WT/DS591/ARB25/Add.1  
 
21 December  2022 
(22-9603) Page: 1/37 
  Original: English  
 
 
COLOMBIA – ANTI -DUMPING DUTIES ON FROZEN FRIES FROM  
BELGIUM, GERMANY AND THE NETHERLANDS  
ARBITRATION UNDER ARTICLE 25 OF THE DSU  
AWARD OF THE ARBITRATORS  
Addendum  
This Addendum contains Annexes A to D to the Award  of the Arbitrators to be found as document  
WT/DS591/A RB25. 
 
 
_______________  
 
 WT/DS591/ARB25/Add.1  
 
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LIST OF ANNEXES  
ANNEX A  
WORKING PROCEDURES FOR THE ARBITRATION  
Contents  Page  
Annex  A-1 Agreed Procedures for Arbitration under Article  25 of the DSU , notified by 
the parties to the Dispute Settlement Body  on 20  April 202 1 
(WT/DS591/3/Rev.1)  4 
Annex  A-2 Additional Procedures for Arbitration under Article  25 of the DSU , adopted by 
the Arbitrators on 19 October 2022  7 
Annex  A-3 Additional Procedures for BCI  protection and partial public viewing of the 
hearing , adopted by the Arbitrators on 1 November 2022  18 
ANNEX B  
NOTIFICATION  OF AN APPEAL  BY COLOMBIA  
Contents  Page  
Annex  B-1 Notification  of an Appeal by Colombia under Article  25 of the DSU , paragraph  5 
of the Agreed Procedures, and Rule 20 of the Working Procedures for 
Appellate  Review  22 
ANNEX C  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  C-1 Executive summary of Colombia's written submission  25 
Annex  C-2 Executive summary of the European  Union 's written submission  29 
ANNEX D  
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  D-1 Executive summary of Brazil 's third party's written  submission  34 
Annex  D-2 Executive summary of Japan 's third party's written  submission  35 
Annex  D-3 Executive summary of the United  States ' third party's written submission  37 
 
 WT/DS591/ARB25/Add.1  
 
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  ANNEX  A 
WORKING PROCEDURES FOR THE ARBITRATION  
Contents  Page  
Annex  A-1 Agreed Procedures for Arbitration under Article  25 of the DSU, notified by 
the parties to the Dispute Settlement Body on 20  April 202 1 
(WT/DS591/3/Rev.1)  4 
Annex  A-2 Additional Procedures for Arbitration under Article  25 of the DSU, adopted by 
the Arbitrators on 19  October 2022  7 
Annex  A-3 Additional Procedures for BCI  protection and partial public viewing of the 
hearing , adopted by the Arbitrators on 1 November 2022  18 
 WT/DS591/ARB25/Add.1  
 
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  ANNEX  A-1 
AGREED PROCEDURES FOR ARBITRATION UNDER A RTICLE  25 OF THE DSU* 
Notified by the parties to the Dispute Settlement Body on 20  April 202 1 
Revision  
1. In order to give effect to communication JOB/DSB/1/Add.12 in this dispute the European  Union  
and Colombia (hereafter the "parties") mutually agree pursuant to Article  25.2 of the 
Understanding on Rules and Procedur es Governing the Settlement of Disputes (DSU) to enter 
into arbitration under Article  25 of the DSU to decide any appeal from any final panel report1 
as issued to the parties in dispute DS591. Any party to the dispute may initiate arbitration in 
accordanc e with these agreed procedures.  
2. The arbitration may only be initiated if the Appellate  Body is not able to hear an appeal in this 
dispute under Article  16.4 and 17 of the DSU. For the purposes of these agreed procedures, 
such situation is deemed to arise where, on the date of issuance of the final panel report to the 
parties, there are fewer than three Appellate  Body members.  
For greater certainty, if the Appellate  Body is able to hear appeals at the date on which the final 
panel report is issued to  the parties, a party may not initiate an arbitration, and the parties shall be 
free to consider an appeal under Articles 16.4 and 17 of the DSU.  
3. In order to facilitate the proper administration of arbitration under these agreed procedures, 
the parties her eby jointly request the panel to notify the parties of the anticipated date of 
circulation of the final panel report within the meaning of Article  16 of the DSU, no later than 
45 days in advance of that date.  
4. Following the issuance of the final panel repor t to the parties, but no later than 10 days prior 
to the anticipated date of circulation of the final panel report to the rest of the Membership, any 
party may request that the panel suspend the panel proceedings with a view to initiating the 
arbitration u nder these agreed procedures. Such request by any party is deemed to constitute 
a joint request by the parties for suspension of the panel proceedings for 12 months pursuant 
to Article  12.12 of the DSU.  
The parties hereby jointly request the panel to prov ide for the following, before the suspension takes 
effect:  
 
i. the immediate transmission of the final panel report, on a provisional basis, to the pool 
of arbitrators and the lifting of confidentiality for that sole purpose;  
ii. the transmission of the panel rec ord to the arbitrators upon the filing of the Notice of 
Appeal: Rule 25 of the Working Procedures for Appellate Review shall apply mutatis 
mutandis ; 
iii. the lifting of confidentiality with respect of the final panel report under the Working 
Procedures of the panel and the transmission of the final panel report, duly adjusted for 
translation, in the working languages of the WTO to the parties,  to the third parties and 
to the pool of arbitrators.2 
 
* WT/DS591/3/Rev.1.  
1 For greater certainty , this includes  any final panel report issued in compliance proceedings pursuant to 
Article  21.5 of the DSU.  
2 The parties confirm that it is not their intention that the panel report be circulated within the meaning 
of Article  16 of the DSU.  WT/DS591/ARB25/Add.1  
 
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  Except as provided in paragraphs 6 and 18, the  parties shall not request the panel to resume the 
panel proceedings.  
 
5. The arbitration shall be initiated by filing of a Notice of Appeal with the WTO Secretariat no later 
than 20 days after the suspension of the panel proceedings referred to in paragraph 4 has taken 
effect. The Notice of Appeal shall include the final panel report in the working languages of the 
WTO. The Notice of Appeal shall be simultaneously notified to the other party or parties and to 
the third parties in the panel proceedings. Rules 20-23 of the Working Procedures for Appellate 
Review shall apply mutatis mutandis .  
6. Subject to paragraph 2, where the arbitration has not been initiated under these agreed 
procedures, the parties shall be deemed to have agreed not to appeal the panel repor t pursuant 
to Articles 16.4 and 17 of the DSU, with a view to its adoption by the DSB. If the panel 
proceedings have been suspended in accordance with paragraph 4, but no Notice of Appeal has 
been filed in accordance with paragraph 5, the parties hereby jo intly request the panel to 
resume the panel proceedings.  
7. The arbitrators shall be three persons selected from the pool of 10 standing appeal arbitrators 
composed in accordance with paragraph 4 of communication JOB/DSB/1/Add.12 (hereafter the 
"pool of arbi trators").3 The selection from the pool of arbitrators will be done on the basis of the 
same principles and methods that apply to form a division of the Appellate  Body under 
Article  17.1 of the DSU and Rule 6(2) of the Working Procedures for Appellate Rev iew, including 
the principle of rotation.4 The WTO Director General will notify the parties and third parties of 
the results of the selection. The arbitrators shall elect a Chairperson. Rule 3(2) of the Working 
Procedure for Appellate Review shall apply, mutatis mutandis , to the decision -making by the 
arbitrators.  
8. In order to give effect to paragraph 5 of communication JOB/DSB/1/Add.12 in this dispute, the 
arbitrators may discuss their decisions relating to the appeal with all of the other members of 
the p ool of arbitrators, without prejudice to the exclusive responsibility and freedom of the 
arbitrators with respect to such decisions and their quality. All members of the pool of arbitrators 
shall receive any document relating to the appeal.  
9. An appeal shal l be limited to issues of law covered by the panel report and legal interpretations 
developed by the panel. The arbitrators may uphold, modify or reverse the legal findings and 
conclusions of the panel. Where applicable, the arbitration award shall include  
recommendations, as envisaged in Article  19 of the DSU. The findings of the panel which have 
not been appealed shall be deemed to form an integral part of the arbitration award together 
with the arbitrators' own findings.  
10. The arbitrators shall only addres s those issues that are necessary for the resolution of the 
dispute. They shall address only those issues that have been raised by the parties, without 
prejudice to their obligation to rule on jurisdictional issues.  
11. Unless otherwise provided for in these a greed procedures, the arbitration shall be governed, 
mutatis mutandis , by the provisions of the DSU and other rules and procedures applicable to 
Appellate Review. This includes in particular the Working Procedures for Appellate Review and 
the timetable for  appeals provided for therein as well as the Rules of Conduct.5 The arbitrators 
may adapt the Working Procedures for Appellate Review and the timetable for appeals provided 
for therein, where justified under Rule 16 of the Working Procedures for Appellate  Review, after 
consulting the parties.  
12. The parties request the arbitrators to issue the award within 90 days following the filing of the 
Notice of Appeal. To that end, the arbitrators may take appropriate organizational measures to 
streamline the proceedin gs, without prejudice to the procedural rights and obligations of the 
 
3 If the pool of arbitrator s has not been composed, footnote 1 to paragraph 4 of communication 
JOB/DSB/1/Add.12  shall apply.  
4 However, a t the request of a party to a dispute, any member of the pool of arbitrators who is not a 
national of a participating Member  shall be excluded fr om th e selection process.  Two nationals of the same 
Member shall not serve on the same case.  
5 For greater certainty, paragraphs 14 – 17 of the Rules of Conduct shall apply to arbitrators.  WT/DS591/ARB25/Add.1  
 
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  parties and due process. Such measures may include decisions on page limits, time limits and 
deadlines as well as on the length and number of hearings required.  
13. If necessary in order to  issue the award within the 90 day time -period, the arbitrators may also 
propose substantive measures to the parties, such as an exclusion of claims based on the 
alleged lack of an objective assessment of the facts pursuant to Article  11 of the DSU.6 
14. On a proposal from the arbitrators, the parties may agree to extend the 90 day time -period for 
the issuance of the award.  
15. The parties agree to abide by the arbitration award, which shall be final. Pursuant to Article  25.3 
of the DSU, the award shall be no tified to, but not adopted by, the DSB and to the Council or 
Committee of any relevant agreement.  
16. Only parties to the dispute, not third parties, may initiate the arbitration. Third parties which 
have notified the DSB of a substantial interest in the matt er before the panel pursuant to 
Article  10.2 of the DSU may make written submissions to, and shall be given an opportunity to 
be heard by, the arbitrators. Rule 24 of the Working Procedures for Appellate Review shall apply 
mutatis mutandis .  
17. Pursuant to Ar ticle 25.4 of the DSU, Articles 21 and 22 of the DSU shall apply mutatis mutandis 
to the arbitration award issued in this dispute.  
18. At any time during the arbitration, the appellant, or other appellant, may withdraw its appeal, 
or other appeal, by notifying  the arbitrators. This notification shall also be notified to the panel 
and third parties, at the same time as the notification to the arbitrators. If no other appeal or 
appeal remains, the notification shall be deemed to constitute a joint request by the parties to 
resume panel proceedings under Article  12.12 of the DSU.7 If another appeal or appeal remains 
at the time an appeal or other appeal is withdrawn, the arbitration shall continue.  
19. The parties shall jointly notify these agreed procedures to the p anel in DS 591 and ask the panel 
to grant, where applicable, the joint requests formulated in paragraphs 3, 4, 6, and 18.8 
20. These agreed procedures, signed in Geneva on April 20, 2021, supersede the agreed procedures 
which were signed between the parties o n July 13, 2020 and circulated to the WTO Members 
on July  15, 2020 and which are hereby declared null and void . 
 
 
6 For greater certainty, the proposal of the arbitrators is not l egally binding and it will be up to the party 
concerned to agree with the proposed substantive measures. The fact that the party concerned does not agree 
with the proposed substantive measures shall not prejudice the consideration of the case or the rights  of the 
parties.  
7 If the authority of the panel has lapsed pursuant to Article  12.12 of the DSU, the arbitrators shall issue 
an award that incorporates the findings and conclusions of the panel in their entirety.  
8 For greater certainty, should any of these requests not be granted by the panel, the parties will agree 
on alternative procedural modalities to preserve the effects of the relevant provisions of these agreed 
procedures . WT/DS591/ARB25/Add.1  
 
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  ANNEX A -2 
ADDITIONAL PROCEDURES FOR ARBITRATION UNDER ARTICLE  25 OF THE DSU  
Adopted by the Arbitrators on 19 October 2022  
1  GENERAL  
1. The arbitrators are called upon to decide claims in these arbitration proceedings pursuant to the 
Agreed Procedures for Arbitration unde r Article  25 of the DSU1 (Agreed Procedures) between the 
parties to this dispute. Colombia initiated these proceedings on 6 October 2022 . 
2. Pursuant to paragraph 11 of the Agreed Procedures, these arbitration proceedings shall be 
governed, mutatis mutandis , by the provisions of the DSU and other rules and procedures 
applicable to appellate review, including the Working Procedures for Appellate Review, the 
timetable for appeals contained therein, and the Rules of Conduct for the Understanding on 
Rules and Pro cedures Governing the Settlement of Disputes (Rules of Conduct). Paragraph 11 
further provides that the arbitrators may adapt the Working Procedures for Appellate Review 
and the timetable, where justified under Rule 16 of the Working Procedures for Appella te 
Review, after consulting the parties.  
3. These Additional Procedures for Arbitration, adopted after consultations with the parties, set 
out additional rules and guidelines on certain practical aspects to facilitate these proceedings. 
They should be read in  conjunction with the Agreed Procedures, together with the DSU and the 
other rules and procedures applicable to appellate review as specified in paragraph 11 of the 
Agreed Procedures.  
4. The arbitrators may modify these Additional Procedures for Arbitration a s necessary, after 
consultation with the parties.  
2  ARBITRATORS  
5. Decisions relating to the current proceedings shall be taken by the following three arbitrators 
selected for this arbitration: Mr. José Alfredo Graça Lima, Mr. Alejandro Jara, and Mr. Joost 
Pauwelyn.  
6. Mr. José Alfredo Graça Lima has been elected as the Chairperson. The responsibilities of the 
Chairperson include: (a) chairing any hearings and meetings related to the proceedings; 
(b) receiving all requests for staff support from the arbitrators  on the appeal and coordinating 
the provision of such support; (c) coordinating the drafting of the award; and (d) generally 
coordinating the overall conduct of the appeal arbitration including the discussions pursuant to 
paragraph  8 of the Agreed Procedur es. 
3  LANGUAGE OF THE ARBITRATION  
7. The working language of the arbitration shall be English.  
4  CONFIDENTIALITY  
8. The deliberations of the arbitrators and the documents submitted to them shall be kept 
confidential.2 Parties and third parties shall treat as confid ential any information submitted to 
the arbitrators which the submitting party or third party has designated as confidential.  
 
1 WT/DS5 91/3/Rev.1.  
2 The arbitrators are bound by Article  VII of the Rul es of Conduct.  WT/DS591/ARB25/Add.1  
 
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  9. Upon request, the arbitrators may adopt appropriate additional procedures for the treatment 
and handling of any confidential infor mation after consultation with the parties.  
5  EX PARTE COMMUNICATIONS  
10. Arbitrators shall not meet with or contact one party in the absence of the other party to the 
dispute. Likewise, they shall not meet with or contact one or more third parties in the absenc e 
of the parties to the dispute and other third parties.  
11. No arbitrator may discuss any aspect of the subject matter of this arbitration with any party or 
third party in the absence of the other arbitrators.  
6  TIME -LIMIT FOR THIS ARBITRATION  
12. Pursuant to parag raph 12 of the Agreed Procedures and Article  17.5 of the DSU, the arbitrators 
shall issue the award within 90 days following the commencement of this arbitration.  
13. Pursuant to paragraphs 12 and 13 of the Agreed Procedures, in order to issue the award withi n 
90 days following the commencement of this arbitration, the arbitrators may "take appropriate 
organizational measures to streamline the proceedings, without prejudice to the procedural 
rights and obligations of the parties and due process", and may "prop ose substantive measures 
to the parties, such as an exclusion of claims based on the alleged lack of an objective 
assessment of the facts pursuant to Article  11 of the DSU."3 
14. In order to issue the award within the 90 -day time -period, and in view of paragr aphs 12 and 
13 of the Agreed Procedures, rules and guidelines regarding the following aspects of the 
proceedings are set out in sections 7 to 12 below: length and style of written rebuttal and third 
parties' submissions, Working Schedule4, meetings with p arties and third parties before the 
hearing, conduct of the hearing, and filing and service of documents.5 
15. On a proposal from the arbitrators, the parties may agree to extend the 90 -day time -period for 
the issuance of the award.  
7  LENGTH OF WRITTEN SUBMISSI ONS AND EXECUTIVE SUMMARIES  
16. In light of paragraph 12 of the Agreed Procedures, and in order to enhance procedural efficiency 
and facilitate meeting the 90 -day time period:  
(i) Parties and third parties are requested to keep their written submissions as concise  
as possible and to focus on the main claims and outstanding differences, bearing in 
mind that the arbitrators will have read the panel report and will have access to the 
panel record. Therefore, there is no need to repeat facts, arguments or findings set 
out in either the panel report or panel record (cross -references can be made and will 
suffice);  
 
(ii) As an indicative guideline:  
 
a. The rebuttal submission should normally be limited to a maximum of 27,000 
words or 40% of the word count of the appealed panel report, whichever is 
the highest; and  
 
 
3 As stated in fn  6 to paragraph 13 of the Agreed Procedures, a proposal by the arbitrators shall not be 
legally binding and it will be up to the party concerned to agree with the proposed substantive measures. The 
fact that the party concer ned does not agree with the proposed substantive measures shall not prejudice the 
consideration of the case or the rights of the parties.  
4 The Working Schedule, as provided for in section 9 below, is set out in Annex  1. 
5 In addition, guidelines relating to matters that have already transpired at the time of the adoption of 
these Additional Procedures for Arbitration are set out in a letter sent to the parties  on 19 September 2022 by 
the pool of arbitrators of the Multi-Party Interim Appeal Arbitration Arr angement pursuant to Article  25 of the 
DSU (the "pre -arbitration letter"). That letter is attached as Annex  2.  WT/DS591/ARB25/Add.1  
 
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  b. Third parties who wish to make a written submission should normally limit 
them to a maximum of 9,000 words.  
 
(iii) Each party or third party who files a written submission is requested to submit 
contemporaneously an e xecutive summary of such submission of a maximum length 
of 10% of the total word count of the submission itself. These executive summaries 
will be annexed as addenda to the award and the content of such executive summaries 
will not be revised or edited by the arbitrators.  
 
8  STYLE OF WRITTEN SUBMISSIONS  
17. Parties and third parties are encouraged to follow the WTO Editorial Guide for Panel Submissions 
in preparing their written submissions, to the extent that it is practical to do so.  
9  WORKING SCHEDULE  
18. Each party and third party shall file written submissions in accordance with the time -periods 
stipulated in the Working Schedule contained in Annex  1 of these Additional Procedures for 
Arbitration.  
19. The time -periods in the Working Schedule will be firm and no d eviations will be permitted except 
for highly compelling reasons (such as sudden illness of counsel) and taking into account the 
impact on the 90 -day time -period.  
10  MEETINGS WITH PARTIES AND THIRD PARTIES  
20. Pursuant to paragraph 12 of the Agreed Procedures, an d in order to enhance procedural 
efficiency and facilitate meeting the 90 -day time -period, a virtual pre -hearing conference may 
be convened by the arbitrators with the parties and third parties to help identify "those issues 
that are necessary for the reso lution of the dispute", as provided in paragraph 10 of the Agreed 
Procedures, or to highlight the key issues raised by the parties in the appeal that need further 
discussion at the hearing.  
11  HEARING  
21. The arbitrators shall hold a hearing of no more than two days with the parties and third parties 
as set out in the Working Schedule.  
22. The arbitrators will endeavour to provide a list of questions to the parties in advance of the 
hearing to facilitate the parties' preparation for the hearing.  
23. Opening statements by  parties shall be no longer than 30 to 35 minutes each; opening 
statements by third parties shall be limited to seven minutes each; and closing statements by 
parties shall be limited to five minutes each.  
24. Each party and third party shall provide to the WTO  Secretariat the list of members of its 
delegation no later than 17:00  (Geneva time) three working days before the first day of the 
hearing. Each party and third party shall have the responsibility for all members of its delegation 
and shall ensure that ea ch member of its delegation acts in accordance with the DSU, the 
Agreed Procedures, the Rules of Conduct, and these Additional Procedures for Arbitration, 
particularly with regard to the confidentiality of proceedings and the written and oral 
submissions o f the parties and third parties.  WT/DS591/ARB25/Add.1  
 
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  12  FILING AND SERVICE OF DOCUMENTS6 
25. No document shall be considered filed with the arbitrators unless the document is received by 
the WTO Secretariat within the time -period set out for filing in accordance with these Addition al 
Procedures for Arbitration and the Working Schedule.  
26. Each party or third party shall file documents to the arbitrators by submitting them via the 
Disputes On -Line Registry Application (DORA) https://dora.wto.org  by 17:00 (Geneva time) on 
the day that the document is due. Electronic copies of documents shall be preferably provided 
in both Microsoft Word and PDF format. The electronic version uploaded into DORA shall 
constitute the official version for the purposes of w ritten submission deadlines and the record 
of the dispute. Upload of a document into DORA shall constitute electronic service on the 
arbitrators and parties and third parties.  
27. If any party or third party has any questions or technical difficulties relating to DORA, they are 
encouraged to contact the DS Registry ( DSRegistry@wto.org ). 
28. If any party or third party is unable to meet the 17:00 (Geneva time) deadline because of 
technical difficulties i n uploading these documents into DORA, the party or third party concerned 
shall inform the DS  Registry ( DSRegistry@wto.org ) without delay and provide an electronic 
version of all documents to be submitted to the ar bitrators through the electronic mail address 
arbitration25@wto.org  copied to DSRegistry@wto.org , and to parties and third parties.  
29. Upon authorization by the arbitrators , a party or third party may correct clerical errors in any 
of its documents (including typographical mistakes, errors of grammar, or words or numbers 
placed in the wrong order). The request to correct clerical errors shall identify the specific errors 
to be corrected and shall be filed with the WTO Secretariat promptly following the filing of the 
written submission in question. A copy of the request shall be served upon parties and third 
parties, each of whom shall be given an opportunity to comment in wri ting on the request. The 
arbitrators shall notify the parties and third parties of their decision.  
30. As a general rule, all communications from the arbitrators to the parties and third parties will 
be via electronic mail ( arbitration25@wto.org ) and uploaded into DORA. In addition to 
transmitting the award to the parties in electronic format, the arbitrators shall provide them 
with a paper copy.  
13  TRANSLATION OF THE AWARD  
31. The time period for translation of the award w ill be considered following consultation with the 
parties and in the light of the 90 -day time -period requirement.   
  
 
6 For greater clarity, Section  12 applies in lieu of Rule 18 of the Working Procedures for Appellate 
Review for purposes of these arbitration pr oceedings.  WT/DS591/ARB25/Add.1  
 
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  Annex  1: Working Schedule  
 
Process  Days  Date 
Colombia's  Notice of Appeal and 
submission  0 6 October  2022  
European  Union 's rebuttal submission  18 24 October  2022 
Third parties' submissions  21 27 October  2022 
Hearing  40 and/or 41  15 and/or 16 November 2022  
Issuance of the Award  60-90 5 December 2022 - 4 January 2023  
 
  WT/DS591/ARB25/Add.1  
 
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  Annex  2: Pre-Arbitration Letter   
 
19 September 2022  
 
 
 
Amb. Santiago Wills Valderrama  
Permanent Representative of Colombia to the World Trade Organization  
Permanent Mission of Colombia to the World Trade Organization  
 
Amb. Joao Aguiar Machado  
Permanent Representative of the European Union  to the World Trade Organization Permanent 
Mission of the European Union to the World Trade Organization  
 
Dear Ambassadors:  
 
On 14 September, 2022, the Panel Report in Colombia – Anti -dumping duties on frozen 
fries from Belgium, Germany and the Netherlan ds (WT/DS591/R) was communicated to 
the MPIA pool of arbitrators, following a request by Colombia to suspend the Panel 
proceedings pursuant to paragraph  4 of the Agreed Procedures for Arbitration under Article 25 
of the DSU in Dispute DS591 (hereafter "the  Agreed Procedures"). French and Spanish 
versions of the same Panel Report were communicated to the MPIA pool of arbitrators on 
16 September, 2022.  
 
In accordance with paragraph 5 of the Agreed Procedures, appeal arbitration is initiated by 
filing a Notic e of Appeal with the WTO Secretariat no later than 20 days after the suspension 
of the Panel proceedings. Where Panel proceedings have been suspended but no Notice of 
Appeal is filed, paragraph 6 of the Agreed Procedures provides that the Panel will resume  its 
proceedings.  
 
The information below is set out in order to assist the parties to this dispute in the event of an 
appeal of the Panel Report and is without prejudice to each party's right to decide whether or 
not to initiate such an appeal.  
 1. Length  of Written Submission  
Paragraph 12 of the Agreed Procedures permits MPIA arbitrators to "take appropriate 
organizational measures to streamline the proceedings, without prejudice to the procedural 
rights and obligations of the parties and due process." On e such measure explicitly suggested 
is "decisions on page limits".    
Since the Appellant's submission must be filed on the same day as the Notice of Appeal is filedi, 
any "decision on page limits" would need to be issued before  the Notice of Appeal is filed.   
In this context, and in order to enhance procedural efficiency and facilitate meeting the 90 -day 
time period:   
(i) Parties are encouraged to be selective in the number of claims filed on appeal/other 
appeal and to prioritize such claims in the event more than one claim is filed;  WT/DS591/ARB25/Add.1  
 
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  (ii) Parties and Third Parties are requested to keep their submissions as concise as 
possible and to focus on the main c laims and outstanding differences, bearing in 
mind that the arbitrators will have read the panel report and will have access to the 
panel record. Therefore, there is no need to repeat facts, arguments or findings set 
out in either the panel report or panel  record (cross -references can be made and will 
suffice);  
(iii) As an indicative guidelineii 
a. Notices of Appeal/Other Appeal should normally be limited to a maximum of 
2,000 wordsiii, Appellant/Other Appellant/Appellee submissions should 
normally be limite d to a maximum of 27,000 wordsiv or 40% of the word count 
of the appealed Panel reportv, whichever is the highest;vi 
b. Third Parties who wish to make a submission should normally limit them to a 
maximum of 9,000 words;vii and 
c. where MPIA appeal proceedi ngs are conducted in French or Spanish, the 
above indicative limits are increased by 15%.viii 
(iv) Each Party who files an Appellant's, Other Appellant's, or Appellee's submission, 
and each Third Party who files a written submission, is requested to submit 
contemporaneously an executive summary of such written submission of a 
maximum length of 10% of the total word count of the submission itself .ix These 
executive summaries will be annexed as addenda to MPIA awards and the content 
of such executive summaries will not be revised or edited by the MPIA arbitrators.  
 2. Style of Written Submission  
Parties and Third Parties are invited to follow the WTO Editorial Guide for Panel Submissions 
in preparing their written submissions, to the extent that it is practical to do so.  
 3. Claims Based on the Alleged Lack of an Objective Assessment of the  
 Facts Pursuant to Article 11 of the DSU  
Paragraph 13 of the Agreed Procedures provides that "[i]f necessary in order to issue the award 
within the 90 day time -period, the arbitrators may … propose substantive measures to the 
parties". One such measure explicitly suggested is "an exclusion of cla ims based on the alleged 
lack of an objective assessment of the facts pursuant to Article 11 of the DSU." Footnote 6 
clarifies that such proposal of the arbitrators "is not legally binding and it will be up to the party 
concerned to agree with the proposed  substantive measures. The fact that the party concerned 
does not agree with the proposed substantive measures shall not prejudice the consideration of 
the case or the rights of the parties".  
 
Taking into account paragraph 13 of the Agreed Procedures and in order to enhance procedural 
efficiency and facilitate meeting the 90 day time -period, the parties in this dispute are invited 
to consider refraining from making claims based on the alleged lack of an objective assessment 
of the facts pursuant to Article  11 of the DSU.  
 WT/DS591/ARB25/Add.1  
 
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  In this light, any Party considering making such claims is encouraged to:  
(i) appraise how any such Article 11 claim would affect the 90 day time -period for the 
issuance of the award as referred to in paragraphs 12 and 13 of the Agreed 
Procedures; and  
(ii) evaluate, in the light of paragraph 10 of the Agreed Procedures which requires 
arbitrators to address only "those issues that are necessary for the resolution of the 
dispute" and Article 3.7 of the DSU which calls on each WTO Member to " exercise 
its judgement as to whether action under these procedures would be fruitful", 
whether such Article 11 claim has the potential to impact the substantive outcome 
of the dispute and whether and how it is "necessary for the resolution of the 
dispute."  
Any such Party is also urged to consider whether the substance of any possible Article 11 claim 
could be brought under one of the substantive treaty provisions at issue in the dispute, for 
example as an allegation of panel error in the application of that  provision to the facts of the 
case (rather than an allegation of error in the assessment of facts under Article 11 of the DSU).  
 
In the event a Party nonetheless decides to bring an Article 11 claim related to the Panel's 
assessment of the facts, and wit hout prejudice to the question of whether (and, if so, under what 
conditions) such claims fall within the appeal mandate set out in Article 17.6 of the DSU and/or 
paragraph 9 of the Agreed Procedures, the Party is requested to set forth succinctly in its N otice 
of Appeal or Appellant/Other Appellant Submission:  
(i) whether and how the alleged panel error was raised before the Panel, in particular 
during the interim review stage, thereby providing the Panel an opportunity to 
address the alleged error, taking  into account that paragraph 9 of the Agreed 
Procedures limits appeals to "issues of law covered in the panel report  and legal 
interpretations developed by the panel " (underlining added);  
(ii) in what way the Article 11 claim is an issue "necessary for the resolution of the 
dispute" in the sense of paragraph 10 of the Agreed Procedures and a matter that 
cannot be brought under one of the substantive treaty provisions at issue in the 
dispute; and  
(iii) in what way the alleged panel error is  not simply an appreciation of a factual issue 
(within the exclusive domain of panels) and amounts to an "issue of law" covered 
in the Panel Report or "legal interpretation" developed by the Panel, and thereby 
falls within the mandate of appellate review u nder paragraph 9 of the Agreed 
Procedures.  
 4. Time Limits, Deadlines and Length and Number of Hearings Required  
In addition to "page limits", paragraph 12 of the Agreed Procedures refers to "time limits and 
deadlines as well as … length and number of hear ings required."  
 
In this context, and in order to enhance procedural efficiency and facilitate meeting the 90 day 
time-period:  WT/DS591/ARB25/Add.1  
 
- 15 - 
 
  (i) an organizational meeting may be convened by the arbitrators with the Parties and 
Third Parties to discuss practical matters;  
(ii) following consultation with the Parties and Third Parties, a virtual pre -hearing 
conference may be convened by the arbitrators with the Parties and Third Parties 
to help identify "those issues that are necessary for the resolution o f the dispute" 
(paragraph 10 of the Agreed Procedures), to highlight the key issues raised by the 
Parties in the appeal that need further discussion at the hearing, and/or to discuss 
any Article 11 claims filed by the Parties;  
(iii) unless exceptional circ umstances arise:  
a. oral hearings will be limited to one hearing of no more than two days;  
b. opening statements by Parties will be limited to 25 minutes; opening 
statements by Third Parties who have notified their intention to make an 
oral statement will be limited to seven minutes; and  
c. the standard deadlines set forth in the Working Procedures for Appellate 
Review, as set forth below, will apply. These time limits and deadlines will 
be firm and no deviations will be permitted except for highly compelli ng 
reasons (such as sudden illness of counsel) and taking into account the 
impact  on the 90 day time -period.  
 General Appeals  Prohibited Subsidies Appeals  
 Day Day 
Notice of Appeal  0 0 
Appellant's Submission  0 0 
Notice of Other Appeal  5 2 
Other Appellant's Submission  5 2 
Appellee's Submission  18 9 
Third Party Submission  21 10 
Third Party Notification  21 10 
Oral Hearing  30 – 45 15 – 23 
Circulation of MPIA Award  60 – 90 30 – 60 
______________________________  
 
 5. Language of Proceedings  
Parties and Third Parties are requested to inform the WTO Secretariat as soon as possible prior 
to the filing of the Notice of Appeal in which language they intend to conduct the appeal 
proceedings.  WT/DS591/ARB25/Add.1  
 
- 16 - 
 
  6. Filing and Service of Documents  
No docume nt shall be considered filed with the arbitrators unless the document is received by 
the Secretariat within the time -period set out for filing in accordance with the final working 
schedule to be established.  
Each Party or Third Party shall file documents to the arbitrators by submitting them via the 
Disputes On -Line Registry Application (DORA) https://dora.wto.org by 17:00 (Geneva time) 
on the day that the document is due. Electronic copies of documents shall be preferably 
provided in both Microsoft Word a nd PDF format. The electronic version uploaded into 
DORA  shall constitute the official version for the purposes of submission deadlines and the 
record of the dispute. Upload of a document into DORA pursuant to the final working 
schedule  shall constitute el ectronic filing on the arbitrators, and service the other Party, and 
the third Parties.  
As a general rule, all communications from the arbitrators to the Parties and Third Parties 
will be via electronic mail and uploaded in DORA. In addition to transmitti ng the award to 
the Parties in electronic format, the arbitrators shall provide them with a paper copy.  
 7. Translation of the MPIA Award  
The time period for translation of the award will be considered following consultation with the 
Parties and in the light of the 90 day time -period requirement.  
ENDNOTES  
 
 
 
i Pursuant to Rule 21 of the Working Procedures for Appellate Review (AB/WP/6), which apply  mutatis 
mutandis  to MPIA appeals following paragraph 5 of the Agreed Procedures.  
ii The word limits referred to in this letter include all words in the document excep t for words in tables of 
content, lists of annexes, exhibits, abbreviations or cases cited, and annexes, exhibits or appendices attached to 
the document . 
iii In the 23 proceedings currently pending before the Appellate Body (amounting to a total of 24 Notice s of 
Appeal/Other Appeal), only two Notices of Appeal/Other Appeal exceeded four pages.  
iv The 27,000 word limit was arrived at, inter alia , with reference to the calculations found in the Appellate 
Body 's Annual Report for 2015 (WT/AB/26, dated March 2016) . More recent data on length of submissions 
before the Appellate Body are not publicly available. In the 2015 Report (on p. 119, footnote 4) it is noted that 
"over the period from January 2009 to October 2015, the average length (excluding the top two outl iers) of 
appellants' and other appellants' submissions was 30,425 words and the average length of appellees' submissions 
was 28,875 words. " In addition, within this same time period (appellate proceedings between January 2009 and 
October 2015), "[t]he aver age number of words per submission in the first five cases in the period considered 
was 26,965, and the average number of words per submission in the last five cases of this period was 34,982. 
This represents an increase of almost 30% in the length of the appellants' and appellees' submissions. " (ibidem , 
at p. 119) Given the express wish of MPIA participants to streamline proceedings, seek procedural efficiency 
and meet the 90 -day time period, the lower average of 26,965 words was taken and rounded to 27,00 0 words. 
Even though the data cited above indicate that on average appellees ' submissions tend to be somewhat shorter 
than appellants ' and other appellants ' submissions, in order to ensure due process and equality of arms between 
the Parties, the same limi t is suggested for both Appellant/Other Appellant and Appellee submissions.  
v The alternative word limit with reference to the length of the appealed Panel report has been added in order to 
allow for longer submissions in exceptionally long and complex cas es. The 40% ratio was arrived at, inter alia , 
based on the Appellate Body 's Annual Report for 2015 (WT/AB/26, dated March 2016) which "shows the trend 
line for the ratio of the total number of words contained in the participants' submissions in each appeal  as 
compared to the total number of words in the corresponding panel report " (at p. 120). This trend line, for the 
period between January 2009 and October 2015 (excluding the top two outliers) "shows an increase in the ratio WT/DS591/ARB25/Add.1  
 
- 17 - 
 
   
 
from 0.7 to about 1.6 " (ibidem ). Given the express wish of MPIA participants to streamline proceedings, seek 
procedural efficiency and meet the 90 -day time period, the lower range was taken and rounded to a ratio of 0.8, 
which is then divided by two (as the 2015 Report refers to the sum  of both participants ' submissions) to arrive at 
0.4 or 40%.  
vi It is noted that in proceedings involving multiple complainants, multiple appeals/other appeals may be filed by 
various complainants. In this situation, it is understood that the responding Par ty may file an Appellee 
submission in response to each such appeal. In the event that the responding Party decides to file only one joint 
Appellee submission in response to such multiple appeals, the indicative maximum guideline for such Appellee 
submissio n would be multiplied by the number of appeals to which it is responding.  
vii No data on length of Third Participants ' submissions before the Appellate Body are publicly available. Given 
the obvious difference between main and Third Parties, but recognizing the importance of Third Parties ' 
submissions in disputes concerning multilateral treaties such as WTO covered agreem ents, the indicative limit 
for Third Parties ' submissions has been set at one third of the limit for main Parties ' submissions.  
viii The 15% extra for documents in French or Spanish was arrived at by comparing the page length of the ten 
most recent Appellate Body reports. On average, page numbers in the French versions of those Appellate Body 
reports were 14.55% higher as compared to the English version; page numbers in the Spanish versions were 
16.23% higher as compared to the English version. The same top -up of 15% is suggested for both French and 
Spanish . 
ix This follows the practice of the Appellate Body. See Communication from the Appellate Body, Executive 
Summaries of Written Submissions in Appellate Proceedings, WT/AB/23, 11 March 2015.   WT/DS591/ARB25/Add.1  
 
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  ANNEX A -3 
ADDITIONAL PROCEDURES FOR BCI PROTECTION AND  
PARTIAL PUBLIC VIEWING OF THE HEARING  
Adopted by the Arbitrators on 1 November  2022  
At the organizational meeting between the Arbitrators and the parties to this dispute held on 
18 October 2022, Colombia requested that the Arbitrators adop t additional procedures for the 
treatment and handling of business confidential information (BCI). Colombia recalled that the Panel 
had adopted certain working procedures on BCI in its proceedings, and suggested that similar 
procedures may be adopted by th e Arbitrators. The European  Union did not object to the adoption 
of additional procedures to protect BCI, but suggested that such procedures may be based on those 
adopted in prior appellate proceedings. In addition, the European  Union requested that the he aring 
be made public. Colombia stated that, although it could not, in principle, agree to a hearing that is 
public in its entirety, it would not object to a partial open hearing in which the European  Union's 
opening oral statement, as well as those of the third parties that so wish, is made public.  
By letter of 24  October  2022, the Arbitrators sent to the parties and third parties a draft of additional 
procedures in light of the above requests, and invited comments. Upon receiving comments from 
the parties and certain third parties, the Arbitrators revised the modalities for the protection of BCI 
and partial public viewing of the hearing. Regarding BCI protection, the Arbitrators agreed to a 
request from the European  Union to add the language in paragraph 2. f, although, given that the 
Arbitrators do not intend to include BCI in the Award, this provision is limited to procedures to guard 
against inadvertent disclosure of BCI. Regarding public viewing of the hearing through a video 
recording, in response to a r equest from the United  States for further clarification regarding 
modalities, and a view expressed by Colombia in favour of limiting how long the recording would 
remain available on the WTO website, the Arbitrators agreed to ensuring that the recording wou ld 
be in "full -room view" (paragraph 3), and that it be made available only to those who have a 
registered account on the WTO website (paragraph 6). The Arbitrators did not consider that limiting 
the time period for public viewing of the video recording wa s necessary.  
Against the above background, and taking into consideration the 90 -day time -limit to issue the 
Award in this arbitration, the Arbitrators thus adopt the following procedures pursuant to 
paragraph  11 of the Agreed Procedures for Arbitration un der Article  25 of the DSU between the 
parties (Agreed  Procedures).1 
Additional Procedures for BCI Protection  
1. For the purposes of these arbitration proceedings, BCI shall include: (i)  information marked as 
BCI and enclosed within double square brackets in  any document to the Arbitrators; and 
(ii) information designated by the Panel as BCI on the Panel record.  
 
2. The additional BCI protection in these arbitration proceedings is provided according to the 
following terms:  
a. No person may have access to informatio n that qualifies as BCI, except the Arbitrators, 
the staff of the WTO Secretariat assisting them, an employee of a party or third party, or 
an outside advisor for the purposes of this dispute to a party or third party. However, an 
outside advisor is not pe rmitted access to BCI if that advisor is an officer or employee of 
an enterprise engaged in the production, export, or import of the products that were the 
subject of the anti -dumping investigation at issue in this dispute.  
b. A party or third party having ac cess to BCI shall treat it as confidential and shall not 
disclose that information other than to those persons authorized to receive it pursuant to 
 
1 WT/DS591/3/Rev.1 . With regard to the request by Colombia pertaining to BCI, we also take note of  
paragraph 9 of the Additional Procedures for Arbitration under Article  25 of the DSU adopted for this arbitration 
on 19  October  2022.  WT/DS591/ARB25/Add.1  
 
- 19 - 
 
  these procedures. Each party and third party shall have responsibility in this regard for its 
employees as w ell as for any outside advisors employed for the purposes of this dispute. 
BCI obtained under these procedures may be used only for the purpose of providing 
information and argumentation in this dispute and for no other purpose.  
c. A party or third party that submits any document containing BCI to the Arbitrators shall 
clearly identify such information in the document filed. The party or third party shall mark 
the cover and/or first page of the document containing BCI, and each subse quent page of 
the document, to indicate the presence of such information. The specific information in 
question shall be placed within double square brackets, as follows: [[…]]. The first page 
or cover of the document shall state "Contains Business Confiden tial Information", and the 
top of each page of the document shall contain the notice "Contains Business Confidential 
Information".  
d. In view of paragraph 3 below, a party or third party that intends to have its opening 
statement at the hearing be made public  shall not refer to BCI in the opening statement.  
e. For the purpose of ensuring that only persons authorized to have access to BCI pursuant 
to these procedures are in the room to hear an oral statement containing BCI:  
i. Colombia, and third parties referred to in paragraph 4 below, shall inform the 
Arbitrators in advance if they intend to refer to BCI in their opening statements.  
ii. A party or third party that intends to refer to BCI in response to questions during the 
hearing or in the closing statement shall info rm the Arbitrators in advance.  
f. The Arbitrators will make every effort to draft an award that does not disclose BCI by 
limiting themselves to making statements or drawing conclusions that are based on BCI. 
A copy of the Award intended for circulation to WTO  Members will be provided in advance 
to the parties, at a date and in a manner to be specified by the Arbitrators. The parties 
will be provided with an opportunity to request the removal of any BCI that is inadvertently 
included in the Award, in accordance  with a time period to be specified by the Arbitrators. 
No other comments or submissions shall be accepted.  
g. Pursuant to paragraph 8 of the Agreed Procedures, members of the pool of standing appeal 
arbitrators composed in accordance with paragraph 4 of comm unication 
JOB/DSB/1/Add.122 shall receive any document relating to the appeal, including any 
document containing BCI. Members of the pool of arbitrators shall not disclose BCI  to 
persons not authorized under these procedures to have access to BCI.  
Additional Procedures for Partial Public Viewing of the Hearing  
3. Subject to the terms set out below, the first session of the hearing, which will consist of opening 
statements, shall be video recorded with the camera in "full -room view", i.e., without zooming 
in on individual speakers.  
 
4. The opening statements of Colombia and third parties wishing to maintain the confidentiality of 
their statements will not be video recorded. Any third party that wishes to participate in the 
hearing may request that its opening statement remain confidential. Such requests should be 
made as soon as possible, and no later than 5 p.m. Geneva time on Friday, 11  November  2022.  
 
5. Before the conclusion of the he aring, the parties shall provide confirmation that no BCI is 
contained in the opening statements of the European  Union and any third party other than those 
referred to in paragraph 4 above.  
 
6. Subject to the parties' confirmation referred to in paragraph 5, the video recording will be posted 
on the WTO website subsequent to the hearing to allow for viewing by anyone who has a 
 
2 Except any  member of the pool of arbitrators who has a conflict of interest pursuant to the Rules of 
Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes.  WT/DS591/ARB25/Add.1  
 
- 20 - 
 
  registered account on the WTO website. The date of posting and the registration instructions will 
be communicated in due course.  
______ _________  
 
 
 WT/DS591/ARB25/Add.1  
 
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  ANNEX B  
NOTIFICATION  OF AN APPEAL  BY COLOMBIA  
Contents  Page  
Annex  B-1 Notification  of an Appeal by Colombia under Article  25 of the DSU , paragraph  5 
of the Agreed Procedures, and Rule 20 of the Working Procedures for 
Appellate  Review  22 
 WT/DS591/ARB25/Add.1  
 
- 22 - 
 
  ANNEX  B-1 
NOTIFICATION OF AN APPEAL BY COLOMBIA UNDER ARTICLE  25 OF THE DSU,  
PARAGRAPH  5 OF THE AGREED PROCEDURES, AND RULE 20 OF THE  
WORKING PROCEDURES FOR APPELLATE REVIEW* 
Notification of an Appeal by Colombia under Article  25 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes ("DSU"), paragraph 5 of the Agreed Procedures 
for Arbitration under Article  25 of the DSU (the "Agreed Procedures") and Rule 20 of the Working 
Proce dures for Appellate Review  
Pursuant to paragraph 5 of the  Agreed Procedures1, Colombia hereby notifies the Dispute Settlement 
Body of its decision to initiate an arbitration under Article  25 of the DSU  with regard to certain issues 
of law and legal interpretation covered in the Panel  Report  in the dispute Colombia – Anti-Dumping 
Duties on Frozen Fries from Belgium, Germany and the Netherlands . 
Pursuant to paragraph 5 of the  Agreed Procedures and Rule 20 (1) of the Working Procedures for 
Appellate Review, Colombia simultaneously files this Notice of Appeal and its Appellant Submission 
with the European  Union  and the third parties in the panel proceedings and with the WTO Secretariat. 
The Notice of Appeal i ncludes the final report of the Panel in the working languages of the WTO.  
For the reasons elaborated in its Appellant Submission to the Arbitrators, Colombia appeals and 
requests the Arbitrators to reverse the findings, conclusions and recommendations of the Panel, with 
respect to the following errors of law and legal interpretation contained in the Panel  Report2:  
1. The Panel erred in the interpretation and application of Article  5.3 as well as Article  5.2(ii), 
as requiring an applicant that presents third -country sales price as a basis for determining 
normal value to explain why it is "appropriate " that the application does not rely on domestic 
sales prices.3 The Panel similarly erred in finding that an investigating authority must, under 
Articles 5.2(iii ) and 5.3, examine whether the use of third -country sales prices, instead of 
domestic sales prices, was "appropriate" in the specific facts and circumstances of the 
investigation, in order to satisfy the "accuracy " and "adequacy " requirement in Article  5.3. 
Accordingly, Colombia requests the Arbitrators to reverse the Panel 's findings in 
paragraphs  7.75, 7.78, 7.79, and 8.1.a.iii.  
2. The Panel erred in the interpretation and application of Article  6.5 of the Anti -Dumping 
Agreement by finding that the investiga ting authority treated certain information in the 
revised application for the investigation as "confidential" without receiving a showing of 
"good cause".4 As that information was never treated as confidential, the Panel erred in 
finding that the authorit y was under an obligation to require and assess a showing of "good 
cause" within the meaning of Article  6.5. Accordingly, Colombia requests that the Arbitrators 
reverse the Panel's finding in paragraphs 7.126, 7.152.a., and 8.1.b.i. of its Report that the 
investigating authority acted inconsistently with Article  6.5 of the Anti -Dumping Agreement.  
3. The Panel erred in the interpretation and application of Article  6.2 of the DSU by finding that 
the European  Union 's claim under Article  2.4 of the Anti -Dumping A greement pertaining to 
packaging costs was within the Panel 's terms of reference.5 The Panel incorrectly held that 
the claim developed by the European  Union  before the Panel was the same as the claim 
pertaining to an exporter's packaging costs that was co ntained in the panel request (but not 
developed before the Panel).  By treating these two issues as different arguments regarding 
 
* This document, dated 6 October 2022, was circulated to Members as WT/DS 591/7 and 
WT/DS591/7/Add.1 in accordance with paragraph 5 of the Agreed Procedures for Arbitration under Article  25 of 
the DSU . The final Panel  Report , which was attached to this document, is not included in this Addendum.  
1 WT/DS591/3/Rev.1, 22 April 2021.  
2 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review , which apply mutatis 
mutandis  pursuant to paragraph 11 of the Agreed Procedures , this Notice of Appeal includes an indicative list of 
the para graphs of the Panel  Report  containing the alleged errors, without prejudice to Colombia's ability to 
refer to other paragraphs of the Panel  Report  during the arbitration proceedings.  
3 Panel  Report , paras.  7.75, 7.78, 7.79, and 8.1.a.iii.  
4 Panel  Report , paras.  7.126, 7.152.a., and 8.1.b.i.  
5 Panel  Report , paras.  7.232, 7.233, 7.244, and 8.1.d.ii.  WT/DS591/ARB25/Add.1  
 
- 23 - 
 
  the same claim in the panel request, rather than as different claims, the Panel erred under 
Article  6.2. Colombia requests that the Arbitrators reverse the Panel 's finding under 
Article  6.2 of the DSU and consequently also declare moot and of no legal effect the Panel 's 
substantive finding under Article  2.46.  
Should the Arbitrators agree with Colombia under Article  6.2 of the DSU, but consider that 
part of the Panel 's substantive finding still stands because it is based also on the 
European  Union 's claim pertaining to the adjustment request, Colombia requests the 
Arbitrators to reverse the Panel 's finding und er Article  2.4 of the Anti -Dumping Agreement 
based on the packaging adjustment issue7, on the ground that the Panel improperly made 
the case for the European  Union  and relieved it of its burden of proof. The European  Union  
made no prima facie  case under A rticle 2.4 on the packaging adjustment issue.   
4. The Panel erred in the interpretation and application of Articles 3.1, 3.2, 3.4, and 3.5 of the 
Anti-Dumping Agreement by finding that the term "dumped imports" ( importaciones objeto 
de dumping , in Spanish) do es not include the imports from exporters that have a positive,  de 
minimis  dumping margin.8 The Panel ignored the ordinary meaning of the term "dumped 
imports" based on the definition of "dumping" in Article  2.1 of the Anti -Dumping Agreement. 
The Panel al so ignored the immediate context provided in Article  3.5 and, instead, placed 
undue reliance on Article  5.8 to conclude that the term "dumped imports" does not include 
imports with  de minimis  dumping margins. Accordingly, Colombia requests the Arbitrator t o 
reverse the Panel's finding in paragraphs  7.303, 7.307, and 8.1.e.i. of its Report that the 
investigating authority  acted inconsistently with Articles 3.1, 3.2, 3.4, and 3.5 of the 
Anti-Dumping Agreement by including in its injury and causation determina tion imports from 
those exporters subject to positive,  de minimis  dumping margins.  
_______________  
 
 
 
 
6 Panel  Report , paras.  7.244 and 8.1.d.iii.  
7 Panel  Report , paras.  7.241, 7.244, and 8.1.d.iii.  
8 Panel  Report , paras.  7.303, 7.307, and 8.1.e.i.  WT/DS591/ARB25/Add.1  
 
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  ANNEX C  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  C-1 Executive summary of Colombia 's written submission  25 
Annex  C-2 Executive summary of the European  Union 's written submission  29 
 WT/DS591/ARB25/Add.1  
 
- 25 - 
 
  ANNEX  C-1 
EXECUTIVE SUMMARY OF COLOMBIA'S WRITTEN SUBMISSION  
1  INTRODUCTION  
1.1.  Colombia appreciates the opportunity to present for the Arbitrators ' review certain legal issues 
arising from the Panel  Report  in this dispute.  
2  APPLICABLE STANDARD OF REVIEW  
2.1.  Article  11 of the DSU obliges a panel to make an "objective assessment of the matter." 
Moreover, Article  17.6(ii) of the Anti -Dumping Agreement requi res panels to defer to a "permissible 
interpretation" by investigating authorities. The Panel failed properly to account for such "permissible 
interpretations" and also failed to apply properly the customary rules of treaty interpretation.  
3  THE PANEL ERRED IN FINDING AN INCONSISTENCY UNDER A RTICLE  5.3  
3.1.  Colombia requests the Arbitrators to reverse the Panel's finding under Article  5.3 of the 
Anti-Dumping Agreement pertaining to the evidence for normal value. Neither Article  5.3 nor 
Article  5.2(iii) require th at an applicant explain, or the investigating authority examine, why it is 
"appropriate" to use third -country sales in lieu of domestic sales price as the basis for normal value. 
Instead, the proper meaning of the phrase "where appropriate" is to underscor e that applicant – and 
by extension the investigating authority – have discretion to rely on either type of evidence, based 
on what they consider to be "appropriate".  
3.2.  The Panel erred in ascribing to domestic sales prices in Article  5.2(iii) a strict legal  primacy. 
The fact that Article  5.2(iii) mentions third -country sales prices and constructed value in 
parentheses, and after "where appropriate ", simply means that the drafters considered domestic 
sales prices to be the usual basis for normal value. Parent heses are also frequently used to organize 
a longer sentence, as in this case. In any event, none of this signifies that the use of third -country 
export prices or constructed normal value is legally permissible only if explained and justified, on 
the basis  of unspecified criteria. The Panel failed to consider that the phrase "where appropriate " 
stands in stark contrast to the detailed criteria in Article  2.2 that govern the choice of evidence for 
determining normal value and the circumstances under which do mestic sales prices can be regarded 
as reliable.  
3.3.  The Panel failed to examine the proper context of the phrase "where appropriate", including its 
meaning in numerous other provisions of the covered agreements, in which it has exactly the 
meaning suggested b y Colombia, that is, discretion for the decision maker without a requirement to 
explain its choice. Examples include Article  XX:1(d) of the GATS; footnote 56, Annex II(I)(2), and 
Annex V(2) of the SCM  Agreement ; Articles 4.1 and 4.2 of the Agreement on Rul es of Origin; 
Article  15.4 of the TBT  Agreement ; Article  12.7 of the SPS  Agreement ; and Article  50.2 of the 
TRIPS  Agreement.  
3.4.  The Panel's decision to read an explanation requirement into the phrase "where appropriate" 
is very questionable from an interpreta tive standpoint. The Anti -Dumping Agreement contains 
provisions with explicit explanation requirements, as well as with explicit and detailed criteria for 
setting aside one option and resorting to another option. This demonstrates that, when the drafters 
wished to establish such requirements, they did so explicitly. They did not do so in Article  5.2(iii). 
Moreover, rejecting probative evidence provided by the applicant on the ground that it should have 
provided other evidence goes against the well -establish ed interpretation of the phrase "reasonably 
available" in the chapeau of Article  5.2. 
3.5.  The Panel's suggested obligations that the investigating authority must examine why domestic 
sales prices were not provided in the application, and that the applicant mus t supply such an 
explanation, are also undermined by the fact that other provisions state this type of requirements 
explicitly. This again suggests that the drafters expressed these kinds of obligations explicitly. WT/DS591/ARB25/Add.1  
 
- 26 - 
 
  Moreover, the Panel's requirement to exam ine why domestic sales prices have not been used is also 
difficult to reconcile with the ordinary meaning of the term "adequacy" in Article  5.3.  
3.6.  Furthermore, the Panel's examination requirement would be either a merely formalistic step 
or, alternatively, would require the investigating authority to examine explanations by the applicant. 
However, Article  5.2 and 5.3 do not contain criteria on how to examine an applicant 's explanations, 
on how much effort an applicant should make to obtain domestic sales pri ces or on how to approach 
this for different applicants across different jurisdictions. The EU's arguments about the alleged 
special requirements applying to applicants with related companies in the export market 
demonstrate the potentially arbitrary natur e of these criteria.  
3.7.  Finally, the Panel failed to appreciate that the primacy of domestic sales prices as the basis for 
determining normal value is inextricably linked to the detailed criteria in Article  2.2 regarding 
whether domestic sales prices are reli able. However, in the initiation context, these tests cannot be 
performed due to insufficient information. Hence, domestic sales prices cannot be accorded the same 
primacy as under Article  2.2. More generally, at the initiation stage, only limited informat ion exists 
about the reliability of any evidence. Therefore, if for instance domestic sales prices are low and 
indicate the absence of dumping, but available third -country sales price are high and indicate 
presence of dumping, the investigating authority m ust be entitled to initiate on this basis to gain 
greater certainty about the underlying facts.  Third country sales prices indicating dumping cannot 
be offset by the existence of low -priced domestic sales and cannot make an initiation 
WTO-inconsistent. For  that reason, it would also not be logical to invalidate an application that does 
not contain domestic sales data, but does contain probative third -country export sales data. This 
does not, of course, prejudge the outcome of the investigation.  
3.8.  In any even t, should the Arbitrators read the phrase "where appropriate" as indicating an 
objective, substantive standard, this would relate to the quality, accuracy, and adequacy of 
third-country sales prices or constructed normal value.   
4  THE PANEL ERRED IN FINDING AN INCONSISTENCY WITH A RTICLE  6.5 (REDACTED 
INFORMATION IN SECTION D(I) OF THE REVISED APPLICATION)  
4.1.  Colombia appeals the Panel's finding that the Subdirección  acted inconsistently with Article  6.5 
by treating the redacted information in section d(i) of the  revised application of 19 July 2017 as 
"confidential" without any demonstration of "good cause".  
4.2.  The Panel incorrectly applied Article  6.5. As it found, the applicant requested confidential 
treatment for certain information in the revised application, bu t not for the redacted information in 
section d(i). Consequently, the Subdirección determined confidentiality for the information for which 
confidential treatment was requested (but not for the information in section d(i)). Thus, the 
Subdirección was not r equired to request the applicant to show good cause with respect to 
information for which confidentiality was not requested. Therefore, the Subdirección cannot be found 
to have acted inconsistently with Article  6.5 for allegedly treating certain informatio n as confidential 
when no request for confidentiality was submitted.  
4.3.  As the redacted information in section d(i) was not confidential (because there was no request 
for confidentiality), the Subdirección plainly disclosed it in other documents placed on th e public 
record of the investigation. This was explicitly found by the Panel. Thus, the Panel incorrectly stated 
that the Subdirección had treated this information as "confidential". For this reason, the obligation 
under Article  6.5 to show "good cause" was not triggered.  
4.4.  Colombia therefore requests the Arbitrators to reverse the Panel's finding that the Subdirección 
violated Article  6.5 with respect to the information in section d(i) of the revised application.  
5  THE PANEL ERRED I N FINDING THAT THE EU'S CLAIM REGARDING PACKAGING COSTS 
WAS WITHIN THE PANEL'S JURISDICTION  
5.1.  The Panel erred in finding that the EU's claim regarding packaging was within its terms of 
reference. The EU presented one claim in its panel request regarding pac kaging costs, but 
subsequently pursued a different claim during the Panel proceedings. The claim in the EU's panel 
request related to an adjustment request by an exporter. The claim the EU actually pursued related WT/DS591/ARB25/Add.1  
 
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  to an alleged asymmetrical deduction (a ca lculation error), whereby the Subdirección  allegedly 
deducted packaging costs from the export price, but not from normal value.  
5.2.  These are two separate claims and not, as the Panel found, merely separate arguments. Each 
is based on a distinct set of facts. Indeed, the Panel itself stated that these two issues were "of a 
different type and of a different nature" and concerned "different types of packaging costs and, 
hence, distinct and unrelated types of adjustments".1 These two claims are moreover in dependent 
of each other, including for purposes of legal findings and implementation.  
5.3.  The EU's panel request confirms the distinct nature of these two issues. The EU dedicated 
three  separate items to Article  2.4. Item 5 mentions only adjustment requests, while Item  6 
mentions an alleged double deduction of sea freight and insurance costs. Thus, a calculation error 
such as the alleged asymmetrical deduction should have been mentioned in Item 6, but was not.  
5.4.  Colombia requests the Arbitrators to reverse the Panel's finding under Article  6.2 of the DSU 
and declare moot and of no legal effect the Panel's substantive finding under Article  2.4 of the 
Anti-Dumping Agreement. Should the Arbitrators consider that the Panel's finding stands even after 
declaring the a symmetrical deduction finding to be moot, Colombia appeals the remainder of the 
Panel's finding on the grounds that the Panel made the case for the EU, improperly relieving it from 
its burden of proof.  
6  THE PANEL ERRED IN FINDING AN INCONSISTENCY WITH ARTIC LES 3.1, 3.2, 3.4, 
AND 3.5 (INCLUSION OF IMPORTS WITH DE MINIMIS  DUMPING MARGINS IN THE 
INJURY/CAUSATION ANALYSIS)  
6.1.  Colombia appeals the Panel's finding that the Subdirección  acted inconsistently with 
Articles  3.1, 3.2, 3.4, and 3.5. Specifically, Colombia contends that the Panel erred in finding that 
the Subdirección's  interpretation of the terms "dumped imports" in those provisions as including 
imports with de minimis margins is not "permissible" under Article  17.6(ii). In rejecting this 
interpretation, th e Panel failed properly to apply the customary rules of treaty interpretation.  
6.2.  First, the Panel skipped the consideration of the ordinary meaning of "dumped imports" as well 
as the immediate context provided in the fourth sentence of Article  3.5.  
6.3.  Article  2.1 defines "dumping" as any difference between a higher normal value and a lower 
export price. Thus, dumping exists when the dumping margin is above 0%. In addition, Article  2.1 
clarifies that this definition is "[f]or the purpose of this Agreement" and therefore applies throughout 
the Anti -Dumping Agreement.  
6.4.  The findings of a previous panel and the travaux préparatoires  further confirm that the 
definition of "dumping" is not subject to the de minimis threshold. Accordingly, "dumping" under 
Article  2.1 r efers to any positive dumping margin regardless of its magnitude. Thus, the term 
"dumped imports" (" importaciones objeto de dumping ") in Articles 3.1, 3.2, 3.4, and 3.5 refers to 
any imports for which an authority calculates a positive dumping margin regar dless of its magnitude.  
6.5.  Moreover, the Panel improperly skipped the immediate context confirming the ordinary 
meaning of "dumped imports" as including any imports for which there is any positive dumping 
margin. Specifically, Colombia pointed to the fourth s entence of Article  3.5, which includes, as part 
of the non -attribution factors, the "volumes and prices of imports not sold at dumped prices". Under 
this factor, an authority must ensure that the effects of imports not sold at dumped prices are 
separated f rom those of the "dumped imports". Imports with de minimis dumping margins are not 
"imports not sold at dumped prices".  Instead they are "dumped imports" (" importaciones objeto de 
dumping ") under the first sentence of Article  3.5.  
6.6.  In addition, unlike in A rticles 3.1, 3.2, 3.4, and 3.5, the drafters considered it necessary to 
limit the "dumping" margins in Articles 3.3 and 9.4 to those above the "de minimis" threshold. This 
further suggests that, had the drafters wished to limit the "dumped imports" in Arti cles 3.1, 3.2, 3.4 
and 3.5 to dumped imports above de minimis margins, they would have done so, similarly to 
 
1 Panel  Report, para.  7.237 and 7.243.  WT/DS591/ARB25/Add.1  
 
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  Articles  3.3 and 9.4. This supports the interpretation of the terms "dumped imports" in Articles 3.1, 
3.2, 3.4, and 3.5 consistent with the definit ion of "dumping" in Article  2.1. 
6.7.  Second , the Panel incorrectly relied on Article  5.8 as "important context" for the interpretation 
of terms "dumped imports" in Articles 3.1, 3.2, 3.4, and 3.5 of the Anti -Dumping Agreement 
(paragraphs 7.292 -7.294 of the Pan el Report ).  
6.8.  In paragraph 7.292, the Panel reasoned that the "existence, degree, and effect" of dumping in 
Article  5.1 forms the basis of the injury/causation analysis. However, the Panel ignored that 
Article  5.1 refers to "dumping", which means any differ ence between a higher normal value and a 
lower export price. Thus, if anything, Article  5.1 confirms that the "dumped imports" in an 
investigation include those imports with de minimis dumping margins. For this reason, the Panel's 
reliance on Article  5.1 constitutes legal error.  
6.9.  In paragraph 7.293, the Panel found that the reference to "effects of the dumped imports" in 
Article  3 suggests that an authority must first determine the existence of dumping and, only 
subsequently, make its injury determination. However, the Panel ignored that the "determination" 
in Article  5.8 refers to "a final determination  of a de minimis margin of dumping".2 In Colombia's 
anti-dumping system (like in many others), the final determination of both dumping and in jury are 
made simultaneously – i.e. at the last stage of the investigation. Thus, when the obligation in 
Article  5.8 arose, the Subdirección had already made its final determination of injury.  
6.10.   Moreover, the Panel's sequential approach is at odds with Artic le 5.7 that "[t]he evidence of 
both dumping and injury shall be considered simultaneously". If an authority is required to make a 
final determination of dumping before a determination of injury, it will no longer be able to assess 
evidence of dumping when conducting its "subsequent" injury analysis. Thus, the Panel's sequential 
approach constitutes a legal error.  
6.11.   In paragraph 7.302, the Panel considered that including imports with a de minimis dumping 
margin in the injury/causation analysis would "render in effective" the requirement in Article  5.8 to 
terminate immediately the investigation. This is incorrect. It is beyond dispute that there is no 
explicit link between Articles 5.8 and 3. Rather, the purpose of the immediate termination of an 
investigation is  to exclude exporters with de minimis dumping margins from the scope of the anti -
dumping measure. The Appellate  Body, when faced with this question, agreed.3 This is further 
confirmed by the travaux préparatoires . Thus, including imports with de minimis d umping margins 
does not render Article  5.8 ineffective.  
6.12.   Also, the travaux préparatoires  reveal that the de minimis rule applies even if, and therefore 
when , imports, including those with de minimis  dumping margins, have been assessed and found to 
cause inj ury within the meaning of Article  VI. This supports Colombia's view that the terms "dumped 
imports" in Articles 3.1, 3.2, 3.4, and 3.5 include imports with de minimis  dumping margins.  
6.13.   Accordingly, Colombia requests the Arbitrators to reverse the Panel's ul timate finding that the 
Subdirección  acted inconsistently with Articles 3.1, 3.2, 3.4, and 3.5 by including imports with 
de minimis  dumping margins in the injury/causation analysis.  
7  CONCLUSION  
7.1.  Colombia thanks the Arbitrators and the Secretariat staff for t heir work on this appeal.  
 
 
 
 
 
2 Panel  Report , Canada – Welded Pipe , para.  7.64. 
3 Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice , para.  219. WT/DS591/ARB25/Add.1  
 
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  ANNEX C-2 
EXECUTIVE SUMMARY OF THE EUROPEAN UNION'S WRITTEN SUBMISSION  
1. THE PANEL DID NOT ERR IN FINDING THAT COLOMBIA ACTED INCONSISTENTLY 
WITH ARTICLE 5.3 OF THE ANTI -DUMPING AGREEMENT BECAUSE, BY FAILING TO 
EXAMINE WHETHER THE USE OF THIRD COUNTRY SALES PRICES, INSTEAD OF 
DOMESTIC SALES PRICES, WAS "APPROPRIATE " IN THE SPEC IFIC FACTS AND 
CIRCUMSTANCES OF THE INVESTIGATION AT ISSUE, MINCIT DID NOT EXAMINE THE 
"ADEQUACY " OF THE EVIDENCE IN THE APPLICATION TO DETERMINE WHETHER 
THERE IS "SUFFICIENT " EVIDENCE TO JUSTIFY THE INITIATION OF THE 
INVESTIGATION  
1. Contrary to Colombia 's allegations, the Panel did not state that under Article 5.3 "an 
explanation " by the applicant is required. The Panel did however recall that Article  5.3 requires 
investigating authorities to examine the accuracy and adequacy of the evidence provided in the 
application for purposes of initiation and noted, in line with prior panel reports, that any review 
of an investigating authority 's conduct under Article 5.3 must be carried out on a case -by-case 
basis.  
2. The core interpretative legal issue pertains to the o bligation of the investigating authority, under 
Article 5.3 of the Anti -Dumping Agreement, to examine if the evidence provided in the 
application is adequate and sufficient to justify the initiation of the investigation requested by 
the applicant.  
3. The Pan el correctly applied the customary rules of interpretation of public international law, as 
required by the first sentence of Article 17.6(ii). The Panel inquired into the ordinary meaning 
of "where appropriate ". It did not limit its analysis to the interpr etation of that phrase in Article 
5.2(iii) because its focus was on the assessment of MINCIT 's conduct under Article 5.3. The 
Panel had recourse to context and object and purpose to elucidate the meaning of the term 
"where appropriate ", proceeding in a log ical and holistic fashion. That process yielded an 
interpretation that is harmonious and coherent and fits comfortably with Articles 5.3 and 5.2 of 
the Anti -Dumping Agreement.  
4. The Panel was right to disagree with Colombia that the use of the term "where a ppropriate" 
indicates that an applicant enjoys complete "free choice" to submit any information that it 
desires for calculating normal value. Accepting Colombia's interpretation would deny any effect 
to the meaning or placement of the term "where appropria te", contrary to the principle of 
effectiveness in treaty interpretation. An investigating authority's examination, under 
Article  5.3, of the "adequacy" and sufficiency of the evidence for determining normal value for 
purposes of initiation requires, at th e very least, an exercise of judgment as to the suitability 
or appropriateness of using third country sales prices, instead of domestic sales prices, in the 
specific situation before it.  
5. Colombia 's alternative interpretation would allow the investigating a uthority to initiate the 
investigation even though the applicant has in its possession a number of domestic sales prices 
that do not, in themselves, suggest dumping.  This interpretation is in direct contradiction with 
the obligation of the investigating au thority to examine the adequacy of the evidence provided 
in the application in order to determine whether there is sufficient evidence to justify the 
initiation of an investigation.  
6. Colombia is therefore wrong in arguing that the sole question to be examin ed by the 
investigating authority is whether the evidence on third -country sales prices is reliable or, as 
Colombia puts it, "accurate " and "adequate " as a matter of substance.  
7. There is nothing illogical about the use of third -country sales prices being co nsidered 
"appropriate " and sufficient to initiate an investigation in one case but not in another case, for 
reasons unrelated to the substance, nature or quality of that evidence. Any review of an 
investigating authority 's conduct under Article 5.3 must be  carried out on a case -by-case basis WT/DS591/ARB25/Add.1  
 
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  and it is indisputable that there may be circumstances where the use of evidence other than 
domestic sales prices is appropriate, as envisaged in the text of Article 5.2(iii).  
8. As Colombia acknowledges, the term "where a ppropriate " is one of those generic, open -ended 
terms "whose interpretation heavily depends on the context in which they are found ". Since the 
Panel clarified the context and purpose of its interpretation of the term "where appropriate " in 
Article 5.2(iii), it is difficult to see what can be gained from examining all other instances where 
the covered agreements use the term "as appropriate " and inquiring how such a generic term 
stands to be interpreted in different contexts and for diffe rent purposes.  
9. The word "adequacy " is rightly used in the Panel 's finding, since Article 5.3 specifically requires 
the investigating authority to examine the adequacy of the evidence provided in the application. 
If the evidence of dumping provided in the a pplication consists of third -country sales prices, 
instead of domestic sales prices, the investigating authority is required to examine whether that 
evidence is appropriate and therefore adequate to achieve the purpose of allowing it to 
determine whether t here is sufficient evidence to justify the initiation of an investigation.  
10. The European Union does not consider it unworkable for an investigating authority to verify if 
an applicant is unable to obtain domestic sales prices. It seems reasonable to assume  that 
larger applicants, those who are part of multinational groups or with deeper pockets, will have 
less difficulty in obtaining information on domestic sales prices.  
2. THE PANEL DID NOT ERR IN FINDING THAT COLOMBIA ACTED INCONSISTENTLY 
WITH ITS OBLIGATION S UNDER ARTICLE 6.5 OF THE ANTI -DUMPING AGREEMENT 
WITH RESPECT TO THE REDACTED INFORMATION IN SECTION D(I) OF FEDEPAPA 'S 
REVISED APPLICATION BECAUSE MINCIT GRANTED CONFIDENTIAL TREATMENT TO 
THIS INFORMATION WITHOUT A SHOWING OF "GOOD CAUSE" BY THE APPLICAN T 
11. FEDEPAPA 's revised application of 19 July 2017 was submitted to MINCIT as a document from 
which information on the alleged injury to the domestic industry had been redacted by the 
applicant.  This was the only version to which the European Union and the o ther interested 
parties had access, both before and after the initiation of the anti -dumping investigation.  
12. It is therefore indisputable that MINCIT treated as confidential the redacted information in 
section d(1) of FEDEPAPA 's revised application. The Pan el rightly reached the same conclusion 
in paragraph 7.126 of the Panel Report.  
13. No clear indication in the record suggested that the information redacted from the revised 
application was made available elsewhere. A joint reading of the revised and the origi nal 
application did not enable a reader to "easily infer " that the redacted information in FEDEPAPA 's 
revised application was, "in reality ", the same as the relevant information contained in the 
original application.  
14. As correctly found by the Panel, despite the absence of an explicit request by the applicant, 
MINCIT did grant confidential treatment to the information in section d(1) of the revised 
application. Other interested parties were prevented from viewing the in formation redacted 
from the revised application.  
15. The Panel rightly rejected Colombia 's argument that the application of Article 6.5 and the 
obligation to show good cause was not triggered in the circumstances of the dispute. Colombia's 
argument "would rend er ineffective the requirement of showing 'good cause ' by allowing (a) 
interested parties to submit redacted information without a showing of 'good cause ' for 
confidential treatment; and (b) investigating authorities to maintain confidentiality of such 
information without 'good cause ' being shown ". 
3. THE PANEL DID NOT ERR IN FINDING THAT THE EUROPEAN UNION'S CLAIM 
CONCERNING PACKAGING COSTS UNDER ARTICLE 2.4 OF THE ANTI -DUMPING 
AGREEMENT WAS WITHIN ITS TERMS OF REFERENCE  
16. The Panel rightly found that the Europ ean Union 's claim regarding the due 
allowance/adjustment relating to Mydibel 's packaging costs was properly before it pursuant to WT/DS591/ARB25/Add.1  
 
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  Article 6.2 of the DSU. The European Union 's claim is that MINCIT  breached Article 2.4 of the 
Anti-Dumping Agreement by carrying out an unfair comparison between normal value and 
export price, because due allowances/adjustments were not done properly, including for 
packaging costs. It is this claim, that the European Un ion set out in its panel request, in 
accordance with the requirements in Article 6.2 of the DSU, and it is this claim that it pursued 
in its submissions, and that the Panel adjudicated.  
17. Colombia 's appeal contains several interpretative flaws, and, most im portantly, overlooks the 
fact that the question why a due allowance/adjustment was wrong, is not an element of the 
claim pursuant to Article 2.4 of the Anti -Dumping Agreement. On the contrary, it is part of the 
explanation demonstrating the actual infringe ment – and therefore an argument to establish 
the well -founded nature of the claim. Only claims, but not arguments, must be presented in a 
panel request.  
18. The European Union therefore requests that the Arbitrators uphold the Panel 's finding that, 
having re gard to the legal standard that is actually set out in the terms of the treaty used in 
Article 6.2 of the DSU, which do not refer either to arguments or statements of fact or evidence, 
the claim relating to the erroneous allowance/adjustment for Mydibel 's packaging costs was 
properly within the Panel's terms of reference. Consequently, the European Union requests that 
the Arbitrators also reject Colombia 's request to declare moot the Panel 's findings on the 
substance of this claim.  
4. THE PANEL DID NOT ERR IN FINDING AN INCONSISTENCY WITH ARTICLES  3.1, 3.2, 
3.4, AND 3.5 BY INCLUDING IMPORTS WITH DE MINIMIS DUMPING MARGINS IN THE 
SCOPE OF "DUMPED IMPORTS" UNDER ARTICLE 3 OF THE ANTI -DUMPING 
AGREEMENT  
19. The Panel correctly found that imports from exporters found to  have de minimis dumping 
margins may not be included as "dumped imports " under Article 3 of the Anti -Dumping 
Agreement.   
20. The Panel neither "omitted " nor "skipped " a relevant stage in its inquiry. The Panel correctly 
applied the rules of interpretation unde r public international law. To determine the "ordinary 
meaning " of the term "dumped imports ", the Panel was required to consider the Anti -Dumping 
Agreement as a whole, and to interpret that Agreement in a manner which does not result in 
any provision being  rendered redundant.  
21. The term "dumped imports " is not defined in Article 3 of the Anti -Dumping Agreement. 
Article  2.1 of the Anti -Dumping Agreement contains a definition which enables one to ascertain 
when a product will be considered to have been "dumped ". Whilst that definition must be 
interpreted coherently across the Anti -Dumping Agreement, Article 2.1 of the Anti -Dumping 
Agreement does not provide an "unequivocal " "ordinary meaning " of the term "dumped 
imports ". Arguments parasitic on this incorrect proposition must fall.  
22. An injury determination can only follow from an investigation. Article 5 of the Anti -Dumping  
Agreement provides for the initiation, conduct and termination of investigations. Consideration 
of the evidence sustaining the injury determination must take place in the course of an 
investigation (Article 5.7). Article 5.8 sets down an "immediate termin ation" requirement where 
there is a determination of a de minimis dumping margin. There is a relationship between 
Article  5 of the Anti -Dumping Agreement and Article 3 of the Anti -Dumping Agreement. 
Therefore, Article 5.8 of the Anti -Dumping Agreement prov ides important relevant context for 
the interpretation of Article 3 of the Anti -Dumping Agreement.  
23. The Panel correctly found that the "immediate termination " requirement in Article 5.8 of the 
Anti-Dumping Agreement would be deprived of effectiveness if Col ombia 's interpretative 
proposition were "correct ".  
24. The factual scenario before the Panel involved three categories of exporters: a) those in respect 
of whom MINCIT determined there was a de minimis final margin of dumping; b) those in 
respect of whom MINCIT determined there was a negative  final margin of dumping; and c)  those 
in respect of whom MINCIT determined there was a positive  final margin of dumping that was WT/DS591/ARB25/Add.1  
 
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  greater than 2%. MINCIT included all investigated imports from all three categories of e xporters 
in its analysis under Article 3 of the Anti -Dumping Agreement.  
25. However, as this Appeal is brought under Article 17.6. (ii) of the Anti -Dumping Agreement, the 
interpretation by the Arbitrators of the term "dumped imports " in Article 3 of the Anti -Dumping 
Agreement must hold good in all fact patterns. That includes  the case in which  there  is an 
original  anti-dumping  investigation  relating  to a product  from one country,  with one exporter,  
with a dumping  margin  of up to, but less than 2% (for example,  1.9%).  
26. On the European Union 's interpretation, in such a case the investigation must be immediately 
terminated, in accordance with Article 5.8 of the Anti -Dumping Agreement, in order for that 
provision to have any meaningful effect. On Colombia 's interpre tation, the investigating 
authority may continue with an injury analysis, based on the "dumped imports " (with a margin 
of 1.9%), and could, in theory, make findings of material injury and causation. But what 
happens, then, when the investigating authority considers the imposition of a dumping duty, 
pursuant to Article 9.2 of the Anti -Dumping Agreement?   
27. There are two options. First, an anti -dumping duty is imposed at 1.9%. But this would only 
serve to emphasise that Article 5.8 of the Anti -Dumping Agreement  would have been deprived 
of all effectiveness. Second, alternatively, no anti -dumping duty is imposed because that would 
not be appropriate. In the second scenario, there is no possibility other than the investigation 
is terminated. The injury analysis wo uld have been, right from the outset, entirely without 
object. Consideration of this scenario decisively demonstrates why Colombia 's interpretation 
cannot be right, or permissible, because it would lead to a conclusion that is manifestly absurd 
and unreasonable.   
28. If Article 5.8 of the Anti -Dumping Agreement mandates "immediate termination " and precludes 
the injury analysis in the scenario of one exporter with a dumping margin of 1.9% in one 
country, it must also do so in the factual scenario underlyi ng this Appeal. The imports from the 
exporters with a de minimis  dumping margin must be excluded from the injury analysis.   
29. Colombia 's remaining arguments are unavailing.  
30. The Panel was not required to prioritise the "immediate context " of Article 3.5 of the 
Anti-Dumping Agreement over a reading of the Agreement as a whole. T he absence of a 
reference to Article 5.8 in Article 3.5 of the Anti -Dumping Agreement does not prove that the 
drafters never intended the de minimis  rule to apply to "dumped imports ". A coincidence in 
timing of the negotiation of Article 3.5 with other provisions that cross -refer to Article 5.8 of 
the Anti -Dumping Agreement does not prove the contrary. Whilst a legal consequence of the 
immediate termination obligation in Artic le 5.8 of the Anti -Dumping Agreement is that no anti -
dumping measure may be imposed on an exporter found to have a de minimis  dumping margin, 
this does not prove this is the only legal consequence that the "immediate termination " 
requirement entails.   
31. The interpretative proposition the European Union advances is coherent with the findings of 
multiple previous panels and the Appellate Body. It was supported by other members before 
the Panel. The European Union invites the Arbitrators to uphold the Panel 's findings.  
5. CONCLUSION  
32. The European  Union  requests the Arbitrators to dismiss all the grounds of appeal submitted by 
Colombia and to uphold the findings and conclusions of the Panel.  
_______________  
 
 WT/DS591/ARB25/Add.1  
 
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  ANNEX D  
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  D-1 Executive summary of Brazil 's third party's written submission  34 
Annex  D-2 Executive summary of Japan's 's third party's written submission  35 
Annex  D-3 Executive summary of the United  States ' third party's written submission  37 
 WT/DS591/ARB25/Add.1  
 
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  ANNEX D -1 
EXECUTIVE SUMMARY OF BRAZIL'S THIRD PARTY'S WRITTEN SUBMISSION  
1. In this submission, Brazil will focus on two relevant aspects of the present dispute: 
(i) Article  5.2(iii) and Article  5.3 concerning the information necessary to initiate an anti -
dumping investigation; and (ii) Article  3 regarding the determination of injury, in particular the 
imports considered to be de minimis . 
2. For Brazil, the information presented by the applicant in its initial submission is subject to less 
demanding requirements compared to those applied to the information that substantiates a 
final determination. Brazil notes that it is only natural and recurrent that an investigation will 
gradually become more prec ise and more complex as it advances.  
3. Brazil sees with caution a reading implying that the requirements of Articles 2 would apply also 
to Articles 5.2 and 5.3 of the ADA, as those provisions refer to different stages of the 
investigation, and impose differe nt thresholds regarding the adequacy and quality of the 
information used by the authorities.  
4. Brazil is of the view that, in cases where the investigating authority finds that a producer or 
exporter has incurred in a de minimis  margin of dumping, treating s uch imports as "dumped 
imports" would infringe the requirement of Article  5.8 to immediately terminate the 
investigation.  
5. Brazil understands that the proper interpretation of the term "dumped imports" under 
Articles  3.1, 3.2, 3.4 and 3.5 of the ADA, for p urposes of injury and causation analyses, must 
not consider imports from the producers/exporters that were determined to have final de 
minimis  and final negative margins of dumping.  
 
 WT/DS591/ARB25/Add.1  
 
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  ANNEX D -2 
EXECUTIVE SUMMARY OF JAPAN'S THIRD PARTY'S  WRITTEN SUBMISSION  
I. THE ASSESSMENT OF THIRD -COUNTRY SALES PRICES AS NORMAL VALUE UNDER 
ARTICLE 5.3  
1. As context for the phrase "where appropriate" under Article  5.2(iii) of the Anti -Dumping 
Agreement , both (1) the manner of distinguishing domestic sales prices as the priority in the 
main text of Article  5.2(iii), and (2) the qualification of third -country sales prices and 
constructed value with the phrase "or, where appropriate" and enclosed with the parentheses 
strongly indicate that domes tic sales prices are preferred.  
2. Article  VI:1 of GATT  1994 and Articles 2.1 and 2.2 of the Anti -Dumping Agreement  also 
specifically stipulate the preferred order among the three provided types of price information 
for normal value, prioritizing the use of domestic sales prices.  
3. Such context supports an understanding that, even at the initiation stage of the investig ation 
under Articles 5.3 and 5.2(iii), the prioritized method to determine normal value is domestic 
sales prices over the alternatives.  
4. Japan also notes that the phrase "where appropriate" requirement under Article  5.2(iii) does 
not refer only to situatio ns provided under Article  2.2 and is not limited to those situations.  
II. THE EXISTENCE OF CONFIDENTIAL TREATMENT UNDER ARTICLE 6.5  
5. In light of the balance between the submitting party's interest in protecting its confidential 
information and the due pro cess interests of other interested parties, whether the relevant 
information is properly disclosed to the other interested parties that have defensive interests 
is one of the key elements to be taken into account in assessing whether the redacted 
informati on is confidentially treated under Article  6.5.  
6. With regard to the redacted information at issue, Japan agrees with the Panel's finding that, 
absent any clear indication of knowledge, other interested parties could not have become 
aware about the availabi lity of the redacted information elsewhere on the record,1 especially 
since the other interested parties do not have full investigation record at hand.  
III. TERMS OF REFERENCE FOR ARTICLE 2.4 CLAIM   
7. Demonstration that the measure does indeed infringe  upon the identified provision would be 
regarded as "arguments", which are not required to be provided in the panel request.2 Such 
demonstration may include, inter alia , the description of the manner and/or ways in which the 
provision's obligation is infringe d by the measure.3  
IV. THE TREATMENT OF IMPORTS FROM EXPORTERS WITH A DE MINIMIS  MARGIN 
UNDER ARTICLES 3.1, 3.2, 3.4 AND 3.5  
8. According to the first sentence of Article  VI:1 of GATT  1994, dumped imports should not be 
condemned (i.e., should not be offset by anti -dumping duties) for material injury that is not 
attributable to those dumped imports. If the subject products being assessed for possible 
injury include non -dumped imports, the pr oducts being analysed for causation are over -
inclusive. And the injury and causation analysis of more than just the dumped imports departs 
 
1 Panel  Report , para.  7.125.  
2 Appellate  Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU ), para. 5.14 (quoting 
Appellate  Body Report, Korea – Dairy , para. 139).  
3 See Appellate  Body Report, Korea – Pneumatic Valves (Japan) , paras.  5.111 and 5.133.  WT/DS591/ARB25/Add.1  
 
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  from the text of the various provisions of Article  3 and creates the risk of false attribution of 
the injury to the d omestic industry from products that are in fact not "dumped".  
9. Also, since Article  5.8 applies and regulates the subsequent procedures to determine the effect 
of any alleged dumping, the imports with de minimis  dumping margins should be excluded 
from the s cope of the order imposing anti -dumping duties. This means that imports with 
de minimis  dumping margins are not to be condemned in the sense provided in Article  VI:1 
of GATT  1994. Only the products from exporters that are found to have  non-de minimis  
dumpi ng margins are to be condemned, and only to the extent such imports cause material 
injury to the domestic industry.  
10. Taking into account those two provisions as the context, the "dumped imports" under 
Articles  3.1, 3.2, 3.4 and 3.5 should also not include imports with de minimis  dumping 
margins, since there will be a risk of false attribution of the injury caused by imports with de 
minimis  dumping margins to imports with non -de minimis  dumping margins.  
 
 WT/DS591/ARB25/Add.1  
 
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  ANNEX D -3 
EXECUTIVE SUMMARY OF THE UNITED STATES' THIRD PARTY'S WRITTEN SUBMISSION  
I. APPELLANT'S CLAIMS UNDER A RTICLE  5.3 
1. Article  5.2(iii) of the Anti -Dumping Agreement indicates that the application requesting the 
initiation of an investigation shall contain "information on prices at which the product in question 
is sold when destined for consumption in the domestic markets of the country or countries of 
origin or export (or, where appropriate, information on the prices at which the product is sold 
from the co untry or countries of origin or export to a third country or countries, or on the 
constructed value of the product)." The term "where appropriate" should be interpreted in the 
context of the introductory clause of Article  5.2, which states that "[t]he appl ication shall 
contain such information as is reasonably available to the applicant," including information 
about "normal value" under subparagraph (iii). The term "where appropriate" in Article  5.2(iii) 
thus anticipates that there may be circumstances in w hich it is "appropriate" for an applicant to 
submit third -country sales or constructed value data in its application.  
2. An investigating authority enjoys a degree of discretion with respect to the type of evidence it 
may rely on in determining whether to in itiate an investigation if it is satisfied that an application 
contains "sufficient evidence" as required under Article  5.3. Therefore, if an authority 
determines, after examining the accuracy and adequacy of the evidence provided in an 
application, that d omestic sales pricing information was not reasonably available to an applicant, 
that is a circumstance in which it would be appropriate for the applicant to submit information 
on third country sales, or the constructed value, of the product. An authority i s not otherwise 
required to demonstrate that the information in the application was the only information 
reasonably available to an applicant.  
II. APPELLANT'S CLAIMS UNDER ARTICLES 3.1, 3.2, 3.4, AND 3.5  
3. Article  3 of the Anti -Dumping Agreement focuses on t he investigating authority's injury analysis 
of the effect or impact of "the dumped imports." Article  2.1 of the Anti -Dumping Agreement 
defines dumped products, "[f]or the purposes of this [Anti -Dumping] Agreement," on a 
countrywide basis. The references t o "the dumped imports" throughout Article  3 therefore 
concern all the dumped imports of the product from the countries subject to the investigation. 
In this respect, the Agreement requires an authority to examine, for example in Articles 3.1 
and 3.2, the v olume and price effects of "the dumped imports."  
4. Imports of an exporter or producer for which an individual margin of dumping is determined to 
be zero or de minimis  do not constitute part of "the dumped imports" of the product from the 
countries subject to  the investigation. Article  5.8 requires an authority to terminate an anti -
dumping investigation in respect of any exporter or producer for which an individual margin of 
dumping is determined to be zero or de minimis . Once a zero or de minimis margin has b een 
finally determined for a particular exporter or producer, the investigation must be terminated 
in all aspects, including the exclusion of the imports of that exporter or producer from the 
authority's injury analysis of the effect or impact of "the dump ed imports."  
5. The United  States  considers that the Panel's interpretation is correct as it accords with the 
ordinary meaning of "dumped imports": The term "dumped imports" in Articles 3.1, 3.2, 3.4, 
and 3.5 of the Anti -Dumping Agreement excludes the imports  of any exporter or producer for 
which an individual margin of dumping is determined to be zero or de minimis . 
__________