WT/DS605/R/Add.1  
27 July 2023 
(23-5057) Page: 1/90 
 Original:  Spanish  
 
  
DOMINICAN REPUBLIC  – ANTI -DUMPING MEASURES ON CORRUGATED STEEL BARS  
REPORT OF THE PANEL  
Addendum  
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This addendum  contains A nnexes A to C to the Report  of the Panel to be found in document  
WT/DS605/ R. 
 
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  WT/DS605/R/Add.1  
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  LIST OF ANNEXES 
 
ANNEX A  
PANEL DOCUMENTS  
Contents  Page  
Annex A-1 Working Procedures of the Panel  4 
Annex A-2 Additional Working Procedures Concerning Business Confidential Information  11 
Annex A-3 Interim review  13 
ANNEX B 
ARGUMENTS OF THE  PARTIES 
Contents  Page  
Annex B-1 Integrated executive summary of the arguments of  Costa Rica  24 
Annex B-2 Integrated executive summary of the arguments of  the Dominican  Republic 46 
ANNEX C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex C-1 Integrated executive summary of the arguments of  the United  States  72 
Annex C-2 Integrated executive summary of the arguments of Japan  77 
Annex C-3 Integrated executive summary of the arguments of Mexico  82 
Annex C-4 Integrated executive summary of the arguments of the European Union  86 
 
 
 WT/DS605/R/Add.1  
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  ANNEX A  
PANEL DOCUMENTS  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures Concerning Business Confidential Information  11 
Annex  A-3 Interim review  13 
 
 
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  ANNEX A -1 
WORKING PROCEDURES OF THE PANEL  
Adopt ed on 12 May 2022 
 
General  
 
1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes ("DSU") . In addition, the 
following Working Procedures apply.  
(2) The Panel reserves the right to modify these  procedures as necessary, after consultation 
with the parties.  
(3) The working language of the Panel shall be Spanish.  
Confidentiality  
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept 
confidential . Members shall treat as confidential information that is submitted to the Panel 
which the submitting Member has designated as confidential.  
(2) In accordance with the DSU, nothing in these Working Procedures shall preclude a party 
or third party from disclosing statement s of its own positions to the public.  
(3) If a party submits a confidential version of its written submissions to the Panel, it shall 
also, upon request of a Member, provide a non -confidential summary of the information 
contained in its submissions that co uld be disclosed to the public . A party should endeavour 
to promptly provide a non -confidential summary to any Member requesting it, and if possible 
within 10 days of receiving the request.  
(4) Upon request, the Panel may adopt appropriate additional proce dures for the treatment 
and handling of confidential information after consultation with the parties.  
Submissions  
 
3. (1) Before the first substantive meeting of the Panel with the parties, each party shall 
submit a written submission in which it presents the facts of the case and its arguments, in 
accordance with the timetable adopted by the Panel.  
(2) Each party shall also submit to the Panel, before the second substantive meeting of the 
Panel, a written rebuttal, in accordance with the timetable adopted by the Panel.  
(3) Each third party that chooses to make a written submission before the first substantive 
meeting of the Panel with the parties shall do so in accordance with the timetable adopted by 
the Panel.  
(4) The Panel may invite the parties or third  parties to make additional submissions during 
the proceeding, including with respect to requests for preliminary rulings in accordance with 
paragraph 4 below.  WT/DS605/R/Add.1  
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  Preliminary rulings  
4. (1) If the Dominican Republic considers that the Panel should make a ruli ng before the 
issuance of the Report that certain measures or claims in the panel request or the 
complainant's first written submission are not properly before the Panel, the following 
procedure applies . Exceptions to this procedure shall be granted upon a  showing of good 
cause.  
a. The Dominican Republic shall submit any such request for a preliminary ruling at the 
earliest possible opportunity and in any event no later than in its first written submission 
to the Panel . Costa Rica shall submit its response to the request before the first 
substantive meeting of the Panel, at a time to be determined by the Panel in light of the 
request.  
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary 
ruling request before, during or after  the first substantive meeting, or the Panel may 
defer a ruling on the issues raised by a preliminary ruling request until it issues its 
Report to the parties.  
c. If the Panel finds it appropriate to issue a preliminary ruling before the issuance of its 
Report, the Panel may provide reasons for the ruling at the time that the ruling is made, 
or subsequently in its Report.  
d. Any request for such a preliminary ruling by the respondent before the first meeting, 
and any subsequent submissions of the parties in relation thereto before the first 
meeting, shall be served on all third parties . The Panel may provide all third parties with 
an opportunity to provide comments on any such request, either in their submissions 
as provided for in the timetable or separat ely. Any preliminary ruling issued by the Panel 
before the first substantive meeting on whether certain measures or claims are properly 
before the Panel shall be shared with all third parties.  
(2) This procedure is without prejudice to the parties' right t o request other types of 
preliminary or procedural rulings during the proceeding, and to the procedures that the Panel 
may follow with respect to such requests.  
Evidence  
5. (1) Each party shall submit all evidence to the Panel no later than during the firs t 
substantive meeting, except evidence necessary for purposes of rebuttal, or evidence 
necessary for answers to questions or comments on answers provided by the other party . 
Additional exceptions may be granted upon a showing of good cause.  
(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall 
accord the other party an appropriate period of time to comment on the new evidence 
submitted.  
6. (1) If the original language of an exhibit or portion thereof is not a WTO working la nguage, 
the submitting party or third party shall simultaneously submit a translation of the exhibit or 
relevant portion into the WTO working language of the submission . The Panel may grant 
reasonable extensions of time for the translation of exhibits upon  a showing of good cause.  
(2) Any objection as to the accuracy of a translation should be raised promptly in writing, 
preferably no later than the next submission or meeting (whichever occurs earlier) following 
the submission which contains the translation  in question . Any objection shall be accompanied 
by an explanation of the grounds for the objection and an alternative translation.  
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and th ird party shall sequentially number its exhibits throughout the 
course of the dispute, indicating the submitting Member and the number of each exhibit on 
its cover page . Exhibits submitted by Costa Rica should be numbered CRI -1, CRI -2, etc. 
Exhibits submit ted by the Dominican Republic should be numbered DOM -1, DOM -2, etc. If the WT/DS605/R/Add.1  
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  last exhibit in connection with the first submission was numbered CRI -5, the first exhibit in 
connection with the next submission thus would be numbered CRI -6. If a party withdraws an 
exhibit or leaves one or more exhibits intentionally blank, it should indicate this on the cover 
page that provides the number of the blank exhibit.  
(2) Each party shall provide an updated list of exhibits (in Word or Excel format) together 
with each of  its submissions, oral statements, and responses to questions.  
(3) If a party submits a document that has already been submitted as an exhibit by the 
other party, it should explain why it is submitting that document again.  
(4) If a party includes a hyperli nk to the content of a website in a submission, and intends 
that the cited content form part of the official record, the cited content of the website shall be 
provided in the form of an exhibit along with an indication of the date that it was accessed.  
Editorial Guide  
8. In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in accordance with the WTO Editorial Guide for Panel Submissions (electronic copy 
provided).  
Questions  
 
9. The Panel may pose questi ons to the parties and third parties at any time, including:  
a. Before any meeting, the Panel may send written questions, or a list of topics it intends 
to pursue in questioning orally during a meeting . The Panel may ask different or additional 
questions a t the meeting.  
b. The Panel may put questions to the parties and third parties orally during a meeting, 
and in writing following the meeting, as provided for in paragraphs 15 and 21 below.  
Substantive meetings  
 
10. The Panel shall meet in closed session.  
11. The parties shall be present at the meetings only when invited by the Panel to appear before  it. 
12. (1) Each party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each party shall have the res ponsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the par ties and third parties.  
13. Each party shall provide to the Panel the list of members of its delegation no later than 
5.00 p.m. (Geneva time) three working days before the first day of each meeting with the Panel.  
14. A request by a party for interpretatio n from one WTO language to another should be made to 
the Panel as early as possible, preferably at the organizational stage, to allow sufficient time to 
ensure availability of interpreters.  
15. The first substantive meeting of the Panel with the parties sh all be conducted as follows:  
a. The Panel shall invite Costa Rica to make an opening statement to present its case first . 
Subsequently, the Panel shall invite the Dominican Republic to present its point of view . Before 
each party takes the floor, it shall provide the Panel and other participants at the meeting with 
a provisional written version of its statement, and any other accompanying material, including 
PowerPoint presentations . If interpretation is needed, each party shall provide additional 
copies fo r the interpreters before taking the floor.  WT/DS605/R/Add.1  
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  b. Each party should avoid lengthy repetition of the arguments in its submissions . Each 
party is invited to limit the duration of its opening statement to not more than 75 minutes . If 
either party considers that it requires more time for its opening statement, it should inform 
the Panel and the other party at least 10 days before the meeting, together with an estimate 
of the expected duration of its statement . The Panel will accord equal time to the other party.  
c. After the conclusion of the opening statements, the Panel shall give each party the 
opportunity to make comments or ask the other party questions.  
d. The Panel may subsequently pose questions to the parties.  
e. Once the questioning has concluded, the Pan el shall afford each party an opportunity to 
present a brief closing statement, with Costa Rica presenting its statement first . Before each 
party takes the floor, it shall provide the Panel and other participants at the meeting with a 
provisional written v ersion of its closing statement, if available.  
f. Following the meeting:  
i. Each party shall submit a final written version of its opening statement no later 
than 5.00  p.m. (Geneva time) on the first working day following the meeting . At 
the same time, eac h party should also submit a final written version of any 
prepared closing statement that it delivered at the meeting.  
ii. Each party shall send in writing, within the time frame established by the Panel 
before the end of the meeting, any questions to the other party to which it wishes 
to receive a response in writing.  
iii. The Panel shall send in writing, within the time frame established by the Panel 
before the end of the meeting, any questions to the parties to which it wishes to 
receive a response in wr iting. 
iv. Each party shall respond in writing to the questions from the Panel, and to any 
questions posed by the other party, within the time frame established by the 
Panel before the end of the meeting.  
16. The second substantive meeting of the Panel wit h the parties shall be conducted in the same 
manner as the first substantive meeting with the Panel, except that the Dominican Republic shall be 
given the opportunity to present its oral statement first . The party that presented its opening 
statement first  shall present its closing statement first.  
17. Each party shall be given the opportunity to comment on the responses to questions provided 
by the other party after the second substantive meeting, in accordance with the timetable adopted 
by the Panel.  
18. If, because of the sanitary crisis related to COVID -19, the substantive meetings cannot be 
physically held in Geneva on the scheduled dates or either party indicates that travel to Geneva will 
not be possible for its delegation, the Panel may, depending on  the circumstances, choose to modify 
the timetable and the working procedures after consulting the parties.  
Third -party session  
 
19. Each third party may present its views orally during a session of the first substantive meeting 
with the parties set aside for that purpose.  
20. Each third party shall indicate to the Panel whether it intends to make an oral statement during 
the third -party session three weeks in advance of this session.  
21. (1) Each third party has the right to determine the composition  of its own delegation when 
meeting with the Panel.  WT/DS605/R/Add.1  
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  (2) Each third party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, parti cularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties.  
(3) Each third party shall provide, no later than three working days before the third -party 
session, a list of members of its delegation who will attend the session.  
22. To ensure the availability of interpreters, the third parties shall also indicate at least 
three  weeks before the third -party session whether they intend to make their statement in a WTO 
language other than Spanish, which is th e language in which these panel proceedings are being 
conducted, and whether they would require interpretation from Spanish to any other WTO language.  
23. The third -party session shall be conducted as follows:  
a. All parties and third parties may be presen t during the entirety of this session.  
b. The Panel shall first hear the oral statements of the third parties, who shall speak in 
alphabetical order . Each third party making an oral statement at the third -party session 
shall provide the Panel and other par ticipants with a provisional written version of its 
statement before it takes the floor . If interpretation of a third party's oral statement is 
needed, that third party shall provide additional copies for the interpreters before taking 
the floor.  
c. Each t hird party should limit the duration of its statement to 15 minutes, and avoid 
repetition of the arguments already made in its submission . If a third party considers 
that it requires more time for its opening statement, it should inform the Panel and the 
parties at least 10 days before the meeting, together with an estimate of the expected 
duration of its statement . The Panel will accord equal time to all third parties for their 
statements.  
d. After the third parties have made their statements, the parties shall be given the 
opportunity to pose questions to any third party for clarification on any matter raised in 
that third party's submission or statement.  
e. The Panel may subsequently pose questions to any third party.  
f. Following the third -party session:  
i. Each third party shall submit the final written version of its oral statement no 
later than 5.00  p.m. (Geneva time) on the first working day following the 
meeting.  
ii. Each party may send in writing, within the time frame established by the Panel 
before the end of the meeting, any questions to one or more third parties to which 
it wishes to receive a response in writing.  
iii. The Panel may send in writing, within the time frame it established before the 
end of the meeting, any questions to one or more t hird parties to which it wishes 
to receive a response in writing.  
iv. Each third party choosing to do so shall respond in writing to written questions 
from the Panel or a party, within a time frame established by the Panel before 
the end of the meeting.  WT/DS605/R/Add.1  
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  Descriptive part and executive summaries  
 
24. The description of the arguments of the parties and third parties in the descriptive part of the 
Panel Report shall consist of executive summaries provided by the parties and third parties, which 
shall be annex ed as addenda to the Report . These executive summaries shall not in any way serve 
as a substitute for the submissions of the parties and third parties in the Panel's examination of the 
case. 
25. Each party shall submit just one integrated executive summary . The integrated executive 
summary shall summarize the facts and arguments as presented to the Panel in the party's written 
submissions, oral statements and, if possible, its responses to questions posed following the 
substantive meetings . The timing of th e submission of the integrated executive summary shall be 
indicated in the timetable adopted by the Panel.  
26. The integrated executive summary shall be limited to no more than 30  pages.  
27. The Panel may request the parties and third parties to provide ex ecutive summaries of facts 
and arguments presented in any other submissions to the Panel for which a deadline may not be 
specified in the timetable.  
28. Each third party shall submit an integrated executive summary of its arguments as presented 
in its writ ten submission and statement in accordance with the timetable adopted by the Panel . This 
integrated executive summary may also include a summary of responses to questions . The executive 
summary to be provided by each third party shall not exceed six  pages . If a third -party submission 
and/or oral statement does not exceed six pages in total, this shall serve as the executive summary 
of that third party's arguments, unless that third party indicates that it does not wish for the 
submission and/or oral stateme nt to serve as its executive summary, in which case it shall submit 
a separate executive summary.  
Interim review  
 
29. Following issuance of the Interim Report, each party may submit a written request to review 
precise aspects of the Interim Report and requ est a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel . The right to request such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
30. If no meeting is requested, each party may submit written comments on the other party's 
written request for review in accordance with the timetable adopted by the Panel . Such written 
comments shall be limited to the other party's written request for review.  
31. If a meeting is requested, the Panel shall consult with the parties on the timing of the meeting 
and any further written comments.  
Interim and Final Report  
32. The Interim Report, as well as the Final Report before its official circulation, shall be kept 
strictly confidential and sh all not be disclosed.  
Service of documents  
 
33. The following procedures regarding service of documents apply to all documents submitted by 
parties and third parties during the proceeding:  
a. Each party and third party shall submit all documents to the Pan el by submitting them 
via the Disputes Online Registry Application (DORA) https://dora.wto.org  by 5.00  p.m. 
(Geneva time) on the due dates established by the Panel . The electronic versi on 
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 shall also 
constitute electronic service on the Panel, the other party, and the third parties . WT/DS605/R/Add.1  
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  b. By 5.00 p.m. (Geneva time) the next working day following the electronic submission, 
each party and third party shall submit one paper copy of all documents it submits to 
the Panel, including the exhibits, to the DS  Registry (office No. 2047) . The DS  Registrar 
shall stamp the documents with the date and time of the submission . If an exhibit is in 
a format that is impractical to submit as a paper copy, then the party may submit that 
exhibit in electronic format only . In this case, the cover page of the exhibit should 
indicate that the exhibit is only available in electronic format.  
c. The Panel shall provide the parties with the descriptive part of the Report, the Interim 
Report and the Final Report, as well as all other documents or communications issue d 
by the Panel during the proceeding, via DORA.  
d. If the parties or third parties have any questions or technical difficulties relating to 
DORA, they are invited to contact the DS Registry ( DSRegistry@wto.org ). 
e. If any party or third party is unable to meet the 5.00 p.m. deadline because of technical 
difficulties in 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 Panel by email including any 
exhibits . The email shall be addressed to DSRegistry@wto.org , the Panel Secretary, the 
other party and, if appropriate, the third parties . The documents sent by email shall be 
submitted no later than 5.30 p.m. on the due date e stablished by the Panel . If the file 
size of specific exhibits makes transmission by email impossible, or it would require 
more than five email messages, owing to the number of exhibits to be filed, to transmit 
all of them by email, the specific large file  size exhibits, or those that cannot be attached 
to the first five email messages, shall be filed with the DS Registry (office No. 2047) 
and provided to the other party and, if appropriate, the third parties by no later than 
9.30 a.m. the next working day on an electronic medium acceptable to the recipient . In 
that case, the party or third party concerned shall send a notification by email to the 
DS Registrar, copying the Panel Secretary, the other party, and the third parties, as 
appropriate, identifying t he numbers of the exhibits that cannot be transmitted by 
email.  
f. In case any party or third party is unable to access a document filed through DORA 
because of technical difficulties, it shall promptly, and in any case no later than 
5.00 p.m. on the next working day after the due date for the filing of the document, 
inform the DS Registrar, the Panel Secretary, and the party or third party that filed the 
document, of the problem by email and shall, if possible, identify the relevant 
document(s) . The DS Reg istrar will promptly try to identify a solution to the technical 
problem . In the meantime, the party or third party that filed the document(s) shall, 
promptly after being informed of the problem, provide an electronic version of the 
relevant document(s) to  the affected party or third party by email, with a copy to the 
DS Registry ( DSRegistry@wto.org ) and the Panel Secretary to allow access to the 
document(s) while the technical prob lem is being addressed . The DS Registrar may 
provide an electronic version of the relevant document(s) by email if the affected party 
or third party so requests . The DS Registrar shall in that case copy the party or third 
party that filed the document(s) o n the email message.  
g. Parties and third parties are responsible, through their DORA account administrators, 
for creating and updating their DORA accounts . The DS Registry is available to provide 
assistance with managing the DORA accounts.  
Correction of clerical errors in submissions  
34. The Panel may grant leave to a party or third party to correct clerical errors in any of its 
submissions (including paragraph numbering and typographical mistakes) . Any such request should 
identify the natur e of the errors to be corrected, and should be made promptly following the filing 
of the submission in question.  
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  ANNEX A -2 
ADDITIONAL WORKING PROCEDURES OF THE PANEL CONCERNING  
BUSINESS CONFIDENTIAL INFORMATION  
Adopted on 1 7 May 2022 
1. For the purpose of this proceeding, business confidential information ("BCI") is defined as any 
information that has been designated as such by a party submitting the information to the Panel . 
The parties shall only designate as BCI information that is not  available in the public domain, the 
release of which would cause serious harm to the interests of the originator(s) of the information . 
BCI may include information that was previously treated by the Regulatory Commission on Unfair 
Trade Practices and Safe guard Measures of the Dominican Republic  as confidential in the course of 
the anti-dumping  proceeding  at issue in this dispute.  
2. Without prejudice to the provisions of paragraphs 3 and 4, no person may have access to BCI 
except a Panelist, a member of th e Secretariat assisting the Panel, an employee of a party or a third 
party, or an outside advisor to a party or a third party for the purposes of this dispute . However, an 
outside advisor is not permitted to access BCI if that advisor is an officer or empl oyee of an enterprise 
engaged in the production, sale, export, or import of the products that were the subject of the 
proceeding  at issue in this dispute, or an officer or employee of an association of such enterprises.  
3. When third parties receive writte n submissions pursuant to the Working Procedures, the 
third parties shall receive a version of those submissions and any exhibits with BCI redacted . The 
BCI-redacted versions of written submissions and exhibits received by third parties shall be sufficient  
to convey a reasonable understanding of the nature of the information at issue . The written 
submissions and exhibits, and their BCI -redacted versions, shall be submitted at the same time.  
4. A third party may request access to the BCI version of a BCI -redacted written submission or 
exhibit received pursuant to the Working Procedures . Any such request shall include a list of the 
third party's representatives and outside advisors who would like to review the BCI and shall specify 
how they would like to acces s the BCI . A party requested by a third party to provide that third party 
with access to BCI must provide such access promptly.  
5. A person having access to BCI shall treat it as confidential, i.e. shall not disclose that 
information other than to those pe rsons authorized to receive it pursuant to these procedures . Each 
party and third party shall have responsibility in this regard for its employees as well as any outside 
advisors used 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 . All documents and electronic storage media containing BCI shall be stored in such a manner 
as to prevent unauthorized access to such information.  
6. When a party or third party includes BCI in a submission, the cover and/or first page of the 
document containing BCI, and each page of the document, shall be marked to indicate the presence 
of such information . The specific information in question shall be placed between double square 
brackets, as follows : [[xx,xxx.xx]] . The first page or cover of the document shall state "Contains 
Business Confidential Information on pages xxxxxx", and each page of the document s hall contain 
the notice "Contains Business Confidential Information" at the top of the page . BCI presented in the 
form of, or as part of, an exhibit shall be marked to indicate, in addition to the above, that it contains 
BCI by putting "BCI" next to the ex hibit number ( e.g. Exhibit CRI -1 (BCI), Exhibit DOM -1 (BCI)).  
7. When BCI is submitted in electronic format, the file name shall include the terms "Business 
Confidential Information" or "BCI" . In addition, where applicable, the label of the storage medium 
shall be clearly marked with the statement "Business Confidential Information" or "BCI".  
8. In the case of an oral statement containing BCI, the party or third party making such a 
statement shall inform the Panel before making it that the statement will co ntain BCI, and the Panel 
will ensure that only persons authorized to have access to BCI pursuant to these procedures are in WT/DS605/R/Add.1  
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  the room to hear that statement . The written versions of such oral statements submitted to the 
Panel shall be marked as provided for  in paragraph 4.  
9. When a party or third party submits a document containing BCI to the Panel, the other party 
and third parties, when referring to that BCI in their documents, including written submissions, and 
oral statements, shall clearly identify all  such information in those documents . All such documents 
shall be marked as described in paragraph 4.  
10. If a party considers that information submitted by the other party or a third party should have 
been designated as BCI and objects to such submission without BCI designation, it shall promptly 
bring this objection to the attention of the Panel and the other party or third party, together with 
the reasons for the objection . Similarly, if a party considers that the other party or a third party 
submitted i nformation designated as BCI, information which should not be so designated, it shall 
promptly bring this objection to the attention of the Panel and the other party or third party, together 
with the reasons for the objection . The Panel shall decide whethe r information subject to an objection 
will be treated as BCI for the purposes of these proceedings on the basis of the criteria set out in 
paragraph 1.  
11. The Panel will not disclose BCI, in its report or in any other way, to persons not authorized 
under these procedures to have access to BCI . The Panel may, however, make statements of 
conclusion drawn from such information . Before the Panel circulates its final report to the Members, 
the Panel will give each party an opportunity to review the report to en sure that it does not contain 
any information that the party has designated as BCI.  
12. Submissions, exhibits, and other documents or recordings containing BCI will be included in 
the record forwarded to the Appellate Body in the event of an appeal of the Panel's Report.  
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  ANNEX A -3 
INTER IM REVIEW  
1  INTRODUC TION 
 
1.1.  Pursuant to Article 15.3 of the DSU, this Annex sets out the Panel's discussion and disposition 
of the requests for review made at the interim review stage.  As explained below, where we have 
found it appropriate, we have modified certain aspects of our Interim Report in the light of the 
parties' comments. We have also reflected the corrections of typographical errors. Below, we first 
consider the requests for review made by Costa Rica and, then, those made by the  
Dominican  Republic. The numbering of paragraphs and footnotes in the Interim Report is the same 
as in the Final Report.  
 
2  COSTA RICA 'S REQUESTS FOR REVIEW  
 
2.1  Summary of Costa Rica's claims under Articles 3.1 and 3.7 of the  Anti-Dumping  
Agreement : paragraph  7.233  
 
2.1.  Costa Rica requests that the reference to "serious shortcomings " be deleted from the 
first sentence of paragraph  7.233 to avoid repetition . The Dominican Republic has no specific 
comments . 
 
2.2.  We have modified paragraph  7.233 with a view to improving the clarity of the Final Report . 
 
2.2  Costa Rica's claim under Article 6.7 of the Anti -Dumping Agreement and Annex  I 
thereto : paragraph  7.463  
 
2.3.  Costa Rica requests that additional text be included to clarify the wording of the first sentence. 
The Dominican Rep ublic has no specific comments . 
 
2.4.  We have modified paragraph  7.463 with a view to improving the clarity of the Final Report . 
 
2.3  Additional requests  
 
2.5.  The other comments submitted by Costa Rica are editorial in nature.  The Panel has amended 
the text directly with respect to these additional comments . 
 
3  THE DOMINICAN  REPUBLIC 'S REQUESTS FOR REVIEW  
 
3.1  The applicability of Article  2.4 of the  Anti-Dumping  Agreement : paragraph  7.30 
 
3.1.  In paragraph  7.30, the Panel refers to the Dominican  Republic's argument that WTO case law  
supports the position that A rticle 2.4 does not address the establishment of the normal value and 
export price, but only  the comparison of the two and the possible need for adjustments.  However, 
the Dominican Republic submits that the Panel does not address this issue and also fails to explain 
how the Panel's conclusions follow previous case law. The Dominican Republic requests that we 
indicate whether the Panel's conclusions are "in line with" this previous case law .1 
 
3.2.  Costa Rica asks that we reject the Dominican Republi c's request. Costa Rica consider s that the 
Panel has taken into account the Dominican Republic's arguments and references to "previous case 
law".2 In particular, Costa Rica notes that, in paragraph  7.30 of the Interim Report, the Panel refers 
explicitly t o the two reports cited by the Dominican Republic, and in paragraphs 7.31 to 7.33, the 
Panel sets out the reasons why it considered that the Dominican Republic's arguments, including the 
references to the two previous reports, were not persuasive.3 
 
 
1 Dominican Republic's request for interim review, para.  5. 
2 Costa Rica 's comments on the Dominican Republic's request for interim review , para. 2. 
3 Costa Rica's comments on the Dominican Republic's request for interim review , para. 2. WT/DS605/R/Add.1  
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  3.3.  We recall that in paragraph 7.30 we outline the Dominican Republic's argument that Article  2.4 
addresses only the comparison between both and the possible need to make adjustments, but does 
not address the separate  issue of establishing the export price.  Contrar y to what the Dominican 
Republic states, we have respond ed to that argument. In paragraph 7.31 we disagree with the 
Dominican Republic that Article 2.3 may properly address all issues that may arise in relation to the 
export price used in a comparis on to determine a margin of dumping.  In this regard, we note that 
Article 2.3 is limited in scope, applying to limited situations described in that article, namely, "[i]n 
cases where there is no export price or where it appears to the authorities concerned  that the export 
price is unreliable because of association or a compensatory arrangement between the exporter and 
the importer or a third party" . 
 
3.4.  Moreover, in paragraph 7.32, we explain that Costa Rica's claim under Article 2.4 is not limited 
to the components of the comparison in the calculation of the margin of dumping , but rather it also 
concerns the CDC's comparison of export sales transactions to domestic sales transaction s in 
Costa  Rica's home market . In view of this, we consider that Article 2.4 applies to Costa Rica's claim. 
On this basis , we reject the Dominican Republic's request that we indicate whether the Panel's 
conclusions are "in line with" this previous case law . 
 
3.2  The data submitted by  ArcelorMittal in a communication submitted in November 2019 
on the costs of billets : paragraphs  7.43, 7.49, 7.50, 7.51, 7.54, 7.55, 7.61, 7.62, 7.64, 7.70 
and 8.1.a.i 
 
3.5.  The Dominican Republic mentions various aspects of the data submitted by ArcelorMittal in a 
communication submitted in November  2019 on the costs of billets , in relation to Costa Rica's claims 
under Article 2.4 of the  Anti-Dumping  Agreement . First, the Dom inican Republic maintains that, in 
paragraphs 7.43 and 7.49, the Panel fails to properly reflect that the data submitted by  ArcelorMittal 
in November  2019, were only submitted at the end of the investigation and more than one year 
after the verification vi sit. The Dominican Republic argues that, owing to this late submission, there 
was no time for the CDC to examin e the veracity of the statements "on the alleged cost increases" .4 
The Dominican Republic further argues that the information submitted was not supported by any 
invoice or documentary evidence .5 
 
3.6.  The Dominican Republic also maintains that the Panel's summary of Costa Rica's arguments 
relating to the costs of billets between the end of 2016 and early May 2017, is incomplete and 
inaccurate in  several respects. This summary is found in paragraphs 7.50, 7.51 and 7.62 of the 
Interim Report . The Dominican Republic reiterates that ArcelorMittal submitted information on the 
cost of billets on 11 November 2019, and the CDC reflected that same informa tion in table 5 of the 
Final Technical Report.6 The Dominican Republic notes that the information submitted by 
ArcelorMittal does not include information for 2016. Moreover, the Dominican Republic claims that 
the data also do not demonstrate that costs in creased significantly at the beginning of the period of 
investigation . In this regard, the Dominican Republic maintains that the difference in costs in April 
compared to May "was barely 4%"7 and that an increase  of only 11.6% is observed when comparing 
January 2017 with May 2017.8 The Dominican Republic thus claims that this reference to 11.6% fails 
to properly take into account the insignificant differences in the other months of 2017, before the 
start of the period of investigation . In addit ion, the Dominican Republic notes that the information 
submitted by ArcelorMittal does not include information for March 2017.9 
 
3.7.  With these clarifications, the Dominican Republic submits that the Panel failed to  take into 
consideration the Dominican  Republic's arguments that : (a) ArcelorMittal  never provided information 
on costs in 2016 and that, therefore, any assertion about  a cost increase between the end of 2016 
and May 2017 is not justified; (b)  the "assertion"10 in paragraphs  7.50 and 7.51 that feedstock prices 
increased between January 2017 and May 2017 is predicated  on erroneous comparisons between 
end points, as the costs in May 2017 were exactly the same as those in February 2017; (c) the 
information provided by  ArcelorMittal does not provide any information on feedstock costs in March 
2017, which was the month of the Thorco  Logic invoice; and ( d) none of these cost data were 
 
4 Dominican Republic's request for interim review, paras.  6-8. 
5 Dominican Repu blic's request for interim review, para.  8. 
6 Dominican Republic's request for interim review, paras.  10-12. 
7 Dominican Republic's request for interim review, para.  13. 
8 Dominican Republic's request for interim review, para.  13. 
9 Dominican Republic's re quest for interim review, para.  13. 
10 Dominican Republic's request for interim review, para.  15. WT/DS605/R/Add.1  
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  justified by the evidence  on record , which could not have been verified at that late stage of the 
investigat ion.11 The Dominican Republic therefore requests the Panel to reflect on the implications 
of these arguments and conclude that it was not unreasonable for the CDC to use the exact data on 
export sales and the normal value that the exporter itself provided in its questionnaire in relation to 
the POI. The Dominican Republic requests the Panel to thus modify the conclusions of 
paragraphs  7.54, 7.55, 7.61, 7.62, 7.64, 7.70 and 8.1.a.i.12 
 
3.8.  Costa Rica respond s that the Dominican Republic's request  is without merit and asks the Panel 
to reject it. First, Costa Rica notes that the ch ronology of the proceedings, and the date on which 
ArcelorMittal submitted the information is clear to the reader because, in paragraph  7.49, the Panel  
expressly refers to the date on which the exporter submitted its comments (11 November  2019). 
Therefore, there is no doubt as to when the comments were received. Costa  Rica also considers that 
the Dominican Republic's argument, that there was no time to ex amine the veracity of the 
information submitted by ArcelorMittal, amounts to an ex post  argument, and it is inappropriate to 
raise it at the interim review stage.13 Regarding the other arguments, Costa Rica submits that the 
Dominican Republic's comments s imply repeat arguments on its own appreciation of the facts, none 
of which the Panel is required to address in the context of the interim review .14 
 
3.9.  We note that the Dominican Republic's comments appear to address the CDC's lack of time to 
examine t he veracity of the statements on the alleged increase in costs, and the failure to assess 
whether the alleged increase in costs was significant.  The Dominican  Republic also refers to a 
number of  arguments that were made in its submissions and statements to  the Panel during the 
proceedings15, and requests the Panel to consider these arguments again.  
 
3.10.  In the context of its analysis  under Article 2.4, the Panel clarified that it did not consider the 
parties' arguments regarding the costs of billets to be a relevant element in this dispute. Thus, the 
Panel did not take into consideration the arguments of whether the material terms of the 
Thorco  Logic sale were established at the end of December 2016. Nor did the Panel address the 
arguments con cerning the period from January to May 2017 prior to the beginning of the POI. Rather, 
the Panel took into account the fact that the parties do not disagree that the export sales shipped 
on the Thorco Logic and the Suzie Q were invoiced before the start of  the POI chosen by the CDC .16 
On this basis, the Panel concluded that the Dominican Republic acted inconsistently with the second 
sentence of Article 2.4 of the Anti -Dumping Agreement because the CDC failed to make a comparison 
between the export price an d the normal value "in respect of sales made at as nearly as possible 
the same time", in accordance with that provision. Due to this approach, we do not consider it 
necessary to make any changes to our analysis in the context of Article 2.4, as requested b y the 
Dominican Republic.  
 
3.11.  We now turn to the various arguments put forward by the Dominican Republic relating to 
specific data on the costs of billets, with respect to the Panel's analysis under Article 2.2.1 of the 
Anti-Dumping Agreement.  
 
3.3  Use of an annual weighted average cost in the cost test: paragraphs 7.97, 7.102, 
7.105, 7.106, 7.111 and 8.1.a.iii 
 
 
3.12.  The Dominican Republic submits that certain facts related to the cost of billets are not fully 
or correctly reflected in section  7.4.3.1 of the Interim Report , with respect to the Panel's 
consideration of the CDC 's use of an annual weighted average cost in the cost test. The 
Dominican  Republic also commented on legal aspects of the Panel's analysis in this same section.  
 
3.13.  First, the Dominican Republic claims that the Panel has failed to reflect important factual 
aspect s in paragraphs 7.104 and 7.105 of the Interim Report . In these paragraphs, the Panel 
 
11 Dominican Republic's request for interim review, para.  15. 
12 Dominican Republic's request for interim review, paras.  16-17. 
13 Costa Rica's comments on th e Dominican Republic's request for interim review , paras.  4-5. 
14 Costa Rica's comments on the Dominican Republic's request for interim review , para. 6. 
15 Dominican Republic's request for interim review, fn  1 (referring to the Dominican Republic's second 
written submission, paras. 57-58; responses to Panel questions Nos. 11 and 77; comments on Costa Rica's 
response to Panel question No. 77; opening statement at the first meeting of the Panel, para.  27; and openi ng 
statement at the second meeting of the Panel, paras.  22-23). 
16 Interim Report , para. 7.47.  WT/DS605/R/Add.1  
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  analyses the monthly unit costs of billets provided by ArcelorMittal in its comments of  11 November . 
The Dominican Republic submits that the information provided by ArcelorMittal on the monthly costs 
of billets does not revea l an obvious difference in the monthly costs. Therefore, the Dominican 
Republic claims that there were no exceptional circumstances which would have required the CDC 
to apply a different methodology to determine whether there were below -cost sales that sho uld have 
been excluded from the normal value calculation. To illustrate its argument, the Dominican Republic 
states that the cost of billets in May  2017 ( USD [[***]]  per tonne ) was not so different from the 
price in September 2017 ( USD [[***]]  per tonne ).17 
 
3.14.  Second, the Dominican Republic claims that the Panel failed to take proper account of 
ArcelorMittal's arguments and comments on the alleged increases in monthly costs, as the Panel  did 
not note anything in ArcelorMittal's comments that p rovided "a general overview of costs" .18 The 
Dominican Republic refers to paragraph 7.88 and footnotes  119 to 121, as well as paragraph  7.104 
and footnote  138 of the Interim Report . The Dominican Republic states that ArcelorMittal did not 
identify an exce ptional situation of significant growth, nor did it refer to specific data .19 The 
Dominican Republic also states that the Panel does not refer to specific data to support its conclusion 
in paragraph 7.100 that "production costs had increased significantly  during the POI ".20 In this 
connection, the Dominican Republic reiterates its position that differences in the costs of billets 
throughout the POI were not of such a magnitude to invalidate the use of annualized costs, 
particularly as the Anti -Dumping Agr eement leaves such decisions to the discretion of the 
investigating authority. The Dominican Republic states that the cost of billets  in July 2017 
(USD [[***]] p er tonne ) was very similar to the cost in October 2017 ( USD [[***]] per tonne ) or 
even in December  2017 ( USD [[***]] per tonne ). According to the Dominican Republic, th is was 
also the case with  overall production costs, which did not change much between June  (USD [[***]] 
per tonne ) and October  2017 ( USD [[***]] per tonne ).21 
 
3.15.  Third, the Dominican Republic reiterates its argument that ArcelorMittal provided monthly 
cost data only at the end of the investigation, more than a year after the verification visit, with the 
result that the information was not verified. The Dominican Re public claims that ArcelorMittal could 
well have provided the monthly cost data from the outset, but instead chose strategically not  to do 
so, allegedly knowing that it would not be possible to verify the data at such a late stage of the 
investigation .22 The Dominican Republic claims that the Panel failed to take into account the impact 
of this information only being available at a late stage.23 
 
3.16.  Fourth, the Dominican Republic criticizes the Panel's comments in paragraphs 7.101 
and 7.102 of the Interim Report . In these paragraphs, the Panel noted that the CDC should have 
been aware of the alleged increase in billet costs earlier, by virtue of the fact that the applicant, 
Gerdau Metaldom, provided information in September 2018 on billet costs . However, the 
Dominican  Republic considers that the Panel has failed to provide an adequate explanation of the 
relevance of this information in the context of the cost test analysis, given that the information was 
submitted by the applicant in the context of t he CDC's  injury analysis (in the context of the price 
suppression analysis).24 
 
3.17.  Aside from the consideration of certain facts, the Dominican Republic also requests the Panel 
to clarify what the legal basis is for its conclusi on in paragraphs 7.99 and 7.100 of the Interim 
Report . The Dominican Republic refers to the Panel's comment in these paragraphs that it would be 
"reasonable" to use a methodology that takes into account the costs at the time of sale determine d 
on a basis other than the annual we ighted average per unit cost. The Dominican Republic points out 
that the term "reasonable" does not appear in Article 2.2.1 of the Anti -Dumping Agreement. The 
Dominican Republic also seeks clarification on what is understood to be a situation in which pric es 
and costs are "relatively stable", compared to a situation in which costs "increase significantly" 
during the POI. The Dominican Republic considers that the relevant issue is not only whether the 
costs increased during the POI, but whether sales are con centrated in a certain period of the POI. 
According to the Dominican Republic's argument, if sales are distributed in a relatively uniform 
 
17 Dominican Republic's request for interim review, para.  20. 
18 Dominican Republic's request for interim review, para.  21. 
19 Dominican Republic's request for i nterim review, paras.  21-22. 
20 Dominican Republic's request for interim review, para.  22. 
21 Dominican Republic's request for interim review, para.  23. 
22 Dominican Republic's request for interim review, para.  25. 
23 Dominican Republic's request for inter im review, para.  24. 
24 Dominican Republic's request for interim review, para.  26. WT/DS605/R/Add.1  
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  manner, sales below and above the average cost will also cancel each other out , as any other 
approach means that a me asure is unacceptable as soon as there are changes in costs during the 
POI.25 
 
3.18.  Lastly, the Dominican Republic requests the Panel to clarify its characterization that there was 
a very high proportion of below -cost sales in the "initial months" of the investigation. The Dominican 
Republic considers that the Panel failed to indicate clearly what the concept of "initial" months 
means. In addition, the Dominican Republic claims that the Panel has ignored the fact that the vast 
majority of sa les over the last six months were higher than costs.26 
 
3.19.  The Dominican Republic therefore requests the Panel to reconsider the relevant facts and 
revise its conclusions in paragraphs 7.97, 7.102, 7.105, 7.106, 7.111 and 8.1.a.iii that the CDC 
acted inconsistently with Article 2.2.1 of the  Anti-Dumping Agreement by using an annual weighted 
average cost for the below -cost sales test .27 
 
3.20.  Costa Rica requests the Panel to reject all the Dominican Republic's requests and comments 
as unfounded, beca use the comments are an attempt to restate issues that have already been 
resolved in the dispute, and because this is not purpose of the interim review. First, Costa Rica 
rejects the contention that the Panel has failed to properly reflect and consider imp ortant factual 
aspects of the Dominican Republic's submissions. In this regard, Costa Rica notes that 
paragraphs  7.91 to 7.94 of the Interim Report summarize and set out all the important arguments 
and factual points mentioned above by the Dominican Republ ic.28 Costa Rica also rejects the 
comment that the Panel does not refer to specific data to support its conclusion in paragraph 7.100 
of the Interim Report that "production costs had increased significantly during the POI ".29 Costa Rica 
notes that the pa ragraphs following paragraph 7.100 refer to the data on the record and support 
the Panel's conclusion.30 Costa Rica also rejects the Dominican Republic's argument that the Panel 
failed to take proper account of the fact that ArcelorMittal had submitted monthly cost data in 
November 2019. Costa Rica submits that the Panel clearly addressed this argument in 
paragraphs  7.101 to 7.105 of the Interim Report , by concluding that the CDC was aware of the risk 
of distortion in the analysis before the exporter submitted its concerns for the first time.31 
 
3.21.  Lastly , Costa Rica rejects the arguments that the Panel failed to pr operly establish a legal 
basis to support its conclusions. Costa Rica submits that the Panel's conclusion in paragraph  7.99 is 
predicated  on the detailed reasoning set out by the Panel in paragraph 7.98 of the Interim Report . 
Similarly, Costa Rica maintain s that paragraph  7.100 should be read in conjunction with the 
subsequent paragraphs. Moreover, Costa Rica consider s it illogical that the Dominican Republic 
criticizes the Panel for using the term "reasonable" in paragraph  7.99. Costa Rica notes that the 
Dominican Republic has referred to the methodology used by the CDC as not "unreasonable" in its 
arguments .32 
 
3.22.  We will respond to the Dominican Republic's comments in the order in which they have been 
submitted.  
 
3.23.  We do not agree with the Domin ican Republic's position that the Panel failed to reflect 
important factual aspects in its analysis under Article 2.2.1 of the Anti -Dumping Agreement. 
Paragraphs 7.104 and 7.105 cannot be read in isolation . In paragraphs  7.88-7.90, the Panel reflected 
ArcelorMittal 's request in the underlying investigation, in which it asked the CDC to carry out its cost 
test analysis again . These comments include its explanation of how the methodology used by the 
CDC would create distortion. The Pan el also refers to ArcelorMittal 's comments of  
11 November  2019, which contain monthly cost information . In paragraphs  7.91-7.94, the Panel 
 
25 Dominican Republic's request for interim review, paras.  28-29. 
26 Dominican Republic's request for interim review, para.  30. 
27 Dominican Republic's request for interim review, paras.  31-33. 
28 Costa Rica's comments on the Dominican Republic's request for interim review , para. 8. 
29 Dominican Republic's request for interim review, para.  22. 
30 Costa Rica's comments on the Dominican Republic's request for interim r eview , para. 9. 
31 Costa Rica's comments on the Dominican Republic's request for interim review , para. 10. 
32 In paragraph  11 of its comments on the Dominican Republic's request for interim review, Costa Rica 
refers to paragraph  7.93 of the Interim Report , in which the Panel notes that the Dominican Republic considers 
that the use of an annual average was reasonable. In footnote  127 of the Interim Report, the Panel refers to 
paragraph 51 of the Dominican Republic's second written submission, where the Domin ican Republic submits 
that "[i]t is not clear what would be unreasonable or biased if an authority used actual cost data provided by 
the exporter".  WT/DS605/R/Add.1  
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  reflects the Dominican Republic's position as to why  the EBITDA -COST data were not comparable 
for the purposes of car rying out verification . These paragraphs also explain the Dominican  Republic's 
argument that there was nothing particular  about the circumstance that had invalidated the decisi on 
to examine the price s in the light of the weighted costs corresponding to the  POI, and that there 
was no obvious difference in costs that would have required the use of monthly cost data and 
comparisons . In its analysis, the Panel explains its interpretation of Article  2.2.1 and the basis for 
its conclusion that the CDC, acting as an unbiased investigating authority,  should have considered 
the possibility of distortion in its analysis based on us ing the annual weighted average  for the POI.  
 
3.24.  Second, we disagree with the Dominican Republic's argument that the Panel failed to consider 
specific data in its review, or that the Panel somehow failed to recognize the overall situation with 
respect to  upward  trends in billet costs during the POI . In paragraph  7.100, the Panel  conclu ded 
that the CDC was aware that production  costs had increased significantly during the POI. In 
paragraph  7.101, the Panel takes note of the information from the applicant  (Gerdau  Metaldom) 
regarding increasing international billet prices during the POI  (for example , that "as of 
December  2017, the re is evidence of a 13% increase in domestic industry's prices when compared 
to December  2016" and  "the price of billets in April  2018 compared to April  2017 increased 
by 26%"). In paragraph  7.103, the Panel analysed the information contained in Exhibit DOM-22. 
The Panel noted the trend reflected in Exhibit  DOM-22, with respect to the declining percentage of 
below -cost sales, in relation to the rising costs shown by the monthly unit cost data of billets during 
the POI provided by ArcelorMittal. Nor do we co nsider that the Dominican  Republic's focus on billet 
prices in specific months invalidates our analysis. It should also be noted that, in a footnote to its 
comments, the Dominican Republic recognizes "a sharper increase in costs over the last four months 
of the POI"33, although the Dominican Republic dismisses this trend as irrelevant to the Panel's 
conclusion . 
 
3.25.  We also disagree with the Dominican Republic's comments that the Panel failed to properly 
consider the fact that ArcelorMittal subm itted the monthly cost data only at the end of the 
investigation, or that the Panel has failed to provide an adequate explanation as to why it was 
appropriate to consider the cost information submitted by the applicant. We do not consider it 
necessary to t ake into account the Dominican Republic's argument, set out in its comments, on the 
reason why ArcelorMittal did not provide the information sooner. The observation that , at an earlier 
stage of the investigation, the applicant, Gerdau Metaldom, submitted i nformation in 
September  2018 on billet costs and that the CDC was aware of the increase in the international price 
of billets and in the price of the product, is relevant to our analysis .34 In the light of this, we conclude 
that the CDC, acting as an unbi ased investigating authority, should have considered the possibility 
of distortion in its analysis.  
 
3.26.  Lastly , we reject the Dominican Republic's request to modify some aspects of our legal 
interpretation. The Dominican Republic's  specific comments we re previously presented as arguments 
to the Panel in earlier stages of these proceedings. These included the argument that an investigating 
authority would only need to consider a methodology that is not based on an annual weighted 
average cost in special circumstances, where sales are concentrated in a particular period of the 
POI. In paragraph 7.98, the Panel set out its interpretation of Article 2.2.1, expl aining that the 
examination of whether sales have been made at prices which do not provide for the recovery of all 
costs within a reasonable period  of time, would be meaningless if prices and costs were not initially 
compared at the time of sale. In the li ght of this, the Panel considered that an investigating authority 
is required to use a methodology that reasonabl y allows it to identify sales that are above costs "at 
the time of sale" so as not to unduly exclude them from the margin of dumping calculatio n. 
Therefore, in general, it would be reasonable to use a methodology that takes into account the costs 
at the time of sale determined on a basis other than the annual weighted average per unit cost. We 
consider that this risk could be particularly high in  circumstances when production costs increase 
significantly during the POI. The Dominican Republic also requests clarification as to what is meant 
by a very high proportion of below -cost sales in the "initial months" of the investigation. As the 
Dominican Republic acknowledges, the Panel considered the 12 months of the POI, noting the trend 
that monthly costs were below the annual average during the six -month period between May and 
October 2017 . This trend differed from the trend over the last months of the  POI.  
 
 
33 Dominican Republic's request for interim review , fn 3. 
34 See para.  7.102 of the Interim Report . WT/DS605/R/Add.1  
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  3.27.  On the basis of the foregoing explanation, we consider that we properly evaluated the factual 
aspects relevant to our analysis , and consider that the totality of circumstances supports our 
conclusions . We therefore see no basis for reconside ring the arguments – most of which the 
Dominican Republic has already set out in its submissions and statements during the proceedings . 
We therefore reject the Dominican Republic's request to reconsider our conclusions in 
paragraphs  7.97, 7.102, 7.105, 7.1 06, 7.111 and 8.1.a.iii. 
 
3.4  The exam ination of profits : paragraphs  7.195, 7.200, 7.231 and 8.1.b.v 
 
3.28.  The Dominican Republic requests that we reconsider our conclusions in paragraphs  7.195, 
7.200, 7.231 and 8.1.b.v as regards the examination of profits. The Dominican Republic states that 
the Panel misinterprets the CDC's remark in paragraph 378 of its Final Technical Report.35 As such, 
the Dominican Republic claims that the CDC's remark was not "particularly relevant as the real 
question  is whether the decline in profits coincided with the period of increased dumping" ; that the 
CDC referred to the significant decline recorded in 2017, which is the calendar year that largely 
overlaps with the dumping POI; and that, contrary to our analysis, domestic sales "declined in 
value".36 In addition , the Dominican Republic notes that there is no requirement that the different 
injury data correlate perfectly .37 
 
3.29.  Costa Rica asks that we reject the Dominican Republic's request as un founded, in view of the 
fact that the Panel's analysis was properly focused on the CDC's findings. Costa Rica consider s that 
the Dominican Republic is trying to reopen the discussion and relitigate the matter, and is, in effect, 
attempting to get the Panel  to substitute the CDC's  assessment for its own, which is contrary to a 
panel's standard of review .38 
 
3.30.  We do not agree with the Dominican Republic's arguments. While the Dominican Republic 
states that "the real question is whether the decline in pr ofits coincided with the period of increased 
dumping"39, this question is not part of the examination that the CDC set out in its profit analysis. 
The Dominican Republic claims that the Panel misinterpreted domestic sales data because these 
"decreased in value".40 The Panel took into account the sales tren d, recognizing that "[a]t the 
beginning of the POI, the volume of sales increased while their value decreased" .41 This is evident 
from table  26 of the CDC Final Technical Report . We therefore conclude that the sales trend was 
"fluctuating" .42  
 
3.31.  We recall that an objective investigating authority could not have reached a general conclusion 
that "[t]he contractions in profits coincide  with the decline in sales" without qualifying it and 
explaining why contradictory trends  in the volume of sales did not undermine their conclusion . We 
do not suggest that  the trends in profits and dumped imports must necessarily coincide  in order  for 
the profit analysis to be consistent with Articles 3.1 and 3.4 of the Anti -Dumping Agreement . The 
Panel only examined the conclusion that is part of the CDC's examination of the profit analysis . We 
consider that this conclusion is not reasonably supported by the evidence for the reasons set out in 
paragraphs 7.196-7.200 of the Interim Report . We therefore reject the Dominican Republic's request 
to reconsider our conclusions in paragraphs 7.195, 7.200, 7.231 and 8.1.b.v with respect to the 
profit analysis . 
 
3.5  Cash flow : paragraphs  7.206, 7.231 and 8.1.b.v 
 
3.32.  The Dominican Republic requests that we reconsider our conclusions in paragraphs  7.206, 
7.231 and 8.1.b.v with respect to the cash flow analysis . The Dominican Republic argues  that 
Article  3.4 of the  Anti-Dumping Agreement does not require that an investigating authority establish 
a causal relationship among the different factors evaluated under this provision, and that the Panel 
is wrong "to reject the CDC's factual observations on a correlation between these three  factors during 
the dumping POI, by  failing to examine what actually caused the negative cash flow" .43  
 
35 Domin ican Republic's request for interim review, para.  34. 
36 Dominican Republic's request for interim review, para.  36. 
37 Dominican Republic's request for interim review, para.  38. 
38 Costa Rica's comments on the Dominican Republic's request for interim review , para. 14. 
39 Dominican Republic's request for interim review, para.  36. (emphasis  omitted ) 
40 Dominican Republic's request for interim review, para.  36. 
41 Interim Report , para. 7.195.  
42 Interim Report , para. 7.196.  
43 Dominican Republic's  request for interim review, para.  42. WT/DS605/R/Add.1  
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3.33.  Costa Rica  requests that the Panel reject the Dominican Republic's arguments as unfounded, 
since the Panel's analysis is predicated  on the facts on the record and on the CDC's own findings. 
Costa Rica ma intains that the Dominican Republic's arguments do not justify why the Panel's 
conclusion should be reconsidered as the Dominican Republic fails to give any other reason besides 
the as sertion that Article 3.4 does not require a causation analysis. However, the Dominican  Republic 
fails to demonstrate that the CDC's examination was reasoned and adequate.44 
 
3.34.  We are not convinced by the Dominican Republic's arguments . We concur with  previous panels 
that, under Article 3.4 of the Anti -Dumping Agreement, an investigating authority must "evaluate" 
the factors listed,  evoking a process of weighing evidence and reaching conclusions thereon.45 The 
"evalua tion" to which Article 3.4 refers is the process of analysis and interpretation of the facts 
established in relation to each listed factor and is something different from, and more than, simple 
compilation  of tables of data.46 The Dominican Republic appears to say that the CDC's remark th at 
"[t]he cash flow performance [wa]s attributable to the fall in profits as a result of Costa Rica's 
dumping practices" is not relevant to the CDC's cash flow analysis under Article 3.4 of the 
Anti-Dumping Agreement .47 If this were the case, the CDC's ca sh flow evaluation would be limited 
to the first two sentences of paragraph 389 and table  32. In our view, this is not sufficient to 
"evaluate" a factor under Article 3.4. For the reasons set out in paragraphs 7.204 -7.206 of the 
Interim Report , we determine that the CDC's consideration does not constitute a reasoned and 
adequate explanation of how the evidence support s its conclusion regarding cash flow. On this basis, 
we reject the Dominican Republic's request to reconsider our conclusions in paragraphs 7.206, 7.231 
and 8.1.b.v with respect to the cash flow analysis.  
 
3.6  The examination of the do mestic industry's loss of market share : paragraphs  7.217, 
7.231 and 8.1.b.v 
 
3.35.  The Dominican Republic requests that we re -evaluate our conclusion in paragraphs  7.217, 
7.231 and 8.1.b.v with respect to the loss of market share . The Dominican Republic states that the 
Panel based its conclusion on "the fact that the market share of dumped imports did not increase 
over the last four months of the POI"; that there is no requirement for market share and dumped 
imports to be perfectly correlated for  the whole of the POI ; and lastly, that any concern regarding 
third country imports should have been an matter to be analysed under Article 3.5, not Article 3.4 
of the Anti -Dumping Agreement.48 
 
3.36.  Costa Rica requests that the Panel reject the Dominic an Republic's arguments since the 
Panel's analysis is objective and is predicated  on the facts on the record . Costa Rica consider s that 
the comments are simply an attempt by the Dominican Republic to relitigate the case, and that this 
is not the function o f the interim review.49 
 
3.37.  The Dominican Republic  does not argue that we have incorrectly identified the CDC's analysis 
and conclusions in relation to this factor, as listed in Article 3.4 of the Anti -Dumping Agreement.  We 
recall that the CDC's concl usion on the examination of this final factor is set out in paragraph  305 of 
its technical report in general terms, namely, that " the domestic industry  recorded a  loss of market 
share attributable to Costa Rican imports ". We also recall our conclusion that, due to the trend 
observed, the CDC's assertion that the loss of market share was "attributable to Costa Rican 
imports", could not constitute a generalization for the entire POI.50 Nothing in the Panel's conclusion 
suggests that trends in market share and dumped imports must be perfectly correlated. The Panel 
examined the relevant conclusion of the CDC and considered that there was no reasoned and 
adequate explanation as to how the evidence on the record supported that c onclusion, in accordance 
with the applicable standard of review. In view of the foregoing, we reject the Dominican Republic's 
request to re -evaluate our conclusions on this factor . 
 
3.38.  The Dominican Republic requests that we delete the reference in par agraph 7.217 to the 
alleged decline in market share in the first four months of 2018 compared to the whole of 2017, " as 
 
44 Costa Rica's comments on the Dominican Republic's request for interim review , para. 16. 
45 Panel Report , Egypt – Steel Rebar , para. 7.44. 
46 Panel Report , Egypt – Steel Rebar , para. 7.45. 
47 Dominican Republic's request for interim review, para.  42. 
48 Dominican Republic's request for interim review, para.  46. 
49 Costa Rica's comments on the Dominican Republic's request for interim review , para. 17. 
50 Interim Report , para. 7.217.  WT/DS605/R/Add.1  
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  such a comparison is not appropriate ".51 We find no reason to make this change. We understand 
that in the case of relative  (and not abs olute) figures for periods of different lengths, such 
comparisons may be appropriate. Nor do we see anywhere in the CDC's determination that sales of 
the product were affected by any type of seasonality that would have precluded a comparison 
between differ ent periods within one year. We also note that the first quarter of 2018 is the most 
recent period analysed in the context of the dumping POI, and it does not show an increase in the 
dumped imports' market  share, regardless of the point of comparison .52  
 
3.39.  In view of the foregoing, we reject the Dominican Republic's request to reconsider our 
conclusions in paragraphs 7.217, 7.231 and 8.1.b.v with respect to the domestic industry's loss of 
market share , and to make changes to the text of paragraph 7.217.  
 
3.7  Whether the CDC properly considered the positive performance of certain indicators 
and evaluated the economic factors and indices as a whole : paragraphs  7.231 and 8.1.b.v 
 
3.40.  The Dominican Republic requests that we reconsider the conclusions in paragraphs 7.231 
and 8.1.b.v of the Interim Report  with respect to consideration of the "relative weight" of various 
factors. The Dominican Republic further requests that we clarify "what exactly [we] require []" and 
"whether [we] consider [] that each factor must be examined in the light of the other facto rs". The 
Dominican Republic also requests that we identify the legal basis in the Anti -Dumping Agreement 
that requires an investigating authority to carry out such an examination, and the basis for 
concluding that the CDC "failed to evaluate all relevant f actors …, as it has not identified any factor 
… that was considered ".53 
 
3.41.  Costa Rica consider s that, contrary to the Dominican Republic's claims, the Panel's analysis 
in section  7.5.3.2.6 is exhaustiv e and does not require clarifications or addition s. Costa Rica 
consider s that the Panel's analysis is appropriately focused on the Investigating Authority's findings . 
According to  Costa Rica, the Dominican Republic r equests that the Panel elaborate on the 
interpretation of Article  3.4 by making statement s in the abstract, and does not even explain how 
the abstract pronouncements  it requests could change the findings already made.54 Costa Rica notes 
that the title of section  7.5.3.3 and the first sentence of paragraph 7.231 make it clear that the 
conclusions reproduced in this paragraph stem from the previous analysis set out in 
paragraphs  7.180 -7.230. For Costa Rica,  the Panel did not need to repeat these "bases" in 
paragraph  7.231, which summarizes the conclusions .55  
 
3.42.  We note that Articl e 3.4 of the Anti-Dumping  Agreement stipulates  that "[t]he examination of 
the impact of the dumped imports on the domestic industry concerned shall include an evaluation 
of all relevant economic factors and indices ". The meaning of  "evalua tion" ha s been in terpreted by 
a number of previous panels . As such, in EC – Tube or Pipe Fittings , the panel concluded that "an 
'evaluation' also implies the analysis of data through placing it in context in terms of the particular 
evolution of the data pertaining to each factor individually, as well as in relation to other factors 
examined " and "the investigating authority must … assess the role, relevance and relative weight of 
each factor ".56 We see no basis to disagree with this interpretation of Article 3.4 of the Ant i-Dumping 
Agreement, nor does the Dominican Republic provide one.  
 
3.43.  We therefore reject the Dominican Republic's request to reconsider our conclusions in 
paragraphs 7.231 and 8.1.b.v with respect to consideration of the "relative weight" of the various 
factors mentioned in Article 3.4 of the  Anti-Dumping  Agreement . 
 
3.8  Whether the Dominican Republic acted inconsistent ly with Articles 3.1 and  3.7: 
paragraphs  7.264, 7.265, 7.266 and 7.278 
 
 
51 Dominican Republic' s request for interim review, para.  48. 
52 We note that the parties disagreed about which was the relevant point of comparison, and our 
conclusions reflect that, regardless of the point of comparison, the CDC's examination of this factor does not 
constitut e a reasoned and adequate explanation as to how the evidence on the record supported the 
Investigating Authority's conclusion – see paras.  7.214, 7.215 and 7.217 of the Interim Report . 
53 Dominican Republic's request for interim review, paras.  49-50. 
54 Costa Rica's comments on the Dominican Republic's request for interim review , para. 18. 
55 Costa Rica's comments on the Dominican Republic's request for interim review , para. 19. 
56 Panel Report , EC – Tube or Pipe Fittings , para. 7.314 . WT/DS605/R/Add.1  
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  3.44.  The Dominican Republic requests that we clarify "where [we] find [] the basis … in Costa  Rica's 
submissions" for the conclusions that we reached with respect to certain elements of the CDC's 
projections in paragraphs 7.264, 7.265, 7.266 and 7.278 of our report .57 The Dominican  Republic 
suggests that the Panel may have conducted a de novo  review.58 
 
3.45.  Costa Rica consider s that the Dominican Republic's request has no merit and should rejected. 
Costa Rica notes that the Dominican Republic suggests that the Panel conducted a de novo  review.  
However , Costa Rica points out that in paragraphs  7.264, 7.265  and 7.278 the Panel is comparing 
the CDC's analysis against information that was on the record . Costa Rica further notes that 
paragraphs 7.266 and 7.267 provide , respectiv ely, a summary of the parties' arguments and do not 
contain the Panel's conclusions, so the Dominican Republic's request does not make sense with 
regard to these paragraphs.  Costa Rica also notes that, in paragraph 7.268, the Panel highlights 
some of the CDC's  conclusions and indicates for each of them where said conclusions are to be found 
in the record. Therefore,  Costa Rica ma intains that there is no basis for the Dominican Republic's 
accusation that the Panel conducted a de novo  review.59 
 
3.46.  As a prel iminary matter , we recall that nothing limits the faculty of a panel freely to use 
arguments submitted by any of the parties, or to develop its own legal reasoning, to support its own 
findings and conclusions on the matter under its consideration,  provided  that panels are inhibited 
from addressing legal claims falling outside their terms of reference.60 In its panel request, 
Costa  Rica requested that we examine whether the Dominican Republic's measures are inconsistent 
with Article 3.7 of the Anti -Dumping Agreement "because, inter alia , the investigating authority 
based the determination of a threat of material injury not on facts but merely on allegation, 
conjecture or remote possibility".61 In its first written submission, Costa Rica developed its claim,  
mentioning that "the analysis set out in section 7.16 of the Final Technical Report … has a number 
of shortcomings that under mine the basis of the CDC's conclusion"62; that "scenarios 2 and 3 … are 
predicated on baseless assumptions"63; and that  "[s]cenarios 2 and 3, which underpin the CDC's 
alleged finding, are conjecture and are not adequately explained nor supported by positive 
evidence ".64 In our conclusions, we also note that, under the applicable  provisions of the 
Anti-Dumping Agreement, any projection or assumption made  by an investigating authority must 
be adequately explained and supported by positive evidence on the record.65 We consider  these to 
be the basis for our analysis of the CDC's projections. Therefore, we do not consider it necessary to 
make any changes to this section of the Interim Report.  
_______________  
 
 
 
57 Dominican Republic's request for interim review, paras.  53-55. 
58 Dominican Republic's request for interim review, para.  52. 
59 Costa Rica's comments on the Dominican Republic's request for interim review , paras.  20-23. 
60 Appellate Body Report, EC – Hormon es (US), para. 156. 
61 Panel request , para. 11. 
62 Costa Rica 's first written submission , para. 141. 
63 Costa Rica 's first written submission , para. 143. 
64 Costa Rica 's first written submission , para. 145. 
65 See paras.  7.251 and 7.262 of the Interim Report . WT/DS605/R/Add.1  
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  ANNEX B 
ARGUMENTS OF THE  PARTIES 
Conten ts Page 
Annex B-1 Integrated executive summary of the arguments of Costa Rica  24 
Annex B-2 Integrated executive summary of the arguments of the Dominican  Republic  46 WT/DS605/R/Add.1  
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  ANNEX B -1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF COSTA  RICA 
I. INTRODUCTION  
1. This case is a clear example of failure to comply with the requirements of the Anti -Dumping 
Agreement and the GATT 1994 for the application of anti -dumping measures. There was no dumping. 
The Investigating Authority of the Dominican Republi c could only find dumping by using different 
periods of investigation (POIs) for the export price and the normal value, and after having improperly 
dismissed the exporter's domestic market sales that were made above cost at the time of sale.  
2. There was n o threat of injury. Quite the contrary, the domestic industry indicators were mostly 
positive during the POI. Moreover, the Investigating Authority failed to carry out the prospective 
analysis required under the Anti -Dumping Agreement in cases of a threat of injury, and failed to 
identify a clearly foreseen and imminent change in circumstances which would create a situation in 
which the dumping would cause injury. Trends at the end of the POI showed a robust domestic 
industry and would not have supported a conclusion that the domestic industry was on the verge of 
material injury.  
3. There was also no causal link between imports from Costa Rica and the alleged threat of 
injury. In fact, the Investigating Authority failed to comply with the affirmative obligat ion to 
determine that there was a genuine and substantial relationship between Costa Rica's imports and 
the alleged threat of injury. The Investigating Authority limited itself to undertaking a non -attribution 
analysis that fails to comply with the obligations of the Anti -Dumping Agreement. In particular, the 
non-attribution analysis did not properly consider the effect of imports from China and other third 
countries during the POI. These imports were made at prices lower than Costa Rica's imports in  
every year of the POI and at significantly higher volumes.  
4. These and other flaws in the investigation are set out in more detail in this submission, in 
which Costa Rica also responds to the arguments put forward by the Dominican Republic.  
II. ARTICLE 2 .1 OF THE ANTI -DUMPING AGREEMENT  
A. The CDC failed to use comparable prices  
5. Article 2.1 of the Anti -Dumping Agreement requires that the export price used for the 
determination of dumping be "comparable" to the normal value used for that purpose. In this  case, 
the prices used by the Regulatory Commission on Unfair Trade Practices and Safeguard Measures of 
the Dominican Republic (CDC) were not comparable. The use of "comparable" prices is an express 
condition of Article 2.1, as stated by the Appellate Body  in US - Hot-Rolled Steel .1  
6. The export price used by the CDC reflects the sales made between December 2016 and 
30 April 2018. As Costa Rica has explained, the Thorco Logic sale was made by December 2016 at 
the latest. This is because the material term s of the sale were set out in the contract dated 
1 November 2016 and in the invoice dated 13 December 2016. The Suzie Q. sale was also made 
before the POI. The Dominican Republic has not denied that both sales were made before the POI.  
7. On the other hand , the normal value used by the CDC reflects sales made between 2  May 2017 
and 30 April 2018. This means that more than five months elapsed between the sales reflected in 
the export price and the first sales reflected in the normal value. As a result of thi s difference in the 
timing of the sales, the export price determined by the CDC in this case cannot be compared with 
the normal value. As stated by the panel in US - Stainless Steel (Korea) , the timing of sales has 
implications in respect of the comparabil ity of export and home market transactions.2 Moreover, if 
the existence of this difference in timing was not sufficient, it is also on the record that market 
conditions varied significantly in the interval. In particular, the price of billets - the feedst ock that 
the CDC itself found had a significant impact on the price of bars - trended upwards during this 
period. As demonstrated, the price of billets purchased by the exporting company increased by 12% 
 
1 Appellate Body Report, US - Hot-Rolled Steel , para. 165.  
2 Panel Report, US - Stainless Steel (Korea) , para. 6.120.  WT/DS605/R/Add.1  
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  between January 2017 and May 2017. For this reason, the CDC's determination of dumping is 
inconsistent with Article 2.1 of the Anti -Dumping Agreement.  
B. The CDC failed to determine current dumping  
8. The CDC failed to determine that current dumping existed and, for this reason, also acted 
inconsistently wi th Article 2.1 of the Anti -Dumping Agreement. The panel in Pakistan - BOPP Film 
(UAE)  found that "to act consistently with Article 2.1 a Member's determination of dumping must 
pertain to current dumping".3 The CDC's determination of dumping cannot constit ute a determination 
of current dumping. This is because the export price used by the CDC to determine whether there 
was dumping included a sale completed no later than December 2016, that is, almost six months 
before the beginning of the POI and more than a year and a half before the initiation of the 
investigation. Even if the dates applied were those of the sales invoice for the shipments 
subsequently transported on the ships the Thorco Logic and Suzie Q., the CDC would still have used 
sales made prior to  the POI, more than one year before the initiation of the investigation, so it would 
still have failed to demonstrate the existence of current dumping.  
C. The Dominican Republic's arguments fail to rebut Costa Rica's prima facie  
case 
9. The Dominican Repub lic's arguments focus erroneously on the definition of the POI and fail to 
respond to Costa Rica's arguments. As Costa Rica explained, the CDC used two sales made before  
the POI in the case of the export price. One of these sales was made at least five mon ths before  the 
POI. As a result, the CDC failed to use "comparable" prices and failed to determine current dumping. 
The Dominican Republic also focuses erroneously on the use of the term "introduced" in Article 2.1. 
The Dominican Republic fails to mention that the focus of Article 2.1 is on the prices of the exported 
product and the price for the like product when destined for consumption in the exporting country. 
Prices have to be "comparable" and this includes a temporal element that requires prices refle ct 
sales made at as nearly as possible the same time.  
10. The Dominican Republic also fails to reflect correctly what happened in this case. While the 
Costa Rican exporter included the sales subsequently transported on the ships the Thorco Logic and 
Suzie Q. in the questionnaire, the exporter explained, in the same document, the particular situation 
of those sales. It is understandable that the exporter included more information than was strictly 
necessary in view of the possible adverse consequences if the  CDC considered the exporter's 
response to be incomplete. In any event, the fact that the exporter included sales in the 
questionnaire responses does not exempt the CDC, as the Investigating Authority, from ensuring 
that the prices used in the determinatio n of dumping were "comparable".  
11. Lastly, the Dominican Republic argues that the invoices for the two transactions predate the 
beginning of the POI by one month for one sale, and by three days for the other. This claim is also 
without merit. First, the s ale shipped on the Thorco Logic was made no later than December 2016, 
i.e. at least five months before the beginning of the POI. In this case, the time that elapsed between 
when the sale was made and the beginning of the POI is considerably longer than the  
Dominican  Republic suggests. In the case of the sale of the Suzie Q. shipment, less time had elapsed, 
but it is still true that the sale was made before the beginning of the POI. For all of these reasons, 
the Dominican Republic's arguments fail to rebut t he prima facie  case put forward by Costa Rica.  
III. ARTICLE 2.4 OF THE ANTI -DUMPING AGREEMENT  
A. The CDC failed to make a comparison in respect of sales made at as nearly as 
possible the same time  
12. The second sentence of Article 2.4 provides that the comparison between the export price and 
the normal value shall be made "in respect of sales made at as nearly as possible the same time". 
It is clear from this provision that the benchmark to be taken into account for the purposes of 
comparison is the date  of sale. The date of sale is the date on which material terms of sale are 
established, in accordance with footnote 8 of Article 2 of the Anti -Dumping Agreement, which 
stipulates that "[n]ormally, the date of sale would be the date of contract, purchase or der, order 
confirmation, or invoice, whichever establishes the material terms of sale". At the very least, the 
footnote, which forms an integral part of Article 2, provides guidance on the context for the 
interpretation of Article 2.4. Footnote 8 refers sp ecifically to the interpretative question at issue in 
 
3 Panel Report, Pakistan - BOPP Film (UAE) , para. 7.59.  WT/DS605/R/Add.1  
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  this dispute. The use of the word "[n]ormally" indicates, precisely, that the footnote's provisions are 
generally applicable. It is therefore indisputable that the definition of "date of sale" in footno te 8 is 
relevant to the concept of "sales made" in Article 2.4 and supports the interpretation that, for the 
purposes of that Article, they shall be considered "sales made" at the moment that the material 
terms of sale are established, and not at the momen t of importation.  
13. The material conditions of the sale that was subsequently shipped on the Thorco Logic were 
established in the contract of 1 November 2016 and the invoice of 13 December 2016, i.e. they were 
established in December 2016 at the latest. In the case of the shipment that was subsequently 
transported on the Suzie Q., the material conditions of the sale were established in the sales invoice, 
which is dated 27 April 2017. The shipments' date of entry into the Dominican Republic is not the 
date of sale. There is no finding by the CDC on the record indicating that the material conditions of 
both sales were established on the date of entry into the Dominican Republic. In contrast, for the 
purposes of the normal value, the CDC used the invoice date  as the benchmark, and the invoices 
used were those issued between 2 May 2017 and 30 April 2018. Therefore, the sales are not "sales 
made at as nearly as possible the same time".  
B. The CDC failed to make a fair comparison  
14. The first sentence of Article  2.4 provides that investigating authorities shall make "[a] fair 
comparison ... between the export price and the normal value". The term "fair" denotes "impartiality, 
even-handedness, or lack of bias".4 Accordingly, the CDC was required to make an impart ial, 
even-handed and unbiased comparison. If there are elements in the comparison that make an 
affirmative determination of dumping or a higher margin more likely, the comparison could not be 
considered impartial, even -handed or unbiased.  
15. In this case,  the CDC comparison was not impartial, even -handed or unbiased, as the CDC 
used different POIs for the export price and the normal value. The date of sale affects price 
comparability, as expressly recognized in the second sentence of Article 2.4. Using dif ferent POIs 
leads to the comparison of transactions made at different times and that reflect disparate market 
conditions. In cases like this one, where the cost of the feedstock is rising and that cost has a 
significant impact on the price of the final pro duct, using a POI for the export price that predates the 
normal value POI tends to make an affirmative determination of dumping, as well as a higher margin, 
more likely. This is because the export price in the earlier POI will tend to be lower (reflecting the 
lower cost of the feedstock) than the normal value in the later POI. In this instance, the CDC's record 
contained evidence that the price of the feedstock had increased between December 2016 and 
May 2017. In view of the foregoing, the comparison made b y the CDC fails to comply with the 
first sentence of Article 2.4.  
C. The CDC violated Article 2.4 by failing to make due allowance for differences 
which affect price comparability  
16. The third sentence of Article  2.4 of the Anti -Dumping Agreement provides  that investigating 
authorities shall make "[d]ue allowance ... in each case, on its merits, for differences which affect 
price comparability". In US – Softwood Lumber V , the panel noted that an investigating authority 
"must at least evaluate identified di fferences", and when it is "in possession of the requisite evidence 
substantiating a claimed adjustment would not be justified in rejecting that claimed adjustment".5 
17. Meanwhile, the last sentence of Article 2.4 states that "[t]he authorities shall ind icate to the 
parties in question what information is necessary to ensure a fair comparison and shall not impose 
an unreasonable burden of proof on those parties". The process under Article 2.4 has been described 
as a "dialogue" between interested parties a nd the investigating authority.6 While exporters must 
substantiate, "as constructively as possible", their requests for adjustments, "[i]nvestigating 
authorities must ... indicate what information they will need in order to ensure a fair comparison, 
'so that the interested parties will be in a position to make the requested adjustments'" and cannot 
impose "an unreasonable burden of proof" on those parties.7 
 
4 Report of the Appellate Body, US - Softwood Lumber V (Article 21.5 - Canada) , para. 138 (referring to 
Shorter Oxford English Dictionary , 5th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University Press, 2002), 
Vol. 1, p. 915).  
5 Panel Report, US - Softwood Lumber V , paras.  7.165 and 7.167.  
6 See, for example, Panel Report, Egypt - Steel Rebar , para. 7.352.  
7 Panel Report, Pakistan - BOPP Film (UAE) , paras. 7.200 -7.201. (fns omitted) See also Appellate Body 
Report, EC - Fasteners (China) , paras. 487 -489. WT/DS605/R/Add.1  
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  18. The Costa Rican exporter learned that the CDC had used sales made prior to the POI in the 
Essen tial Facts Report. The company immediately sought to initiate a dialogue with the Investigating 
Authority on the need to make adjustments. In its comments on the Essential Facts Report, the 
exporter (i) noted that the sales of the bars shipped on the Thorc o Logic and Suzie Q. were made 
before the POI; (ii) explained why including these sales gave rise to differences that affected price 
comparability; and (iii) explicitly invoked Article 2.4 of the Anti -Dumping Agreement. It is therefore 
clear that the expor ter fulfilled its obligations under Article 2.4. It is also clear that the differences 
affected price comparability. As the CDC itself found, the price of billets has a significant impact on 
the price of the bars. Table 5 of the Final Technical Report show s that this component - which the 
CDC itself found was significant - was different ( i.e. not comparable) before the POI and after the 
POI. Thus, this difference in the cost of the bars' main feedstock is, in this case, a determinative 
difference in terms o f price comparability.  
19. The CDC refused to proceed with the dialogue that the exporter attempted to initiate. 
Moreover, the CDC failed to comply with the obligation, expressly provided for in Article 2.4, to 
indicate to the exporter what information was  necessary to ensure a fair comparison. Instead of 
complying with its obligations under Article 2.4, the CDC chose to blame the exporter for allegedly 
failing to provide evidence in order to make a fair comparison with respect to the normal value for 
dates  prior to the POI. However, the CDC was required to "at least evaluate identified differences". 
The CDC failed to do so. In view of the foregoing, Costa Rica has demonstrated that the CDC violated 
its obligations under the third sentence of Article 2.4 of the Anti -Dumping Agreement.  
D. The Dominican Republic's arguments fail to rebut Costa Rica's prima facie  
case 
20. In its failed attempt to rebut Costa Rica's claim under Article 2.4, the Dominican Republic 
repeats the same arguments that it made against th e claim under Article 2.1. Costa Rica responded 
to these arguments in section II.C.  
21. The Dominican Republic also claims that allegedly: (i) the Costa Rican exporter failed to make 
the case that an adjustment was necessary; and (ii) the Costa Rican expor ter failed to provide 
evidence of a difference affecting comparability. Both arguments are flawed. First, both arguments 
only address Costa Rica's third argument, which contends that the CDC failed to make due allowance 
for differences which affect price c omparability. Neither of the two arguments put forward by the 
Dominican Republic address Costa Rica's arguments under the first and second  sentences of 
Article  2.4. Second, the Dominican Republic's arguments are based on a partial description of what 
happe ned during the investigation. As mentioned above, the exporter learned that the CDC had used 
sales made before the POI in the Essential Facts Report. In its comments on that report, the exporter 
clearly raised the issue of comparability and invoked Article  2.4. The exporter did provide evidence 
of differences which affected comparability, as it submitted, among other evidence, information on 
the evolution of prices of billets in the period prior to the POI. In contrast, the Dominican Republic 
has failed to point to anything that shows that the CDC entered into the dialogue required with the 
exporter. It has also failed to point to anything that shows that the CDC had indicated to the exporter 
what information was necessary to ensure a fair comparison. In sho rt, the Dominican Republic's 
arguments fail to rebut the prima facie  case put forward by Costa Rica. Costa Rica therefore 
respectfully requests that the Panel find that the CDC violated the obligations set forth in Article 2.4 
of the Anti -Dumping Agreement . 
IV. Article 2.2.1 of the Anti -Dumping Agreement  
A. The CDC violated Article 2.2.1 because it failed to determine that below -cost 
sales were made within an extended period of time or at prices which did not 
provide for the recovery of all costs within a reasonable period of time  
22. Article 2.2.1 of the Anti -Dumping Agreement explicitly requires that the investigating 
authority, before disregarding sales for not being in the ordinary course of trade by reason of price, 
determine that: (i) these s ales have been made within an extended period of time; (ii) in substantial 
quantities; (iii) and at prices which do not provide for recovery of all costs within a reasonable period 
of time. The use of the conjunction "and" means that each of these three  elements are concurrent 
so they must all be present, and that the investigating authority must make an affirmative 
determination on each of them. The panel in EC - Salmon (Norway)  noted that the three conditions 
set out in Article 2.2.1 are required and cumu lative. It also stressed that "below -cost sales may be WT/DS605/R/Add.1  
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  found to be made outside of the ordinary course of trade only when all three of the conditions in 
Article 2.2.1 are satisfied".8 
23. The Final Technical Report contains no indication that the CDC dete rmined that the below -cost 
sales were made within an extended period of time or at prices which did not provide for the recovery 
of all costs within a reasonable period of time. These determinations are not documented in the Final 
Technical Report, in part icular in section 5.5.1 on "Cost Test". Nor are they documented in the final 
determination. Therefore, there is no evidence that the CDC did meet these two requirements under 
Article 2.2.1.  
B. The CDC failed to give due consideration to whether prices were below per 
unit costs at the time of sale  
24. The first sentence of Article 2.2.1 refers to sales of the like product in the domestic market of 
the exporting country at prices below per unit costs. The last sentence of Article 2.2.1 makes it cle ar 
that the reference is to prices which are below per unit costs at the time of sale . In particular, the 
beginning of the last sentence of Article 2.2.1 reads: "If prices which are below per unit costs at the 
time of sale ". This language is a clear refere nce to the analysis under the first  sentence of 
Article  2.2.1 and indicates that this analysis must specify if, at the time of sale , the prices of each 
sale were below the per unit costs that prevailed at the time of that sale.  
25. In this particular case,  the CDC had details of monthly average costs that would have allowed 
it to properly determine whether the prices were below per unit costs at the time of sale . The monthly 
average cost for the month in which the sale was made is nearer the date of sale, a nd therefore 
better reflects the cost incurred by the company at the time of sale. However, instead of using 
monthly costs, the CDC used a weighted average cost methodology for a period of one year for the 
cost test. The annual average cost reflects trends  that occurred in months other than the month of 
the sale. When the costs rise steadily during the period of investigation, as they did in this case, the 
annual average cost will tend to be higher than the monthly cost at the beginning of the period. This 
in turn means that, artificially, certain sales are at below -cost prices when, in reality, the selling 
price was higher than the per unit cost at the time of sale . Thus, the use of an annual average cost 
in this case implies that the CDC has not properly d etermined whether prices were below per unit 
costs at the time of sale . Given that the CDC did not make the comparison required by Article 2.2.1, 
and that it failed to provide an explanation as to why it was appropriate in this particular case to 
make a co mparison using an annual weighted average cost, the CDC did not fulfil the obligations set 
forth in Article 2.2.1.  
C. The Dominican Republic's arguments fail to rebut Costa Rica's prima facie  
case 
26. Contrary to the Dominican Republic's claims, neither pa ragraph 193 nor table 8 of the Final 
Technical Report demonstrate that the CDC complied with the third condition under Article 2.2.1. 
Paragraph 193 indicates that the CDC considered that the average costs submitted by the exporter 
were "appropriate" and th e CDC states that it used those costs. The production costs are then 
reproduced in table 8. However, neither paragraph 193 nor table 8 show that the CDC actually 
fulfilled the obligation under Article 2.2.1 to determine that the sales were made at prices w hich did 
not provide for the recovery of all costs within a reasonable period of time. Therefore, the paragraph 
and table cited by the Dominican Republic do not rebut Costa Rica's claim.  
27. Second, even assuming that Article 2.2.1 does not require a speci fic methodology, the 
methodology selected by the investigating authority must comply with the three conditions set forth 
in Article 2.2.1, and the final report must show how these conditions have been met. In this case, 
the Final Technical Report does not disclose which methodology the CDC used, nor does it show how 
two of the three conditions under Article 2.2.1 were met. The explanations provided by the 
Dominican Republic concerning the methodology used by the CDC are all ex post  explanations.  
28. The Dom inican Republic's third argument also has no merit. Even if Article 2.2.1 did not require 
an affirmative determination for each stage of the test, the investigating authority's final report must 
show that the three conditions under Article 2.2.1 have been met. Costa Rica reiterates that the 
three conditions set forth in Article 2.2.1 are required and cumulative, and that "below -cost sales 
may be found to be made outside of the ordinary course of trade only when all three of the conditions 
 
8 Panel Report, EC - Salmon (Norway) , para. 7.315.  WT/DS605/R/Add.1  
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  in Article 2.2.1 a re satisfied".9 In this instance, neither the Final Technical Report nor the final 
determination show that two of the three conditions set out in Article 2.2.1 were met.  
29. Fourth, the fact that the CDC has used data from one year does not satisfy the co ndition that 
below -cost sales have been made within an extended period of time. The determination of whether 
blow-cost sales occurred "within an extended period of time" requires the investigating authority to 
analyse the regularity of below -cost sales. Fo r example, the investigating authority may analyse 
whether such sales were made over several consecutive months or whether they recurred over 
several months of the POI. Thus, the investigating authority would ensure that below -cost sales 
were not isolated,  intermittent or one -off events. In this case, neither the Final Technical Report nor 
the final determination can confirm that the CDC conducted this analysis.  
30. Fifth, the Dominican Republic argues that the below -cost sales prices were below cost during  
the POI, so they did not provide for the recovery of all costs within a reasonable period of time. 
Again, this explanation is not given in the Final Technical Report or in the final determination, and 
is an ex post explanation.  
31. The Dominican Republic also claims that the Anti -Dumping Agreement does not require the 
use of monthly averages over annual averages and, therefore, there is no legal basis requiring the 
use of monthly average cost data when conducting the third test under Article 2.2.1. Costa R ica 
considers the Dominican Republic's argument to be flawed. The analysis under Article 2.2.1 must 
identify whether, at the time of sale , the prices of each sale were below per unit costs at the time of 
that sale. The CDC had access to monthly average cos ts that would have allowed it to properly 
determine whether the prices were below per unit costs at the time of sale . The use of an annual 
average cost in this case implied that the CDC did not properly determine whether prices were below 
per unit costs at  the time of sale . 
32. Lastly, the Dominican Republic claims that the CDC used the cost information that the exporter 
had allegedly provided. This is incorrect. As Costa Rica explained, the CDC requested data by year 
in its form. However, during the verifi cation visit, the exporter explained to the CDC representatives 
that the monthly cost should be used for the cost -benefit analysis. The CDC accepted this proposal 
and requested the monthly costs, which were submitted to the CDC. Monthly costs were also inc luded 
in the exporter's document of November 2019. Costa Rica notes that the Dominican Republic has 
submitted an Excel file that the CDC allegedly used to carry out the cost test. However, nothing in 
the Excel file corroborates that it was part of the reco rd of the investigation. Without that 
corroboration, the Panel should disregard the Excel file as an ex post  explanation.  
33. For all of the above reasons, the Dominican Republic's arguments fail to rebut Costa Rica's 
prima facie case , and Costa Rica respe ctfully requests that the Panel find that the CDC acted 
inconsistently with Article 2.2.1 the Anti -Dumping Agreement.  
V. ARTICLES 3.1 AND 3.2 OF THE ANTI -DUMPING AGREEMENT  
A. Price undercutting  
34. Article 3.2 requires that the investigating authorities consider whether the "effect of the 
dumped imports on prices" is a significant price undercutting by the dumped imports as compared 
with the price of a like product of the importing Member.10 In this case, contrary to the provisions 
of Article 3.2 and the findings of the panel in China - Broiler Products (Article  21.5 - US), the CDC's 
undercutting analysis failed to address the question of whether observed movements in domestic 
prices were the effect  of the prices of the imports from Costa Rica.  
35. The prices of imports from Costa Rica increased steadily during the POI and the alleged 
undercutting margin decreased significantly over the same period. The CDC acknowledged that the 
undercutting margin trended downwards, but the Final Technical Repo rt does not reflect that the 
CDC considered this trend. After indicating that the undercutting margin in 2016 was the highest 
and the margin for the period from January to April 2018 was the lowest, the CDC merely asserts 
that "[t]his coincides with a cont raction in domestic sales of the domestic industry in 2017 and an 
increase in Costa Rican imports for the same year". This observation concerns just one year of the 
POI and fails to consider trends over the period, nor does it explain the relationship betw een the 
allegedly dumped imports and the domestic industry's prices. Consequently, this assessment of the 
 
9 Panel Report, EC - Salmon (Norway) , para. 7.315.  
10 Panel Report, Pakistan - BOPP Film (UAE) , para. 7.297.  WT/DS605/R/Add.1  
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  alleged coincidence in 2017 does not demonstrate that the CDC has properly considered the effects 
of the imports.  
36. The CDC also fails to explain ho w the undercutting could have been the effect of the imports 
from Costa Rica, considering that imports from China and other countries were entering the 
Dominican market at significantly lower prices than the prices of Costa Rican imports. In the same 
year, the volume of imports from China (34,065.48 metric tonnes) was more than 2.5 times the 
volume imported from Costa Rica. In this context, the price of Costa Rica's imports would barely 
have had an effect on the domestic industry's prices. The Final Technic al Report also shows that, in 
2017, with the exception of Chinese imports that were subject to an anti -dumping duty, Costa  Rica's 
imports had the highest price of imports to the Dominican Republic. The Final Technical Report shows 
that imports from Italy, Japan, Mexico, Spain, Chinese Taipei and the United States entered at prices 
lower than those of imports from Costa Rica, and that the total volume of those imports was 
significantly higher than the volume imported from Costa Rica. The same was true in the  first 
four months of 2018, when all other sources of imports recorded lower prices than those of imports 
from Costa Rica, and the volume of imports from those sources was more than three times the 
volume of imports from Costa Rica. Once again, in these ci rcumstances, imports from Costa Rica 
could hardly have had an effect on the domestic industry's prices. In view of the foregoing, the CDC's 
price undercutting analysis fails to comply with Article 3.2 of the Anti -Dumping Agreement, 
considered in conjunctio n with Article 3.1.  
37. The Dominican Republic claims, first, that undercutting does not include any effects -based 
element. This argument is not supported by the text of Article 3.2. The opening clause of the 
second  sentence of Article  3.2 refers to "the e ffect of the dumped imports on prices". This opening 
clause applies to price undercutting, as well as price depression and price suppression. This was 
confirmed by the panel in China - Broiler Products (Article 21.5 - US).11 Therefore, to comply with 
Article 3.2, it is not sufficient that the investigating authority simply compares the price of the 
allegedly dumped product and the domestic industry price. Second, the Dominican Republic 
highlights the undercutting margin. However, the import prices of China and other countries were 
lower than the price of imports from Costa Rica throughout the entire POI. The CDC failed to consider 
this and therefore failed to properly consider whether it was, in fact, imports from Costa  Rica that 
were having an effect on the  domestic industry's prices. In conclusion, the Dominican Republic's 
arguments fail to rebut Costa Rica's prima facie  case. 
B. Price depression  
38. There was no price depression in the POI. On the contrary, the record shows that the trend 
throughout the PO I was for the domestic industry's prices to increase. The applicant company 
acknowledged that "as of December 2017, there is evidence of a 13% increase in the domestic 
industry's prices when compared to December 2016" and that the domestic industry's domes tic 
market price "increased by 4%" between April 2017 and April 2018. The absence of price depression 
can also be seen in table 24 of the Final Technical Report. While the domestic industry's prices fell 
in 2016, these prices rose in 2017 and continued to rise in 2018. In fact, the price in 2018 is almost 
at the same level as in 2015. There is therefore no decreasing trend in prices that justifies a finding 
of price depression under the second sentence of Article 3.2. In conclusion, the CDC's price 
undercut ting analysis fails to comply with Article 3.2 of the Anti -Dumping Agreement, considered in 
conjunction with Article 3.1.  
39. In its arguments in response, the Dominican Republic focuses on the price difference between 
2015 and 2017. However, this perspective fails to satisfy the requirements under Articles 3.1 and 
3.2 for a number of reasons. First, this is an incomplete view because it fails to consider price 
developments throughout the entire POI. The four -month period of 2018 is part of the POI 
established by the CDC and what happened during that period cannot be ignored. The domestic 
industry's price between January and April 2018 was at almost the same level as that of 2015.  
40. Second, the Dominican Republic's argument improperly disregards th e trends within  the POI. 
The domestic industry's price rose between 2016 and 2017, and continued to rise in the period 
January -April 2018. The prevailing trend within the POI is one of growth. Moreover, the CDC failed 
to consider the prices of imports from  other sources in its analysis. Imports from China and other 
sources entered at lower prices than Costa Rica's imports throughout the entire POI, and imports 
from China and other sources accounted for a significantly larger volume than those from Costa  Rica. 
The CDC should have taken this information into account when considering whether the alleged price 
 
11 Panel Report, China - Broiler Products (Article 21.5 - US), para. 7.98.  WT/DS605/R/Add.1  
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  depression was the effect of imports from Costa Rica. This was particularly important as the CDC 
referred generally to "the high elasticity of substitutio n between imported and domestically -produced 
bars due to the product's homogeneity", which is an acknowledgement that domestic bars could be 
supplanted by imported bars from sources other than Costa Rica.  
41. The Dominican Republic also claims that the CDC  considered that the price rise in the first 
four months of 2018 could be explained by the increase in the price of billets. Assuming that this 
were true, it would instead lead to the summary dismissal of the conclusion that there was price 
depression  in the POI, as it is rather an acknowledgement by the CDC itself that prices were 
increasing . In short, the Dominican Republic's arguments fail to rebut Costa Rica's prima facie  case. 
C. Price suppression  
42. Costa Rica has further demonstrated that the CDC fa iled to properly consider whether there 
was price suppression and, much less, whether this alleged suppression was an effect of Costa  Rica's 
imports. The CDC's price suppression analysis was based on a comparison between the domestic 
industry's prices and its alleged average total costs. The analysis failed to consider imports from 
Costa  Rica. Neither the Final Technical Report nor table  24 refer to imports from Costa Rica. In this 
respect, neither the sections nor table 24 demonstrate a relationship with imports from Costa Rica 
or that the domestic industry's alleged inability to increase the price was the effect of  imports from 
Costa Ri ca. Given that the CDC did not consider imports from Costa Rica in its price suppression 
analysis, it failed to comply with the requirement under Article 3.2 to consider whether price 
suppression was the effect of allegedly dumped imports.  
43. First, the D ominican Republic seeks to justify the CDC's actions by referring to paragraph 439 
of the Final Technical Report, which is in another section of that report. In that paragraph, the CDC 
makes reference to the volume of imports from Costa Rica, and states th at imports from Costa Rica 
"account for more than 3% of the total volume of Dominican imports of steel bars and rods". This 
paragraph does not reflect that the CDC has considered whether price suppression was the effect of 
imports from Costa Rica, but simp ly refers to a volume of more than 3% of the total volume of 
imports. In any event, this paragraph contains no evidence of an analysis of trends during the POI, 
nor does it explain why the entry of Costa Rican imports prevented the domestic industry from 
raising its prices, let alone provide any estimate that quantifies and objectively supports that 
presumption of suppression of the domestic industry's prices.  
44. Second, the Dominican Republic claims that "the price depression of the cost prices referred 
to by the CDC was clearly correlated with the increase in dumped imports". It is not clear to 
Costa  Rica to what the Dominican Republic is referring with "price depression of the cost prices". To 
the extent that the Dominican Republic refers to price depres sion, the argument is flawed. As 
indicated above, there was no depression of the domestic industry's prices. To the extent that it is 
referring to the margin between the domestic industry's prices and costs, the Dominican Republic 
fails to identify where t he CDC analyses the relationship between the alleged depression of the 
domestic industry's price/cost margin and the Costa Rican imports. Costa Rica reiterates that the 
section of the Final Technical Report on "Price suppression" does not refer to imports from 
Costa  Rica, nor does it provide any estimates that objectively support the alleged suppression of the 
domestic industry's prices. The Dominican Republic's argument is ex post  and is not properly 
supported.  
45. Third, the Dominican Republic claims that  Costa Rica's argument on price suppression 
concerns non -attribution, and that Article 3.2 does not require a non -attribution analysis. However, 
what Costa Rica claims is that the alleged price suppression analysis by the CDC failed to consider 
whether the  effect of the imports from Costa Rica was to prevent to a significant degree, the alleged 
price increases, which would otherwise have occurred. This is precisely the analysis that the second 
sentence of Article 3.2 requires, and is not a non -attribution a nalysis. As the Appellate Body stated 
in China - GOES , an investigating authority may not disregard evidence that calls into question the 
explanatory force of subject imports for significant suppression of domestic prices. Rather, where an 
authority is fac ed with elements other than subject imports that may explain the significant 
suppression of domestic prices, it must consider relevant evidence pertaining to this element for 
purposes of understanding whether subject imports indeed have a suppressive effec t on domestic 
prices.12 For the foregoing reasons, the Dominican Republic has failed to rebut Costa Rica's prima 
facie case that the price suppression analysis by the CDC does not comply with the requirements 
under Article 3.2 of the Anti -Dumping Agreement , considered in conjunction with Article 3.1.  
 
12 Appellate  Body Report, China - GOES , para.  152. WT/DS605/R/Add.1  
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  VI. ARTICLES 3.1 AND 3.4 OF THE ANTI -DUMPING AGREEMENT  
46. Article 3.4 is applicable in cases of threat of injury such as this. As confirmed by the panel in 
Mexico - Corn Syrup , "consideration of the Article  3.4 factors in examining the consequent impact 
of imports is required in a case involving threat of injury in order to make a determination consistent 
with the requirements of Articles  3.1 and 3.7".13 
47. The analysis of the factors listed in Article 3.4 "co uld not take into account only factors which 
support an affirmative determination, but would have to account for all relevant factors, including 
those which detract from an affirmative determination, and explain why the particular factors 
considered were d eemed relevant".14 In this regard, the panel in Thailand - H-Beams  noted that 
"such positive movements in a number of factors would require a compelling explanation of why and 
how, in light of such apparent positive trends, the domestic industry was, or re mained, injured within 
the meaning of the Agreement". Where several factors show positive trends, the situation requires 
"a thorough and persuasive explanation as to whether and how such positive movements were 
outweighed by any other factors and indices w hich might be moving in a negative direction during 
the IP".15 Furthermore, the obligation to "evaluat[e]" under Article  3.4 "require[s] an analysis and 
interpretation of the data relating to the economic factors and indices, and an assessment of the 
'role, relevance and relative weight of each factor in the particular investigation'".16 
48. Article 3.4 also requires the investigating authorities to examine "the impact of the ... imports 
on the domestic industry concerned". As noted by the panel in Pakistan  - BOPP Film (UAE) , "the text 
of Article 3.4 creates a link between dumped imports and the state of the domestic industry". This 
implies that "an investigating authority is required to identify the trends in the injury factors and 
place those trends in the  relevant context that is informative of the injury suffered by the domestic 
industry, taking into account the relevant evidence and explanations that are on its record". 
Furthermore, "[w]here the evidence on the investigating authority's record suggests a lternative 
readings of the trends observed, an objective examination would include considering that evidence, 
and reconciling it with the authority's reading of the trends it observes".  
49. An investigating authority's examination under Article 3.4 must al so comply with Article 3.1, 
which requires that a determination of threat of injury be based on positive evidence and involve an 
objective examination of the impact of the dumped imports on domestic producers of such 
products.17  
50. In this case, several of the economic factors and indices of the domestic industry showed 
positive trends. The following factors performed positively during the investigation period or at least 
in the first four months of 2018: the volume and value of the domestic industry's do mestic market 
sales; output; productivity; utilization of productive capacity; return on investments; inventories; 
and the ability to raise capital or investments. Neither the Final Technical Report nor the final 
determination shows how the CDC evaluated t hese indicators. Considering that several factors 
showed positive trends, it was incumbent upon the CDC to provide a thorough and persuasive 
explanation as to how such positive movements were outweighed by factors and indices which might 
be moving in a neg ative direction during the period of investigation.18 The CDC fails to provide any 
such explanation in the Final Technical Report or in the final determination.  
51. Moreover, the CDC failed to properly evaluate the factors it identified as negative, in par ticular 
profits, cash flow, employment and the loss of market share allegedly attributable to Costa Rican 
imports. Regarding profits, the CDC's assertion is not supported by the information on the record. 
The CDC itself found that the domestic sales of the  domestic industry had increased  in terms of 
volume in 2016 and January -April 2018, and in terms of value in January -April 2018. The figures on 
 
13 Panel Report, Mexico - Corn Syrup , para. 7 .127.  
14 Panel Report, Mexico - Corn Syrup , para. 7.133.  
15 Panel Report, Thailand - H-Beams , para. 7.249. See also Panel Report, China - Cellulose Pulp , 
para. 7.129.  
16 Panel Report, Pakistan - BOPP Film (UAE) , para. 7.351 (referring to Panel Report, EC - Bed Linen 
(Article 21.5 - India) , para. 6.162, and Panel Report, Egypt - Steel Rebar , paras. 7.43 -7.44). The panel further 
noted that "[t]herefore, an investigating authority may not limit itself to setting out trends relating to the 
economic factors and ind ices". (Ibid.)  
17 Panel Report, Pakistan - BOPP Film (UAE) , para. 7.366.  
18 Panel Report, Thailand - H-Beams , para. 7.249. See also Panel Report, China - Cellulose Pulp , 
para. 7.129.  WT/DS605/R/Add.1  
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  the record therefore contradict the CDC's conclusion regarding the alleged coincidence between the 
contraction i n profits and the decline in sales of the domestic industry.  
52. Nor does the CDC provide any basis for asserting that the alleged reduction in the profit margin 
recorded by the domestic industry occurred "as a result of the entry into the country of Costa  Rican 
imports at dumped prices". Imports from Costa Rica accounted for up to 10% of apparent 
consumption in the Dominican market, and their share of apparent consumption fell to 6% in the 
period January -April 2018. Furthermore, the price of imports f rom Costa Rica increased during the 
POI. During this period, the domestic industry increased its output and sales. This undermines any 
suggestion that the decline in profits (or in the profit margin of the domestic industry) is attributable 
to imports from  Costa Rica. It also undermines the assertion that the cash flow performance was 
attributable to the fall in profits as a result of Costa Rica's dumping practices.  
53. Employment performance is mixed or even stable, and not negative as suggested by the CDC . 
Total employment increased during the investigation period and then fell to its initial level. Moreover, 
the domestic industry's productivity improved significantly (53.4%) in the last four  months of the 
investigation period. In this context, the CDC was under an obligation to explain why the change in 
direct labour showed that the domestic industry was in a state of vulnerability rather than on a path 
towards greater efficiency.  
54. The last negative factor referred to by the CDC is the domestic indus try's loss of market share 
allegedly attributable to Costa Rican imports. The domestic industry's lost share of 4  percentage 
points between 2017 and January -April 2018 cannot be attributed to imports from Costa Rica, since 
the latter also lost market share . Even when comparing the period January -April 2018 to the period 
January -April 2017, the decline in the domestic industry's share cannot be attributed to imports from 
Costa Rica since the market share of the latter did not increase. Therefore, the CDC's c onclusion 
that the domestic industry's loss of market share is attributable to Costa Rican imports is not based 
on an objective evaluation or positive evidence.  
55. In sum, in this case, the rate of change for several factors during the POI was positive. 
However, the CDC failed to properly explain why these movements were outweighed by the factors 
on which it based its determination of alleged threat of injury. Furthermore, the CDC's findings 
concerning the alleged negative factors are not based on an objec tive evaluation or positive 
evidence. Moreover, the CDC failed to provide a reasoned explanation as to how the CDC considered 
these indicators in their entirety.  
56. The CDC also failed to satisfy the obligation to properly examine the link between the dum ped 
imports and the state of the domestic industry. Article 3.4 required the CDC to examine "the impact 
of the ... imports on the domestic industry concerned". However, the CDC failed to consider the 
relationship between the economic factors and indices, a nd did not properly examine the link with 
the allegedly dumped imports. The CDC failed to properly consider the economic factors and indices 
in a broader context in order to understand the impact of the dumped imports on the domestic 
industry. Nor is there  any explanation as to how the CDC evaluated these indicators when analysing 
whether imminent further subject imports would affect the industry's state in such a manner that 
material injury would occur in the absence of protective action. For all of the ab ove reasons, Costa 
Rica has established that the CDC violated Article 3.4 of the Anti -Dumping Agreement, read together 
with Article 3.1.  
57. In its first written submission, the Dominican Republic only cited one paragraph of the Final 
Technical Report in i ts attempt to show that the CDC did consider the relationship between the 
factors and indices. In that paragraph, however, the CDC only "highlighted certain factors" without 
relating them to other economic factors and indices. The paragraph cited by the Do minican  Republic 
does not consider the evolution of the domestic industry's sales volume, production, productivity, 
inventories or ability to raise capital or investments, each of which showed a positive trend at the 
end of the investigation period. Nor di d the CDC consider the very high rate of return on investment 
throughout the POI. The CDC itself found that "the performance of the domestic industry's 
investments was positive throughout the period reviewed, reflecting high rates of return on 
investment".  However, there is no indication that the CDC weighed this factor in its analysis.  
58. Contrary to the Dominican Republic's claims, Costa Rica's argument is not de novo , but is 
based on the CDC's findings, which show that several of the factors and indicat ors displayed positive WT/DS605/R/Add.1  
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  trends, but that the CDC failed to evaluate them as it should have done pursuant to Article  3.4. 
Moreover, the period from January to April 2018 is part of the POI and, therefore, the CDC should 
not have ignored trends during this pe riod. In a threat of injury case such as this, trends at the end 
of the POI are important for understanding whether the change in circumstances which would create 
a situation in which the dumping would cause injury is clearly foreseen and imminent.  
VII. ARTICLE 3.7 OF THE ANTI -DUMPING AGREEMENT  
59. The CDC's determination of threat of injury in this case violated Article 3.7 because the CDC 
failed to properly consider the factors identified in that provision, and the record does not show that 
a change in ci rcumstances which would create a situation in which the dumping would cause injury 
was clearly foreseen and imminent. Quite the contrary, the record shows a domestic industry with 
a very high profitability rate and with indicators clearly trending upwards.  
A. Likelihood of entry of further imports  
60. Costa Rica has demonstrated that the CDC's analysis of the likelihood of entry of further 
imports does not comply with Article 3.7 of the Anti -Dumping Agreement. The CDC addressed the 
likelihood of entry of fu rther Costa Rican imports in section 7.16 of the Final Technical Report and, 
to that end, used what it claimed was a Monte Carlo estimate, but that in reality was not supported 
by historical data, and instead of iteratively repeating the estimate a large n umber of times, it 
appears to have limited itself to essentially considering two alternative and mutually exclusive 
scenarios, the parameters of which were defined in a completely arbitrary manner. It should be 
recalled that Article 3.7 of the Anti -Dumping  Agreement expressly prohibits the determination of a 
threat of injury based on conjecture. The grounds forming the basis for a threat of injury 
determination cannot include figures resulting from a calculation based on scenarios that are defined 
arbitrari ly using unsubstantiated theoretical assumptions, when the correct thing to do would have 
been to base the determination on facts.  
61. The Final Technical Report presents three scenarios. The first scenario (baseline) arbitrarily 
assumes that the trend obs erved in 2017 -2018 will continue exactly the same and unchanged in the 
years to come, with imports increasing by 2.66% a year until 2022. The second scenario (price 
adjustment) assumes that the prices of bars will fall and that, in turn, the demand for bar s from all 
sources will increase. In this scenario, the CDC projects that imports, including those from 
Costa  Rica, will increase by 7.48% a year until 2022. The third scenario (quantity adjustment) 
assumes that the domestic industry will simply allow its production to be displaced by imports, a 
highly unlikely reaction from the domestic industry. Such a decision by the domestic industry would 
imply irrational behaviour, that it was resigning itself to being unable to compete with imports and 
to handing ove r a large part of its market share, just because it did not want to lower prices. In this 
scenario, imports from Costa Rica are alleged to increase (and displace domestic production) more 
rapidly, particularly in the early years. As indicated in table 40, the annual growth rates for imports 
from Costa Rica in this third scenario would be: 88% between 2017 and 2018, 47% between 2018 
and 2019, 32% between 2019 and 2020, 2.66% between 2020 and 2021, and 2.66% between 2021 
and 2022.  
62. While the CDC substantia tes the threat of injury in scenarios 2 and 3, both scenarios are 
extreme and are predicated on baseless assumptions. In the second scenario, no explanation is 
provided as to the cause of the drop in the price or its magnitude, or as to how the CDC determi ned 
these factors or estimated the increase in demand that would allegedly result from the drop in the 
price. As for the third scenario, no basis is provided for the various assumed growth rates for imports 
from Costa  Rica in the early years, or for the as sumption that the domestic industry would simply 
remain unperturbed and let its production be displaced by imports. Such an explanation is 
particularly necessary in this case, as the applicant company holds a dominant position in the 
market, something that  the CDC fails to analyse or question, and, in any event, such behaviour 
would not be rational for a company like this, which holds substantial power in its domestic market.  
63. Another shortcoming is that the CDC fails to substantiate its premise regardin g the likelihood 
of substantially  increased imports. In the table 40 exercise, the increase in imports is merely 
assumed (either directly or indirectly), and the CDC fails to assess the likelihood of how these 
scenarios occur and what happens in each of th em. For the foregoing reasons, the CDC's conclusions 
are inconsistent with Article 3.7(i) of the Anti -Dumping Agreement.  WT/DS605/R/Add.1  
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  64. The Dominican Republic claims that "the CDC's actual analysis of this factor in Article 3.7 is 
based on an analysis of the volumes of dumped imports from Costa Rica during the POI, as is clear 
from section 6.1 of the Final Technical Report". However, none of the paragraphs cited by the 
Dominican Republic show that the CDC used the import volumes during the POI to consider the 
likeliho od of substantially increased imports. Second, the Dominican Republic argues that market 
conditions at a certain point in time ("current … conditions") may be relevant for drawing conclusions 
regarding likely future market conditions. The problem is that, in this case, the CDC did not draw 
inferences regarding likely future market conditions on the basis of its "current … conditions". The 
CDC relied on a theoretical analysis without merit.  
65. Third, the Dominican Republic claimed that the CDC's conclusion was based on figures from 
2019. This is another attempt to redo the CDC's analysis ex post . In fact, the Dominican  Republic's 
argument contradicts what the CDC expressly indicated in the Final Technical Report regarding the 
use of figures from 2019. In par agraph 449, the CDC rejected  the use of the figures from 2019. It 
is therefore incorrect to say that the CDC based its conclusion on the figures from 2019. On the 
contrary, the CDC rejected the relevance of those figures. Fourth, the Dominican  Republic cla ims 
that the CDC's findings "speak for themselves", and refers to the growth rates of imports from 
Costa  Rica in 2016, 2017 and 2018. However, it is clear that the CDC's "findings" on the likelihood 
of substantially increased imports from Costa Rica were b ased on the alleged Monte Carlo analysis 
and not on growth rates during the POI. Section 7.16 of the Final Technical Report, which is entitled 
"Likelihood of entry of further Costa Rican imports and possible impact on the domestic industry", 
makes no menti on at all of the growth rates of imports from Costa  Rica. 
66. In any event, the fact that the CDC has referred to the growth rates of imports from Costa  Rica 
in the final determination is not sufficient to demonstrate that the CDC properly complied with 
Article 3.7(i). Costa Rica reiterates that Article 3.7(i) requires the investigating authority to consider 
prospectively the likelihood of substantially increased importation. The paragraphs of the final 
determination to which the Dominican Republic refers - paragraphs 146 and  147 - are entirely 
retrospective. Neither of the two paragraphs goes beyond developments during the POI, and in 
them, the CDC does not refer specifically to the likelihood of substantially increased imports from 
Costa  Rica. 
67. To the e xtent that the CDC had relied on the growth rate of imports (which it did not in this 
case), the CDC was required to explain why the rate of increase of the allegedly dumped imports 
supported the likelihood of substantially increased imports. The CDC faile d to provide such an 
explanation. It should be noted that the rate of growth of Costa Rican imports slowed towards the 
end of the POI, and the record shows that imports from Costa Rica were losing market share in the 
Dominican Republic. The CDC should have  considered these trends and explained objectively and 
with factual support why, despite the trends, it believed there could be a likelihood of substantially 
increased imports from Costa Rica.  
68. Fifth, in its opening statement, the Dominican Republic app ears to resume the defence of the 
alleged Monte Carlo analysis, after having abandoned it in its first written submission. The 
Dominican  Republic now argues that in the alleged Monte Carlo analysis "[it] went beyond its 
obligations", "that this analysis is  only an additional and voluntary element" and that "it is normal 
according to prospective theory and practice, that certain assumptions have been made, to explore 
certain scenarios". Contrary to what the Dominican Republic claims, the CDC based its findin gs on 
the likelihood of increased imports from Costa Rica in table 40 and the alleged Monte Carlo analysis. 
In fact, all the discussion in section 7.16 of the Final Technical Report revolves around table 40 and 
the alleged Monte Carlo analysis. To the exte nt that the CDC based its threat of injury determination 
on that analysis, the analysis itself must meet the requirements of Article 3.7, even if the CDC was 
not obliged to use that particular methodology.  
69. With regard to the claim that it is "normal" t o use "certain assumptions … to explore certain 
scenarios", any "assumption" made by an investigating authority must be duly substantiated. In 
particular, the Panel should be reminded of the importance of questioning the objectivity of the 
CDC's action in arbitrarily defining several of the assumptions for the Monte Carlo analysis that are 
referred to above. For example, conveniently choosing, on a whim, the assumption that other import 
origins would not follow the same price strategy as the Costa Rican exp orter, specifically and 
exclusively in the scenario in which the domestic industry was assumed to have declined to adjust 
its prices and to have resigned itself to ceding domestic market share to imports, is nothing other WT/DS605/R/Add.1  
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  than to artificially overestimate the alleged impact of Costa Rican exports on the domestic industry, 
thereby further reducing the objectivity and credibility of those calculations.  
70. The Dominican Republic's belated attempt to substantiate the CDC's assumptions is ex post  
and must be re jected. Without prejudice to the foregoing, Costa Rica considers it appropriate to 
raise some additional points in this regard. First, the relative change in the volume of demand is 
estimated at 3%, but the CDC does not specify which years this historical information relates to, or 
which period forms the basis for the assumption that this value is 3%. Nor is it clear on what basis 
the CDC assumed an annual variation of 1% in the price of billets. Importantly, these necessary 
definitions are not on the recor d. Second, use is made of the assumption that the volume supplied 
by the domestic industry varies in exactly the same proportion as total apparent consumption. Third, 
if the domestic industry decided to lower prices, it is not logical to expect its market share to also 
fall. Fourth, no reason whatsoever is given as to why other importers would behave in exactly the 
same way as Costa Rica in respect of the price. Fifth, in addition to not being properly substantiated, 
it is not objective that in scenario 1 i t is assumed that all other bar suppliers follow the same price 
strategy and that in the other scenario (by quantity) it is assumed that other trading partners do 
not follow the same price strategy. In conclusion, the Dominican Republic has failed to rebut  Costa 
Rica's prima  facie case. 
B. Sufficient freely disposable, or an imminent, substantial increase in, capacity 
of the exporter indicating the likelihood of substantially increased dumped 
exports to the importing Member's market  
71. The CDC's reasoning regarding the likelihood of a significant increase in Costa Rican exports 
to the Dominican Republic was based on two considerations: (1) that the exporting company was 
export -oriented; and (2) that the Dominican Republic was an attractive destination for t he company. 
As Costa Rica has demonstrated, these two considerations are clearly insufficient to support the 
existence of a likelihood that freely disposable capacity would result in substantially increased 
dumped exports to the Dominican Republic.  
72. Many companies are export -oriented, but that in itself is insufficient to conclude that there is 
a likelihood of  a substantial  increase  in the  exports of the company  in question  and that the increase  
would  be directed to a specific  market. Furthermore, the  information before the CDC in this case 
showed that the Costa Rican company had exported bars to another seven markets in 2017 
and 2018. Total exports to these markets were higher in 2016 and 2017 than the company's exports 
to the Dominican Republic. The CDC failed to explain why these other markets (or even new markets) 
would not absorb any eventual increase in the use of the installed capacity of the exporting company. 
In fact, the figures provided by the exporting company show that total sales to these other markets 
increased steadily between 2015 and 2018.  
73. The CDC also ignored the behaviour of exports to the Dominican Republic from other countries. 
The CDC simply assumes that Costa Rica's exports would displace exports from other countries (and, 
as previously mentioned, conveniently chose some assumptions in its calculations that resulted in 
an outcome along the same lines). However, the figures on the record show quite the opposite. The 
share of imports from Costa Rica in the Dominican Republic's to tal imports and in apparent domestic 
consumption declined in the period January -April 2018. This fact, which the CDC failed to consider, 
undermines the conclusion that there was a likelihood of substantially increased exports from 
Costa  Rica to the Dominic an Republic. For all of these reasons, the CDC failed to conduct an objective 
examination, based on the evidence before it, of the likelihood of a significant increase in imports 
from Costa Rica under Article 3.7(ii) of the Anti -Dumping Agreement.  
74. In its response, the Dominican Republic focused on the exporter's installed capacity and 
claimed that the amount of freely disposable capacity is "the essence of what Article 3.7(ii) requires 
the authorities to examine". This argument is incorrect. While the e xporter's capacity is the starting 
point for the analysis under Article 3.7(ii), it is nothing more than that: the starting point. The real 
focus of Article 3.7(ii) is the likelihood of increased exports. The Dominican  Republic also referred to 
the size of Costa Rica's disposable capacity in relation to the size of the Dominican market. However, 
as Costa Rica also explained, this comparison is silent on the likelihood of increased exports from 
Costa Rica to the Dominican Republic; it is a simple comp arison of scales that gives no consideration 
whatsoever to all the factors determining the attractiveness of the market and the interest of the 
exporter.  WT/DS605/R/Add.1  
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  75. Second, the Dominican Republic noted that the CDC had determined that the Costa Rican 
company had developed a strategy for exporting its products to international markets, which 
included exporting at dumped prices to the Dominican Republic. This argument was also rebutted 
by Costa Rica. A company's export -oriented nature says nothing about the possible  destination of 
its exports, which depends on factors relating to both strategy and the situation of the various 
markets. Furthermore, as acknowledged by the Dominican Republic itself, the Costa Rican company 
exported to a number of countries and even had plans to sell in new destinations. Therefore, there 
are insufficient objective elements to conclude that the disposable capacity would necessarily result 
in increased exports from Costa Rica to the Dominican Republic.  
76. Third, the Dominican Republic clai med that "the CDC also determined why the 
Dominican  Republic was a particularly attractive export market - for example, on the basis of specific 
export data pertaining to the company, contractual obligations to continue supplying large volumes 
to the Domin ican Republic, and preferential trade conditions". As demonstrated by Costa  Rica, none 
of the paragraphs of the Final Technical Report or final determination support the 
Dominican  Republic's argument. It is therefore not correct that the CDC had other elem ents to 
support the alleged conclusion that the Dominican Republic was a "particularly attractive" export 
market for the Costa Rican exporter.  
77. Fourth, the Dominican Republic claimed that the CDC found that third -country export markets 
could not absorb the potential production volumes of the Costa Rican company. The 
Dominican  Republic cited the same paragraphs of the Final Technical Report and the final 
determination. In its opening statement, Costa Rica demonstrated that these paragraphs also fail to 
support the Dominican Republic's claim. For all of the above reasons, the Dominican Republic's 
arguments have failed to rebut Costa Rica's prima facie  case. 
C. Effect on prices  
78. Costa Rica has demonstrated that the CDC's price effect analysis does not com ply with 
Article  3.7 of the Anti -Dumping Agreement. The third subparagraph of Article 3.7 requires that 
"imports are entering at prices that will have a significant depressing or suppressing effect on 
domestic prices".  
79. In its conclusions regarding thre at of injury, the CDC indicates that "[w]hile it is true that 
there was an increase in imports from other origins for the most recent period of the investigation 
(January -April 2018), it is the dumped imports from Costa Rica with a 15% margin of dumping th at 
are depressing sales prices in the domestic market and, consequently, negatively impact the 
economic and financial indicators of the domestic industry". In addition to this assertion, the final 
conclusions also mention that "[h]igh price undercutting ma rgins of up to 63% are recorded for the 
Costa Rican imports. With respect to the most recent period of the investigation, a level of 
undercutting of 21% was observed".  
80. Neither of these two assertions is sufficient to comply with Article 3.7(iii), since  neither refers 
to the prospective effect of the imports. Article 3.7(iii) requires an analysis of the future effect of 
import prices. This is clear from the text of the provision itself, which uses a verb in the simple future 
tense, "will have". Both asse rtions by the CDC refer exclusively to the past, without providing any 
explanation as to the prospective effect of imports from Costa Rica. These findings are therefore 
insufficient to comply with Article 3.7(iii).  
81. Both assertions also reflect a partia l and incomplete picture of what was happening during the 
POI according to the record. Imports from other sources entered the Dominican Republic at prices 
lower than the prices of imports from Costa Rica during each year of the POI, and accounted for 
significantly higher volumes than imports from Costa Rica. In its analysis, the CDC should have 
taken into account the price of these imports from other sources. The CDC should also have 
considered the fact that the domestic industry price followed an upward tr end in 2017 and the first 
four months of 2018. However, there is no prospective analysis to support the assumption that the 
same price difference that existed in 2017 would continue in the future.  
82. Furthermore, the CDC's price suppression analysis canno t serve as grounds for the conclusion 
under Article 3.7(iii) because it is completely retrospective. The information presented in table 24 
covers the period from 2015 to the first quarter of 2018. There is no analysis of what the CDC WT/DS605/R/Add.1  
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  considered would happe n beyond this period. Thus, the CDC does not provide an explanation, let 
alone a reasoned conclusion, as to how imports from Costa Rica will have a significant suppressing 
effect on domestic prices within the meaning of Article 3.7. For the foregoing reaso ns, this aspect of 
the CDC's determination violates Article 3.7(iii) of the Anti -Dumping Agreement.  
83. The Dominican Republic recognizes that "[i]t is true that the analysis [by the CDC] was based 
on data from the POI and therefore analysed the existing m arket conditions during the POI". This 
constitutes an admission by the Dominican Republic that the CDC's analysis was retrospective and 
not prospective as required by Article 3.7(iii).  
84. The Dominican Republic, however, attempts to justify the CDC's acti ons by putting forward 
two arguments that have no merit. First, the Dominican Republic claims that "these facts are relevant 
for inferring potential future effects and are fully consistent with the text of Article  3.7(iii), which ... 
is also focused on cur rent prices". Even if the POI data were "relevant" and "consistent with the text 
of Article 3.7(iii)", the fact is that Article 3.7 requires an additional step that the CDC failed to 
perform and that consists of the investigating authority making reasoned inferences about the price 
effect that imports "will have". Therefore, the CDC's analysis, which focused exclusively on what 
happened in the past, is insufficient to meet the requirements of Article  3.7(iii).  
85. The other argument put forward by the Domin ican Republic is that "the CDC supplemented 
the considerations regarding price effects with an analysis of likely future effects on the volume and 
prices of imports from Costa Rica". The Dominican Republic specifically refers to 
paragraphs  408-415, 518 and  519 of the Final Technical Report. These paragraphs do not show that 
the CDC has fully complied with Article 3.7(iii). Paragraphs 408 -415 contain table 40 and the alleged 
Monte Carlo analysis. The Dominican Republic itself has sought to downplay the impor tance of this 
same section of the Final Technical Report. Costa Rica has demonstrated that this analysis is based 
on conjecture and that it has a number of other flaws. Moreover, the Dominican Republic itself has 
denied that the CDC's price effect findings  are based on this analysis.  
86. In addition, paragraphs 408 -415 do not refer to the price of imports from Costa Rica. 
Paragraph 408 briefly refers to the volume of imports from Costa Rica in 2017, which is described 
as the base year. There is no reference  to the price of imports from Costa Rica in 
paragraphs  408-415. Article 3.7, for its part, refers to the effect that import prices will have. 
Therefore, even if they were not based on conjecture, paragraphs 408 -415 would not be relevant 
for the purposes of  the analysis required under Article 3.7(iii).  
87. In paragraphs 518 and 519 of the Final Technical Report, the CDC simply repeats some of the 
conclusions drawn by the CDC in paragraphs 408 -415. In addition to being based on conjecture, 
these paragraphs ma ke no reference to the prices of imports from Costa Rica or the effect they 
would have on domestic prices. Nor is there any link between the prices of imports from Costa Rica, 
the effect on domestic prices, and the likelihood of increased demand for furthe r imports. Therefore, 
these paragraphs are also inconsistent with Article 3.7(iii) of the Anti -Dumping Agreement. In 
conclusion, the Dominican Republic has failed to rebut Costa Rica's prima facie  case. 
D. Inventories  
88. The CDC did not rely on inventorie s as a basis for its threat of injury determination because it 
found that the level of inventories maintained by the Costa Rican company was not high. The Final 
Technical Report indicates that the exporting company's inventories varied between 10% and 5% o f 
the total output of the product concerned at the end of each fiscal year. While the percentage was 
higher in April 2018, the inventory level for that month was lower than the inventory level at the 
end of 2017. In any event, the CDC made no finding, in t he Final Technical Report or in the final 
determination, that the inventories of the product under investigation indicated that further allegedly 
dumped exports were imminent, within the meaning of Article  3.7(iv).  
89. In its first written submission, the Dominican Republic referred to paragraph 361(xv) of the 
Final Technical Report. However, this paragraph focuses on alleged idle production capacity and not 
on inventories. Rather, the use of the words "notwithstanding their behaviour" indicates that the 
CDC is seeking to detract from the relevance of inventory levels. Nothing in this paragraph suggests 
that the inventory level is an indication of threat of injury. Moreover, it is incorrect to confuse WT/DS605/R/Add.1  
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  inventory (which, by definition, already exists, hence th e use of the term " existencias " in Spanish) 
with idle capacity, as it would seem the Dominican Republic is attempting to do.  
90. In its opening statement, the Dominican Republic recognizes that the inventory levels do not 
support the threat of injury deter mination. However, the Dominican Republic then attempts to 
present the inventory levels as if they support the threat of injury. This is another ex post  attempt 
by the Dominican Republic to reconstruct the CDC's actions. The reality, as clearly reflected i n the 
Final Technical Report, is that the CDC rejected the relevance of inventory levels and failed to 
consider them as a factor indicating threat of injury. In view of the foregoing, the inventories fail to 
provide any support for the CDC's threat of inju ry determination. In short, Costa Rica has 
demonstrated that the CDC's threat of injury determination does not comply with Article 3.7 of the 
Anti-Dumping Agreement.  
VIII.  Articles 3.1 and 3.5 of the Anti -Dumping Agreement  
A. Causality  
91. Costa Rica has demonstrated that the CDC did not satisfy the requirement of Article 3.5 of the 
Anti-Dumping Agreement because it failed to examine whether Costa Rica's imports qualify as a 
"genuine and substantial" cause of the threat of injury. The existence of a ca usal relationship 
between the dumped imports and the threat of injury is an essential prerequisite that must be met 
to be able to apply an anti -dumping measure. An investigating authority must meet the "positive 
requirement" in Article 3.5 and it therefore  falls to a panel to examine whether the investigating 
authority has "identified and explained the positive evidence establishing a genuine and substantial 
relationship of cause and effect between imports and threat of injury".19 
92. Neither the Final Tech nical Report nor the final determination in this case indicate that the 
CDC has complied with the positive requirement of Article 3.5 by demonstrating that there was a 
genuine and substantial relationship between imports from Costa Rica and the threat of i njury. 
Section  D of the final determination is entitled "Final determination of the causal relationship 
between the dumping and the threat of injury in the period of investigation". However, as is clear in 
the first paragraph of that section, and in the fo llowing paragraphs, the CDC limited itself to analysing 
alleged other factors. The conclusion regarding the "causal relationship between the increase in 
dumped imports and the threat of injury to the domestic industry" is based exclusively on the alleged 
finding that there are no other factors besides Costa Rican imports of steel bars and rods at dumped 
prices that could be the cause of the threat of injury. The section does not contain an analysis of the 
causal relationship between the allegedly dumped imp orts and the alleged injury. The causal 
relationship is inferred from the alleged absence of other factors.  
93. Another threat of injury case, US - Softwood Lumber  VI (Article 21.5 - Canada) , highlighted 
the importance of verifying that the investigating a uthority has complied with the positive 
requirement under Article 3.5 by demonstrating that further dumped imports would cause injury. As 
part of this determination, the investigating authority must explain the reasons and positive evidence 
that support th e existence of a causal relationship, as well as demonstrate the adequacy of these 
reasons in the light of the plausible alternative explanations put forward by the interested parties.20 
In this case, the CDC failed to provide any reasons or positive evidence to support the existence of 
a causal relationship, as a result of which, following the logic in US - Softwood Lumber  VI (Article 
21.5 - Canada) , its determination fails to meet the r equirements of Article 3.5. Costa Rica has thus 
established that the CDC's causality determination does not comply with Article 3.5 of the 
Anti-Dumping Agreement.  
94. In its first written submission, the Dominican Republic claimed that the CDC did satisfy the 
positive requirement of Article 3.5, referring to some isolated statements made by the CDC on the 
alleged correlation in the time between the increase in imports from Costa Rica and certain negative 
indicators of the domestic industry. However, Costa R ica has demonstrated that these statements 
fail to satisfy the positive requirement of Article 3.5. Even if that alleged correlation existed in this 
case, it would be insufficient to demonstrate a genuine and substantial causal relationship under 
Article 3 .5. A correlation is simply a parallel or similar trajectory between two  variables, which does 
not prejudge nor allow absolutely anything to be determined as to whether one of them may be 
responsible for the occurrence of the other, or vice versa . 
 
19 Appellate Body Report,  US - Softwood Lumber  VI (Article 21.5 - Canada) , para. 132.  
20 Appellate Body Report, US - Softwood Lumber  VI (Article 21.5 - Canada) , para. 132.  WT/DS605/R/Add.1  
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  95. The panel in China - X-Ray Equipment  stated that a correlation analysis "is not dispositive of 
the causation question" .21 The same panel emphasized that "causation and correlation are 
two distinct concepts".22 As a result, in line with the reasoning of the pan el in China - X-Ray 
Equipment , the potential existence of a correlation in time, even if it were true, remains insufficient 
in this case.  
96. In addition, in this case, the exporting company presented arguments and evidence 
questioning whether there was a coincidence in time between the movements in the imports and 
the movements in injury factors. The exporting company explained that the record demonstrated 
that the domestic industry's indicators showed a significant recovery in 2018, despite the imports 
from Costa  Rica. As explained by the exporting company, there was therefore no coincidence in time 
between the movements in imports and the movements in injury factors to conclude that the 
evolution of industry indicators was linked to the evolution of impor ts of Costa Rican origin. The CDC 
had an obligation to examine these arguments and determine whether the circumstances did, in 
fact, show that there was a genuine and substantial relationship of cause and effect between 
Costa  Rican imports and the threat o f injury. However, the CDC failed to do so. The 
Dominican  Republic has failed to rebut Costa Rica's prima facie  case. The CDC's determination of 
causality does therefore not comply with Article 3.5 of the Anti -Dumping Agreement.  
B. Non-Attribution   
97. Costa Rica has also demonstrated that the CDC's non -attribution analysis does not comply 
with Article 3.5 of the Anti -Dumping Agreement. The CDC's non -attribution analysis has a number 
of shortcomings and the CDC's conclusions do not reflect an objective exam ination based on positive 
evidence. In particular, the CDC failed to conduct a proper non -attribution assessment of the 
following factors: (i) the volume and prices of non -dumped imports; (ii) the decline in the domestic 
industry's exports; and (iii) devel opments in technology.  
1. Non-dumped imports  
98. Costa Rica has demonstrated that the CDC's conclusion that imports from third countries could 
not be a cause of threat of injury is neither reasoned nor based on positive evidence, and therefore 
fails to sat isfy the requirements of Articles 3.1 and 3.5 of the Anti -Dumping Agreement.  
99. First, the CDC failed to properly consider China's imports at the beginning of the POI. As shown 
in table 41 of the Final Technical Report, in 2016, the volume of imports from  China was 2.5  times 
greater than the import volume from Costa Rica. The CDC itself found that Chinese imports 
accounted for almost half of total imports in 2016. Moreover, as shown in table 42, the unit price of 
the product imported from China was signifi cantly lower than the unit price of the product imported 
from Costa Rica. However, in its non -attribution analysis, the CDC failed to consider the effect of 
Chinese imports (in terms of both volume and price) on the domestic industry. In its analysis, the 
CDC focuses on the reduction in the volume of Chinese imports in 2017, but it does not consider the 
effect that these imports would have had in 2016 when they accounted for almost half of the import 
volume and their unit price was significantly lower than the unit price for imports from Costa Rica.  
100. Second, the CDC failed to properly consider imports from other sources during the POI. Table 
41 shows that the volume imported from other sources was greater than the volume imported from 
Costa Rica througho ut the POI. Meanwhile, table 42 shows that the unit price of imports from these 
other sources were, in many cases, lower than the unit price of imports from Costa Rica. For 
example, in 2016, the unit price of imports from Japan was much lower than the pric e of imports 
from Costa Rica, and the volume imported from Japan was almost equivalent to the volume imported 
from Costa Rica. In 2017 and January -April 2018, the unit price of Costa  Rican imports was higher 
than the unit price of imports from each of the other sources, with the exception of imports from 
China that were subject to an anti -dumping duty. It is important to emphasize that while they 
entered at lower prices, these imports accounted for a higher volume than imports from Costa Rica. 
In 2017, the volume of imports from other sources (excluding China) was almost 1.5 times greater 
than that of imports from Costa Rica. In January -April 2018, imports from other sources were 3.6 
times the imports from Costa Rica. Given the significantly greater volume o f imports from other 
sources and that the unit price of these imports was lower than the price of imports from Costa Rica, 
an objective and unbiased authority would not have concluded that the imports from these other 
sources could not be a cause of threat  of injury.  
 
21 Panel Report, China - X-Ray Equipment , para. 7.247.  
22 Panel Report, China - X-Ray Equipment , para. 7.247.  WT/DS605/R/Add.1  
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  101. The CDC's conclusion that imports from third countries could not be a cause of threat of injury 
is thus neither reasoned nor based on positive evidence, and therefore fails to satisfy the 
requirements of Articles 3.1 and 3.5 of the Anti -Dumping Agreement.  
102. The Dominican Republic has argued that Costa Rica focuses unduly on the first four months 
of 2018. This is not accurate. Costa Rica has demonstrated that Chinese imports entered the 
Dominican Republic in greater volumes and at lower p rices in 2016. In addition, Costa Rica has 
demonstrated that, in 2016, imports from Japan entered at lower prices than imports from 
Costa  Rica and in an equivalent volume. Costa Rica has also demonstrated that, during 2017 and 
January -April 2018, imports f rom other sources (with the exception of China) entered at lower prices 
and that the volume of these imports was greater than the volume imported from Costa  Rica. It is 
therefore incorrect to state that Costa Rica's argument was unduly focused on the last four months 
of the POI.  
103. In any event, as Costa Rica has already explained, the last period of the POI is particularly 
relevant, especially when it concerns an alleged threat of material injury which requires a prospective 
analysis that clearly assesse s whether there are clear and observable trends that demonstrate that 
future injury is imminent. The Dominican Republic does not deny that, during this four -month period, 
imports from other origins were increasing more quickly than imports from Costa  Rica, and were 
entering at lower prices. In the circumstances, the CDC was required to adequately explain why it 
did not consider that the non -dumped imports could be a cause of threat of injury. However, the 
CDC failed to do so.  
104. In its responses to the Pa nel's questions, the Dominican Republic notes that Chinese imports 
"essentially stopped in 2017, when they fell to 1% of the total imports, which enabled imports from 
other origins to take their place". If the Dominican Republic's approach - that all impor ts from 
third countries (including Costa Rica) took the place previously held by imports from China - is 
followed, the onus lay with the CDC to explain why it was imports from Costa Rica and not those 
from other countries that caused the threat of injury.23 The data for 2018 clearly show a much 
steeper upward trend in imports from countries other than Costa Rica and, even in 2017, the 
combined total imports from these other countries exceeded those from Costa Rica. In other words, 
if 34,876 metric tonnes ar e allegedly sufficient to cause a threat of injury, one would think that 
49,321  metric tonnes would cause greater injury. None of this was explained in the Final Technical 
Report.  
105. The Dominican Republic has also stated that imports from third countrie s "decreased in 2016 
(-28%) and in the important year of 2017 ( -15%) before increasing by +77% in the most recent 
period in 2018". In regard to this statement, it is important to clarify that table 41 in fact shows that 
imports from third countries (exclud ing China) increased in 2017. Second, an increase of this 
magnitude during the latter period deserves an adequate explanation from the CDC, particularly in 
the case of an alleged threat of injury.  
106. Moreover, the Dominican Republic attempts to justify t he CDC's actions by claiming that 
Japan, Chinese Taipei and the United States were the only third countries with imports throughout 
the whole dumping POI, and that the CDC found that the volumes from all of these countries were 
lower than imports from Cost a Rica. The Dominican Republic fails to explain why imports from a 
country must be considered only if they occur in each of the years of the POI. The 
Dominican  Republic also fails to mention that, altogether, the imports from third countries were 
greater t han imports from Costa  Rica. The CDC should have considered the effect of these imports 
as a whole. Costa Rica further recalls that, in 2016, imports from Japan entered at a lower price 
than imports from Costa  Rica and that, in 2017 and January -April 2018,  imports from Japan, the 
United States and Chinese Taipei entered at a lower price than imports from Costa Rica. The 
Dominican Republic's argument is thus not valid.  
107. The other argument presented by the Dominican Republic is that prices in 2017 were 
significantly lower than in 2015, even though there was no longer competition from dumped Chinese 
imports. Again, it is important to note that the lowest prices in 2017 were not those of imports from 
Costa Rica. Table 42 shows that, in 2017, Costa Ric a's unit price was much higher than the prices 
of imports from Italy, Japan, Mexico, Chinese Taipei and the United States. The volume of imports 
from these third countries in 2017 was almost 1.5 times the volume of Costa Rica's imports. In this 
regard, if the low prices in 2017 were an important element of causality, as the Dominican Republic 
claims, it is not plausible that the CDC would disregard the effect of third -country imports, 
 
23 Panel Report, China - Cellulose Pulp , para. 7.192.  WT/DS605/R/Add.1  
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  considering that their prices were significantly lower than the price of imports from Costa Rica and 
that their volume was much greater.  
108. The Dominican Republic appears to suggest that the onus is on the exporter to request the 
collective assessment of third -country imports. This argument is not supported by the text of 
Article 3.5, which refers to "the volume and prices of imports not sold at dumping prices". The use 
of the plural indicates that non -dumped imports are relevant as a whole, not individually. The 
Dominican Republic also attempts to justify the CDC's actions by  arguing that the exporter focused 
on the trends in the first four months of 2018. The exporter highlighted that, in the first four  months 
of 2018, imports from Costa Rica lost Dominican market share and were priced higher than imports 
from other sources. However, there is no doubt that the behaviour of imports from other sources 
throughout the POI was a factor known to the CDC within the meaning of Article 3.5. The CDC itself 
raised the need to examine the volume and the prices of imports not sold at dumpi ng prices, in 
accordance with its domestic legislation. In taking this approach, the CDC does not suggest that its 
obligation was limited to the first four months of 2018. The CDC also mentioned that the exporter 
had raised the need to examine the effect o f third -country imports. Contrary to what the 
Dominican  Republic now posits, this summary does not suggest that the exporter's argument was 
limited to the first four months of 2018. Thus, the Dominican Republic's argument about the focus 
on 2018 is not val id. In conclusion, the Dominican Republic has failed to rebut Costa Rica's 
prima  facie case. 
2. Export performance  
109. In its first written submission, Costa Rica demonstrated that the CDC had failed to properly 
assess the decline in the domestic industry 's exports.  
110. The Costa Rican exporting company raised the issue of the decline in the domestic industry's 
exports in its comments on the Essential Facts Report. The CDC dismissed the approach of the 
Costa  Rican exporter. Costa Rica has demonstrated tha t the CDC's reasoning suffers from at least 
two weaknesses. First, the CDC fails to provide any explanation of why the indicators cited are 
"associated with export performance". Second, the reasoning is internally contradictory. If the 
indicators are "asso ciated with export performance", they cannot be explained by Costa Rican 
imports because Costa Rican imports do not compete in the Dominican Republic's market with the 
domestic industry's exports. An objective and unbiased investigating authority would the refore not 
have disregarded the behaviour of exports as a possible causal factor on the basis of the CDC's 
reasoning.  
111. In its response to a question from the Panel, the Dominican Republic tries to show that there 
was no correlation between the export p erformance and the production volume and productivity. 
The Dominican Republic's arguments are ex post explanations. They are not explanations provided 
by the CDC in the Final Technical Report or the final resolution. Indeed, the CDC's assertion on 
export p erformance does not even refer to the production volume or productivity. The 
Dominican  Republic has therefore failed to rebut Costa Rica's prima facie  case. 
3. Technology  
112. Costa Rica demonstrated that, although the CDC itself found that one of the dome stic 
industry's rolling mills had problems of "obsolescence", the CDC did not consider whether this 
obsolescence could be a causal factor. Considering that it was the CDC itself that found that one of 
the rolling mills was obsolete, it is clear that this f actor was "known" to the CDC and, therefore, the 
CDC had an obligation to ensure that the injury caused by this factor was not attributed to imports 
from Costa Rica. The CDC failed to do so and therefore violated Article  3.5. 
113. The Dominican Republic's arguments fail to demonstrate otherwise. In its first written 
submission and opening statement, the Dominican Republic chose to ignore the CDC's finding on 
the obsolescence of the domestic industry's machinery. However, the CDC's finding is clear. In 
addition, in its responses to the Panel's questions, the Dominican Republic confirmed that the CDC 
included the capacity of rolling mill 3 in the calculation of the domestic industry's productive capacity. 
To the extent that the CDC included rolling mill 3 in i ts analysis, the technological obsolescence of 
this rolling mill was a relevant factor for at least some of domestic industry's indicators, such as 
production, productivity and the use of productive capacity.  
114. In conclusion, Costa Rica has demonstrated  that the CDC's non -attribution analyses with 
respect to non -dumped imports, export performance and developments in technology do not satisfy WT/DS605/R/Add.1  
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  the requirements of Articles 3.1 and 3.5 of the Anti -Dumping Agreement. The Dominican  Republic 
has failed to rebut  the arguments of Costa Rica.  
IX. ARTICLE 6.1.3 OF THE ANTI -DUMPING AGREEMENT  
115. Costa Rica has demonstrated that the CDC violated Article 6.1.3 of the Anti -Dumping 
Agreement because it failed to provide the Costa Rican exporter with the full text of the written 
application submitted by the applicant. The obligation in Article 6.1.3 has been described as a "clear" 
obligation, under which, "[s]ubject to the proviso of protection of confidential information, 
investigating authorities must provide the tex t of the written application to the known exporters and 
to the authorities of the exporting Member". This obligation "applies as soon as the investigation has 
been initiated".24 Moreover, the term "provide" requires proactive action by the investigating 
authority. In this regard, the panel in Argentina - Poultry Anti -Dumping Duties stated that "an 
investigating authority cannot comply with the obligation to 'provide the (…) application (…) to the 
known exporters and to the authorities of the exporting Membe r' simply by permitting them access 
to that application".25 
116. The phrase "the full text of the … application" refers to the application as a whole, including 
annexes and any material submitted by the applicant to supplement the application prior to the 
initiation of the investigation. The European Union and the United States agree on this interpretation. 
The use of the adjective "full" shows the intention to give a broad meaning to the obligation. The 
use of the term "text" must be considered in context.  It is used because Article  6.1.3 refers to the 
"written application" and to the written content of the application. Understanding the term "text" as 
restrictive would be contrary to the broad meaning sought from the use of the term "full". This broad 
scope is consistent with the purpose of Article 6.1.3, which is to ensure transparency and guarantee 
due process. Limiting the content of what is provided to interested parties is contrary to this purpose.  
117. In this case, the CDC only provided the exporter with an eight -page document and not with 
the application submitted by the applicant in its entirety. There is a large difference between what 
was submitted by the applicant and the inventory made by the CDC of the information it received, 
on the one hand, and what the CDC provided to the exporter when it initiated the investigation, on 
the other. This shows that the CDC did not provide the exporter with the full text of the application. 
In addition, the CDC did not provide the exporter with information subm itted by the applicant 
subsequent to the application, which was information that corrected or completed that application. 
To the extent that the information corrected or completed the application, this information forms 
part of the "full text of the … appl ication". The exchange between the CDC and the applicant clearly 
shows that the information was intended to correct or complete the application. In the light of the 
foregoing, the CDC acted inconsistent ly with Article 6.1.3 of the Anti -Dumping Agreement.  
X. ARTICLES 5.3 AND 5.8 OF THE ANTI -DUMPING AGREEMENT  
118. The CDC violated Article 5.3 because an objective and unbiased investigating authority would 
not have determined, in the light of the facts before the CDC, that there was sufficient evidence of 
the existence of dumping to justify the initiation of an anti -dumping investigation. The applicant 
company submitted an application to initiate an investigation on 7 May 2018. As evidence of the 
normal value, it included four invoices. Two of these invoices w ere issued on 2  June 2017 and the 
other two were issued on 17 July 2017. This means that the invoices corresponded to sales allegedly 
made almost a year before the filing of the application. In view of the time that had elapsed, the 
invoices could hardly i ndicate the existence of dumping at the time the application was filed. 
Moreover, the invoices were not representative. The amount quoted on each invoice was, on 
average, less than 1  tonne and the invoices referred to one type of bar only, when the importe d 
product covered by the application to initiate an investigation, as described by the applicant 
company, included five different types.  
119. The CDC itself questioned the representativeness and relevance of the invoices provided by 
the applicant. However,  the applicant refused to provide additional evidence, without offering any 
justification for that inaction. The CDC, in a surprising change of position, simply accepted the 
four invoices as sufficient evidence, without asking for additional explanations, despite having 
previously questioned the sufficiency of the evidence. The CDC's action is not in line with how an 
objective and unbiased investigating authority should proceed, and is inconsistent with Article 3.5.  
 
24 Panel Report,  Argentina - Poultry Anti -Dumping Duties,  para. 7.168.  
25 Panel Report, Argentina - Poultry Anti -Dumping Duties , para. 7.169.  WT/DS605/R/Add.1  
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  120. As has been established by Costa Ric a, and not refuted by the Dominican Republic, the CDC 
did not have sufficient information on the existence of dumping and, pursuant to Article 5.8, should 
have rejected the application and terminated the investigation promptly. The CDC's decision to 
initiate the investigation is therefore also inconsistent with Article 5.8 of the Anti -Dumping 
Agreement.  
XI. ARTICLE 6.4 OF THE ANTI -DUMPING AGREEMENT  
121. In this case, the CDC did not provide the exporting company with an opportunity to see certain 
reports of  the findings and information from verification visits, and certain documents that the CDC 
received during the verification visit. The findings and information gathered during the verification 
visits, and the documents received by the CDC at that time, was  "relevant" information within the 
meaning of Article 6.4. This information would have allowed the exporting company to have a fuller 
understanding of the situation of domestic industry in order to prepare its arguments on the alleged 
existence of injury a nd the alleged causal relationship between the injury and Costa  Rican imports. 
This would have allowed the exporting company to prepare its claims with a clearer and more 
comprehensive understanding. This violated its right of defence. It is also clear tha t the information 
was used by the CDC in its anti -dumping investigation. The verification visit record does not indicate 
that the CDC accepted the applicant's request for confidential treatment of the information. In short, 
the information was relevant, wa s not declared confidential by the CDC under Article 6.5 and was 
used by the CDC. Costa Rica has thus demonstrated that the CDC violated Article  6.4. 
122. The text of the provision does not support the Dominican Republic's argument that Article  6.7 
limits Article 6.4. Article 6.4 refers to "all information that is relevant". This phrase indicates broad 
coverage. Limitations on its scope are expressly stated in the article and this explicit list is a strong 
indication that there are no other limitations. Mor eover, Article 6.4 does not contain a 
cross-reference to Article 6.7, although it does refer to Article 6.5. This also suggests that when the 
negotiators wanted to link the obligations to another provision of the Agreement, they did so 
explicitly. As regar ds confidentiality, the Dominican Republic has not demonstrated that the CDC 
granted the information confidential treatment. Furthermore, the Dominican  Republic's arguments 
that the information meets the definition in Article 6.5 are ex post arguments. As regards the 
argument that the exporting company did not request the information, this requirement raised by 
the Dominican Republic was rejected by the panel in China — Broiler Products (Article 21.5 - US). 
The panel did not find "any basis for requiring a 'request' to see information before a claim of violation 
of Article[] 6.4".26 In conclusion, the Dominican Republic has failed to rebut Costa Rica's prima facie  
case. 
XII. ARTICLE 6.5 OF THE ANTI -DUMPING AGREEMENT  
123. Under Article 6.5, the CDC had the obligation to (i) assess the reasons furnished by the 
domestic industry to justify the confidential treatment of certain information; and (ii) determine, 
objectively, whether the domestic industry had shown good cause for the confidential treatment of 
its information.27 
124. The CDC granted confidential treatment to information furnished by the applicant company 
pursuant to Resolution No. 003 and Resolution No. 005. However, neither of the two resolutions 
show that the CDC assessed the reasons provided by t he domestic industry, or that it had 
determined, objectively, whether the domestic industry had shown good cause for the confidential 
treatment of its information. Therefore, the CDC acted inconsistently with Article 6.5 by failing to 
carry out such an ass essment.  
XIII.  ARTICLE 6.7 OF AND ANNEX 1 TO THE ANTI -DUMPING AGREEMENT  
125. In the Final Technical Report, the CDC criticized the exporting company for not providing 
information on sales made prior to the POI, even though the CDC had not specified that th e exporting 
company had to supply such information. In fact, the CDC failed to inform the exporting company 
prior to the verification visit that it had to provide this information. By failing to inform the company 
of this before the verification visit, the  CDC violated Article 6.7 and Annex I. The Dominican Republic 
acknowledged that the CDC did not request, prior to the verification visit, information on sales made 
before the POI from the exporter.  
 
26 Panel Report, China - Broiler Products (Article 21.5 - US), para. 7.291.  
27 Appellate Body Report, EC - Fasteners (China) (Article  21.5 - China) , para.  5.68. (fn omitted)  WT/DS605/R/Add.1  
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  XIV. ARTICLE 9.3 OF THE ANTI -DUMPING AGREEMENT AND ARTICLE  VI:2 OF THE GATT, 
1994  
126. Costa Rica has demonstrated, and the Dominican Republic has failed to refute, that the CDC 
did not calculate the margin of dumping in accordance with Articles 2.1, 2.2.1 and 2.4 of the 
Anti-Dumping Agreement. Costa Rica has als o demonstrated that the anti -dumping duty applied by 
the CDC exceeds the margin of dumping that would have been established if the CDC had complied 
with Article 2. The exporting company submitted to the CDC an alternative calculation of the margin 
of dumpi ng that demonstrated the absence of dumping. The margin of dumping calculation produced 
by the exporting company, which is part of the record, is sufficient to demonstrate that the amount 
of anti -dumping duty in this case exceeds the margin of dumping that  would have been established 
if the CDC had complied with Article 2. Consequently, Costa Rica has demonstrated that the 
Dominican Republic's anti -dumping measures violate Article 9.3 of the Anti -Dumping Agreement and 
Article VI:2 of the GATT 1994.  
XV. CONC LUSION  
127. For all of these reasons, Costa Rica respectfully requests that the Panel find that the 
Dominican  Republic's anti -dumping measures are inconsistent with Articles 2.1, 2.2.1, 2.4, 3.1, 3.2, 
3.4, 3.5, 3.7, 5.3, 5.8, 6.1.3, 6.4, 6.5, 6.7 and 9.3 o f the Anti -Dumping Agreement and Annex 1 
thereto, as well as with Article VI:2 of the GATT 1994. Article 3.8 of the DSU stipulates that in cases 
where there is an infringement of the obligations assumed under a covered agreement, the action 
is considered  prima facie to constitute a case of nullification or impairment. Since infringement of 
the Anti -Dumping Agreement and the GATT 1994 have been demonstrated in this case, there is 
nullification and impairment. Pursuant to Article 19.1 of the DSU, Costa Rica r espectfully requests 
that the Panel recommend that the Dominican Republic bring the anti -dumping measures applied 
into conformity with its obligations under the Anti -Dumping Agreement and the GATT 1994.  
 WT/DS605/R/Add.1  
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  ANNEX B -2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE DOMINICAN REPUBLIC  
I. INTRODUCTION  
1. This dispute concerns the imposition by the Dominican Republic of definitive anti -dumping 
duties on corrugated or deformed steel bars or rods for the reinforcement of concrete 
originating in the Republic of Costa Rica, as provided in the final determination of 
27 December  2019 (hereinafter "final determination") by the Regulatory Commission on 
Unfair Trade Practices and Safeguard Measures (CDC) . Costa Rica submitted 15 claims under 
the Anti -Dumping Agreement and the General Agreement on Tariffs and Trade (GATT) 1994, 
which consist of a combination of substantive claims under Articles 2 and 3 of the 
Anti-Dumping Agreement and procedural claims relating to the principles l aid down in Articles 
5 and 6 of the Anti -Dumping Agreement . It also included a purely consequential claim under 
Article 9.3 of the Anti -Dumping Agreement and Article  VI:2 of the GATT  1994.  
2. The Dominican Republic considers that Costa Rica's claims are un founded . Specifically, the 
decision to impose anti -dumping duties on imports of corrugated or deformed steel bars or 
rods for the reinforcement of concrete originating in the Republic of Costa Rica was the 
outcome of a comprehensive and objective examinati on by the CDC, which was based on 
positive evidence of dumping, threat of injury and a causal link, and in which the CDC 
respected interested parties' rights of defence and all other associated procedural rights, as 
provided for in the Anti -Dumping Agreeme nt. 
II. STANDARD OF REVIEW  
3. The standard of review for World Trade Organization (WTO) panels in anti -dumping 
proceedings is set out in Article 11 of the Dispute Settlement Understanding (DSU), in 
combination with Article 17.6 of the Anti -Dumping Agreemen t. These two Articles together 
establish the standard of review to be applied to both the factual and legal aspects of this 
dispute.  
4. Article 11 of the DSU requires a WTO panel to review whether the investigating authority has 
provided a reasoned and ade quate explanation as to : (a) how the evidence on the record 
supports its factual findings ; and (b) how those factual findings support the overall 
determination.  
5. It is not for a WTO panel to conduct a de novo  review of the evidence provided in the 
underlying anti -dumping investigation and a panel must not give preference to its judgement 
over that of the investigating authority . A panel must limit its examination to the evidence 
that was before the investigati ng authority during the investigation and may not reject an 
agency's conclusions simply because the panel would have arrived at a different outcome if it 
were making the determination itself . When examining an anti -dumping measure, WTO panels 
are not the t riers of facts . They merely review the relevant determination by the investigating 
authority and determine whether the establishment of the facts "was proper" and whether the 
evaluation of those facts was unbiased and objective.  
6. A panel must take into a ccount all the facts on the record, including those that were not 
disclosed or discernible by the interested parties at the time of the final determination.  
7. It has been deemed inadvisable for a panel to examine individual evidence in isolation . 
Instead,  a holistic approach is preferable when reviewing the investigating authority's 
evaluation of the evidence.  
8. Lastly, in WTO dispute settlement proceedings, it is the complaining party that bears the 
burden of proving that a challenged measure is inconsis tent with a covered agreement.  WT/DS605/R/Add.1  
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  III. COSTA RICA'S CLAIM THAT THE EXPORT SALES THAT ENTERED THE 
DOMINICAN  REPUBLIC DURING THE PERIOD OF INVESTIGATION WERE ILLEGALLY 
INCLUDED IN THE  DOMINICAN REPUBLIC'S DUMPING CALCULATION  
9. Costa Rica disagrees with the inc lusion in the dumping calculation of two export sales 
transactions, arguing that they were "sold" prior to the period of investigation (POI) and, as 
a result, did not constitute "current" dumping in violation of Article 2.1 . Costa Rica also submits 
that th e inclusion of these export sales violates Article 2.4 because the comparison of these 
export sales with the domestic sales during the POI was not "fair" due to alleged changes in 
feedstock costs between the time of sale and the period of time considered f or dumping.  
10. However, the CDC properly followed Articles 2.1 and 2.4 by establishing a 12 -month POI, 
which began close to the date of initiation, and includes all sales in the relevant domestic and 
export markets made by the Costa Rican exporter, Arcelo rMittal Costa Rica (hereinafter 
"ArcelorMittal"), during this POI . In its response to the questionnaire, the Costa Rican exporter 
provided information based on all the export sales that entered the Dominican  Republic during 
the POI . The CDC included all of  these sales in the calculation . This approach is based on the 
definition of dumping in Article  2.1, which Costa Rica completely disregards in its submission . 
It is clear from Article 2.1 that dumping relates to the matter of whether the products entered 
the country's commerce at less than their normal value . Costa Rica does not indicate any legal 
grounds under the Anti -Dumping Agreement requiring the use of a different basis, such as the 
date of the contract related to the sale or the date of the invoice, rather than the date of entry 
into the Dominican  Republic.  
11. There is also no legal basis for Costa Rica's claim under Article 2.4 of the Anti -Dumping 
Agreement, since the Costa Rican exporter never requested an adjustment for alleged 
differences in resp ect of the sales' lack of proximity in time . Costa Rica also fails to do so in 
these dispute settlement proceedings . Instead, it simply requested that two export sales be 
completely excluded from the determination of the export price . This is not a matter governed 
by Article 2.4 . The matter of the export price is determined under Article 2.3, which is a 
provision that was not invoked by Costa Rica in its panel request and is not, therefore, before 
the Panel . In addition, the CDC concluded that the ex porter never provided evidence of the 
domestic sales that it considered to be closer to the time of the export sales, which would 
have allowed for a comparison to be made . Furthermore, it is important to highlight certain 
factual aspects of the situation, as they are unclear from Costa  Rica's presentation of the facts . 
Despite Costa Rica's attempts to suggest that a long period of time elapsed between the sale 
of these products and their importation during the POI, the record shows that the date of 
invoice for one of the export sales was just one month before the initiation of the POI and, for 
the other export sale, just three days before the POI . No evidence was ever provided to 
demonstrate that these sales had not been made sufficiently close to the dates of the domestic 
sales made during the POI and that an adjustment would therefore be necessary, assuming 
that such an adjustment had been requested . Moreover, the parties did not discuss the fact 
that these export sales entered the Dominican Republic during  the POI . Accordingly, there is 
no factual or legal basis for Costa Rica's claim that the CDC violated Articles  2.1 and 2.4.  
12. The CDC was not required to use a different criterion to identify the relevant export sales and 
instead applied one used by the  exporter itself . This criterion is reasonable and was applied 
systematically by the CDC . The resulting comparison of the export price and the normal value 
was also consistent with Article 2.4, as it was made on the basis of all relevant transactions 
that entered the Dominican Republic during the POI between 1 May 2017 and 3 0 April 2018, 
inclusive.  
13. With regard to the determination of the normal value, the CDC carried out the necessary cost 
test and explained that certain domestic sales were excluded as they were below cost and not, 
therefore, made in the ordinary course of trade.  
III.1.  The CDC did not violate Article 2.1 by including the Thorco Logic and 
Suzie Q sales in its analysis  
14. The transaction relationship criterion used by the CDC to calculat e the export price, namely, 
the time at which the investigated product was "introduced" into the commerce of the WT/DS605/R/Add.1  
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  importing country, is consistent with and reflects the text of Article 2.1 . As a preliminary 
matter, it is important to highlight that it is no t disputed that the two export sales transactions 
in question entered the Dominican Republic during the POI . Moreover, as explained in our 
presentation, it was the Costa  Rican exporter itself that had included these two sales 
transactions in its questionnaire response, using the date of entry of the goods as the 
determinative criterion.  
15. Costa Rica's argument that the CDC's inclusion of two sales that entered the country during 
the POI does not demonstrate "current" dumping and is not "as close  as possible" to the 
initiation confuses the jurisprudence and guidelines on POIs of the Committee on 
Anti-Dumping Practices with Costa Rica's preferences regarding the criteria for determining 
whether a sale is considered to be within the POI.  
16. Costa R ica does not provide a legal basis for saying that the date of contract or the date of 
sale must be used when determining whether the sales fall within the POI and are therefore 
indicative of current dumping . The fact that the Costa Rican exporter clearly considered it 
reasonable to provide information on the covered export sales by using the dates of entry into 
the commerce of the importing country demonstrates that there was nothing improper, 
biased, subjective or unreasonable in the application of this c riterion in the absence of specific 
guidance in the Anti -Dumping Agreement.  
17. Costa Rica submits that the sale involving the Thorco Logic was concluded on 
1 November  2016 and that the time that elapsed between the sale and the initiation  of the 
investiga tion was such that the sale reflected prices from 21 months prior to the initiation of 
the investigation for the Thorco Logic and from 14 months prior in the case of the Suzie Q.  On 
this basis, Costa Rica develops an argument that seeks to show that the pr ices of the main 
feedstock inputs in November  2016 were different to those during the POI . However, this 
presentation of the facts is incomplete and incorrect.  
18. Firstly, the Thorco Logic sales invoice is dated just one month prior to the start of the PO I. 
The Suzie Q sales invoice is dated just three days prior to the POI . Accordingly, there was not 
a gap of months between the dates of invoice and the start of the POI or the shipment date . 
Thus, the argument that there was no reliable evidence of "curren t" dumping is also 
unfounded . It is incorrect to consider that sales made three days or even one month 
prior - which entered the Dominican  Republic during the POI - cannot demonstrate "current" 
dumping.  
19. Secondly, Costa Rica is not actually using the invoice date of late March  2017 to develop its 
argument . It prefers to rely on the alleged "date of contract" of November  2016 to make the 
gap between the POI and the initiation appear longer . However, Costa R ica fails to explain 
why it would be appropriate in this case to use the date of contract instead of the date of 
export or the invoice date . Moreover, the contract referred to by Costa Rica is, in actual fact, 
related to the transformation of billets into corrugated steel bars.  
20. With regard to the sale involving the Suzie Q, Costa Rica does not even submit a single 
document, but simply refers to the mention in the Final Technical Report of ArcelorMittal's 
argument that the sale was effective as of April 2017. It also fails to provide evidence of a 
difference in feedstock costs between 2 7 April 2017 and 1 May 2017 of such significance that 
it would be inappropriate to keep the sale involving the Suzie Q in the calculation, given that 
its shipment date fell  within the POI.  
21. As regards the need for parallelism between the criterion used for the normal value POI and 
that used for the export price POI, Costa Rica argued that, even if the authority had discretion 
to establish the POI, it does not have discret ion to use one POI for the export price and another 
for the normal value . However, this is not what the CDC did . The CDC used the same POI for 
the normal value and the export price, relying upon the information provided by the exporter 
in relation to this dumping POI . There was complete parallelism.  
22. In summary, Costa Rica's claim under Article 2.1 must be rejected.  WT/DS605/R/Add.1  
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  III.2  The CDC did not violate Article 2.4 when it included the Thorco Logic and 
Suzie Q sales in its analysis  
23. The CDC made a fair c omparison in accordance with Article 2.4 when it compared 
ArcelorMittal's export prices for the goods that entered the Dominican Republic during the POI 
with its domestic sales during the POI . However, Costa Rica makes a claim of a violation of 
Article 2.4  that appears to revolve around three arguments : (i) that Article 2.4 imposes criteria 
for the selection of transactions for the purposes of determining the export price ; (ii) that, 
given the inclusion of the transactions in question in the calculation of the export price, the 
CDC should have made "adjustments" to ensure a fair comparison within the meaning of 
Article 2.4 ; and (iii) that the CDC should have requested information to make such 
adjustments.  
24. The first argument is based on an erroneous legal  interpretation . Article 2.4 imposes a 
requirement for a fair comparison that presupposes the prior determination of the normal 
value and the export price . It is legally incorrect to consider that this requirement may have 
a bearing on the determination of  the sales that should be included in order to establish the 
export price.  
25. Article 2.4 does not require that the comparison use the date of invoice or contract instead of 
the date of entry . Article 2.4 concerns the comparison once the normal value and the export 
price have been determined . Costa Rica's argument actually relates to the exclusion of two 
export transactions from the export price . This issue may be raised under Article 2.3, which 
concerns the establishment of the export price . However, Cost a Rica makes no claims under 
Article 2.3 . Article 2.4 refers solely to the comparison between the normal value and the 
export price, once both have been established.  
26. In any event, as long as a consistent and reasonable approach is followed, there is no  
obligation under the Anti -Dumping Agreement that indicates whether the date of contract, the 
invoice date or the actual date of entry should be used as the basis for including a transaction 
in the POI . In this case, the CDC's approach was consistent and r easonable . It used the same 
period for both domestic sales and export sales, used a reasonable period of time (12 months) 
and established the period close to the date of initiation of the investigation . It also used the 
exact information provided by ArcelorMittal in its questionnaire response.  
27. It is unclear why using the information provided by ArcelorMittal and comparing it with the 
company's domestic sales during the same POI would be unfair . During the investigation, 
ArcelorMittal did not reque st any changes to the POI's range of dates . Instead, after having 
seen the result of the calculations in the determination of the essential facts, it simply argued 
that these two sales should be completely excluded . In addition, ArcelorMittal reported thes e 
two sales as it considered them to fall within the POI because they had entered the Dominican 
Republic during the POI . It is for this reason that it provided information on the two export 
sales that it subsequently argued should have been excluded . Accordingly, it is incorrect to 
argue that ArcelorMittal was only informed for the first time in the Essential Facts Report that 
these two sales, which it had previously reported, would be used for the purposes of 
determining the normal value.  
28. In contrast t o the CDC's consistent approach with regard to the POI, Costa Rica suggests that 
the CDC should have used three different dates of sale . Doing so would be burdensome, 
inconsistent and unreasonable . Of course, there is no legal basis for this mixed approach . 
29. Costa Rica incorrectly asserts that the reference in Article 2.4 to "sales" somehow excludes  
the date of entry and includes  the date of contract or invoice . This interpretation is unfounded . 
The term "sales" relates more to the transactions in genera l and not to a specific date of sale . 
This is demonstrated by the fact that Article 2.4 does not mention which document or date 
establishes that a sale has been made and, of course, does not require the use of a specific 
date of sale . Moreover, there is no  specific requirement for the date of sale to be the date of 
the invoice or contract.  
30. With regard to Costa Rica's second argument, the obligation of an investigating authority to 
make "adjustments" within the meaning of Article 2.4 only arises when an interested party WT/DS605/R/Add.1  
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  demonstrates the need for such adjustments to be made . It is for the party requesting an 
adjustment to "demonstrate" that there is a difference and that it affects price comparability ; 
if this is not the case, the authority is not required  to make an adjustment . In the present 
case, it is clear that ArcelorMittal never asked the CDC to make adjustments  to ensure a fair 
comparison in view of the alleged difference between the times of the domestic sales and the 
export sales . It merely asked for these sales to be excluded . This argument was clearly 
incorrect, as the same POI of 1 May 2017 to 3 0 April 2018 was used, as required, for the 
normal value and the export sales . Costa Rica's argument that a different POI was used for 
the domestic sales and the export sales simply has no merit.  
31. Even if the requirement to make adjustments were applicable, Costa Rica states that 
Article  2.4 requires the investigating authority to consider the "differences which affect price 
comparability"  when comparing the export price and the normal value . Once again, the 
provision does not refer to the "date of sale", but, rather, to a list of differences that are 
mostly specified and that usually give rise to price adjustments for the calculation . The cost 
of feedstock for the production of the goods in question is not a difference similar to those 
listed in the Article.  
32. The CDC gave the exporter ample opportunity to request adjustments and initiated a dialogue 
with the exporter on all such adjustme nts. It should be noted that there were no specific 
discussions on the two transactions because it was the exporter itself that had included these 
transactions and that provided similar information on the normal value, without requesting 
any adjustments re lated to these two transactions . The CDC accepted the information on the 
normal value and the export price, and initiated a dialogue on the points that needed to be 
discussed.  
33. Costa Rica has stressed that the CDC failed to make use of any of the option s proposed by 
footnote 8 of the Anti -Dumping Agreement, despite the fact that, in its view, the usual practice 
is to take the date of invoice as the date referred to by this footnote.  
34. The footnote is perfectly comprehensible in the context of Article 2 .4.1 when it is a matter of 
determining when a currency conversion has taken place . However, it is telling that, even in 
the context of a currency conversion, footnote 8 still provides a large degree of flexibility and 
does not impose a specific criterion,  giving the authority the option of using several points in 
time for the purposes of carrying out the currency conversion . The presence of this footnote 
just serves to highlight the absence of similar guidance in Articles 2.1 or 2.4.  
35. With regard to the  third argument, ArcelorMittal never submitted the information needed to 
carry out what Costa Rica now implies would be a "fair comparison" . Despite having ample 
opportunity to do so, ArcelorMittal never reported the domestic sales for the assessment of 
the normal value at which they were invoiced or contracted at allegedly the same time as the 
sales shipped on the vessels, the Thorco Logic and the Suzie Q, in November  2016 and 
April 2017. 
36. The CDC made a fair comparison when it established the POI and c onducted a reasonable 
analysis on this basis . Even assuming that Costa Rica's arguments on this matter had merit 
and were supported by the Agreement ( quod non ), ArcelorMittal failed to provide the 
information required to carry out the proposed analysis.  
37. In view of the foregoing, the Dominican Republic considers that Costa Rica has failed to 
present a case of inconsistency with Article 2.4 of the Anti -Dumping Agreement.  
IV. COSTA RICA'S CLAIM THAT BELOW -COST TRANSACTIONS WERE EXCLUDED IN 
VIOLATION OF ART ICLE 2.2.1 OF THE ANTI -DUMPING AGREEMENT  
38. Costa Rica develops two related, but somewhat contradictory, arguments with respect to the 
exclusion of domestic sales due to the fact that they were made below cost.  
39. Firstly, Costa Rica submits that the CDC failed to conduct two of the three tests under 
Article  2.2.1 as to whether below -cost sales were made within an "extended period of time" 
and "at prices which do not provide for the recovery of all costs within a reasonable period of WT/DS605/R/Add.1  
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  time" . However, th e CDC's published reports clearly show that these tests were conducted, 
since the CDC examined the sales and costs within the entire one -year dumping POI and 
examined whether the sales prices that were below per unit costs were above weighted 
average per u nit costs for the POI . Costa Rica's assertion to the contrary is not supported by 
the record.  
40. Secondly, Costa Rica argues that the CDC failed to correctly apply the test of whether the 
sales did not provide for the recovery of costs within a reasonable period of time . It submits 
that this is because the CDC used annual cost data rather than monthly data . This argument 
necessarily signifies that Costa Rica agrees that the analysis required under Article 2.2.1 was 
conducted (albeit allegedly not  properly) and, therefore, that its previous argument 
concerning the lack of such an analysis is unfounded . Moreover, Costa Rica fails to explain 
under which legal obligation the CDC was required to disregard the annual cost data provided 
by ArcelorMittal in its questionnaire response in favour of the monthly data . The CDC used the 
annual cost data provided in Annex F -4 to ArcelorMittal's questionnaire response . Nothing in 
Article  2.2.1 requires an authority to use monthly data in this analysis . Importantly , the 
Costa  Rican exporter recognized this during the underlying investigation when it confirmed 
that nothing in the Anti -Dumping Agreement provides a methodology for determining the per 
unit costs that should be used when determining below -cost sales . Accordingly, Costa Rica's 
claims under Article  2.2.1 lack a legal and factual basis.  
IV.1.  Costa Rica's claim that the Dominican Republic violated Article 2.2.1 by 
failing to determine that the below -cost sales were made within an 
"extended period of time" an d "at prices which do not provide for the 
recovery of all costs within a reasonable period of time" is unfounded  
41. The CDC made the determinations required by Article 2.2.1 in order to disregard the 
below -cost sales and applied the appropriate tests when  doing so . Costa Rica claims that, of 
the three criteria under Article 2.2.1 that must be met in order for below -cost sales to be 
disregarded, the CDC failed to make appropriate determinations on the first and third  criteria . 
Therefore, its assertion is no t that the CDC failed to properly apply these two  criteria, but that 
it did not examine them at all . This is factually incorrect.  
42. First, the CDC ensured that the below -cost sales were made within an extended period of time 
by including all the sales ma de during the relevant one -year period . Costa Rica asserts 
otherwise . However, it does not explain what kind of test it considers should have been 
conducted by the CDC in order to fulfil this requirement . It would appear that Costa Rica is 
seeking to impose on the CDC an obligation not laid down in the Anti -Dumping Agreement . 
This has no basis : an investigating authority should not have an additional obligation to fulfil 
on top of complying with the requirement to examine the entire extended period of time of 
the POI . The CDC determined that the below -cost sales were made "within" the one -year POI 
and, therefore, "within an extended period of time", in accordance with Article 2.2.1 . 
Moreover, the evaluation carried out by the CDC shows that below -cost s ales were made 
during each of the 12 months of the POI.  
43. Second, Costa Rica does not dispute that the CDC made an adequate determination in relation 
to the second criterion of Article 2.2.1 (namely, that below -cost sales were made "in 
substantial quanti ties") . In fact, the CDC conducted the required test and determined, in 
accordance with footnote 5, that the volume of sales below per unit costs represented more 
than 20 % of the volume sold in the transactions under consideration for the determination of 
normal value.  
44. Third, contrary to Costa Rica's assertion, the CDC also determined that the below -cost sales 
were "at prices which do not provide for the recovery of all costs within a reasonable period 
of time" . When making its determination, the CDC ap plied the same test as that used to assess 
the volume of below -cost sales, since ArcelorMittal provided it with information on the cost of 
production over the whole POI, which was used by the CDC . The prices of the below -cost sales 
were below cost during t he investigation period.  
45. The CDC excluded the below -cost sales only after having examined whether the low -cost sales 
were made within an "extended period of time", in "substantial quantities" and "at prices which WT/DS605/R/Add.1  
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  do not provide for the recovery of all costs within a reasonable period of time" . The CDC 
examined the sales and cost data over the entire one -year dumping POI, thereby complying 
with footnote 4 of the Anti -Dumping Agreement.  
46. Accordingly, Costa Rica's assertion that the Dominican Republic f ailed to make the 
three  determinations required under the cost test in Article 2.2.1 is incorrect . The CDC made 
the three determinations and applied the appropriate tests to each one.  
IV.2.  Costa Rica's assertion that the Dominican Republic violated Articl e 2.2.1 
by using an annual weighted average per unit cost instead of a lower 
monthly weighted average per unit cost in the cost test is without merit  
47. The Dominican Republic properly conducted the test provided for under Article 2.2.1 of the 
Anti-Dumpin g Agreement . Nothing in Article 2.2.1 or the jurisprudence requires an 
investigating authority to use monthly costs in this analysis . In the absence of such a legal 
obligation, it is difficult to understand how the objective and frequently applied method of 
using annual costs could be considered biased, unobjective or unreasonable to the extent that 
it constitutes a violation of the Anti -Dumping Agreement.  
48. Costa Rica's only argument is that the costs increased during the POI and that, as a resul t, 
the use of an annual average raises the risk of finding below -cost sales during the initial period 
of the POI . However, if an authority were required to use monthly cost data instead of annual 
cost data each time that the costs increased during the POI,  this would have been explicitly 
stated in the Anti -Dumping Agreement . Moreover, Costa Rica fails to prove that this 
methodology led to the improper exclusion of sales . It is important to emphasize that Costa 
Rica's claim lacks any legal basis . In fact, it s claim ignores the fact that the test set out in the 
last sentence of Article 2.2.1 specifically instructs investigating authorities to use "weighted 
average per unit costs for the period of investigation" . This is exactly what the CDC did when 
it calcula ted the annual weighted average per unit cost for the year that constituted the POI, 
as was reported in the questionnaire for the exporter.  
49. While ArcelorMittal and Costa Rica would have preferred monthly weighted average costs, 
investigating authoritie s are not required to use monthly costs and the CDC explained that the 
annual costs it used in the Essential Facts Report were appropriate . It was only after the 
Essential Facts Report had been published and the CDC had conducted the relevant below -cost 
tests that ArcelorMittal requested, in its response to the report, that the adjusted monthly 
data be used . The CDC considered the exporter's request concerning the adjusted monthly 
data and determined that the calculations presented by ArcelorMittal for the analysis were 
inadequate.  
50. In addition, there is no legal basis in the text of the Anti -Dumping Agreement for prohibiting 
an authority from using the annual cost data submitted by the exporter in its questionnaire 
response.  
51. Moreover, Costa Rica misr epresented the facts in its response to Panel question No. 22 when 
it stated that the exporter explained at the time of verification that the monthly cost data 
should have been used.  
52. Article 2.2.1 requires investigating authorities to use the weighted average per unit cost for 
the period of investigation, which is exactly what the CDC did in this case . Firstly, during 
verification, the exporter provided information on the cost with earnings before interest, taxes, 
depreciation and amortization (EBITDA),  which was generated on a monthly basis . In other 
words, what happened during verification was that the exporter argued that the cost analysis 
should be based on all the EBITDA data and provided this monthly data set.  
53. In addition, when the CDC wished t o double -check the monthly EBITDA data with the help of 
a costs expert, it was denied access to the facilities, after the visit had been notified and 
accepted, as the exporter took issue with the presence of this costs expert, so the second 
verification vi sit could not take place . In any event, the CDC provided a reasoned and adequate 
explanation in the Final Technical Report as to why it did not use the EBITDA data to determine 
the cost of production, in line with the practices of investigating authorities  in general . Costa WT/DS605/R/Add.1  
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  Rica has not contested this rejection of the EBITDA data as a basis for the determination of 
costs.  
54. For all of the aforementioned reasons, the Dominican Republic requests the Panel to reject 
Costa Rica's claims under Article 2.2.1 of  the Anti -Dumping Agreement.  
V. COSTA RICA'S CLAIM REGARDING THE CONSIDERATION OF PRICE EFFECTS UNDER 
ARTICLES 3.1 AND 3.2 OF THE ANTI -DUMPING AGREEMENT  
55. Costa Rica takes issue with the price -related analysis and argues that it was not an objective 
exam ination based on positive evidence, but does not explain why the CDC's conclusions, 
which were supported by the facts on the record, were biased . With respect to the price 
undercutting analysis, Costa Rica fundamentally misinterprets the summary table contained 
in the non -confidential version of the Final Technical Report and attempts, inconsequentially, 
to argue that the CDC did not use the term "significant" when it found a price undercutting of 
21-63%. Regarding the price decrease analysis, Costa Ric a cannot contest that the prices 
decreased when comparing 2017 with 2015, but suggests that other price information on the 
record shows that prices were increasing in the most recent part of the POI . In fact, the CDC 
clearly mentions these developments and  does not ignore this increase ; rather, it 
contextualizes the increase within the framework of the price suppression analysis . Lastly, 
with regard to the price suppression analysis, Costa Rica's argument essentially relies on the 
claim that the CDC did not  do enough to assess the alleged causes of price suppression . 
However, the CDC found significant price undercutting and explained - with the support of the 
facts on the record - that costs increased more than prices at the very moment when dumped 
imports f rom Costa Rica rose significantly . Costa Rica's claim of a violation of Articles  3.1 and 
3.2 is therefore inadmissible . The CDC was not required to provide a more exhaustive causal 
link analysis under Article 3.2.  
V.1. Price undercutting analysis  
56. Costa  Rica submits that there are various problems with the CDC's price undercutting analysis . 
Many of the alleged problems seem to arise from the fact that Costa Rica bases its arguments 
on the non -confidential version of the Final Technical Report although, d uring the course of 
this dispute, Costa Rica failed to consider that table 22 does not show the alleged levels of 
price undercutting mentioned by the CDC . The confidential version of the report fully supports 
the finding of price undercutting and reveals t hat Costa Rica's concerns are unfounded, since 
it clearly shows the extent of price undercutting and supports the conclusions outlined by the 
CDC. 
57. The CDC's reports clearly considered the significance of the price undercutting margins . The 
CDC explicitly indicated the significant magnitude, i.e. the high value, of the price undercutting 
margins . This conclusion is sufficient to satisfy the requirement to consider the price effects 
under Article 3.2.  
58. The CDC conducted the necessary ana lysis of the significance of the price undercutting 
margins in accordance with Articles 3.1 and 3.2, and found them to be "high" in the light of 
the fierce competition between imported and domestic products on the market and their high 
degree of substituta bility. Costa Rica does not fully explain why undercutting margins of 
between 63 % and 21 % would not be significant by any standard . The undercutting continued 
throughout the POI, and Costa Rica does not indicate any other aspect that the CDC should 
have co nsidered in this regard.  
59. Costa Rica submits that the CDC has not considered whether the price undercutting margins 
were the effect of dumped imports . This argument lacks any legal basis, since price 
undercutting does not refer to price effects, but to the difference between two sets of prices : 
those of the domestic producer and those of the exporter in question . Unlike price depression 
or suppression, the concept of price undercutting does not include any effects -based element . 
Article 3.2 establishe s a link between the price of subject imports and that of like domestic 
products, by requiring that a comparison be made between the two . This is the scope of the 
analysis required in relation to price undercutting . That is what the CDC did, and Costa Rica  
has failed to show otherwise.  WT/DS605/R/Add.1  
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  60. