WT/DS505/AB/R  
 
6 February 2020  
(20-0910) Page: 1/38 
  Original: English  
 
  
UNITED  STATES  – COUNTERVAILING ME ASURES ON  
SUPERCALENDERED PAPE R FROM CANADA  
AB-2018-8 
Report of the Appellate  Body 
 
 WT/DS505/AB/R  
 
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  Table of Contents  
 
1   INTRODUCTION  ................................ ................................ ................................ ..........  8 
2   ARGUMENTS OF THE  PARTICIPANTS  ................................ ................................ .........  12 
3   ARGUMENTS OF THE  THIRD PARTICIPANTS  ................................ ..............................  12 
4   ISSUES RAISED IN  THIS APPEAL  ................................ ................................ ..............  12 
5   ANALYSIS OF THE APPELLATE  BODY  ................................ ................................ .........  12 
5.1   Alleged OFA -AFA measure  ................................ ................................ ........................... 13 
5.1.1    Introduction  ................................ ................................ ................................ ............ 13 
5.1.2    The Panel's findings  ................................ ................................ ................................ .13 
5.1.3    Scope of appellate review under Article  17.6 of the DSU  ................................ ............... 15 
5.1.4    Whether the Panel erred by finding that the alleged OFA -AFA measure amounted to a 
"measure" that could be challenged under the DSU as "ongoing conduct"  ................................ .16 
5.1.4.1    Precise content of the alleged OFA -AFA measure  ................................ ....................... 17 
5.1.4.2    Repeated application of the alleged OFA -AFA measure  ................................ ............... 19 
5.1.4.3    Likelihood of continued application of the alleged OFA -AFA measure ............................ 23 
5.1.5    Conclusion  ................................ ................................ ................................ .............. 25 
5.2   Article  12.7 of the SCM  Agreement  ................................ ................................ ............... 25 
5.2.1    Introduction  ................................ ................................ ................................ ............ 25 
5.2.2    The Panel's findings  ................................ ................................ ................................ .25 
5.2.3    Whether the Panel erred under Article  12.7 of the DSU by failing to provide a "basic 
rationale"  ................................ ................................ ................................ .......................... 28 
5.2.4    Whether the Panel erred under Article  12.7 of the SCM  Agreement by finding that the 
OFA-AFA measure is inconsistent with that provision  ................................ .............................. 30 
5.2.5    Conclusion  ................................ ................................ ................................ .............. 34 
5.3   Separate opinion of one Appellate  Body Division Member  ................................ ................ 35 
5.3.1    Introduction  ................................ ................................ ................................ ............ 35 
5.3.2    Ongoing conduct ................................ ................................ ................................ ......35 
5.3.3    Conclusion  ................................ ................................ ................................ .............. 36 
6   FINDINGS AND CON CLUSIONS  ................................ ................................ ..................  36 
6.1   OFA-AFA measure  ................................ ................................ ................................ ......36 
6.2   Article  12.7 of the SCM  Agreement  ................................ ................................ ............... 37 
6.3   Recommendation  ................................ ................................ ................................ ........ 38 
 
  WT/DS505/AB/R  
 
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  ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
AFA adverse facts available  
BCI business confidential information  
Canada's  panel request  Request for the Establishment of a Panel by Canada, WT/DS505/2  
Catalyst  Catalyst Paper Corporation  
CVD countervailing duty  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
Fibrek  Fibrek General Partnership  
GATT  1994 General Agreement on Tariffs and Trade 1994  
Irving  Irving Paper Ltd . 
NAFTA  North American Free Trade Agreement  
NSPI Nova Scotia Power Incorporated  
OFA other forms of assistance  
Panel  Report  Panel Report, United  States – Countervailing Measures on Supercalendered Paper 
from Canada  
PHP Port Hawkesbury Paper LP  
PPGTP  Federal Pulp and Paper Green Transformation Programme  
PWCC  Pacific West Commercial Corporation  
Resolute  Resolute FP Canada Inc.  
SCM Agreement  Agreement on Subsidies and Countervailing Measures  
USDOC  United  States  Department of Commerce  
Working Procedures  Working Procedures for Appellate Review  
WTO World Trade Organization  
 
  WT/DS505/AB/R  
 
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  PANEL EXHIBITS CITED  IN THIS REPORT  
Exhibit Number  Short Title  
(if applicable)  Description  
Panel Exhibit CAN-37 Supercalendered 
Paper from Canada 
2015, I &D Memo  USDOC, Issues and Decision Memorandum for the Final 
Determination in the Countervailing Duty Investigation of 
Supercalendered Paper from Canada (13  October  2015)   
Panel Exhibit CAN-47 
(BCI)  Supercalendered 
Paper from Canada 
2015, Verification 
Report (Resolute)  USDOC, Memorandum dated 27  August  2015 for the 
Verification of the Questionnaire Responses of Resolute FP 
Canada Inc. in the Countervailing Duty Investigation of 
Supercalendered Paper from Canada  
Panel Exhibit CAN-76 USDOC NAFTA Brief  USDOC, Rule 57(2) Brief (NAFTA) in Supercalendered 
Paper from Canada: Final Affirmative Countervailing Duty 
Determination (5  July 2016)  
Panel Ex hibit CAN-116  USDOC, Issues and Decision Memorandum for the Final 
Determination in the Countervailing Duty Investigation of 
Crystalline Silicon Photovoltaic Cells, Whether or Not 
Assembled into Modules, from the People's Republic of 
China (9  October  2012)   
Panel Exhibit CAN-118 Shrimp from China 
2013, I&D Memo  USDOC, Issues and Decision Memorandum for the Final 
Determination in the Countervailing Duty Investigation of 
Certain Frozen Warmwater Shrimp from the People's 
Republic of China (12 August  2013)  
Panel Exhibit CAN-121 Solar Cells from 
China 2014, I&D 
Memo   USDOC, Issues and Decision Memorandum for the Final 
Determination in the Countervailing Duty Investigation of 
Certain Crystalline Silicon Photovoltaic Products from the 
People's  Republic of China (15  December  2014)  
Panel Exhibit CAN-125 PET Resin from 
China 2016, I&D 
Memo  USDOC, Issues and Decision Memorandum for the Final 
Determination in the Countervailing Duty Investigation of 
Certain Polyethylene Terephthalate Resin from the 
People 's Republic of China (4  March  2016)  
Panel Exhibit CAN-148 Stainless Pressure 
Pipe from India  
2016, Final 
Calculation Memo  USDOC, Countervailing Duty Investigation  of Welded 
Stainless Pressure Pipe from India: Final Calculation 
Memorandum for Steamline Industries Limited 
(22 September  2016)  
Panel Exhibit CAN-152  USDOC, Issues and Decision Memorandum for the Final 
Affirmative Determination in the Countervailing Duty 
Investigation of Welded Stainless Pressure Pipe from India 
(22 September  2016)  
Panel Exhibit CAN-163 Truck and Bus Tires 
from China 2016, 
I&D Memo  USDOC, Issues and Decision Memorandum for the Final 
Determination in the Countervailing Duty Investigation of 
Truck and Bus Tires from the People 's Republic of China; 
and Final Affirmative Determination of Critical 
Circumstances, in Part (19  January  2016)  
Panel Exhibit CAN-210 PET Resin from 
China 2016, 
Verification Report 
(Dragon)  USDOC, Countervailing Duty Investigation of Polyethylene 
Terephthalate Resin from the People 's Republic of China: 
Verification Report of Dragon Special Resin Co., Ltd. , 
Xiang Lu Petrochemicals Co., Ltd. , Xianglu Petrochemicals 
Co., Ltd. , and Xiamen X ianglu Chemical Fiber Company 
Limited (19  January  2016)  
Panel Exhibit CAN-215  USDOC, Verification of Zhanjiang Guolian Aquatic Products 
Co., Ltd., Zhanjiang Guolian Feed Co., Ltd., Zhanjiang 
Guolian Aquatic Fry Technology Co., Ltd., and Zhanjiang 
Guotong Aquatic Co., Ltd. in Countervailing Duty 
Investigation: Certain Warmwater Shrimp from the 
People's Republic of China  (1 July 2013)  
Panel Exhibit USA-8 Solar Cells from 
China 2015, I&D 
Memo  USDOC, Issues and Decision Memorandum for the Final 
Results of the Countervailing Duty Administrative Review: 
Crystalline Silicon Photovoltaic Cells, Whether or Not 
Assembled into Modules, from China (7  July 2015)  WT/DS505/AB/R  
 
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  Exhibit Number  Short Title  
(if applicable)  Description  
Panel Exhibit USA-19  USDOC, Issues and Decision Memorandum for the Final 
Determination in the Countervailing Duty Investigation of 
Large Residential Washers from the Republic of Korea 
(18 December  2012)  
USDOC CVD PROCEEDING S CITED IN THIS REPO RT 
Short Title  Relevant CVD Proceeding  
Solar Cells from China 2012  Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into 
Modules, from the P eople's Republic of China  (C-570-980) 
Shrimp from China 2013  Certain Frozen Warmwater Shrimp from the People's Republic of China 
(C-570-989) 
Solar Cells from China 2014  Crystalline Silicon Photovoltaic Products from the People's Republic of 
China (C -570-011) 
Solar Cells from China 2015  Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into 
Modules, from the People's Republic of China (C -570-980) 
Supercalendered Paper from 
Canada 2015  Supercalendered Paper from Canada (C -122-854) 
PET Resin from China 2016  Certain Polyethylene Terephthalate  Resin from the People's Republic of 
China (C -570-025) 
Stainless Pressure Pipe from India 
2016 Welded Stainless Pressure Pipe from India (C -533-868) 
Truck and Bus Tires from China 
2016 Truck and Bus Tires from the People's Republic of China (C -570-041) 
Stainless Steel Sheet and Strip 
from China 2017  Stainless Steel Sheet and Strip from the People's Republic of China 
(C-570-043) 
 
  WT/DS505/AB/R  
 
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  CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Import Measures  Appellate  Body Reports, Argentina – Measures Affecting the Importation of 
Goods , WT/DS438/AB/R  / WT/DS444/AB/R  / WT/DS445/AB/R , adopted 
26 January  2015, DSR 2015:II, p.  579 
Canada – Wheat Exports and 
Grain Imports  Appellate  Body Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/AB/R, adopted 27  September  2004, 
DSR 2004:VI, p.  2739 
EC – Bed Linen (Article  21.5 
– India)  Appellate  Body Report, European  Communities  – Anti-Dumping Duties on 
Imports of Cotton -Type Bed Linen from India – Recourse to Article  21.5 of the 
DSU by India , WT/DS141/AB/RW , adopted 24  April 2003, DSR 2003:III, 
p. 965 
EC – Countervailing 
Measures on DRAM Chips  Panel  Report , European  Communities  – Countervailing Measures on Dynamic 
Random Access Memory Chips from Korea , WT/DS299/R , adopted 
3 August  2005, DSR 2005:XVIII, p.  8671 
EC – Hormones  Appellate  Body Report, European  Communities  – Measures Concerning Meat 
and Meat Products (Hormones) , WT/D S26/AB/R , WT/DS48/AB/R , adopted 
13 February  1998, DSR 1998:I, p.  135 
EC – Tube or Pipe Fittings  Appellate  Body Report, European  Communities  – Anti-Dumping Duties on 
Malleable Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/AB/R , 
adopted 18  August  2003, DSR 2003:VI, p.  2613 
EC and certain member 
States – Large Civil Aircraft  Appellate  Body Report, European  Communities  and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R , adopted 
1 June 2011, DSR 2011:I, p.  7 
Egypt – Steel Rebar  Panel  Report , Egypt – Definitive Anti -Dumping Measures on Steel Rebar from 
Turkey , WT/DS211/R , adopted 1 October  2002, DSR 2002:VII, p.  2667 
Guatemala – Cement I  Appellate  Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R , adopted 25  November  1998, 
DSR 1998:IX, p.  3767 
Mexico – Anti-Dumping 
Measures on  Rice Appellate  Body Report, Mexico – Definitive Anti -Dumping Measures on Beef 
and Rice, Complaint with Respect to Rice , WT/DS295/AB/R , adopted 
20 December  2005, DSR 2005:XXII, p.  10853  
Mexico – Corn Syrup 
(Article  21.5 – US) Appellate  Body Report, Mexico – Anti-Dumping Investigation of High Fructose 
Corn Syrup (HFCS) from the United  States – Recourse to Article  21.5 of the 
DSU by the United  States , WT/DS132/AB/RW , adopted 21  November  2001, 
DSR 2001:XIII, p.  6675 
US – Anti-Dumping 
Methodologies (China)  Appellate  Body Report, United  States – Certain Methodologies and Their 
Application to Anti -Dumping Proceedings Involving China , WT/DS471/AB/R  
and Add.1, adopted 22  May 2017, DSR 2017:III, p.  1423 
US – Carbon Steel  Appellate  Body Report, United  States – Countervailing Duties on Certain 
Corrosion -Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/AB/R  and Corr.1, adopted 19  December  2002, DSR 2002:IX, 
p. 3779 
US – Carbon Steel (India)  Appellate  Body Report, United  States – Countervailing Measures on Certain 
Hot-Rolled Carbon Steel Flat Products from India , WT/DS436/AB/R , adopted 
19 December  2014, DSR 2014:V, p.  1727 
US – Continued Zeroing  Appellate  Body Report, United  States – Continued Existence and Application of 
Zeroing Methodology , WT/DS350/AB/R , adopted 19  February  2009, 
DSR 2009:III, p.  1291 
US – Corrosion -Resistant 
Steel Sunset Review  Appellate  Body Report, United  States – Sunset Review of Anti -Dumping Duties 
on Corrosion -Resistant Carbon Steel  Flat Products from Japan , 
WT/DS244/AB/R , adopted 9  January  2004, DSR 2004:I, p.  3 
US – Countervailing 
Measures (China)  Appellate  Body Report, United  States – Countervailing Duty Measures on 
Certain Products from China , WT/DS437/AB/R , adopted 16 January  2015, DSR 
2015:I, p.  7 WT/DS505/AB/R  
 
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  Short Title  Full Case Title and Citation  
US – Orange Juice  (Brazil)  Panel  Report , United  States – Anti-Dumping Administrative Reviews and Other 
Measures Related to Imports of Certain Orange Juice from Brazil , 
WT/DS382/R , adopted 17  June 2011, DSR 2011:VII, p.  3753 
US – Shrimp (Article  21.5 – 
Malaysia)  Appellate  Body Report, United  States  – Import Prohibition of Certain Shrimp 
and Shrimp Products – Recourse to Article  21.5 of the DSU by Malaysia , 
WT/DS58/AB/RW , adopted 21  November  2001, DSR 2001:XIII, p.  6481 
US – Softwood Lumber IV 
(Article  21.5 – Canada)  Appellate  Body Report, United  States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from Canada – 
Recourse by Canada to Article  21.5 of the DSU , WT/DS257/AB/RW , adopted 
20 December  2005, DSR 2005:XXIII, p.  11357  
US – Supercalendered Paper  Panel  Report , United  States – Countervailing Measures on Supercalendered 
Paper from Canada , WT/DS505/R  and Add.1, circulated to WTO Members 
5 July 2018 
US – Upland Cotton  Appellate  Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R , adopted 21 March 2005, DSR 2005:I, p. 3  
US – Wool Shirt and Blouses  Appellate  Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS 33/AB/R , adopted 23 May 1997, 
and Corr.1, DSR 1997:I, p. 323  
US – Zeroing (EC)  Appellate  Body Report, United  States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") , WT/DS294/AB/R , adopted 
9 May 2006, and Corr.1, DSR 2006:II, p.  417 
US - Zeroing (Japan)  Appellate  Body Report, United  States – Measures Relating to Zeroing and 
Sunset Reviews , WT/DS322/AB/R , adopted 23  January  2007, DSR 2007:I, p.  3 
 
  WT/DS505/AB/R  
 
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WORLD TRADE ORGANIZATION  
APPELLATE  BODY 
 
 
United  States  – Countervailing Measures 
on Supercalendered Paper from Canada  
 
 
United  States , Appellant  
Canada, Appellee  
 
Brazil, Third Participant  
China, Third Participant  
European  Union, Third Participant  
India, Third Participant  
Japan , Third Participant  
Korea , Third Participant  
Mexico, Third Participant  
Turkey , Third Participant  
 AB-2018-8 
 
Appellate  Body Division:  
 
Bhatia, Presiding Member  
Graham, Member  
Zhao, Member  
 
 
 
1  INTRODUCTION  
The United  States  appeals certain issues of law and legal interpretations developed in the 
Panel  Report , United  States  – Countervailing Measures on Supercalendered Paper from Canada1 
(Panel  Report). The Panel was established on 21  July 20162 to consider a complaint by Cana da3 with 
respect to the consistency of certain United  States  measures with the Agreement on Subsidies and 
Countervailing Measures (SCM  Agreement).  
In particular, Canada challenged certain countervailing duty (CVD) measures adopted by the 
United  States  on supercalendered paper from Canada. Canada made multiple claims of inconsistency 
in relation to the U nited States  Department of Commerce 's (USDOC)  CVD determinations regarding 
Canadian producers Port Hawkesbury Paper LP (PHP), Resolute FP Canada Inc. (Resolute), Irving 
Paper Ltd (Irving), and Catalyst Paper Corporation (Catalyst). Canada also challenged an alleged 
unwritten "ongoing conduct " measure attributable to the United  States  that consisted of the USDOC  
applying adverse facts available (AFA) to find countervailable subsidies in relation to programmes 
discovered during CVD investigation s that were not reported in response to the USDOC's "other 
forms  of assistance" (OFA)  question (the OFA -AFA measure).4 Canada requested the Panel to find 
that the United  States  acted inconsistent ly with Articles  1.1(a)(1), 1.1(b), 2, 10, 11.1 -11.3, 11.6, 
12.1-12.3, 12.7 -12.8, 14, 19.1, 19.3 -19.4, and32.1 of the SCM  Agreement and Article  VI:3 of the 
General  Agreement on Tariffs and Trade 1994 (GATT  1994).5 The United  States  disagreed with 
Canada's  claims in their entirety.6 The factual aspects of this dispute are set out in greater detail in 
the Panel  Report . 
In the Panel  Report , circulated to Members of the World Trade Organization (WTO) on 
5 July 2018, the Panel concluded as follows : 
a. for the claims concerning the USDOC's CVD determination with respect to PHP:  
 
