidence 
since this would amount to conducting a  de novo  review of the evidence or to substituting its 
judgment for that of the investigating authority . 
 
 WT/DS504/AB/R/Add.1  
 
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  ANNEX  C-2 
EXECUTIVE SUMMARY OF  THE UNITED STATES' THIRD PARTICIPANT'S SUBMISSION  
1. Among other matters, Japan and Korea appeal findings that certain claims were within or 
outside the Panel's terms of re ference. The Parties dispute whether DSU Article  6.2 requires 
complainants to articulate "how and why" a challenged measure is inconsistent with a provision of a 
covered agreement.  
2. DSU Article  6.2's requirement that a panel request "provide a brief summar y of the legal basis 
of the complaint sufficient to present the problem clearly" entails connecting the challenged measure 
with the provision allegedly infringed. Thus, a panel request that identifies the measure at issue and 
links the measure directly to a provision of a covered agreement meets the prerequisite for stating 
a claim under DSU Article  6.2. Where the provision is detailed and specific, paraphrasing the 
provision may be precise enough to "present the problem clearly."  
3. DSU Article  6.2 does not require complainants to explain "how or why" a measure is 
inconsistent with a provision. Such an exercise might require complainants to develop legal theories 
or present examples in their panel requests and such statements would amount to argumentation. 
Indeed, the Appellate Body has found examples in panel requests to be "in the nature of arguments 
rather than claims." DSU Article  6.2 requires "the claims – not the arguments be set out in a panel 
request in a way that is sufficient to present the problem clearly."  
 
_______________  
 
 
 WT/DS504/AB/R/Add.1  
 
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  ANNEX  D 
PROCEDURAL RULING S 
Contents  Page  
Annex  D-1 Procedural ruling of 6 June 2018 regarding the European Union's request to 
extend the third participants ' submission deadline  44 
Annex  D-2 Procedural ruling of 26 March  2019 regarding BCI 45 
 
 
 WT/DS504/AB/R/Add.1  
 
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  ANNEX  D-1 
PROCEDURAL RULING  
6 June 2018 
1. On Wednesday, 30  May 2018, the Chair of the Appellate  Body received a communication from 
the European  Union  requesting that the Division hear ing this appeal modify the deadline for the filing 
of third participants' submission s in this appeal . In its letter,  the European  Union noted that the 
Working Schedule set the date for the submission of appellees' submissions as Friday, 15  June 2018, 
and the date for the filing of the third  participants' submissions as Monday, 18  June 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 participant s' submissions. The European  Union 
requested the Division  to extend the deadline for the filing of the third  participants' submissions to 
Friday, 22  June 2018, and thus to provide third  participants with four full working days following the 
deadline for su bmission of the appellees' submissions.  
2. On 31 May 2018, and on behalf of the Division hearing this appeal, the Chair of the 
Appellate  Body invited Korea, Japan and the other third participants in this dispute to comment in 
writing on the communication fro m the European  Union by 12:00 noon on Monday, 4  June 2018.  
3. On 1  June 2018 the Chair received a letter from Korea stating it would defer to the 
Appellate Body and has no specific additional comments to offer; and on 4  June 2018 the Chair 
received a letter from Japan indicating it had no specific comments on the European  Union's request.  
4. In 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 exten d the deadline for 
filing third  participant's submissions and notifications under Rule  24(1) and (2) of the Working 
Procedures to Friday, 22  June 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, 28  May 2018 
Appellant 's submission  and Rule 21(1)  Monday, 28  May 2018 
executive summary  
Notice of Other Appeal   Rule 23(1)  Monday, 4  June 2018 
Other appellant 's submission  and Rule 23(3)  Monday, 4  June 2018 
executive summary  
Appellee 's submission (s) and  Rules  22  Friday, 15  June 2018 
executive summa ry(ies)  and 23(4)  
Third participants' submissions  and Rule 24(1)  Monday, 18 June 2018  
executive summaries   Friday, 22  June  2018  
Third participants'  notifications   Rule 24(2)  Monday, 18 June 2018  
  Friday, 22  June  2018  
 WT/DS504/AB/R/Add.1  
 
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  ANNEX  D-2 
PROCEDURAL RULING  
26 March  2019 
1. On 4 March  2019, Japan and Korea addressed a joint communication to the Presiding Member 
of the Appellate Body Division hearing this appeal. In its joint communication, the participants 
recalled that the Panel adopted the additional working procedures on b usiness confidential 
information (BCI) in its proceedings.1 With a view to providing the same level of protection in these 
appellate proceedings for the BCI submitted to the Panel and on the Panel record, the participants 
requested the Appellate Body Division hearing this appeal to adopt additional working procedures 
for the protection of BCI pursuant to Rule 16(1) of the Working Procedures for Appellate Review 
(Working  Procedures). The participants attached to the joint communication a proposal on draft 
additional working procedures for the Appellate Body Division's consideration.  
2. On 5 March 2019, the Presiding Member of the Division hearing this appeal invited third 
participants to provide any comm ents on the joint communication, should they so wish, by 12 noon 
on 8 March 2019. No responses were received from the third participants.  
3. The Division makes its ruling having considered the joint communication addressed by Japan 
and Korea substantiating t he need for additional protection of BCI, together with proposed additional 
working procedures attached thereto.2   
4. We recall that any additional procedures adopted by the Appellate Body to protect sensitive 
information must conform to the requirement in R ule 16(1) of the Working Procedures that such 
procedures not be inconsistent with the Understanding on Rules and Procedures Governing the 
Settlement of Disputes (DSU), the other covered agreements, or the Working Procedures 
themselves.3 Moreover, in adopti ng such procedures, the Appellate  Body must ensure that an 
appropriate balance is struck between the need to guard against the risk of harm that could result 
from the disclosure of particularly sensitive information, on the one hand, and the integrity of t he 
adjudicative process, the participation rights of third participants, and the rights and systemic 
interests of the WTO  membership at large, on the other hand.4 This means, among other things, 
that the Appellate Body should bear in mind the need for tran sparency and "the rights of third parties 
and other WTO Members under various provisions of the DSU"5, and "ensure that the public version 
of its report circulated to all Members of the WTO is understandable."6   
5. We also recall that it is for the adjudicat or to decide whether certain information calls for 
additional protection of confidentiality. Likewise, it is for the adjudicator to decide whether and to 
what extent specific arrangements are necessary, while safeguarding the various rights and duties 
that are implicated in any decision to adopt additional protection.7 In that connection, the Appellate 
Body has considered that the treatment of information as confidential by an investigative authority 
in domestic proceedings should not be conflated with "the  confidential treatment of information 
provided by a WTO Member to a panel or the Appellate  Body in the context of WTO dispute 
                                                
1 Panel Report, para. 1.7 and Annex A -2. 
2 These include the disputes in EC and certain member States – Large Civil Aircraft , US ‒ Large Civil 
Aircraft (2nd complaint) , US – Tax Incentives , US – Washing Machines , and EU – Fatty Alcohols .  
3 Appellate Body Report, EC and certain member States – Large Civil Aircraft  (Article 21.5 – US), 
Annex  D-1, Procedural Ruling of 26 October 2016,  para. 10. 
4 Appellate Body Report, US – Tuna II (Mexico) (Article  21.5 – Mexico) , para.  5.3 (referring to 
Appellate  Body Report, EC and certain member States – Large Civil Aircraft , Annex III, Procedural Ruling of 
10 August 2010, para.  15). 
5 For example, Articles  12.7 and 16 of the DSU. See Appellate Body Report, Japan – DRAMS (Korea) , 
para. 279. 
6 Appellate Body Report, Japan – DRAMS (Korea) , para.  279. 
7 Appellate Body Report, EC and certain member States – Large Civil Aircraft  (Article 21.5 – US), 
Annex  D-1, Procedural Ruling of 26 October 2016, para. 13.  WT/DS504/AB/R/Add.1  
 
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  settlement proceedings "8, and that " whether information treated as confidential pursuant to 
Article  6.5 of the Anti -Dumping Agree ment, and submitted by a party to a WTO panel under the 
confidentiality requirements generally applicable in WTO dispute settlement, should receive 
additional confidential treatment as BCI is to be determined in each case by the WTO panel ".9 We 
also note t hat neither participant has appealed the Panel's decisions regarding the protection of BCI, 
and that there are also issues of practicality to consider. We will therefore proceed on the basis of 
how the information was treated before the Panel.   
6. Having rea ffirmed the relevant considerations that guide our decision, we turn to the 
participants' proposed procedures, which are, to a large extent, similar to the procedures adopted 
by the Appellate  Body in United States – Anti-Dumping and Countervailing Measures  on Large 
Residential Washers from Korea  and European Union – Anti-Dumping Measures on Imports of Certain 
Fatty Alcohols from Indonesia , insofar as they protect BCI . 
7. We take note of the procedures that the participants have jointly proposed and do not consider 
that they unduly affect the Appellate  Body's ability to adjudicate the dispute, the rights of the third 
participants to be heard, or the rights and interests of the WTO  membership at large. We note in 
this respect the absence of comments by third participants regarding the participants' joint request 
for additional protection of BCI. In light of similar procedures we have adopted in the past, we have 
taken into account t he proposed procedures in the additional procedures that we adopt below. These 
procedures ensure that Appellate  Body Members and assigned  Appellate Body Secretariat staff have 
sufficient access to the entirety of the Panel Report, the submissions, and the record of the dispute, 
while limiting the risk of inadvertent disclosure of  BCI. Finally , we note that, as in past disputes in 
which additional procedures  to protect  BCI were adopted, we will make every effort to draft our 
report without including BCI.  
8. Bearing in mind the above considerations, we adopt the following additional procedures for 
the purposes of this appeal:  
Additional Procedures to Protect Business Confidential Information  
i. For the purpose of these appellate proceedings, BCI shall include: (i) the information marked 
by the participants as BCI and enclosed within square brackets in their submissions to the 
Appellate  Body; and (ii) the information designated by the Panel as BCI  in its Report and on the 
Panel record.  
ii. The additional BCI protection in these appellate proceedings is provided according to the 
following terms, bearing in mind that the participants and third  participants have already filed their 
written submission s: 
a. No person may have access to information that qualifies as BCI, except a member of the 
Appellate Body or the staff of the Appellate Body Secretariat, an employee of a participant 
or third participant, or an outside advisor for the purposes of this dispu te to a participant 
or third participant. However, an outside advisor is not permitted access to BCI if that 
advisor is an officer or employee of an enterprise engaged in the production, export, or 
import of the products that were the subject of the anti -dumping investigation at issue in 
this dispute.  
b. A participant or third participant having access to BCI shall treat it as confidential and shall 
not disclose that information other than to those persons authorized to receive it pursuant 
to these procedures.  Each participant and third participant shall have responsibility in this 
regard for its employees as well as for any outside advisors employed for the purposes of 
this dispute. BCI obtained under these procedures may be used only for the purpose of 
provid ing information and argumentation in this dispute and for no other purpose.  
c. A participant or third participant that submits a document (including written submissions 
and oral statements) containing BCI to the Appellate Body after the adoption of these BCI 
procedures shall clearly identify such information in the document filed. The participant or 
                                                
8 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.313.  
(emphasis  original)  
9 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.316.  WT/DS504/AB/R/Add.1  
 
- 47 - 
 
  third participant shall mark the cover and/or first page of the document  containing BCI, 
and each subsequent page of the document, to indicate the presence of such  information. 
The specific information in question shall be placed within double brackets, as follows: 
[[…]]. The first page or cover of the document shall state "Contains Business Confidential 
Information", and each page of the document shall contain the notice "Contains Business 
Confidential Information" at the top of the page.  
d. A participant or third participant that intends to make an oral statement at the hearing 
containing BCI shall inform the Division in advance, such that the Division can ensure that  
only persons authorized to have access to BCI pursuant to these procedures are in the 
room to hear that statement.  
e. The Appellate Body will not disclose BCI, in its Report or in any other way, to persons not 
authorized under these procedures to have access  to BCI. The Appellate Body may, 
however , make statements of conclusion drawn from that information.  
f. These terms shall apply to the presentation of information designated as BCI submitted to 
the Appellate Body prior to the adoption of these BCI procedures.  
 
__________