1 WT/DS505/R, 5  July 2018.  
2 Minutes of the Dispute Settlement Body meeting held on 21  July 2016, WT/DSB/M/383, para.  6.4. 
3 Panel  Report, para.  1.4; Request for the Establishment of a Panel by Canada, WT/DS505/2 
(Canada's  panel request).  
4 The challenged OFA -AFA measure was referred to by the Panel as the "Other Forms of Assistance –
AFA measure". (Panel  Report, paras.  2.2 and 7 .1) 
5 Panel  Report, para.  3.1. 
6 Annex  C-1 of the Panel  Report, para.  1. WT/DS505/AB/R  
 
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  i. the USDOC acted inconsistently with Article  1.1(a)(1)(iv ) of the SCM  Agreement , 
by making a finding of entrustment or direction with respect to the provision of 
electricity by Nova Scotia Power Incorporated  (NSPI);  
ii. the USDOC acted inconsistently with Articles  1.1(b) and 14(d) of the 
SCM Agreement, when it determined that the provision  of electricity by NSPI to 
PHP, through the load retention rate, conferred a benefit;  
iii. the USDOC acted inconsistently with Article  12.8 of the SCM  Agreement , by 
failing to disclose to interested parties an essential  fact that, in the view of the 
USDOC, Section  52 of the Public Utilities Act entrusted or directed NSPI to provide 
electricity to all customers, including PHP;  
iv. the USDOC acted inconsistently with Article  1.1(b) of the SCM  Agreement , by 
finding that the hot idle funding conferred  a benefit on Pacific West Commercial 
Corporation (PWCC)/PHP;  
v. the USDOC acted inconsistently with Article  1.1(b) of the SCM  Agreement , by 
finding that the second Forestry Infrastructure Fund amount conferred a benefit 
on PWCC/PHP;  and 
vi. the USDOC acted inconsistently with Article  11.3 of the SCM  Agreement , by 
failing in its obligation to evaluate the accuracy and adequacy of the evidence in 
the application with respect to the  existence of a benefit in the provision of 
stumpage and biomass by the Government of Nova Scotia to PHP;  
b. for the claims concerning the USDOC's CVD determination with respect to Resolute:  
i. the USDOC acted inconsistently with Article  12.7 of the SCM  Agreeme nt, by 
applying facts available to the discovered programmes;  
ii. the Panel declined to rule on Canada's claims under Articles  11.2-11.3, 12.1 -12.3, 
and 12.8 of the SCM  Agreement , regarding the discovered programmes;  
iii. the USDOC acted inconsistently with Article  1.1(b) of the SCM  Agreement , by 
finding, on the basis of an alleged lack of relevant evidence, that the benefit 
conferred on Fibrek General Partnership ( Fibrek)  through the federal Pulp and 
Paper Green Transformation Programme ( PPGTP)  was not extinguished when 
Fibrek was acquired by Resolute;  
iv. the Panel declined to rule on Canada's claims under Articles  10, 14, 19.1 , and  
19.3-19.4 of the SCM  Agreement  and Article  VI:3 of the GATT  1994, regarding 
the USDOC's finding that the benefi t conferred on Fibrek through the PPGTP was 
not extinguished when Fibrek was acquired by Resolute;  
v. the Panel declined to rule on Canada's claims under Articles  1.1(b), 10, 14, 19.1, 
and 19.3-19.4 of the SCM  Agreement  and Article  VI:3 of the GATT  1994, 
regarding the USDOC's finding that the benefit conferred on Fibrek was not 
extinguished when Fibrek was acquired by Resolute, with respect to the alleged 
assistance discovered during the verification of Fibrek;  
vi. the USDOC acted inconsistently with Articles  10, 19.1, and 19.3-19.4 of the 
SCM Agreement  and Article  VI:3 of the GATT  1994, by attributing to the 
production of supercalendered paper subsidies provided to Resolute and Fibrek 
under the PPGTP, Ontario Forest Sector Prosperity Fund, and Ontario Northern 
Industrial Electricity Rate Programmes ; and 
vii. the Panel declined to rule on Canada's claims under Articles  10, 19.1, and 19.3-
19.4 of the SCM  Agreement  and Article  VI:3 of the GATT  1994, regarding the 
attribution to the production of supercalendered  paper of the alleged assistance 
discovered during the verification of Fibrek;  WT/DS505/AB/R  
 
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  c. for the claims concerning the CVD determinations with respect to Irving and Catalyst:  
i. the USDOC acted inconsistently with Articles  10, 19.1, 19.3 -19.4, and 32.1 of the 
SCM Agreement  and Article  VI:3 of the GATT  1994, by constructing the all -others 
rate relying on Resolute's rate, which was mainly calculated using AFA ;  
ii. the Panel declined to rule on Canada's claim under Article  12.7 of the 
SCM Agreement, regarding the constructio n of the all -others rate relying on 
Resolute's rate;  
iii. the Panel rejected Canada's claims under Articles  10, 19.1, 19.3 -19.4, and 32.1 
of the SCM  Agreement  and Article  VI:3 of the GATT  1994, regarding the USDOC's 
failure to adjust the all -others rate with respect to subsidies that were not 
available to non -investigated exporters;  
iv. the USDOC acted inconsistently with Article  19.3 of the SCM  Agreement , by 
including new subsidy allegations in the context of the expedited reviews 
undertaken for Catalyst and Irving;  and 
v. the Panel declined to rule on Canada's claims under Articles  11.2 and 11.3 of the 
SCM Agreement , regarding the USDOC's alleged initiation of an investigation into 
new subsidy allegations during the expedited reviews of Catalyst and  Irving; and 
d. for the claims concerning the alleged OFA -AFA measure:  
i. Canada had adduced sufficient evidence to establish that the challenged 
OFA-AFA measure constitutes "ongoing conduct" and, therefore, the Panel did not 
consider it necessary to address Ca nada's argument that the challenged measure 
amounts to a "rule or norm of general and prospective application";  
ii. the unwritten measure challenged by Canada is inconsistent with Article  12.7 of 
the SCM  Agreement ; and 
iii. the Panel declined to rule on Canada's cl aims under Articles  10, 11.1 -11.3, 11.6, 
12.1, and 12.8 of the SCM  Agreement , with respect to the alleged 
OFA-AFA measure.  
Having found that the United  States  acted inconsistently with certain provisions of the 
SCM Agreement and the GATT  1994, in accordance with Article  19.1 of the Understanding on Rules 
and Procedures Governing the Settlement of Disputes (DSU) , the Panel recommended that the 
United  States  bring its measures into conformity with its obligations under those Agreements.7  
On 27  August  2018, the United  States  notified the Dispute Settlement Body (DSB), pursuant 
to Article  16 of the DSU, of its intention to appeal certain issues of law covered in th e Panel  Report 
and certain legal interpretations developed by the Panel, and filed a Notice of Appeal8 and an 
appellant's  submission pursuant to Rule  20 and Rule  21, respectively, of the Working  Procedures for 
Appellate Review (Working Procedures). On 14  September  2018, Canada filed an appellee's 
submission pursuant to Rule  22 of the Working  Procedures . On 21  September  2018, Brazil, China, 
the European  Union , and Japan each filed a third participant's submission.9 On that same day , India 
and Mexico notified the Appellate  Body that they did not intend to submit a third participant's 
submission, but would appear at the hearing.10 Subsequently, Korea and Turkey notified the 
Appellate  Body of their intention to appear at the hearing as t hird participant s.11 
 
7 Panel  Report, para s. 8.5-8.6. 
8 WT/DS505/6 . 
9 Pursuant to Rule  24(1) of the Working Procedur es. 
10 Pursuant to Rule  24(2) of the Working Procedures.  
11 On 31  October  2019 and 1  Novemb er 2019, respectively, Turkey and Korea each submitted their 
delegation list for the hearing to the Appellate  Body Secretariat. We have interpreted these actions as a 
notification to attend the hearing pursuant to Rule  24(4) of the Working Procedures.  WT/DS505/AB/R  
 
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On 4 September  2018, the Chair of the Appellate  Body received a communication from the 
European  Union  requesting that the Division hearing this appeal modify the deadline for the filing of 
third participants' submissions to allow third  participants four full working days following the 
submission of the  appellee's submission . On 5 September  2018, on behalf of the Division hearing 
this appeal, the Chair of the Appellate  Body invited the participants and other third participants in 
this app eal to comment in writing on the European  Union 's request. Brazil, Canada, China, India, 
Japan, Korea, Mexico, and the United  States  indicated that they had no objections to the 
European  Union 's request for an extension. On 13  September  2018, on behalf of the Division hearing 
this appeal, the Chair of the Appellate  Body issued a Procedural Ruling12 to extend the deadline for 
filing third  participant's submissions, notifications, and executive summaries as requested by the 
European  Union . 
On 24  October  2018, the Chair of the Appellate  Body notified the Chair of the DSB that the 
Appellate  Body would not be able to circulate its Report in this appeal within the 60 -day period 
pursuant to Article  17.5 of the DSU, or within the 90 -day period pursuant to the same provision.13 
On 9 December  2019, the Chair of the Appellate  Body informed the Chair of the DSB that the Report 
in these proceedings would be circulated no later than 6 February  2020.14 
On 14  March  2019, the Division received a communication from China, containing the executive 
summary of China's third participant's submission in the present appeal. China originally filed its 
third participant's submission on 21  September  2018. China indicated that the executive summary 
was inadvertently omitted from its third participant's submission. On 19  March  2019, the Presiding 
Member of the Division hearing this appeal invited, on behalf of the Division, the participants and 
other th ird participants in this appeal to comment in writing on China's communication . Canada 
indicated that it had no objections for China to submit the executive summary of its third participant's 
submission at this stage of the appeal. Mexico noted that, as Ch ina's third participant's submission 
was filed on time, the participants' and other third participants' due process rights were not affected. 
On 28  March  2019, the Division hearing this appeal issued a Procedural Ruling15 to accept the 
executive summary of China's third participant's submission.  
On 18  April 2019, the Division received a joint communication from Canada and the 
United  States  requesting that the public be allowed to observe the participants and third participants 
that agree to make  public  their statements and responses at the oral hearing. Canada and the 
United  States  made the request on the understanding that any information that had been designated 
as confidential in the documents filed by any participant in the Panel proceedings would be 
adequately protected in the course of the Appellate  Body's oral hearing. On 13  May 2019, the 
Division invited third participants to comment on this request. Mexico indicated that, without 
prejudice to its systemic position on the matter, it did not object to allowing public observation of 
the oral hearing in these proceedings. No other comments from third participants were received. 
On 2 July 2019, the Division issued a Procedural Ruling16 regarding the joint request by Canada and 
the United  States . The Division adopted additional procedures on the conduct of the oral hearing, 
including procedures pertaining to public observation of the ope ning statements of the Member s' 
delegations that had agreed to have their statements made public.  
The hearing in this  appeal was held on 4 -5 November  2019. The participants and four of the 
third participants ( Brazil, China, the European  Union , and Japan ) made oral statements and 
responded to questions posed by the Members of the Appellate  Body Division hearing the appeal . A 
simultaneous closed -circuit television broadcast of the hearing was shown in a separate viewing 
 
12 The Procedural Ruling of 13  September  2018 is contained in Annex  D-1 of the Addendum to this 
Report, WT/DS505/AB/R/Add.1.  
13 The Chair of the Appellate  Body explained that this was due to a number of factors, including the 
complex issues appealed, the backlog  of appeals pending before the Appellate  Body, and the overlap in the 
composition of all Divisions resulting in part from the reduced number of Appellate  Body Members . Although this 
appeal was initiated on 27  August  2018, appeal work could only begin in mi d-September  2019. (WT/DS505/7)  
14 WT/DS505/ 8. 
15 The Procedural Ruling of 28  March  2019 is contained in Annex  D-2 of the Addendum to this Report, 
WT/DS505/AB/R/Add.1.  
16 The Procedural Ruling of 2  July 2019 is  contained in Annex  D-3 of the Addendum to this Re port, 
WT/DS505/AB/R/Add.1.  
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  room. Oral statements and responses to questions by a third participant that had indicated its wish 
to maintain the confidentiality of its submissions were not subject to public observation.  
On 3 December 2019, the Chair of the Appellate Body informed the Chair of the DSB that, 
pursuant to Rule 15 of the Working Procedures, Appellate Body Members Mr Ujal Singh Bhatia and 
Mr Thomas R. Graham would continue wor king after their terms expired on 11 December 2019 to 
finish appeals for which oral hearings had been completed. At the DSB meeting on the same day, 
the Chair of the DSB reported to WTO Members that this appeal would be concluded by the 
Appellate  Body Divi sion that held the oral hearing. On 9 December 2019, the participants and 
third participants received a copy of the communication of the Chair of the Appellate Body to the 
Chair of the DSB referred to above.17 
2  ARGUMENTS OF THE PAR TICIPANTS  
The Notice of App eal and the executive summaries of the participants' claims and arguments 
are contained in Annexes  A and B of the Addendum to this Report, WT/DS505/AB/R/Add.1.18 
3  ARGUMENTS OF THE THI RD PARTICIPANTS  
Brazil, China, the European  Union , and Japan filed written submissions. The executive 
summaries of these written submissions  are contained in Annex  C of the Addendum to this Report, 
WT/DS505/AB/R/Add.1.19 
4  ISSUES RAISED IN THI S APPEAL  
The following issues are raised in this appeal:  
a. whether t he Panel erred  under Articles  3.3, 4.2, 7.1, and 19.1 of the DSU, by finding 
that the alleged OFA -AFA measure amounted to a "measure" that could be challenged 
under the DSU as "ongoing conduct" ; and 
b. in relation  to the alleged OFA -AFA measure:  
i. whether the P anel erred under Article  12.7 of the DSU by failing to provide a 
"basic rationale" for it s finding; and  
ii. whether the Panel erred under Article  12.7 of the SCM  Agreement in finding that 
the alleged OFA -AFA measure is inconsistent with that provision.  
5  ANALYSI S OF THE A PPELLATE  BODY  
In this Report, we first address the United  States ' claim that the Panel erred  under Articles  3.3, 
4.2, 7.1, and 19.1 of the DSU, by finding that the alleged OFA -AFA measure amounted to a 
"measure" that could be challenged under the DSU as "ongoing conduct". Thereafter, we address 
the United  States ' claims that the Panel erred by finding that the alleged OFA -AFA measure is 
inconsistent with Article  12.7 of the SCM  Agreement .  
We recall that the Panel issued its final Panel  Report  to the parties on 15  December  2017. On 
5 July 2018, the Panel  Report  was circulated to WTO Members. On 5  July 2018, the USDOC revoked 
the CVD order in Supercalendered Paper from Canada 2015, wi th retroactive effect to the beginning 
of the CVD proceeding. Notwithstanding this revocation, the United  States  filed its appeal on 
27 August  2018. This revocation is not addressed by either participant in its written submissions. 
Moreover, a t the oral he aring, both participants confirmed that there is a dispute between them 
regarding the existence of "ongoing conduct" and the finding of inconsistency with Article  12.7 of 
the SCM  Agreement that remains to be resolved on appeal. Under these circumstances , we consider 
 
17 WT/DSB/79.  
18 Pursuant to WT/AB/23, 11  March  2015.  
19 Pursuant to WT/AB/23, 11  March  2015.  WT/DS505/AB/R  
 
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  the United  States ' claims of error on appeal in light of the Panel 's findings as  they are  in the 
Panel  Report . 
5.1  Alleged OFA -AFA measure  
5.1.1   Introduction  
5.3.  The United  States  appeals the Panel's finding that the alleged OFA -AFA measure is an "ongoing 
conduct " measure susceptible to challenge under the DSU. According to the United  States , the Panel 
erred in both its understanding  and application of the legal standard for "ongoi ng conduct" measures, 
in particular with regard to the alleged measure's precise content, repeated application, and 
likelihood of continued application.20 The United  States  requests that we reverse the Panel's findings 
in this respect.21 Canada responds that  the United  States ' appeal is outside the scope of appellate 
review22, and that, in any event, the Panel was correct to find that the alleged OFA -AFA measure 
was challengeable in WTO dispute settlement as "ongoing conduct" .23 For that reason, Canada 
requests  that we dismiss the United  States ' claim of error.24 
5.4.  In the section below, we first summarize the relevant Panel findings concerning the existence 
of the alleged OFA -AFA measure. We then address Canada's assertion that the United  States ' claim 
of error falls outside the scope of appellate review. Finally, we address the United  States ' claim that 
the Panel erred in its understanding  and application of the legal standard for "ongoing conduct" 
measures.  
5.1.2   The Panel's findings  
5.5.  The Panel identified the relevant issue before it as whether Canada had demonstrated the 
existence of the alleged OFA -AFA measure "either as 'ongoing conduct' or as a 'rule or norm of 
general and prospective application'".25 
5.6.  The Panel first a ddressed the legal standa rd for "measures" challengeable in WTO dispute 
settlement.26 The Panel recalled that a complainant seeking to prove the existence of a measure, 
whether written or unwritten, must demonstrate that it is attributable to a Member and its precise 
content. In ad dition, depending on the specific measure challenged and how it is described by the 
complainant, other elements may need to be proven.27 Where dealing with an unwritten "ongoing 
conduct " measure , the Panel considered that a complainant would need to prove t he alleged 
measure's (i)  attribution to a Member , (ii) precise content , (iii) repeated application , and 
(iv) likelihood of continued application.28  
5.7.  Next, the Panel addressed whether Canada had demonstrated the precise content of t he alleged 
OFA-AFA measure .29 The Panel observed that the alleged measure challenged by Canada concerns 
 
20 United  States' Notice of Appeal, para.  2; appellant's submission, paras.  1, 3, and 6 -32. 
21 United  States' appellant's submission, paras.  5, 15, 32, and 80.  
22 Canada's appellee's submission, paras.  34-42. 
23 Canada's appellee's submission, paras.  14-33 and 43 -60. 
24 Canada's appellee's submission, para.  128. 
25 Panel  Report, para.  7.301. According to the Panel, the alleged OFA -AFA measure challenged by 
Canada consisted of the USDOC applying AFA to subsidy programmes discovered during verification in a 
CVD proceeding that were not reported by respondent companies in response to the OFA  question. 
(Ibid.,  para. 7.295)  
26 Panel  Repor t, para.  7.302 (quoting Appellate  Body Reports, US – Corrosion -Resistant Steel Sunset 
Review , para.  81; EC and certain member States – Large Civil Aircraft , para.  794; US – Zeroing (EC) , 
paras.  196-198; referring to Appellate  Body Reports, US – Softwood Lu mber IV (Article  21.5 – Canada) , 
para. 67; US – Anti-Dumping Methodologies (China) , para.  5.122; Guatemala – Cement I , fn 47 to para.  69; 
Argentina – Import Measures , paras.  5.106 and 5.109).  
27 Panel  Report, para.  7.303 (referring to Appellate  Body Reports , Argentina – Import Measures , 
para. 5.110).  
28 Panel  Report, para.  7.304 (referring to Appellate  Body Reports, US – Continued Zeroing , paras.  181 
and 191; Argentina – Import Measures , paras.  5.105 and 5.108).  
29 Panel  Report, paras.  7.307 -7.317. The Panel n oted that the United  States did not contest attribution 
of the alleged OFA -AFA measure to the United  States. (Panel  Report, para.  7.305 (referring to Canada's 
first written submission to the Panel, para.  407; second written submission to the Panel, para.  160)) 
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  the USDOC's post -2012 conduct.30 With respect to the OFA  question, the Panel produced table 1, 
which quotes from certain USDOC CVD proceedings from 2012 onwards.31 As to the remaini ng 
content of the alleged OFA -AFA measure, the Panel produced table 2, which  quotes from the same 
USDOC  CVD proceedings.32 The Panel concluded that Canada had provided sufficient evidence to 
establish the precise content of the alleged OFA -AFA measure.33 The Panel considered that variations 
in language in Canada's examples did not detract from the fact that the substance of both the 
questions and the USDOC's subsequent reactions remained the same  in each example .34 To the 
Panel, the alleged OFA -AFA measure consists in the USDOC asking the OFA  question and , where the 
USDOC discovers information during verification that it deems should have been provided in 
response to that question, applying AFA to determine that the discovered information amounts t o 
countervailable subsidies.35 
5.8.  The Panel then addressed the repeated application and likelihood of continued application of 
the alleged OFA -AFA measure.36 The Panel produced table 3 and table 4, which  quote from certain 
USDOC  CVD proceedings relied on by Canada.37 The Panel found that, despite variations in language, 
those examples showed that, since 2012, the USDOC acted in substantially the same manner in 
treating information discovered at the verification stage of CVD proceedings t hat it considered shoul d 
have been provided in response to the OFA  question. On that basis, the Panel considered that 
Canada had established the repeated application of the alleged OFA -AFA measure.38 The Panel noted 
that it was unable to identify any instance where the alleged OF A-AFA measure had not been 
applied39, except as an inadvertent error.40 
 
30 Panel  Report, paras . 7.309 and 7.312.  
31 Panel  Report, para.  7.309 (referring to Solar Cells from China 2012, Shrimp from China 2013, Solar 
Cells from China 2014, Solar Cells from China 2015, Supercalendered Paper from Canada 2015, PET Resin from 
China 2016, and Stainless Pressure Pipe from India 2016).  
32 Panel  Report, paras.  7.312 -7.313.  
33 Panel  Report, para.  7.316.  
34 Panel  Report, para.  7.316. Specifically, the Panel found that the variations in wording appeared 
mainly to be due to the different circumstances of a given investigation (such as the interested parties and 
dates), but the object of the OFA  question remained the same. The Panel also found that the substance of the 
USDOC's reactions remained the same: where the USDOC discovered informat ion upon verification that it 
deemed should have been reported in response to the OFA  question, the USDOC applied AFA to find 
countervailable subsidies. (Ibid.)  
35 Panel  Report, para.  7.316. The Panel noted that this description of the alleged OFA -AFA meas ure 
appears to be in line with the USDOC's description of the alleged measure in a NAFTA Chapter  19 proceeding. 
(Ibid., para.  7.317 (quoting USDOC, Rule  57(2) Brief (NAFTA) in Supercalendered Paper from Canada: Final 
Affirmative Countervailing Duty Determi nation (5  July 2016) ( USDOC NAFTA Brief) (Panel Exhibit CAN -76), 
pp. 147-149)) See also Panel  Report, para.  7.308.  
36 Panel  Report, paras.  7.318 -7.332. As Canada's arguments relied to a great extent on the same 
evidence for these requirements, the Panel ad dressed them together. (Ibid., para.  7.318)  
37 Panel  Report, paras.  7.320 -7.321, tables  3 and 4. These tables refer to Shrimp from China 2013, 
Solar Cells from China 2014, Solar Cells from China 2015, Supercalendered Paper from Canada 2015, PET 
Resin from C hina 2016, Stainless Pressure Pipe from India 2016, Truck and Bus Tires from China 2016, and 
Stainless Steel Sheet and Strip from China 2017.  
38 Panel  Report, para.  7.324.  
39 The Panel noted that in Washers from Korea 2012, which had been issued within two months of Solar 
Cells from China 2012, the USDOC did not countervail certain grants discovered at verification as they were 
deemed to not be tied to the subject merchandise. Nonetheless, the Panel considered Canada's claim related to 
the USDOC's post -2012 practice. The Panel observed that the United  States had not provided evidence of any 
instance subsequent to 2012 where "the USDOC did not apply AFA to a respondent on the basis of the 
[OFA]  question." (Panel  Report, para.  7.326 (referring to USDOC, Issues and Decision Memorandum for the 
Final Determination in the Countervailing Duty Investigation of Large Residential Washers from the Republic of 
Korea (18  December  2012) (Panel Exhibit USA -19))) Furthermore, to the Panel, the USDOC's  reference to 
Washers fro m Korea 2012 in Supercalendered Paper from Canada 2015 pertained to past practice, and thus did 
not undermine Canada's showing of repeated application of the alleged OFA -AFA measure. (Panel  Report, 
para. 7.326 (referring to USDOC, Issues and Decision Memorandum for the Final Determination in the 
Countervailing Duty Investigation of Supercalendered Paper from Canada (13  October  2015) (Supercalendered 
Paper from Canada 2015, I&D Memo) (Panel Exhibit CAN -37))) 
40 Panel  Report, para.  7.325 (referri ng to USDOC, Countervailing Duty Investigation of Welded Stainless 
Pressure Pipe from India: Final Calculation Memorandum for Steamline Industries Limited 
(22 September  2016) ( Stainless Pressure Pipe from India 2016, Final Calculation Memo) (Panel Exhibit 
CAN-148), fn  3). 
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  5.9.  The Panel also found that Canada had established that the alleged OFA -AFA measure was likely 
to continue to be applied.41 The Panel based its finding on: (i)  the consistent manner in whic h the 
USDOC referred to the alleged OFA -AFA measure or previous applications of the alleged measure42; 
(ii) the USDOC's own reference to the alleged measure as its "practice"43; and (iii)  the USDOC's 
characterization of a departure fro m the alleged measure a s an "inadvertent error".44  
5.10.   Overall, the Panel concluded that Canada had adduced sufficient evidence to establish the 
existence of the alleged OFA -AFA measure as ongoing conduct. The Panel did not consider it 
necessary to address Canada's assertion that th e alleged OFA -AFA measure amounted to a rule or 
norm of general and prospective application.45 
5.1.3   Scope of appellate review under Article  17.6 of the DSU  
5.11.   We first address Canada's assertion that the United  States ' claim on appeal regarding the 
existence of the alleged OFA -AFA measure falls outside the scope of appellate review under 
Article  17.6 of the DSU.46 According to Canada, the United  States ' appeal challenges the Panel's 
factual finding that the alleged OFA -AFA measure exists, and implicat es the Panel's appreciation of 
the facts and evidence.47 This is because, according to Canada, the Appellate  Body would be required 
to delve into the record and reweigh the evidence to assess the United  States ' claim that the Panel 
erred in finding the exis tence of the precise content, repeated application , and likelihood of continu ed 
application  of the alleged OFA -AFA measure.48 Canada notes that the United  States  has not made a 
claim under Article  11 of the DSU, which, in Canada's view, would have be en the appropriate basis 
for the United  States ' claim  of error .49 The United  States  responds that this appeal concerns legal 
issues . To the United  States , whether a measure exists as "ongoing conduct" that is challengeable 
under the DSU is a legal question.50 
5.12.   Article 17.6 of the DSU provides that an appeal shall be limited to "issues of law covered in 
the panel report and legal interpretations developed by the panel". The Appellate  Body has stated 
that findings of fact, as distinct from legal interpretations or legal conclusions by a panel, are in 
principle not subject to review by the Appellate  Body. Whether a certain event occurred in time and 
 
41 Panel  Report, para.  7.328. The Panel considered that Canada was not require d to prove certainty of 
future application; rather, to the Panel, Canada needed to prove likelihood of continued application. 
(Panel  Report, para.  7.329 (quoting Appellate  Body Report, US – Anti-Dumping Methodologies (China) , 
para. 5.132))  
42 Panel  Report, para.  7.328.  
43 Panel  Report, para.  7.328 (quoting USDOC, Issues and Decision Memorandum for the Final 
Determination in the Countervailing Duty Investigation of Ce rtain Crystalline Silicon Photovoltaic Products from 
the People's Republic of China (15  December  2014) ( Solar Cells from China 2014, I&D Memo) (Panel Exhibit 
CAN-121), p.  88; USDOC, Issues and Decision Memorandum for the Final Results of the Countervailing  Duty 
Administrative Review: Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from 
China (7  July 2015) (Solar Cells from China 2015, I&D Memo) (Panel Exhibit USA -8), p.  58). The Panel also 
stated that similar language was used  in the "other determinations with either specific reference to the word 
'practice' or to precedents" where the alleged OFA -AFA measure was applied. (Panel  Report, para.  7.328) While 
the Panel acknowledged the parties' disagreement as to whether the allege d OFA -AFA measure constituted a 
"practice" under United  States law, the Panel considered it was not determinative as to the likelihood of 
continued application of the alleged OFA -AFA measure. Thus, the Panel did not express a view on the 
characterization o f the alleged measure under United  States law. (Panel  Report, para.  7.329 and fn  613 
thereto)  
44 Panel  Report, para.  7.328 (quoting Stainless Pressure Pipe from India 2016, Final Calculation Memo 
(Panel Exhibit CAN -148), fn  3). The Panel also found that Can ada had not established that the Trade 
Preferences Extension Act evidenced the likelihood of continued application of the alleged OFA -AFA measure. 
(Panel  Report, paras.  7.330 -7.331)  
45 Panel  Report, para.  7.332.  
46 Canada's appellee's submission, paras.  34-41. 
47 Canada's appellee's submission, paras.  34 and 39.  
48 Canada's appellee's submission, paras.  38-40. Canada relies on Appellate  Body Report, US – Zeroing 
(Japan) as confirming that the existence of a measure is a factual determination. (Ibid., para.  41 (referring to 
Appellate  Body Report, US – Zeroing (Japan) , paras.  82 and 88)) Canada considers that the United  States' 
arguments do not concern legal interpretation, evidenced by the fact that the United  States does not cite treaty 
provisions in its argume nts. (Ibid., para.  40) 
49 Canada's appellee's submission, paras.  38-39.  
50 United  States' appellant's submission, paras.  6-32; opening statement at the oral hearing, para.  16; 
response to questioning at the oral hearing.  
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  space is typically a question of fact.51 By contrast, the consistency or inconsistency of a fact or set 
of facts with the requirements of a given treaty provision, or the application of rules to facts, is a 
legal characterization, subject to appellate review.52  
5.13.   The Panel's analysis had three dimens ions: (i)  identifying the legal standard for "ongoing 
conduct" measures; (ii)  examining relevant evidence and making factual findings; and (iii)  applying 
the legal standard to the facts before the Panel.  
5.14.   On appeal, the United  States  argues that the Panel erred in finding that a "measure" existed  
as one that could be challenged in WTO dispute settlement under the DSU.53 We consider that the 
correct understanding of the legal standard for establishing the existence of an "ongoing conduct " 
measure and the appl ication of that standard to the facts on the panel record are legal issues, and 
thus fall within the scope of appellate review. We note that the United  States  neither contests the 
evidence on the Panel record, nor the Panel's factual assessment of that evi dence. Specifically, the 
United  States  does not identify any factual findings that it challenges on appeal. Rather, we 
understand the United  States ' claim and arguments on appeal as directed to the legal standard for 
an "ongoing conduct" measure, and the a pplication of that standard to the facts of this case.54 
Therefore, in our view, the United  States ' claim of error on appeal concerns issues of law covered in 
the Panel  Report  and legal interpretations developed by the Panel . On that basis, we consider that  
the United  States ' claim of error at issue falls within the scope of appellate review under  Article  17.6 
of the DSU.55  
5.1.4   Whether the Panel erred by finding that the alleged OFA -AFA measure amounted to 
a "measure" that could be challenged under the DSU as "o ngoing conduct"  
5.15.   The United  States  appeals the Panel's finding that the alleged OFA -AFA measure is a measure 
that could be challenged under the DSU as "ongoing conduct".56 The United  States does not 
challenge the attribution of the alleged measure.  Rather, the United  States ' arguments concern the 
precise content, repeated application, and likelihood of continued application of that alleged 
measure.57 
5.16.   Canada responds that the Panel correctly found that "ongoing conduct" measures are subject 
to WTO dis pute settlement, and applied the correct legal stand ard.58 Having framed its challenge as 
one of ongoing conduct, Canada considers it was required to show attribution, precise content, 
repeated application, and likelihood of continued application of the all eged measure .59 To Canada, 
the Panel correctly found that Canada had established the se elements .60  
 
51 Appellate  Body Report, EC – Hormon es, para.  132. Whether a panel has made an objective 
assessment of the facts before it, as required by Article  11 of the DSU, is a legal question which, if properly 
raised on appeal, would fall within the scope of appellate review. (Ibid.)  
52 Appellate  Body Reports, EC – Hormones , para.  132.  
53 United  States' appellant's submission, paras.  6-15. 
54 Specifically, the United  States argues on appeal that the variations in the examples relied on by the 
Panel as evidence precluded the Panel from ide ntifying the precise content of the alleged OFA -AFA measure, 
any instance of non -application is sufficient to preclude a finding of repeated application, the Panel erred in 
characterizing certain examples as repeated applications, and likelihood of continu ed application requires an 
adopted decision regarding future conduct. (United  States' appellant's submission, paras.  20-31) 
55 We note that the United  States has not made any claim of error under Article  11 of the DSU. Our 
analysis is limited to the Panel's  understanding of the legal standard for "ongoing conduct" measures and the 
application of that standard to the facts in this appeal as found by the Panel.  
56 United  States' appellant's submission, paras.  1, 3, and 6 -32.  
57 United  States' appellant's submission, paras.  20-31. 
58 Canada's appellee's submission, paras.  17-20 and 26 (referring to Panel  Report, paras.  7.302 -7.304; 
Appellate  Body Reports, Argentina – Import Measures , paras.  5.108 and 5.110; US – Continued Zeroing , 
para. 191).  
59 Canada's appellee's submission, para.  30. Canada states it was not limited to submitting the same 
type of evidence as the European  Communities in US – Continued Zeroing . (Ibid. (referring to Appellate  Body 
Reports, Argentina – Import Measur es, para.  5.110))  
60 Canada's appellee's submission, paras.  33, 44 -48, and 50 -60. 
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  5.17.   We recall that Articles  3.3, 4.4, and 6.2 of the DSU refer to "measures" challengeable in 
WTO dispute settlement.61 The Appellate  Body has explained that, in p rinciple, any act or omission 
attributable to a WTO Member can be a measure of that Member for the purposes of dispute 
settlement proceedings.62 Accordingly, a broad range of measures can be challenged in WTO dispute 
settlement.63 For every measure, a compla inant must establish that the measure is attributable to 
the respondent, as well as the precise content of the challenged measure. A complainant may be 
required to demonstrate other elements64, depending on the particular characteristics or nature of 
the me asure being challenged.65 In order to prove the existence of an "ongoing conduct" measure, 
a complainant must clearly establish that the alleged measure is attributable to the responding 
Member, its precise content, its repeated application, and that it is likely to continue to be applied 
in the future.66 We examine below each element challenged on appeal by the United  States . 
5.1.4.1   Precise content of the alleged OFA -AFA measure  
5.18.   In relation to the precise content of the alleged OFA -AFA measure, the United  States  points 
to variations in the language in each of the examples examined by the Panel. To the United  States , 
this reflects different fact patterns and dissimilar results.67 The United  States  also highlights that the 
determinations concern different segments of CVD proceedings.68 The United  States  argues that  
including selective excerpts from differing proceedings does not identify with precision the actions 
that the USDOC may take in future ca ses. Rather, according to the United  States , it reveals only the 
application of "facts available" based on the particular facts of certain cases.69 
5.19.   Canada responds that the Panel addressed the  differences identified by the United  States , 
and correctly concl uded that the substance of the questions and the USDOC's conduct was the same 
in the different examples examined by the Panel.70 Further, Canada recalls that the United  States ' 
 
61 Article  3.3 of the DSU refers to benefits accruing to a Member that are being "impaired by measures 
taken by another Member". Further, Article  6.2 of the DSU requires Member s to "identify the specific measures 
at issue" in a panel request. This is one of two requirements under Article  6.2, which together comprise the 
"matter referred to the DSB". This matter then forms the basis for a panel's terms of reference under 
Article  7.1 of the DSU. (Appellate  Body Report, US – Carbon Steel , para.  125 (referring to Appellate  Body 
Report, Guatemala – Cement I , paras.  69-76)) 
62 Appellate  Body Reports , US – Anti-Dumping Methodologies (China) , para.  5.122; 
US – Corrosion -Resistant Steel Su nset Review , para.  81; Argentina – Import Measures , para.  5.100.  
63 See Appellate  Body Reports, US – Anti-Dumping Methodologies (China) , para.  5.122;  
Guatemala – Cement I , fn 47 to para.  69; EC and certain member States – Large Civil Aircraft , para.  794; 
Argentina – Import Measures , paras.  5.106 and 5.109.  
64 We recall that the distinction between "as such" and "as applied" challenges neither governs the 
definition of a measure for purposes of WTO dispute settlement, nor defines exhaustively the types of 
measures susceptible to challenge. Rather, this distinction serves as an analytical tool to facilitate the 
understanding  of the nature of a measure at issue. Measures need not fit squarely within one of these 
two categories in order to be susceptible to chall enge in WTO dispute settlement. (Appellate  Body Reports,  
US – Anti-Dumping Methodologies (China) , paras.  5.124 -5.125; US – Continued Zeroing , para.  179; 
Argentina  – Import Measures , para.  5.102) See also European  Union's third participant's submission, pa ra. 16 
(quoting Appellate  Body Reports, Argentina – Import Measures , paras.  5.107 -5.108; China's third participant's 
submission, para.  8. 
65 Appellate  Body Reports, Argentina – Import Measures , paras.  5.104 and 5.108. The Appellate  Body 
has stated that the "specific measure at issue, whether it is written or unwritten, and how it is described, 
characterized, and challenged by a complainant, will inform the kind of evidence a complainant is required to 
submit and the elements that it must prove in order to es tablish the existence of the measure challenged". 
(Appellate  Body Report, US – Anti-Dumping Methodologies (China) , para.  5.123 (referring to Appellate  Body 
Reports, Argentina – Import Measures , paras.  5.108 -5.110)) See also European  Union's third participa nt's 
submission, para.  17 (referring to Appellate  Body Report, US – Anti-Dumping Methodologies (China) , 
paras.  5.122 -5.123); Japan's third participant's submission, para.  4 (referring to Appellate  Body Reports, 
Argentina – Import Measures , paras.  5.109 -5.110). 
66 Appellate  Body Reports , Argentina – Import Measures , paras.  5.104 -5.105 and 5.107 -5.108 . 
67 United  States' appellant's submission, paras.  21-22. 
68 United  States' appellant's submission, para.  22.  
69 United  States' appellant's submission, para.  22. The United  States specifically refers to the 
CVD proceedings listed in tables  1 and 2 of the Panel  Report. (See Panel  Report, paras.  7.309 and 7.313)  
70 Canada's appellee's submission, para.  45 (referring to  Panel  Report , para.  7.316). See also Canada's 
appellee's submission, paras.  32-33.  
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  descriptions of its own practice were found by the Panel to be consistent with t he precise content of 
the alleged OFA -AFA measure.71 
5.20.   The Panel compiled tables 1 and 2 , which quote  from certain USDOC CVD proceedings from 
2012 onwards  that were submitted by Canada as evidence of the precise content of the alleged 
OFA-AFA measure .72 The Panel concluded that Canada had provided sufficient evidence to establish 
the precise content of the alleged measure. The Panel considered that variations in language in 
Canada's examples did not detract from the fact that the substance of the questio ns and the USDOC's 
subsequent reactions were the same  in each example .73 To the Panel, the alleged OFA -AFA measure 
consists in the USDOC asking the OFA  question and , where the USDOC discovers information during 
verification that it deems should have been pr ovided in response to that question, applying AFA to 
determine that the discovered information amounts to countervailable subsidies.74 
5.21.   We note that table 1 of the Panel  Report  indicates variations in language with respect to 
respondent countries, calendar d ates, and period of review or period of investigation.75 We agree 
with the Panel that these variations do not detract from the fact that the substance of the 
OFA question remained the same.76 Each formulation of the OFA  question asks whether a respondent 
country provided the respondent company with "any other forms of assistance", "directly or 
indirectly", and to "describe such assistance in detail, including the amounts, date of receipt, purpose 
and terms". This supports the Panel's conclusion that, despite minor variations in wording, the object 
and substance of the OFA  question remained the same. In addition, we note that, as described in 
the Panel  Report , the USDOC itself refers to asking the OFA  question as a matter of "standard 
procedure".77  
5.22.   In table 2 of the Panel  Report , the Panel compiled  excerpts describing the USDOC's application 
of "facts available" when information about unreported assistance was discovered during 
verification.78 The Panel found that the substance of the USDOC's  reactions remained the same, and 
comprised applying AFA to find countervailable subsidies when the USDOC discovers information 
during verification that it deems should have been reported in response to the OFA  question.79 The 
United  States  challenges the Panel's finding becau se the excerpts reviewed by the Panel concern 
 
71 Canada's appellee's  submission, para.  50 (referring to Panel  Report, para.  7.317, in turn referring to 
USDOC NAFTA Brief (Panel Exhibit CAN -76), p.  149).  
72 Panel  Report , para . 7.309, table 1; and para.  7.313, table 2.  
73 Panel  Report, para.  7.316.  
74 Panel  Report, para.  7.316. The Panel noted that this description of the alleged OFA -AFA measure 
appears to be in line with the USDOC's statements in a NAFTA Chapter  19 procee ding. (Ibid., para.  7.317 
(quoting USDOC NAFTA Brief (Panel Exhibit CAN -76), pp.  147-149))  
75 In table 1 of the Panel  Report, the Panel reproduced the OFA  question from questionnaires in Solar 
Cells from China 2012 , Shrimp from China 2013 , Solar Cells from China 2014 , Solar Cells from China 2015 , 
Supercalendered Paper from Canada 2015 , PET Resin from China 2016, and Stainless Pressure Pipe from 
India 2016. (Panel  Report, para.  7.309)  
76 Panel  Report , para.  7.316.  
77 Panel  Report , para.  7.311 (quoting Supercale ndered Paper from Canada 2015 , I&D Memo  (Panel 
Exhibit CAN -37), p.  12). 
78 In particular, the Panel considered the following information. For Solar Cells from China 2012 , the 
USDOC discovered, during verification, an unreported entry labelled "bonus for emp loyees from government" 
and determined as AFA that it was a countervailable subsidy. For Solar Cells from China 2014 , the USDOC 
discovered, during verification, unreported grants and a tax deduction for "wages paid for placement of 
disabled persons", and d etermined as AFA that they amounted to countervailable subsidies. The 
USDOC  explained that, while it would accept information on names, dates, and amounts for the unreported 
grants, any additional information on the grants would be rejected as "new factual  information". Similarly, for 
Shrimp from China 2013 , Solar Cells from China 2015, and Supercalendered Paper from Canada 2015, the 
USDOC discovered certain unreported grants or information during verification, and determined as AFA that 
they were counterva ilable subsidies. For PET Resin from China 2016 , the Panel referred to certain previously 
unreported grants presented by the respondent companies on the first day of verification as "minor 
corrections". The USDOC rejected that some of these grants were min or corrections, because whether a 
programme was used or not by a company is not "minor", and on that basis determined as AFA that those 
grants were countervailable subsidies. For Stainless Pressure Pipe from India 2016 , the USDOC discovered, 
during verific ation, an unreported electricity duty rebate, and determined as AFA that it was a countervailable 
subsidy. While the USDOC considered new information discovered at verification in assessing benefit, the 
USDOC noted that this was an "inadvertent error", inc onsistent with its practice of refusing to consider new 
information at verification. (Panel  Report, para.  7.313, table  2) 
79 Panel  Report , para.  7.316.  
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  different fact patterns, dissimilar results, and different segments of CVD proceedings, and therefore 
do not identify with precision the actions the USDOC may take in a future determination. Rather, 
according t o the United  States , these excerpts  merely reveal that , in some determinations , the 
USDOC applied "facts available" based on the particular facts of those cases .80  
5.23.   In our view, the United  States  has not identified differences in these determinations that 
would undermine the Panel's analysis and conclusion s in relation to the precise content of the alleged 
OFA-AFA measure. Although the various determinations concern different facts, we agree with the 
Panel that such differences, including the variations iden tified by the United  States , do not detract 
from the fact that the substance of the USDOC's conduct is the same in relation to the elements of 
the alleged measure challenged by Canada.81 Specifically, we agree with the Panel that each element  
of the alleged  OFA-AFA measure i s replicated in the determinations.82 Moreover, we agree with 
Canada that the fact that these examples concern different segments of CVD proceedings is not 
material, because the conduct at issue may arise at any segment where the USDOC conducts 
verification. In this regard,  we note that these  determinations all concern the identification of 
information at verification.83 
5.24.   Overall, we consider that the Panel was correct to focus on the substance of the USDOC's 
conduct for each element of the alleged OFA -AFA measure, as evidenced by the 
USDOC  questionnaires and determinations before the Panel. Thus, we see no error in the Panel's 
finding that Canada had established the precise content of the alleged OFA -AFA measure as the 
USDOC asking the OFA  question and , where the USDOC discovers information duri ng verification 
that it deems should have been provided in response to the OFA  question, applying AFA to determine 
that such information amounts to countervailable subsidies.84 
5.1.4.2   Repeated application of the alleged OFA -AFA measure  
5.25.   In relation to the repeated application of the alleged OFA -AFA measure, the United  States  
contends that there are multiple examples on the Panel record showing that the USDOC did not 
repeatedly apply the alleged measure.85 In particular, the United  States  points to four insta nces in 
the CVD proceedings examined by the Panel where the alleged OFA -AFA measure was not applied.86 
The United  States  argues that "repeated application" is shown where a measure is applied in a string 
of determinations made sequentially i n successive pro ceedings over an extended period of time.87 
To the United  States , this was a key part of the Appellate  Body's reasoning in US – Continued 
Zeroing .88 The United  States  contends that the Panel never engaged with important differences 
between this dispute and the situation in US – Continued Zeroing .89  
 
80 United  States ' appellant's submission, paras.  21-22. 
81 Panel  Report , para.  7.316. The Panel noted that "variations in the wording of the questions appear to 
mainly be due to the circumstances of any given investigation (interested parties, dates etc.)[,] while the 
object of the question remains in essence the same", and that, similarly, "the substance of the USDOC's 
reactions remains the same." (Ibid.)  
82 Panel  Report, para.  7.316. For specific examples, see supra  fn 78. 
83 Canada's appellee's submission, para.  48. 
84 Panel  Report , para.  7.316. The Panel also referred to the USDOC's description of the alleged 
OFA-AFA measure in the USDOC NAFTA Brief referred to in footnote  35 above: "[The USDOC's] finding that the 
complainants' failure to report these subsidies earlier in the proceeding warranted the use of adverse 
inferences was reasonable … as was [the USDOC's] resulti ng adverse inference that each discovered subsidy 
provided a financial contribution, conferred a benefit, and was specific – the elements of a countervailable 
subsidy[.] … [The USDOC] determined, in 2012, that the proper course of action when an unreported  potential 
subsidy is discovered at verification is to rely on adverse inferences in making findings on that potential 
subsidy." (Ibid., para.  7.317 (quoting USDOC NAFTA Brief (Panel Exhibit CAN -76), pp.  147-149)) The Panel 
noted that this description appe ars to be in line with Canada's description of the precise content of the alleged 
OFA-AFA measure. (Ibid.)  
85 United  States ' appellant's submission, para.  25. 
86 United  States ' appellant's submission, paras.  25-30 (referring to Shrimp from China 2013, 
Superc alendered Paper from Canada 2015, PET Resin from China 2016, and Stainless Pressure Pipe from 
India 2016).  
87 United  States' appellant's submission, para.  24.  
88 United  States ' appellant's submission, para.  19 and 24 (referring to Appellate  Body Report, 
US – Continued Zeroing , paras.  181, 191, and 194).  
89 United  States ' appellant's submission, paras.  19, 23 -25, and 29 -30.  
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  5.26.   Canada responds that imposing the requirement suggested by the United  States  would be to 
misread the Appellate  Body Report  in US – Continued Zeroing, and conflate the specific measure 
challenged in that dispute with the constituent elements that have to be shown to establish the 
existence of an "ongoing conduct" measure.90 
5.27.   In addressing the repeated application of the alleged OFA-AFA measure, the Panel compiled 
tables 3 and 4 of the Panel  Report , which quote  from the following USDOC CVD proceedings that 
were submitted by Canada as evidence of the repeated application of the alleged OFA -AFA measure:  
Shrimp from China 2013 , Solar Cells from China 2014 , Solar Cells from China 2015 , Supercalendered 
Paper from Canada 2015 , PET Resin from China 2016 , Stainless Pressure Pipe from India 2016 , 
Truck and Bus Tires from China 2016 , and Stainless Steel Sheet and Strip from China 2017 .91 The 
Panel found that, despite variations in language, Canada's examples showed that, since 2012, the 
USDOC acted substantially in the same manner in treating information discovered at verification that 
it considered should have been provided in response t o the OFA  question. To the Panel, this was 
sufficient evidence of the repeated application of the alleged OFA -AFA measure.92  
5.28.   We recall that, in US – Continued Zeroing , the European  Communities  challenged the "use of 
the zeroing methodology in a string of c onnected and sequential determinations" in 18  cases, by 
which anti -dumping duties were being maintained.93 The Appellate  Body understood the  "string of 
connected and sequential determinations" to mean successive proceedings in the 18  anti-dumping 
duty cases .94 Having reversed the relevant panel findings in US – Continued Zeroing , the 
Appellate  Body examined whether there were sufficient factual findings and undisputed facts on the 
record for it to complete the legal analysis, as requested by the European  Comm unities . In this 
respect, the Appellate  Body found that in only 4 of the 18  cases were there sufficient factual findings 
indicating the repeated use of the zeroing methodology in a string of determinations, made 
sequentially over an extended period of time .95 
5.29.   In our view, the Appellate  Body's analysis concerning the strings of anti -dumping 
determinations in US – Continued Zeroing  did not qualify the legal standard of "repeated application" 
generally. Rather, the Appellate  Body's examination related to the European  Communities' 
characterization of the alleged "ongoing conduct " measure in that dispute . Indeed, the panel and 
the Appe llate Body in that dispute examined the evidence submitted by the European  Communities  
in light of the manner in which the European  Communities  had characterized the challenged 
measure.96 Thus, we do not understand the Appellate  Body to have suggested that a complainant 
must always show repetition in a string of connected and sequential determinations in  successive 
proceedings pertaining to the same order to demonstrate successfully the "repeated application" of 
an alleged "ongoing conduct " measure.  
5.30.   Unlike i n US – Continued Zeroing , Canada does not characterize the alleged OFA -AFA measure 
as occurring in "a string of connected and sequential determinations" or "successive proceedings". 
Rather, before the Panel, Canada submitted that the alleged OFA -AFA measur e consists in the 
 
90 Canada's appellee's submission, paras.  28-30 and 56 -57. See also Japan's third participant's 
submission, paras.  5 and 8.  
91 Panel  Repor t, paras.  7.320 -7.321 (tables  3 and 4).  
92 Panel  Report , para.  7.324. The Panel referred to nine determinations, which we understand to include 
the eight examples in tables  3 and 4 (concerning repeated application), as well as Solar Cells from China 2012 , 
referenced in tables  1 and 2 (concerning precise content).  
93 Appellate  Body Report, US – Continued Zeroing , para.  181.  
94 Appellate  Body Report, US – Continued Zeroing , para.  183. 
95 Appellate  Body Report, US – Continued Zeroing , paras.  191-197.  
96 Appellate  Body Report, US – Continued Zeroing , para.  191. Similarly, in US – Orange Juice (Brazil) , 
the panel looked for evidence of zeroing in "successive proceedings". In that dispute, Brazil had claimed that 
the USDOC's continued use of zeroing in "successive anti -dumping proceedings under the Orange Juice Order, 
including the original investigation and any subsequent administrative reviews by which duties are applied and 
maintained over a period of time" amounted to "ongoing conduct" that was incon sistent with certain provisions 
of the Anti -Dumping Agreement. (Panel  Report, US – Orange Juice (Brazil) , paras.  7.163 -7.164) That panel 
understood Brazil to be challenging the continued use of the zeroing methodology under the orange juice 
anti-dumping du ty order, in the limited context of the orange juice proceedings. Having reviewed 
Brazil's  evidence, the panel concluded that the USDOC had used zeroing in the original investigation and 
three  administrative reviews under the orange juice anti -dumping orde r. In our view, the panel's approach was 
based on the manner in which Brazil had characterized the challenged measure in that dispute. (Panel  Report, 
US – Orange Juice (Brazil) , paras.  7.184 and 7.191)  
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  USDOC asking the OFA  question and , where the USDOC discovers information during verification 
that it deems should have been provided in response to that question, applying AFA to determine 
that the discovered information amounts to counte rvailable subsidies.97 As before the Panel, Canada 
contend s on appeal  that this alleged measure has been repeatedly applied since 2012 whenever the 
relevant circumstances arose.98  
5.31.   In our view, the Panel's analysis appropriately reflects Canada's characteriz ation of the alleged 
OFA-AFA measure, focus ing at this stage on the repetition of the elements identified by Canada that 
form part of the alleged OFA -AFA measure. Thus, we consider that the Panel did not err in examining 
"repeated application" by reference to the elements of the alleged measure in this dispute, and not 
against the particular elements of the measure in US – Continued Zeroing .  
5.32.   The United  States also argues that the evidence in this dispute showed that there was no 
repeated application of the alleged measure because there were frequent and numerous breaks.99 
The United  States  refers to four examples on the Panel record  (Supercalendered Paper fr om 
Canada  2015, Shrimp from China 2013, PET Resin from China 2016, and Stainless Pressure Pipe 
from India 2016 ) where, according to the United  States , the USDOC did not apply the alleged 
OFA-AFA measure.100 
5.33.   Canada responds that the Panel correctly evaluated the evidence in finding that the alleged 
OFA-AFA measure had been repeatedly applied and recalls the Panel's conclusion that it could not 
identify a single instance where the USDOC had not applied the alleged OFA -AFA measure.101 Canada 
disagrees with the Uni ted States ' characterization of certain instances as "deviations" from the 
alleged OFA -AFA measure. Rather, Canada submits that these determinations also demonstrate the 
repeated application of the alleged OFA -AFA measure whenever the relevant circumstance s arise.102 
5.34.   We note, as observed by Canada, that the Panel found it was unable to identify any instance 
where the alleged OFA -AFA measure had not been applied by the USDOC, except as an "inadvertent 
error".103 The Panel considered that the United  States  had no t provided evidence of any instance 
after 2012 where the USDOC did not apply the alleged measure.104  
5.35.   In relation to Supercalendered Paper from Canada 2015, the United  States  argues that the 
USDOC did not use "facts available" for one of the accounts it had discovered during verification for 
Resolute.105 We understand the United  States  to be referring to the unreported account that the 
 
97 Panel  Report , paras.  7.308 and 7.316.  
98 Panel  Report , para.  7.319; Canada's appellee's submission, para.  33; second written submission to 
the Panel, para.  167.  
99 United  States ' appellant's submission, para.  30. 
100 United  States ' appellant's submission, paras.  26-28. 
101 Canada's appellee's submission, paras.  52-53.  
102 Canada's appellee's submission, paras.  33 and 53 -55 (referring to USDOC, Memorandum dated 
27 August  2015 for the Verification of the Questionnaire Responses of Resolute FP Canada Inc. in the 
Countervailing Duty Investigation of Supercalendered Pa per from Canada  (Supercalendered Paper from Canada 
2015, Verification Report (Resolute) (Panel Exhibit CAN -47 (BCI)) , p. 8; USDOC, Issues and Decision 
Memorandum for the Final Determination in the Countervailing Duty Investigation of Certain Frozen 
Warmwat er Shrimp from the People's Republic of China (12  August  2013) (Shrimp from China 2013, 
I&D Memo) (Panel Exhibit CAN -118), pp.  15-16 and 76 -78; USDOC, Issues and Decision Memorandum for the 
Final Determination in the Countervailing Duty Investigation of Ce rtain Polyethylene Terephthalate Resin from 
the People's Republic of China (4  March  2016)  (PET Resin from China 2016, I&D Memo ) (Panel Exhibit 
CAN-125), pp.  19 and 52 -53; USDOC, Verification of Zhanjiang Guolian Aquatic Products Co., Ltd., Zhanjiang 
Guolia n Feed Co., Ltd., Zhanjiang Guolian Aquatic Fry Technology Co., Ltd., and Zhanjiang Guotong Aquatic 
Co., Ltd. in Countervailing Duty Investigation: Certain Warmwater Shrimp from the People's Republic of China 
(1 July 2013)  (Panel Exhibit CAN -215), pp.  1-2; USDOC, Countervailing Duty Investigation of Polyethylene 
Terephthalate Resin from the People's Republic of China: Verification Report of Dragon Special Resin Co., Ltd., 
Xiang Lu Petrochemicals Co., Ltd., Xianglu Petrochemicals Co., Ltd., and Xiamen Xiangl u Chemical Fiber 
Company Limited (19  January  2016)  (PET Resin from China 2016, Verification Report (Dragon) ) (Panel Exhibit 
CAN-210), p.  2)).  
103 Panel  Report , para.  7.325 (referring to Stainless Pressure Pipe from India 2016, Final Calculation 
Memo (Panel Exhibit CAN -148), fn  3); Canada's appellee's submission, paras.  52 and 55.  
104 Panel  Report , para.  7.326.  
105 United  States ' appellant's submission, para.  26. 
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  USDOC discovered during verification for Resolute, which was empty for the relevant periods.106 As 
noted by  Canada , an accoun t that is empty during the relevant periods would be unlikely to reflect 
"assistance" that would be reported in response to the OFA  question.107 Thus, we do not consider 
that this example undermines the Panel's conclusion that Supercalendered Paper from Cana da 2015  
is an instance  of repeated application  of the alleged OFA -AFA measure .108  
5.36.   With respect to Shrimp from China 2013 and PET Resin from China 2016, the United  States  
contends that the USDOC did not apply "facts available" to all previously unreported in formation 
that it had discovered during verification. The United  States  considers the Panel's reasoning to 
explain away the non -application of the alleged OFA -AFA measure by referring to the time at which 
the respondent companies presented information to the USDOC, namely at the outset of verification. 
To the United  States , however, the alleged measure does not include this temporal distinction and 
refers only to "verification".109 
5.37.   We note, however, that the Panel found that in both of these e xamples, "the USDOC went on 
to discover information during the verification and applied AFA because the companies did not report 
the programmes in response to the [OFA]  question ."110 We understand that the Panel distinguished 
between situations where a respo ndent presents information at verification concerning previously 
reported  grants or programmes, and situations where a respondent presents information at 
verification concerning previously unreported  grants or programmes.  Thus, we do not agree with 
the Uni ted States  that the distinction made by the Panel merely concerned timing, i.e.  whether 
information was presented at the outset of verification or not.111  
5.38.   Indeed, in Shrimp from China 2013, the respondent companies reported three grants at 
verification that  had not been referred to in their initial or supplemental questionnaire responses.112 
The USDOC noted that these grants had not been previously reported, and on that basis applied AFA 
to determine that they were countervailable subsidies.113 Similarly, in PET  Resin from China 2016, 
the respondent companies presented certain grants as minor corrections at verification.114 We 
understand that the USDOC accepted, as minor corrections, information concerning grants that had 
been previously reported to the USDOC. By c ontrast, the USDOC rejected, as minor corrections, 
grants that had not been previous ly reported. This was because "whether a program was used or 
not by a company is not 'minor' in the view of the [USDOC]".115 In relation to the previously 
unreported grants, the USDOC then applied AFA to determine that they were countervailable 
subsidies.116 Thus, we consider that the Panel corr ectly concluded that both Shrimp from China 2013 
and PET Resin from China 2016 concerned "situations where previously unreported informa tion is 
discovered by the USDOC".117 As the United  States  has not demonstrated otherwise, we see no error 
in the Panel's finding that these proceedings demonstrate repeated application of the alleged 
OFA-AFA measure.  
5.39.   Turning to Stainless Pressure Pipe from India 2016 , the United  States  contends that the 
USDOC did not apply the alleged measure. The United  States  notes that the Panel emphasized that 
the USDOC characterized its conduct in that proceeding as an "inadvertent error". To the 
United  States , however,  the reason why the USDOC did not apply the alleged measure is 
"irrelevant".118  
 
106 Supercalendered Paper from Canada 2015, Verif ication Report (Resolute) (Panel Exhibit CAN -47 
(BCI)) , p. 8. 
107 Canada's appellee's submission, para.  53. 
108 Panel Report, para.  7.320, table  3. 
109 United  States ' appellant's submission, para.  27.  
110 Panel  Report , para.  7.327.  
111 United  States' appellant's submission, para.  27. 
112 At the outset of verification, the respondent companies also presented five corrections that did not 
concern the unreported grants. (Shrimp from China 2013, I&D Memo ( Panel Exhibit CAN -118), p.  76) 
113 Shrim p from China 2013, I&D Memo (Panel Exhibit CAN -118), pp.  76-77. 
114 PET Resin from China 2016, I &D Memo  (Panel Exhibit CAN -125), p.  19. 
115 PET Resin from China 2016, I &D Memo  (Panel Exhibit CAN -125), p.  19; PET Resin from China 2016, 
Verification Report (Dragon) (Panel Exhibit CAN -210).  
116 Panel  Report, pa ra. 7.320, table  3 (referring to PET Resin from China 2016, I&D Memo ( Panel Exhibit 
CAN-125), p.  53). 
117 Panel  Report , para.  7.327.  
118 United  States ' appellant's submission, para.  28. 
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  5.40.   We note, however, that the Panel  Report  refers to excerpts indicating that the alleged 
OFA-AFA measure was eventually applied in Stainless Pressure Pipe from India 2016  in relation to 
information discovered at verification.119 In addition, contrary to the United  States ' argument, we 
consider that the reason for an apparent break in the application of the alleged OFA -AFA measure is 
relevant to the analysis at issue. We agre e with the Panel that the USDOC's characterization of the 
non-application as an "inadvertent error" suggests that, had the USDOC not erred, it would have 
applied the alleged OFA -AFA measure, as it ultimately did in this example.120 Thus, we consider that 
the Panel was correct to conclude that Stainless Pressure Pipe from India 2016  does not represent 
a break in the application of the alleged OFA -AFA measure; rather , it provides evidentiary support 
for the repeated application of the alleged measure.  
5.41.   We theref ore consider that the Panel was correct to find that the alleged OFA -AFA measure 
was applied in each of the examples relied on by Canada, and that no instances of non -application 
were identified by the United  States . We agree with the Panel that these exam ples establish that 
the alleged OFA -AFA measure has been repeatedly applied.  
5.1.4.3   Likelihood of continued application of the alleged OFA -AFA measure  
5.42.   The United  States  also claims that the Panel erred in finding that Canada had established that 
the alleged OFA -AFA measure was likely to continue to be applied in the future.121 The United  States 
contends that, unless the complainant establishes that "a Member has adopted a decision to follow 
[particular] conduct in the future, vague statements of what a Member 'does' do not establish the 
existence of a measure" .122 The United  States  refers to its arguments on repeated application and 
submits that there is "no discernible basis " in the Panel's findings to support the conclusion that the 
alleged ongoing conduct is likely to continue.123 Finally, the United  States  considers that the Panel's 
reference to "practice" does not demonstrate likelihood of continu ed applic ation and that the  Panel's 
findings were not premised on any such conclusion.124 
5.43.   Canada responds that the legal standard for likelihood of continued application is not one of 
"certainty".125 Canada recalls that the USDOC applied the alleged OFA -AFA measure whenever it was 
confronted with relevant factual circumstances. Canada considers that the Panel correctly concluded 
that the alleged OFA -AFA measure is likely to continue to be applied, given its repeated application, 
the consistent manner in which the USDOC refers to the alle ged measure as a "practice", the 
frequent reference to previous applications of the alleged measure in USDOC determinations, and 
the USDOC's description  of a departure from the alleged measure as an "error".126 
5.44.   We disagree wit h the United  States ' suggestion that a complainant is required to establish 
that a Member has "adopted" a decision to follow particular conduct in the future.127 While such an 
adopted decision may suffice, in certain cases, to show that particular conduct is likely to continue 
in the futur e, a complaining Member need not rely on a formal decision by the responding Member 
to demonstrate the existence of "ongoing conduct". Rather, we consider that likelihood of continued 
application may be demonstrated through a number of factors. In this res pect, we agree with the 
Panel that Canada was not required to prove "certainty" of future application of the alleged 
OFA-AFA measure.128 
 
119 Panel  Report , para.  7.313, table  2 (referring to USDOC, Issues and Decis ion Memorandum for the 
Final Affirmative Determination in the Countervailing Duty Investigation of Welded Stainless Pressure Pipe from 
India (22  September  2016)  (Panel Exhibit CAN -152), pp.  6, 8, and 28 -29 (fns  omitted)).  
120 Panel  Report , para.  7.328.  
121 United States ' appellant's submission, paras.  31-32. 
122 United  States ' appellant's submission, para.  10. 
123 United  States ' appellant's submission, para.  31. 
124 United  States ' appellant's submission, para.  31 (referring to Panel  Report, para.  7.329).  
125 Canada's appellee's submission, paras.  11 and 58 (referring to Panel  Report, para.  7.329; 
Appellate  Body Report, US – Anti-Dumping Methodologies (China) , para.  5.132; Panel  Report, US – Orange 
Juice (Brazil) , para.  7.192).  
126 Canada's appellee's submission, para.  60 (referring to Panel  Report, para.  7.328).  
127 United  States ' appellant's submission, para.  10. 
128 Panel  Report , para.  7.329. We note that the Appellate  Body has taken a similar view in relation to 
the prospective nature of rules or norms of general and pros pective application. To the Appellate  Body, a 
complainant would not be able to show "certainty" of future application, because any measure may be modified 
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  5.45.   We recall that the Panel found that the alleged OFA -AFA measure amounted to conduct that 
was likely to continue on the basis of the following factors  present in the USDOC's post-2012 
determination s: (i) the consistent manner in which the USDOC referred to the alleged 
OFA-AFA measure or previous applications of  the alleged measure129; (ii)  the USDOC's own 
reference to the all eged measure as its "practice"130; and (iii)  the USDOC's characterization of a 
departure from the alleged measure as an "inadvertent error".131 
5.46.   In examining these factors, the Panel relied on evidence summarized in tables 3 and 4 of the 
Panel  Report  concerning  the USDOC's post -2012 determinations . In relation to Shrimp from China 
2013, the excerpt relied on by the Panel notes that, while the USDOC's practice concerning 
programmes discovered at verification has varied in past cases, the facts of that case merit ed the 
application of AFA.132 The excerpts relied on by the Panel in Solar Cells from China 2014 , Solar Cells 
from China 2015, and Supercalendered Paper from Canada 2015  repeat the same statement .133 
Moreover, Solar Cells from Chin a 2014, Supercalendered Paper from Canada 2015, and PET Resin 
from China 2016 each refer to Shrimp from China 2013 when applying AFA to unreported information 
discovered during verification.134 Further, the excerpts for Solar Cells from China 2014, Solar Cel ls 
from China 2015,  and Supercalendered Paper from Canada 2015 preface the application of AFA to 
unreported information discovered at verification with the statement: "consistent with [the USDOC's] 
practice".135 In relation to Stainless Pressure Pipe from In dia 2016 , the Panel referred to the USDOC's 
"practice of not collecting new information at verification" and the view that it was an "inadvertent 
error" to do otherwise.136 In relation to Truck and Bus Tires from China 2016 , the excerpt relied on 
by the Pane l also prefaces the application of AFA to unreported information discovered during 
verification with the statement: "consistent with prior determinations", referring to PET Resin from 
China 2016 and Supercalendered Paper from Canada 2015.137 We also note tha t, in that proceeding, 
the USDOC stated that, "[w]hile the [USDOC] acknowledges that its practice has evolved over time, 
since 2012, it has determined that the proper course of action when an unreported potential subsidy 
is discovered or 'presented' at ver ification is to rely on adverse inferences in making a finding on 
that potential subsidy."138 
5.47.   Overall,  the Panel found that Canada had shown that the USDOC applied the alleged 
OFA-AFA measure in nine determinations since 2012, and that the United  States  had not provided 
any evidence of non -application of the alleged measure subsequent to 2012.139 We see no error in 
 
or withdrawn in the future. The mere possibility that "a rule or norm may be modified or withdrawn, h owever, 
does not remove the prospective nature of that measure". (Appellate  Body Report, US – Anti-Dumping 
Methodologies (China) , para.  5.132) See also European  Union's third participant's submission, para.  20; 
Japan's third participant's submission, para.  6; China's third participant's submission, paras.  7 and 10.  
129 Panel  Report , para.  7.328.  
130 The Panel also acknowledged the parties' disagreement as to whether the alleged OFA -AFA measure 
constituted a "practice" under United  States law, but considered it  was not determinative as to the likelihood of 
the continuation of the alleged OFA -AFA measure, and did not express a view. (Panel  Report, para.  7.329 and 
fn 613 thereto)  
131 Panel  Report , para.  7.328 (quoting Stainless Pressure Pipe from India 2016, Final C alculation Memo 
(Panel Exhibit CAN -148), fn  3). 
132 Panel  Report, para.  7.320, table  3 (quoting Shrimp from China 2013, I&D Memo (Panel Exhibit 
CAN-118), p.  78).  
133 Panel  Report , para.  7.320, table  3 (quoting Solar Cells from China 2014, I&D Memo (Panel Exhibit 
CAN-121), p.  88; Solar Cells from China 2015, I&D Memo (Panel Exhibit USA -8), p.  58; Supercalendered Paper 
from Canada 2015, I&D Memo (Panel Exhibit CAN -37), p.  155).  
134 Panel  Report, para.  7.320, table  3 (quoting Solar Cells from China 2014 , I&D Memo (Panel Exhibit 
CAN-121), p.  88; Supercalendered Paper from Canada 2015, I&D Memo  (Panel Exhibit CAN -37), p.  155; 
PET Resin from China 2016, I&D Memo (Panel Exhibit CAN -125), p.  53).  
135 Panel  Report , para.  7.320, table  3; Solar Cells from China 2 014, I&D Memo (Panel Exhibit CAN -121), 
p. 88; Supercalendered Paper from Canada 2015,  I&D Memo (Panel Exhibit CAN -37), p.  155; Solar Cells from 
China 2015,  I&D Memo (Panel Exhibit USA -8), p.  59.  
136 Panel  Report , para.  7.320, table  3; Stainless Pressure Pipe from India 2016, Final Calculation Memo 
(Panel Exhibit CAN -148).  
137 Panel  Report , para.  7.321, table  4; USDOC, Issues and Decision Memorandum for the Final 
Determination in the Countervailing Duty Investigation of Truck and Bus Tires from the  People's Republic of 
China; and Final Affirmative Determination of Critical Circumstances, in Part (19  January  2016)  (Truck and Bus 
Tires from China 2016, I&D Memo) (Panel Exhibit CAN -163), pp.  15-16. 
138 Truck and Bus Tires from China 2016, I &D Memo  (Panel  Exhibit CAN -163), p. 67 (referring to Solar 
Cells from China 2012,  Shrimp from China 2013 ).  
139 Panel  Report , paras.  7.324 -7.326.  
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  the Panel's conclusion that the evidence adduced by Canada sufficiently establishes that the 
challenged conduct is likely to continue. In particular , we agree with the Panel that the consistent 
manner in which the USDOC refers to the alleged OFA -AFA measure, the frequent reference to 
previous applications of the alleged measure in USDOC determinations, the fact that the USDOC 
refers to the alleged measure as its "practice"140, and the USDOC's characterization of a departure 
from the alleged measure as an "inadvertent error" all support the conclusion that the alleged 
measure is likely to continue to apply.141 
5.1.5   Conclusion  
5.48.   For the reasons  stated above , we dismiss Canada's assertion that the United  States ' claim on 
appeal falls outside the scope  of appellate review.  Further, w e find that the Panel did not err in 
concluding  that Canada had established the precise content , repeated applicatio n, and likelihood of 
continued application  of the alleged OFA -AFA measure .  
5.49.   Consequently, we uphold  the Panel's finding, in paragraphs  7.332 and 8.4.a of the 
Panel  Report , that Canada established the existence of the OFA -AFA measure as "ongoing 
conduct".142 
5.2  Article  12.7 of the S CM Agreement  
5.2.1   Introduction  
5.50.   The United  States appeals the Panel's finding that the OFA -AFA measure is inconsistent with 
Article  12.7 of the SCM  Agreement. In particular, the United  States claims that the Panel erred under 
Article  12.7 of the DSU by failing to provide a "basic rationale" for its finding that the 
OFA-AFA measure is inconsistent with Article  12.7 of the SCM  Agreement.143 The United  States also 
claims that the Panel erred under Article  12.7 of the SCM  Agreement b y finding that the 
OFA-AFA measure is inconsistent with that provision.144 The United  States requests that we reverse 
the Panel's finding that the OFA -AFA measure is inconsistent with Article  12.7 of the 
SCM Agreement.145 Canada responds that the Panel did not  err in finding that the OFA -AFA measure 
is inconsistent with Article  12.7 of the SCM  Agreement.146 Canada requests that we dismiss the 
United  States' claims of error.147 
5.51.   We begin by sum marizing the Panel's findings under Article  12.7 of the SCM  Agreement. We 
then address the United  States' claims of error on appeal.  
5.2.2   The Panel's findings  
5.52.   Before  the Panel, Canada claimed that the United  States acted inconsistently with Article  12.7 
of the SCM  Agreement by improperly applying AFA against the Canadian company Resolute in 
relation to assistance discovered at verification  that had not been disclosed in response to the 
OFA question .148 Separately, Canada also claimed that the OFA -AFA measure, as an "ongoing 
conduct" measure, is inconsistent with Article  12.7 of the SCM  Agreement because it eliminates the 
 
140 We understand the Panel's reference to "practice" to be a general reference to the usual or routine 
procedure applied by the  USDOC when certain circumstances arise. T he Panel did not make any findings in 
relation to a "practice" within the meaning of United  States law. We agree with the Panel's statement that 
whether the alleged OFA -AFA measure "constitutes a legally -binding pr actice or policy under [United  States] 
law is not determinative as to the likelihood of the continuation of the [alleged] measure" in examining 
whether an "ongoing conduct" measure exists for purposes of WTO dispute settlement. (Panel  Report, 
para. 7.329)  
141 Panel  Report , para.  7.328.  
142 We note that, in making this finding, the Panel did not find it necessary to address Canada's 
assertion that the measure amounted to a rule or norm of general and prospective application. (Panel  Report, 
para. 7.332 (referring  to Canada's opening statement at the first Panel meeting, para.  210))  
143 United  States' appellant's submission, paras.  4 and 39 -48. 
144 United  States' appellant's submission, paras.  4 and 49 -79. 
145 United  States ' appellant's submission, para.  80. 
146 Canada's a ppellee's submission, paras.  61-127. 
147 Canada's appellee's submission, para.  128. 
148 Panel  Report, para.  7.155.  
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  requirement for evidence and effectively replaces it with the assumptions of the USDOC during 
verification.149  
5.53.   The Panel first examined the USDOC's use of "facts available" against Resolute in 
section  7.4.1.4 of the Panel  Report . The Panel  began by noting that the purpose of Article  12.7 of 
the SCM  Agreeme nt is to ensure that a lack of information does not hinder the ability of an 
investigating authority to conduct its investigation. This provision allows authorities to fill in the gaps 
by using "facts available" they deem relevant in order to make a determ ination.150 The Panel later 
explained that this allowance is not boundless. An authority must use those "facts available" that 
reasonably replace the information that an interested party failed to provide, wi th a view to arriving 
at an accurate determination .151 The "facts available" must be facts that are in the possession of the 
investigating authority and on its written record. To the Panel, an investigating authority cannot 
resort to non -factual assumptions or speculations and must take into account all sub stantiated facts 
on the record.152 
5.54.   The Panel  considered that the disagreement between the parties concerned "refus[ing] access 
to, or otherwise … not provid[ing], necessary information within a reasonable period", rather than 
"significantly imped[ing] the in vestigation".153 To the Panel, the term "necessary" in Article  12.7 of 
the SCM  Agreement is "concerned with overcoming the absence of information required to complete 
a determination" .154 The Panel distinguished between "necessary" information and information that 
is merely "requested" or "required".155 To the Panel, only a request for "necessary" information may 
justify use of "facts available".156  
5.55.   In relation to Resolute, the Panel noted that Resolute and Canada had not indicated any other 
assistance in response  to the OFA  question.157 The Panel also noted that, at the verification stage of 
the underlying investigation, the USDOC had discovered certain forms of assistance that had not 
been disclosed in response to the OFA  question.158 The USDOC consequently determine d that the 
use of "facts available " was warranted with respect to Resolute and concluded that the discovered 
forms of assistance provided a financial contribution and were specific, and that a benefit had been 
conferred.159 
5.56.   The Panel stated that it is logica l to postulate that information pertaining to the existence of 
as-of-yet unidentified subsidy programmes benefiting the product under investigation is necessary 
information  under Article  12.7 of the SCM  Agreement.160 In order to justify recourse to "facts 
available " on the grounds that such necessary information was refused access to or was otherwise 
not provided, however, the USDOC first needed to establish that the information about the 
discovered  assistance  was information necessary to complete a determina tion on subsidization of 
 
149 Panel  Report, paras.  7.294 and 7.296 ; Canada's first written submission to the Panel, para.  426. 
150 Panel  Report, para.  7.172.  
151 Panel  Report, para.  7.184 (referring to Appellate  Body Reports, US – Carbon Steel (India) , 
para. 4.416; Mexico – Anti-Dumping Measures on Rice , para.  294; US – Countervailing Measures (China) , 
para. 4.178).  
152 Panel  Report, para.  7.184 (referring to Appell ate Body Reports, US – Carbon Steel (India) , 
paras.  4.417 and 4.419; Mexico – Anti-Dumping Measures on Rice , para.  294; US – Countervailing Measures 
(China) , para.  4.178; US – Anti-Dumping Methodologies (China) , para.  5.172).  
153 Panel  Report , para.  7.173.  
154 Panel  Report , para.  7.174 (quoting Appellate  Body Report, US – Carbon Steel (India) , para.  4.416 
(emphasis added by the Panel omitted)). The Panel noted a dictionary definition of the term "necessary" as 
something "[t]hat cannot be dispensed with or done without; requisite, essential, needful". ( Panel  Report, 
para. 7.174) The Panel also stated that Article  12.7 "permits the use of facts on record solely for the purpose 
of replacing information that may be missing, in order to arrive at an accurate subsidiz ation or injury 
determination". ( Panel  Report, fn 297 to para.  7.174 (quoting Appellate  Body Report, Mexico  – Anti-Dumping 
Measures on Rice , para.  293))  
155 Panel  Report , para.  7.174 (referring to Panel  Report, Egypt – Steel Rebar , para.  7.155).  
156 Panel  Report, para.  7.174.  
157 Panel  Report, paras.  7.157 -7.160.  
158 Panel  Report, paras.  7.162 -7.163. While the USDOC examined the accounts relating to the 
discovered assistance, it refused to accept onto the record any of the information contained in the accounts 
concerning the nature or value of the assistance. ( Panel  Report, para.  7.163)  
159 Panel  Report, para.  7.165.  
160 Panel  Report, para.  7.175. Given that " [t]he parties to these proceedings are in agreement that new 
programmes may be added to an investigation when they are discovered during that investigation", the Panel 
stated that this question is not addressed in the Panel  Report. (Ibid.)  
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  the product under consideration.161 The Panel considered that the USDOC failed to do so. Instead, 
having found certain entries during verification, the USDOC inferred that these entries pertained to 
countervailable subsidization of s upercalendered paper, "without taking any further steps to confirm 
that this was in fact the case and providing a reasoned and adequate explanation to that effect" .162 
5.57.   The Panel  acknowledged arguments by the United  States in relation to the practical difficulties 
arising from the timing of verifications and the closing of the record of the USDOC's investigation. 
Nonetheless, the Panel held that it is the right of respondents that  an investigating authority may 
only resort to "facts available" after properly determining that information necessary to complete a 
determination on additional subsidization of the product under investigation had been withheld.163 
The fact that it would hav e been inconvenient or impracti cal for the USDOC to take further steps to 
confirm the basic nature of the discovered assistance cannot outweigh the due process rights 
enshrined in the WTO  Agreements.164 The Panel explained that this is all the more applicabl e where 
an investigating author ity elects to add subsidy programmes to an ongoing investigation.165  
5.58.   While recognizing that Canada does not contest the USDOC's right to ask the OFA  question166, 
the Panel noted that the OFA  question is very broad. To the Panel,  while the OFA  question might 
pertain to necessary information regarding additional subsidization of the product under 
investigation , it may also pertain to a much broader range of "assistance".167 The Panel considered 
that, in these circumstances, the inves tigating authority may not infe r that a respondent's failure to 
respond fully to such a question resulted in a failure to provide information necessary to establish 
the existence of additional subsidization of the product under investigation. To the Panel,  more is 
required of the investigating authority.168  
5.59.   The Panel then examined the USDOC's decision to disregard the actual amounts discovered 
during verification when determining benefit. Instead of using the actual amounts from Resolute's 
company ledger, th e USDOC relied on the rates cal culated in an unrelated investigation.169 The Panel 
explained that reliance on such rates "over information found by the verification team in a 
respondent's own company ledger, without analysing that information, was not justif ied".170 To the 
Panel, this was especially the case si nce the USDOC had already relied on information in that ledger 
to infer the existence of a countervailable subsidy. The Panel concluded that the USDOC's use of 
facts other than actual amounts present in t he company ledger discovered at verification, without 
reasoned and adequate explanation, was inconsistent with Article  12.7 of the SCM  Agreement.171  
5.60.   The Panel next considered Canada's claim that the OFA -AFA measure, as an "ongoing 
conduct" measure, is incon sistent with Article  12.7 of the SCM  Agreement . Addressing this claim of 
inconsistency  in paragraph  7.333, the Panel noted that , while a broad question such as the 
OFA question might pertain to necessary information regarding additional subsidization of th e 
product under investigation, it may also pertain to a much broader range of "assistance".172 As the 
Panel stated, in these circumstances, an investigating authority may not simply infer that a 
respondent's failure to respond fully to the OFA  question resul ted in a failure to provide information 
 
161 Panel  Report, para.  7.175.  
162 Panel  Report, para.  7.176 (referring to Supercalendered Paper from Canada 20 15, I&D Memo (Panel 
Exhibit CAN -37) p.  30 ("For the subsidies discovered at Resolute's verification, we have identified the 
remaining two programs that we find, as AFA, to provide a financial contribution, to be specific, and to confer a 
benefit[.]") and p . 153 ("[W]e find that Resolute failed to provide information regarding this assistance 
discovered at verification, and thus, [S]ection  776(a)(2)(B) of the Act applies. We further find that … Resolute 
failed to cooperate[.] … Thus, pursuant to Section  776(b) of the Act, we are determining, as AFA, that the 
unreported assistance in question is countervailable.")).  
163 Panel  Report , para.  7.177.  
164 Panel  Report , para.  7.177.  
165 Panel  Report , para.  7.177.  
166 The Panel noted that Canada itself conceded that " [t]he formulation of a question cannot, in and of 
itself, violate the requirements of the SCM  Agreement." (Panel  Report, para.  7.181, quoting Canada's response 
to Panel question No.  75, para.  164) 
167 Panel  Report , para.  7.181.  
168 Panel  Report , para.  7.181.  
169 Panel Report, paras.  7.182 and 7.185.  
170 Panel  Report , para.  7.185.  
171 Panel  Report , para.  7.185.  
172 Panel  Report , para.  7.333.  
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  necessary to  establish the existence of additional subsidization of the product under investigation.173 
The Panel noted that, in light of the due process rights enjoyed by interested parties throughout an 
investigation , an investigating authority may only resort to "facts available " after properly 
determining that information necessary to complete a determination on additional subsidization of 
the product under investigation had been withheld.174 To the Panel, this is all the more applicable 
where an investigating authorit y elects to a dd subsidy programmes to an ongoing investigation, 
rather than investigating only the subsidies identified in the notice of initiation.175 The Panel 
concluded that the challenged measure is inconsistent with Article  12.7 of the SCM  Agreement. The 
Panel noted  that this conclusion was in line with its findings in section  7.4.1.4 of the Panel  Report  
relating to Resolute.176 
5.2.3   Whether the Panel erred under Article  12.7 of the DSU by failing to provide a "basic 
rationale"  
5.61.   The United  States claims that the Panel erred under Article  12.7 of the DSU by failing to 
provide a "basic rationale " for its finding that the OFA -AFA measure is inconsistent with Article  12.7 
of the SCM  Agreement.177 Canada responds that the Panel met the minimum stand ard of providing 
a "basic rational e" in accordance with Article  12.7 of the DSU.178  
5.62.   Article  12.7 of the DSU provides, in relevant part, that the report of a panel shall set out the 
findings of fact, the applicability of relevant provisions , and the basic rationale behind any findings 
and recommendations that it makes. The requirement to set out a "basic rationale" establishes a 
minimum standard for the reasoning that panels must provide in support of their findings and 
recommendations.179 To m eet this minimum standard, panels must provide explanations and 
reasons sufficient to disclose the essential, or fundamental, justification for those findings and 
recommendations.180 Whether a panel has articulated a "basic rationale" for its findings is 
determined on a case -by-case basis.181 In order to determine whether a "basic rationale" has been 
provided, it is appropriate to read the Panel  Report  as a whole . In this respect, w e recall that panels 
are free to structure the order of their analysis as they s ee fit.182 
5.63.   The Unit ed States alleges that the Panel  did not incorporate the reasoning from 
section  7.4.1.4  of the Panel Report , which concerns Resolute, into the Panel's findings in relation to 
the OFA -AFA measure in paragraph  7.333 of the Panel  Report . To the United  States, the only 
indication that the Panel may have intended to incorporate section  7.4.1.4 is the phrase "in line with 
the findings in Section  7.4.1.4 above" at the beginning of paragraph  7.333.183 In response, Canada 
observes that th e similarity in wording betwee n paragraph  7.333 and section  7.4.1.4 supports a 
view that the Panel intended to incorporate section  7.4.1.4 into the "basic rationale" of 
paragraph  7.333.184 
 
173 Panel  Report, para.  7.333.  
174 Panel  Report , para.  7.333.  
175 Panel  Report , para.  7.333.  
176 Panel  Report, para.  7.333. The Panel noted that Canada had brought additional challenges to the 
OFA-AFA measure under Articles  10, 11.1 -11.3, 11.6, 12.1, and 12.8 of the SCM  Agreement. To the Panel, 
Canada's main concern in bringing these additional claims was to ensure that respondents enjoy certa in 
"procedural safeguards" with respect to subsidy programmes discovered during the course of an investigation. 
The Panel considered that its finding under Article  12.7 of the SCM  Agreement already reflected the type of 
"procedural safeguards" envisaged by  Canada. Thus, the Panel saw no need to separately consider Canada's 
additional claims. ( Panel  Report, para.  7.334 ) 
177 United  State s' appellant's submission, paras.  39-48. 
178 Canada's appellee's submission, paras.  63-85. 
179 Appellate  Body Reports, US – Carbon Steel , para. 4.194; Mexico – Corn Syrup (Article  21.5 – US), 
para. 106. 
180 Appellate  Body Reports, US – Carbon Steel , para. 4.194; Mexico – Corn Syrup (Article  21.5 – US), 
para. 106. 
181 Appellate  Body Reports, US – Carbon Steel , para.  4.194; Mexico – Corn Syrup (Article  21.5 – US), 
para. 108. 
182 Appellate  Body Reports, Canada – Wheat Exports and Grain Imports , para.  126; US – Shrimp 
(Article  21.5 – Malaysia) , paras.  99-106. 
183 United  States' appellant's submission, para.  43. 
184 Canada's appellee's submiss ion, paras.  68-80. 
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  5.64.   At the outset , we note that paragraph  7.333 of the Panel  Report  conta ins an explanation of 
the Panel's findings in relation to the OFA -AFA measure that follows the extensive preceding analysis 
of the nature of the OFA -AFA measure  as an "ongoing conduct" measure .185 In addition, w e note 
that the first sentence of paragraph  7.333 explicitly refers to the Panel's earlier analysis by beginning 
with: "[i]n line with our findings in Section  7.4.1.4 above". In addition, a comparison of the second, 
third, fourth, and final sentences of pa ragraph  7.333 with paragraphs  7.177 and 7.181 of 
section  7.4.1.4 shows that the language in paragraph  7.333 is substantially identical to the language 
of the earlier paragraphs. Moreover, the third sentence of paragraph  7.333 also directly refers to 
the Pa nel's earlier analysis. The third sentence states "[a]s we have said" and then repeats language 
substantially identical to the final sentence of paragraph  7.181 (from section  7.4.1.4).186 
Furthermore, we note that the Appellate  Body Report in EC – Tube or Pi pe Fittings187 is quoted in 
paragraph  7.177  and then cited for the same proposition in the fourth sentence of paragraph  7.333 
of the Panel  Report . On the basis of these textual connections, we consider that  the Panel 
incorporated section  7.4.1.4 into its ana lysis of the OFA -AFA measure in paragraph  7.333.188  
5.65.   The United  States also asserts that section  7.4.1.4 cannot be incorporated into the "basic 
rationale" of paragraph  7.333 because the Panel's earlier analysis in section  7.4.1.4 involved issues 
unrelated to  the OFA -AFA measure.189 Canada argues that this is unproblematic because a plain 
reading shows  that the Panel intended to incorporate only the relevant paragraphs.190 
5.66.   We agree  with the United  States that the OFA -AFA measure does not extend to the manner 
in which the USDOC selected facts available to determine the amount of benefit  attributable to the 
discovered assistance evaluated by the Panel in paragraphs  7.182 -7.183 and 7.185 (in the context 
of Supercalendered Pap er from Canada 2015).191 This does not, however, prevent the Panel from 
incorporating the relevant parts of section  7.4.1.4 into paragraph  7.333. These are 
paragraphs  7.171 -7.181 and 7.184 , where the Panel interprets Article  12.7 of the SCM  Agreement 
and eva luates the USDOC's determination that the unreported assistance discovered during the 
verification of Resolute amounts to a countervailable subsidy . There is no indication that the Panel 
changed its understanding of Article  12.7 between section  7.4.1.4 and paragraph  7.333. That the 
Panel sought to draw only on the relevant paragraphs is also confirmed by the fact that, as discussed 
above, the language of paragraph  7.333 of the Panel  Report  mirrors specific parts of the Panel's 
earlier anal ysis. In our view , the Panel made it clear that paragraph  7.333 must be read in the 
context of the earlier analysis.  
5.67.   Finally, the United  States argues that the reasoning in section  7.4.1.4 cannot be incorporated 
into the Panel's  reasoning regarding the OFA -AFA measure because it would be erroneous to 
generalize from an "as applied" finding (concerning Resolute) to the OFA -AFA measure.192 We agree 
with Canada that it was reasonable for the Panel to incorporate certain parts of its earlier analysis 
because the Panel had already considered the interpretation of Article  12.7 with respect to a specific 
application of the OFA -AFA measure.193 Indeed, the conduct of the USDOC under consideration 
earlier by the Panel was a specific instance of the conduct described by th e OFA -AFA measure.194 
The Panel considered the USDOC CVD proceeding Supercalendered Paper from C anada 2015 to be 
an example of the "ongoing conduct" measure challenged by Canada. In this respect, we recall that 
the Panel found that the relevant conduct  of the USDOC  remained the same in the examples 
examined by the Panel.195 
5.68.   In summary, we consider t he Panel to have appropriately incorporated into paragraph  7.333 
the relevant portions of its earlier analysis in section  7.4.1.4. Through these paragraphs , the Panel 
 
185 Panel  Report, paras.  7.301-331. 
186 Canada's appellee's submission, para.  74. 
187 Panel  Report , fn 623 to para. 7.333, referring to Appellate  Body Report, EC – Tube or Pipe Fittings , 
para. 138 (quoting Appellate  Body Report, EC – Bed Linen  (Article  21.5 – India) , para.  136).  
188 European  Union's third participant's submission, paras.  29-30. 
189 United  States' appellant's submission, para.  46. 
190 Canada's appellee's submission, para.  83. 
191 United  States ' appellant's submission, para.  46.  
192 United  States ' appellant's submission, para.  45. 
193 Canada 's appellee's submission, para.  79. 
194 We recall that Supercalendered Paper from Canada 2015  was one of nine determinations used as 
evidence of the existence of the OFA -AFA measure.  
195 Panel  Report, para.  7.316.  
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  provided an interpretation of Article  12.7 of the SCM  Agreement, addressed pertinent fact ual aspects 
of the OFA -AFA measure, and provided explanation sufficient to disclose the Panel's essential 
justification for its finding. Thus, we consider that the Panel did not err under Article  12.7 of the DSU 
by failing to provide a "basic rationale" fo r its finding that the OFA -AFA measure is inconsistent with 
Article  12.7 of the SCM  Agreement.  
5.2.4   Whether the Panel erred under Article  12.7 of the SCM  Agreement by finding that 
the OFA -AFA measure is inconsistent with that provision  
5.69.   The United  States claims that the Panel erred under Article  12.7 of the SCM  Agreement by 
finding that the OFA -AFA measure is inconsistent with that provision. This is because, in the 
United  States' view: (i)  it was inappropriate for the Panel to have ignored t he "significantly impedes" 
ground for using "facts available" under Article  12.7 of the SCM  Agreement;196 (ii) the Panel 
identified conduct that is not contained in the OFA -AFA measure  as WTO -inconsistent ;197 and (iii)  the 
Panel incorrectly found that the OFA  question can never be a req uest for "necessary information" 
under Article  12.7 of the SCM  Agreement.198 We examine each of the United  States' arguments 
below.199 
5.70.   First, the United  States argues that it was in appropriate for the Panel to have ignored the 
"significantly impedes" ground for using "facts available" under Article  12.7 of the 
SCM Agreement.200 Canada responds that the "significantly impedes" ground is not relevant because 
the OFA -AFA measure concerns only a situation where a party fails to provide information and the 
USDOC either fails to assess whether such information is necessary or makes an unjustified 
assessment that such information is necessary.201  
5.71.   We note that, under Article  12.7 of the SCM  Agreement, use of "facts available" may be based 
on three alternative grounds. These are when an interested party or interested Member: (i)  "refuses 
access to … necessary information within a reasonable period" ; (ii) "otherwise does not provide … 
necessary  information within a reasonable period" ; or (iii)  "significantly impedes the investigation". 
We refer below to the first two grounds collectively as a situation where a party fails to provide 
necessary information.202 
5.72.   The United  States contends that, to find th e OFA -AFA measure inconsistent with Article  12.7 
of the SCM Agreement, the Panel would have had to conclude that none of the conditions triggering 
the use of "facts available " could be present.203 To the United  States, a failure to answer the 
OFA question could well amount to significant impedance of the investigation.204  
5.73.   We recall that the sequence of actions identified in the OFA -AFA measure is entirely concerned 
with a failure by an interested pa rty to provide necessary information. Specifically, the conduct 
described by the measure involves the USDOC discovering during verification assistance that the 
USDOC deems should have been reported in response to the OFA  question, and then using AFA to 
 
196 United  States' appellant's submission, paras.  4 and 49 -55. 
197 United  States ' appellant's submission, paras.  4 and 56 -65. 
198 United  States ' appellant's submission, paras.  4 and 66 -79. 
199 Canada does not conte st the USDOC's right to ask the OFA  question, either on appeal or before the 
Panel. ( Panel  Report, para.  7.181; Canada's appellee's submission, fn  149 to para.  117; response to Panel 
question No.  75, para.  164) Consequently, w e neither examine this issue n or make any findings in relation to 
it. As noted by the European  Union, the right to ask questions and the conclusions that may be drawn from 
answers are distinct issues. ( European  Union's third participant's submission, para.  34) 
200 United  States ' appellan t's submission, paras.  49-55. 
201 Canada's appellee's submission, para s. 86-96. 
202 We note that, regardless of the particular grounds that justify recourse to Article  12.7, " facts 
available" may be used "solely for the purpose of replacing information that ma y be missing, in order to arrive 
at an accurate subsidization or injury determination". ( Appellate  Body Report, Mexico – Anti-Dumping 
Measures on Rice , para.  293) An investigating authority may use only those "facts available" that "'reasonably 
replace the  information that an interested party failed to provide', with a view to arriving at an accurate 
determination". ( Appellate  Body Report, US – Carbon Steel (India) , para.  4.416 (quoting Appellate  Body 
Report, Mexico – Anti-Dumping Measures on Rice , para.  294) (emphasis omitted)) See also Japan's third 
participant's submission, para.  11 (referring to Appellate  Body Report, US – Carbon Steel (India) , paras.  4.419 
and 4.422); Brazil's third participant's submission, para.  6. 
203 United  States ' appellant's submiss ion, para.  55. 
204 United  States ' appellant's submission, para.  53. 
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  determine that the discovered assistance is a countervailable subsidy.205 The actions identified in 
the OFA -AFA measure do not involve the USDOC concluding that conduct by a party "significantly 
impede[d]" the investigation.206 This is consistent with Canada's ch aracterization of the measure as 
limited to the use of "facts available" by the USDOC on the basis of a fai lure by a party to provide 
"necessary information".207 Because Canada so characterized the measure, it was for the 
United  States to show that the USDOC  had relied instead on the "significantly impedes" ground in 
the determinations used as evidence of the OFA -AFA measure. The United  States, however, failed 
to contend this in relation to the OFA -AFA measure before the Panel and on appeal.208 
5.74.   Consequently, we consider that the OFA -AFA measure, as established by the Panel, is limited 
to circumstances where the USDOC uses "facts available" on the basis of a party's failure to provide 
"necessary  information". As a result, the findings concerning t he OFA -AFA measure are also limited 
to these circumstances. These findings do not concern the USDOC's use of "facts available" where 
an interested party significantly impedes the investigation.209 For these reasons, we do not consider 
that the Panel erred by  not addressing the "significantly impedes" ground for the use of "facts 
available " under Article  12.7 of the SCM  Agreement. This conclusion renders it unnecessary for us 
to interpret the "significantly impedes" ground under Article  12.7.  
5.75.   The United  State s also claims that the Panel erred because the conduct it found to be 
inconsistent with Article  12.7 of the SCM  Agreement is not contained in the OFA -AFA measure.210 In 
particular, in the United  States' view, neither the OFA -AFA measure nor the underlying 
determinations  on the Panel record support a finding that the USDOC made an inference  that 
respondents failed to provide necessary information .211 Rather, the United  States alleges that in 
each determination the USDOC made a positi ve determination that the respondent failed to provide 
the necessary information. Having made that determination, the USDOC used an inference to fill in 
the gaps resulting from the missing necessary information.212 
 
205 Panel  Report , para.  7.316.  
206 In analysing the specific instance of the OFA -AFA measure in Supercalendered Paper from 
Canada  2015, the Panel considered that "the disagreement between the parties concerns 'refus[ing] access to, 
or otherwise … not provid[ing], necessary information within a reasonable period', rather than 'significantly 
imped[ing] the investigation'". (Panel  Report, para.  7.173) In relation to the other determinations used t o 
evidence the OFA -AFA measure, see Panel  Report, para.  7.313, table  2.  
207 Canada articulated the precise content of the OFA -AFA measure in its first written submission to the 
Panel as follows:  
Since 2012, [the USDOC] has applied its Other Forms of Assista nce–AFA measure to countervail dozens 
of alleged subsidy programs in six different investigations or reviews. In these investigations and 
reviews, [the USDOC] asked the "other forms of assistance" question, then "discovered" information at 
verification tha t it deemed responsive to the "other forms of assistance" question, but that was 
undisclosed, and then applied AFA without making any factual determination of whether the elements of 
a countervailable subsidy had been met or assessing whether the informati on was "necessary 
information" related to the allegations it was investigating.  
(Canada's first written submission to the Panel, para.  409) 
208 See the United  States ' first written submission to the Panel, paras.  176, 203 -209, and 364; second 
written submiss ion to the Panel, para.  82. We note that, only in relation to Supercalendered Paper from 
Canada 2015, the United  States argued that "Canada's arguments do not address the fundamental fact that 
Resolute impeded the investigation by failing to fully answer [ the USDOC's] question concerning 'any other 
forms of assistance.'" (United  States' first written submission to the Panel, para.  203) As articulated by the 
United  States, however, the issue of Resolute impeding the investigation was evidence that the undisc losed 
information was necessary, not that the use of "facts available" had been triggered by Resolute "significantly 
impede[ing]" the investigation. As the United  States concluded:  
By not divulging the receipt of the unreported assistance prior to the comm encement of verification, 
Resolute precluded this unreported assistance from being "verifiable" and impeded  the investigation by 
refusing to provide complete and verifiable answers. As a result  of Resolute's failure to respond to [the 
USDOC's] question, necessary information was missing from the record  of the investigation which 
prevented [the USDOC] from analyzing the relevant facts concerning the element of benefit.  
(United  States' first written submission to the Panel, para.  209) (fn  omitted; emphasis ad ded) 
209 On this basis,  we do not consider it necessary to address the United  States' argument that a failure 
to answer the OFA  question could constitute significant impedance of an investigation under Article  12.7 of the 
SCM Agreement . (United  States' appel lant's submission, para.  53) 
210 United  States ' appellant's submission, paras.  56-65. 
211 United  States' appellant' s submission, paras.  60-65. 
212 United  States' appellant's submission, para.  65. 
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  5.76.   Canada responds that the OFA -AFA measure co rresponds to the conduct discussed in 
paragraph  7.333 of the Panel  Report . To Canada, the Panel correctly concluded that the 
OFA-AFA measure is inconsistent with Article  12.7 of the SCM  Agreement because, when discovering 
information during verification, t he USDOC uses inferences to assume that the discovered 
information constitutes a countervailable subsidy.213 Canada also observes that the Panel's use of 
the term "infer" derived from the USDOC's own descriptions of its practice.214 
5.77.   We turn to the conduct cons idered by the Panel to be inconsistent with Article  12.7 of the 
SCM Agreement and examine whether it is part of the OFA -AFA measure . In this respect, the Panel's 
explanation  of the Article  12.7 inconsistency must be read in light of the relevant measure at issue 
before the Panel. We recall that the OFA -AFA measure provides for the following steps: (i)  the 
USDOC asks the OFA  question; (ii)  the USDOC discovers, during verificat ion, information  that it 
deems should have been reported  in response to the OFA  question; and (iii)  the USDOC applies AFA 
to determine that the discovered information amounts to countervailable subsidies.215 In the final 
stage of the OFA -AFA measure, the USD OC refuses to accept additional information from the 
respondents and instead relies on AFA to determine that each discovered assistance provided a 
financial contribution, conferred a benefit, and was specific , all of which are necessary elements of 
a count ervailable subsidy.216 Against this background, the Panel found the following conduct to be 
inconsistent with Article  12.7:  
[A]n investigating authority may not simply infer that a respondent's failure to respond fully 
to the [OFA]  question resulted in a fai lure to provide information necessary to establish the 
existence of additional subsidization of the product under investigation.217 
5.78.   We understand the Panel to have faulted the USDOC for  mechanically concluding, without any 
further steps, that necessary information had not been provided and that the discovered assistance 
amounted to a countervailable subsidy , when the USDOC discovers unreported assistance during 
verification s. The USDOC's conclusion extends beyond an assessment as to whether a respondent 
"refuses access to, or otherwise does not provide, necessary information" under  Article  12.7 of the 
SCM Agreement .218 The inference219 that the information is necessary to "establish the existe nce of 
additional subsidization" refers to the conclusion by the USDOC in the final stage of the 
OFA-AFA measure that the discovered assistance amounts to a countervailable subsidy.220 This is 
 
213 Canada's appellee's submission, paras.  97-107. Canada submits that the USDOC considers that the 
failure to report information "warrants the application of inferences, and through inferences [the USDOC] 
determines that the unreported other assistance is co untervailable". ( Canada's appellee's submission, 
para. 102 (emphasis omitted))  
214 Canada's appellee's submission, para.  101. Canada refers to a number of examples where the 
USDOC described its conduct as an "inference". (Canada's appellee's submission, para s. 101-104 (quoting 
USDOC NAFTA Brief  (Panel Exhibit CAN -76), pp.  147-149; referring to excerpts of Solar Cells from China 2015, 
Solar Cells from China 2014, Stainless Pressure Pipe from India 2016, and Supercalendered Paper from Canada 
2015 contained in p ara. 7.313, table  2 of the Panel  Report))  
215 Panel  Report , para.  7.316.  
216 Panel  Report , paras.  7.314 and 7.316 -7.317.  
217 Panel  Report, para.  7.333. (emphasis original)  
218 Although the Panel refers to "information necessary", we do not consider that this refer ence limits 
the Panel's conclusion to the USDOC's determining that "necessary information" had been withheld. Were that 
the intention of the Panel, the Panel would have simply stated that the USDOC may not infer that the failure to 
respond fully to the OFA  question was a failure to disclose "necessary information". Instead, the Panel stated 
that the USDOC may not "simply infer" that the respondent failed to provide information necessary to 
"establish the existence of additional subsidization of the product under investigation". (Panel  Report, 
para. 7.333)  
219 The United  States takes issue with the Panel's use of the verb "infer". As noted above, the 
United  States contends that the USDOC made positive determinations that the respondents failed to provide 
necess ary information and then used inferences to fill in the gaps resulting from the missing necessary 
information. ( United  States' appellant's submission, paras.  57-60 and 65 ) Canada considers that the Panel 
used the verb "infer" because that is the verb used by the USDOC to refer to its own conduct. ( Canada's 
appellee's submission, para.  101) In our view, it is not determinative in this case whether the decisions made 
by the USDOC in the OFA -AFA measure are described as "inferences" or "determinations". T he key aspect is 
that the USDOC mechanically concludes that unreported assistance is a countervailable subsidy, after it 
discovers during verification assistance that it deems should have been reported in response to the 
OFA question.  
220 In relation to the analysis of Resolute, the Panel was even clearer when it stated: "the USDOC 
inferred  that these entries pertained to countervailable subsidization  of [supercalendered]  paper, without 
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  confirmed by the next sentence of paragraph  7.333, where the Pane l refers to due process rights in 
relation to information necessary "to complete a determination on additional subsidization of the 
product under investigation". Furthermore, the Panel continued in the final sentence of 
paragraph  7.333 that this is "all th e more applicable where an investigating authority elects to add 
subsidy programmes to an ongoing investigation". These two subsequent sentences in 
paragraph  7.333 concern the USDOC's conclusion that the discovered assistance is a countervailable 
subsidy t o be included in the investigation.221 
5.79.   Thus, i n paragraph  7.333, the Panel ties the discovery of the unreported assistance to the 
USDOC's application of AFA to conclude that the discovered assistance amounts to a countervailable 
subsidy. This is because the USDOC treats the failure to respond fully to the OFA  question as a 
sufficient basis to mechanically conclude that a party failed to provide "necessary information" and 
that, as AFA, the discovered assistance is a countervailable subsidy. As this process re flects the 
precise content of the OFA -AFA measure, we consider the conduct examined by the Panel in 
paragraph  7.333 to be part of the OFA -AFA measure.  
5.80.   In addition, we do not consider that the Panel erred in finding that the OFA -AFA measure is 
inconsistent with Article  12.7 of the SCM  Agreement. We agree with the Panel that the USDOC's 
mechanical response to the discovery of unreported assistance during verification is inconsistent 
with Article  12.7 for two reasons.222 
5.81.   First, the USDOC uses "facts  available", on the basis of a failure to provide "necessary 
information", without taking any additional steps to clarify the nature of the unreported assistance 
and whether the missing information is "necessary" under A rticle 12.7 of the SCM  Agreement.223 
The United  States cont ends that  the investigating authority is in the best position to assess what 
information is "necessary" and that the OFA  question relates to "necessary information" because it 
serves to identify possible assistance for which the applic ation of countervailing duties may be 
appropriate.224 The United  States refers to the panel's view in EC – Countervailing Measures on 
DRAM Chips  that information is "necessary" if an investigating authority "reasonably consider[s]" it 
so.225 We consider, howev er, that the use of "reasonably" by the panel itself indicates that an 
investigating authority is not entirely unconstrained in its identification of "necessary information". 
Indeed, in our view, the investigating authority must make a reasonable assessmen t based on 
evidence and cannot simply infer, without further clarification226, that the missing information is 
"necessary" within the meaning of Article  12.7. We agree with the Panel that the fact that it would 
have been inconvenient or impractical for the U SDOC to take fur ther steps to confirm the basic 
 
taking any further steps to confirm  that this was in fact the case and pr oviding a reasoned and adequate 
explanation to that effect." (Panel  Report, para.  7.176 (fns  omitted; italics original; underlining added))  
221 According to the Panel, the "parties to these proceedings are in agreement that new programmes 
may be added to an investigation when they are discovered during that investigation", "notwithstanding the 
parties'  disagreement on the procedural steps required to add such programmes to an investigation". 
(Panel  Report, para.  7.175 and fn  300 thereto) Similarly to the Pane l, we do not address this question in our 
Report. (Panel  Report, para.  7.175)  
222 Panel  Report, para.  7.333.  
223 The scope of the OFA  question clearly extends to forms of assistance that may not be countervailable 
subsidies. For example, the USDOC took no addi tional steps to clarify whether there was any indication that 
the unreported tax deduction for "wages paid for placement of disabled persons" discovered at verification in 
Solar Cells from China 2014 was specific to the respondent in that case. ( Panel  Report, para.  7.313, table  2 
(quoting Solar Cells from China 2014, I&D Memo (Panel Exhibit CAN -121), pp.  16-17)) Similarly, the USDOC 
took no additional steps to clarify whether the "bonus for employees from government" identified in the 
respondent's accounts in Solar Cells from China 2012 was connected to the production of crystalline 
photovoltaic cells subject to investigation. ( Panel  Report, para.  7.313, table  2 (quoting USDOC, Issues and 
Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Crystalline 
Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China 
(9 October  2012) (Panel Exhibit CAN -116, pp.  9-10))) 
224 United  States ' appellant's submission, paras.  69-72. 
225 United  States' appellant's submission, para.  69 (referring to Panel  Report, EC – Countervailing 
Measures on DRAM Chips , para.  7.265).  
226 At the hearing, the United  States explained that the USDOC reviews the investigation record to 
confirm that the discovered inform ation had not been previously reported by the respondent companies. We 
understand, however, that this review merely confirms that information about the discovered assistance is not 
present in the record and does not constitute a step towards ascertaining w hether "necessary information" has 
been withheld.  
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  nature of the discovered information cannot outweigh the due process rights in the 
WTO Agreements.227  
5.82.   Second, the USDOC concludes, as AFA, that the unreported assistance amounts to a 
countervailable subsidy. As described by the USDOC itself, the USDOC simply asserts "as AFA" that 
the discovered assistance provides a financial contribution, confers a benefit , and is specific . Such a 
finding is made without regard to any facts on the record.228 We consider, however, that procedural 
circumstances and any resulting inferences may not alone form the basis of a determination. This is 
because, pursuant to Article  12.7 of the SCM  Agreemen t, determinations must be made on the basis 
of "facts" available229, and not "on the basis of non -factual assumptions or speculation".230 For these 
reasons, we agree with the Panel that the USDOC cannot simply reach conclusions without further 
analysis and reg ard to the facts available on the record and the due process rig hts of interested 
parties.231 To be clear, in arriving at this conclusion, we make no finding about the manner in which 
the USDOC should have selected facts available in the circumstances of thi s case. We simply note 
that determinations must be made on the b asis of "facts" available, and in the circumstances of the 
OFA-AFA measure the USDOC instead relies on non -factual assumptions or speculation.  
5.83.   Finally, the United  States claims that the Panel erred because it implied that the OFA  question 
used by the USDOC  can never be a request for "necessary information" under Article  12.7 of the 
SCM Agreement.232 We note, however, that the Panel explicitly observed that the OFA  question 
"might pertain to necessary information regarding additional subsidization of the produ ct under  
investigation" .233 For this reason, we are unable to agree with the United  States that the Panel found 
that the OFA  question can never be a request for "necessary information".234 Thus, we do not 
consider that the Panel erred in this regard.  
5.2.5   Conclusio n 
5.84.   For the reasons stated above, we find that the Panel did not err under Article  12.7 of the DSU 
by failing to provide  a "basic rationale" for its finding that the OFA -AFA measure is inconsistent with 
Article  12.7 of the SCM  Agreement.  Furthermore, we find that the United  States  has not 
demonstrated that the Panel err ed in making its finding under Article  12.7 of the SCM  Agreement.  
5.85.   Consequently , we uphold  the Panel's finding , in paragraph  7.333 of the Panel  Report , that the 
OFA-AFA meas ure is inconsistent with Article  12.7 of the SCM  Agreement.235 
 
227 Panel  Report, paras.  7.177 and 7.333. See also Japan's third participant's submission, para.  13 
(referring to Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice , para.  292). 
228 As identified by the Panel, this view is also evidenced by the USDOC's description of this measure at 
the NAFTA Chapter  19 proceeding, namely that "[the USDOC's] finding that the complainants' failure to report 
these subsidies earlier in the proceeding warranted the use of  adverse inferences was reasonable … as was 
[the USDOC's] resulting adverse inference that each discovered subsidy provided a financial contribution, 
conferred a benefit, and was specific – the elements of a countervailable subsidy." ( Panel  Report, para.  7.317 
(quoting USDOC NAFTA Brief (Panel Exhibit CAN -76), pp.  147-148)) Moreover, this view is confirmed by the 
underlying determinations examined by the Panel, where the USDOC simply determined, as AFA, that 
unreported assistances are countervailable subsid ies. See supra  fn 78 for relevant excerpts.  
229 The Appellate  Body has stated that an investigating authority may only use those "facts available" 
that "'reasonably replace the information that an interested party f ailed to provide', with a view to arriving at 
an accurate determination". ( Appellate  Body Report, US – Carbon Steel (India) , para.  4.416 (quoting 
Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice , para.  294) (emphasis omitted)) See also 
Appella te Body Reports, Mexico – Anti-Dumping Measures on Rice , para.  293; Japan's third participant's 
submission, para.  11 (referring to Appellate  Body Report, US – Carbon Steel (India) , paras.  4.419 and  4.422); 
Brazil's third participant's submission, para.  4. 
230 Appellate  Body Report,  US – Carbon Steel (India) , para.  4.417. See also ibid., para.  4.422.  
231 Panel  Report, paras.  7.176 -7.177, 7.181, and 7.333.  
232 United  States ' appellant's submission, paras.  4 and 66 -79. 
233 Panel  Report, para.  7.333.  
234 Brazil 's third  participant's submission, para.  4. 
235 The United States reques ts that we reverse the Panel's recommendation under Article  19.1 of the 
DSU as a consequence of the errors alleged by the United States on appeal. (United States' appellant's 
submission, paras.  79 and 81) Having upheld the Panel's findings at issue, we are unable to accede to the 
United States' request.  WT/DS505/AB/R  
 
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  5.3  Separate opinion of one Appellate  Body  Division Member  
5.3.1   Introduction  
5.86.   "Ongoing conduct" is not a treaty term found in WTO  Agreement s; it is a descriptive term 
first used in the Appellate  Body Report in US – Continued Zeroing  with respect to the particular 
circumstances, arguments, and evidence in that case. In this case, the Panel and the majority have 
gone beyond US – Continued Zeroing  to enhance and broaden the concept of "ongoing conduct" i nto 
something akin to a "rule or norm of general and prospective application", only vaguer and less 
disciplined in its requirements.  
5.87.   I also consider relevant the fact that Supercalendered Paper from Canada 2015, the 
underlying CVD proceeding at issue in this case, has been revoked retroactively to its beginning. To 
me, this means that no real dispute remains to be resolved regarding any  "ongoing conduct" that 
may or may not continue with respect to the proceeding at issue here. It follows that further 
addressing this matter could be characterized as an advisory opinion based on, and pertaining mainly 
to, cases involving other countries that are not complainants and in which key facts and 
circumstances may differ from those present in this case. Consequently, I think the Division could 
and should have mooted the relevant findings of the Panel. In lieu of that, I suggest that this decision 
and its interpretations should be confined to the particulars of this case.  
5.3.2   Ongoing conduct  
5.88.   The Panel started with the criteria that had been used previously for finding an "ongoing 
conduct" measure: attribution to a WTO Member, precise content, repeated application, and 
likelihood of continued application. The Panel found that these criteria were met in this case by the 
USDOC asking the OFA  question, discovering during verification information it deems should have 
been provided in response to that questio n, and applying AFA to determine that the discovered 
information amounts to countervailable subsidies.  
5.89.   The majority has upheld the Panel's finding. I disagree and believe the Panel committed legal 
errors, both by characterizing the USDOC's alleged "ongoing " conduct in an unacceptably vague 
manner, and, having done that, by employing inadequate and improper evidentiary standards for 
identifying precise content, repeated application, and likelihood of continued application. In other 
words, the Panel defined t he alleged conduct vaguely and used inapt evidence to fit its vague 
definitions.  
5.90.   This is illustrated by the differences between this case and US – Continued Zeroing , the case 
principally relied on by the Panel. That case involved a particular calculation m ethodology, used 
automatically "in a string of connected and sequential determinations, in each of the 18  cases  …  by 
which duties are maintained over a period of time".236 By contrast, the "ongoing conduct" in this 
case is not a particular calculation metho dology, but instead involves a series of administrative 
decisions about such things as the nature of the discovered information, the timing a nd 
circumstances of its discovery, the relevance of the discovered information, and the use that is made 
of it. 
5.91.   In the present case, the Panel found the alleged ongoing conduct to exist as a result of several 
USDOC CVD proceedings involving China and one CVD proceeding involving India, in addition to 
Supercalendered Paper from Canada 2015. In some of those cited procee dings, the USDOC's conduct 
differed from the challenged conduct in the current case. And for others, the Panel did not have, or 
examine, important evidence regarding the comparability of those cited proceedings with the 
challenged case – such as the circum stances of the information's non -provision and discovery 
(e.g. hidden, resisted, or volunteered), the timing of the discovery in the case schedule, the use 
made by the USDOC of all or parts of the relevant evidence, or the nature of the respondent entity 
and its relationship with the government.  
5.92.   These known and unknown differences undermine the "precise content" element of the Panel's 
alleged "ongoing conduct" measure, and illustrate how vague and imprecise that version of the 
alleged measure is. They also bring into question the "repeated application" and "likelihood of 
 
236 Appellate  Body Report, US – Continued Zeroing , paras.  180-181. WT/DS505/AB/R  
 
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  continued application" of the alleged measure as formulated by the Panel, by begging the question: 
repetition and likely continuation of what, exactly?  
5.93.   Finally, as noted above, the CVD order  in Supercalendered Paper from Canada 2015 has been 
revoked retroactively to its beginning. As a result, there is no real dispute remaining to be resolved 
between Canada and the United  States  as to any "ongoing conduct" that may or may not continue 
with re spect to the proceeding at issue here. For this decision not to be at risk of being considered 
obiter dicta , or, applied in the future so as to blur the lines between "ongoing conduct" and rules or 
norms of general and prospective application, or both, it is hoped that its effects will be limited to 
the particulars of this case.237 
5.3.3   Conclusion  
5.94.   I do not address the Panel's and majority's findings regarding Article  12.7 of the 
SCM Agreement because, in my view, those findings should have been rendered moot eithe r by the 
Division's considering the Panel's findings as a whole as mooted by the revocation of the underlying 
CVD investigation, or by the findings regarding the alleged "ongoing conduct" that I suggest above.  
5.95.   I offer these views with the hope that any fut ure consideration of these issues will take this 
separate opinion into account, as well as that of the majority.  
6  FINDINGS AND CONCLUS IONS  
6.1.  For the reasons set out in this Report, the Appellate  Body reaches the following findings and 
conclusions:  
6.1  OFA-AFA measure 
6.2.  The consistency or inconsistency of a fact or set of facts with the requirements of a given treaty 
provision or the application of rules to facts is a legal characterization  that is subject to 
appellate  review under Article  17.6 of the DSU. The United  States' claim of error on appeal concerns 
the Panel's understanding and application of the legal standard for "ongoing conduct" as a measure  
that can be challenged in WTO dispute settlement under the DSU . In our view, the United  States' 
claim concerns issues of law covered in the Panel  Report  and legal interpretations developed by the 
Panel , and thus falls within the scope of appellate review. For these reasons, we dismiss Canada's 
assertion that the United  States' claim on appeal falls outside the scope of appellate review.  
6.3.  In order to prove the existence of an "ongoing conduct" measure, a complainant must clearly 
establish : (i) that the alleged measure is attributable to the responding Member ; (ii) its preci se 
content ; (iii) its repeated application ; and (iv) its likelihood of continued application . We note that, 
as before the Panel, the United  States does not challenge the attribution of the alleged measure on 
appeal. We consider that the Panel was correct to focus on the substance of the USDOC's conduct 
for each element of the OFA -AFA measure, as evidenced by the examples before the Panel. We 
agree with the Panel that the variations referred to by the United  States in these examples do not 
detract f rom the fact that the substance of the USDOC's conduct remained the same in relation to 
the elements of the measure challenged by Canada.  
a. For these reasons, we find that the Panel did not err in finding that Canada had 
established the precise content of th e OFA -AFA measure as the USDOC asking the 
OFA question and , where the USDOC discovers information during verification that it 
deems should have been provided in response to the OFA  question, applying AFA to 
determine that such information amounts to counte rvailable subsidies.  
6.4.  Concerning repeated application, we consider that the Panel's analysis appropriately reflects 
Canada's characterization of the OFA -AFA measure, focus ing on the repetition of the elements 
identified by Canada that form part of the OFA -AFA measure. Thus, we consider that the Panel did 
 
237 "Given the explicit aim of dispute set tlement that permeates the DSU, we do not consider that 
Article  3.2 of the DSU is meant to encourage either panels or the Appellate  Body to 'make law' by clarifying 
existing provisions of the WTO Agreement  outside the context of resolving a particular disp ute." 
(Appellate  Body Report, US – Upland Cotton , para.  509, quoting Appellate  Body Report, US – Wool Shirts and 
Blouses , p. 19, DSR 1997:I, p.  340) WT/DS505/AB/R  
 
- 37 - 
 
  not err in examining "repeated application" by reference to the elements of the measure in this 
dispute. We are also not convinced by the United  States' assertion that certain examples on the 
Panel record show that the USDOC did not apply the OFA -AFA measure.  
a. For these reasons, we find that the Panel did not err in finding that Canada had 
established the repeated application of the OFA -AFA measure.  
6.5.  In relation to likelihood of continued application, a complaining Member need not rely on a 
formal decision  by the responding Member to demonstrate the existence of "ongoing conduct". 
Rather, we consider that likelihood of continued application may be demonstrated through a number 
of factors. We agree with the Panel that the consistent manner in which the USDOC refers to the 
OFA-AFA measure, the frequent reference to previous applications of the measure in USDOC 
determinations, the fact that the USDOC refers to the measure as its "practice", and the USDOC's 
characterization of a departure from the measure as an "inadvertent error" all support the conclusion 
that the measure is likely to continue to be applied.  
a. For these reasons, we find that the Panel did not err in finding that Canada had 
established that th e OFA -AFA measure is likely to continue to be applied in the future.  
b. Consequently, we uphold  the Panel's finding, in paragraphs  7.332 and 8.4.a of the 
Panel  Report , that Canada established the existence of the OFA -AFA measure as 
"ongoing conduct".  
6.2  Article  12.7 of the SCM  Agreement  
6.6.  Pursuant to the requirement to set out a "basic rationale" for findings and recommendations in 
Article  12.7 of the DSU, panels must provide explanations and reasons sufficient to disclose the 
essential justification for those findings and recommendations. In our view, the Panel appropriately 
incorporated into its examination of the OFA -AFA measur e (in paragraph  7.333 of the Panel  Report ) 
the relevant portions of its earlier analysis concerning Article  12.7 of the SCM  Agreement (in 
section  7.4.1.4 of the Panel  Report ). Through these paragraphs , the Panel provided an interpretation 
of Article  12.7 o f the SCM  Agreement, addressed pertinent factual aspects of the OFA -AFA measure, 
and provided explanation sufficient to disclose the Panel's essential justification for its finding.  
a. For these reasons, we find that the Panel did not err under Article  12.7 of the DSU by 
failing to provide  a "basic rationale" for its finding that the OFA -AFA measure is 
inconsistent with Article  12.7 of the SCM  Agreement.  
6.7.  In relation to the Panel's analysis of the OFA -AFA measure under Article  12.7 of the 
SCM Agreement , we con sider that the OFA -AFA measure, as established by the Panel, is limited to 
circumstances where the USDOC uses "facts available" on the basis of a party's failure to provide 
"necessary information".  
6.8.  In addition, w e understand the Panel to have faulted the USDOC for mechanically concluding, 
without any further steps, that necessary information had not been provided and that the discovered 
assistance amounted to a countervailable subsidy , when the USDOC discovers unr eported assistance 
during verifications.  As this process reflects the precise content of the OFA -AFA measure, we 
consider that the conduct examined by the Panel in paragraph  7.333 is part of the 
OFA-AFA measure. We also agree with the Panel that the USDOC cannot simply reach conclusions 
without further analysis and regard to the facts available on the record and the due process rights 
of interested parties.  
6.9.  Finally, we disagree with the United  States' view that the Panel found that the OFA  question 
can neve r be a request for "necessary information" under Article  12.7 of the SCM  Agreement. 
Rather, the Panel explicitly observed that the OFA  question might pertain to necessary information 
regarding additional subsidization of the product under investigation.  
a. For these  reasons, we find that the United  States  has not demonstrated that the Panel 
erred in making its finding under Article  12.7 of the SCM  Agreement.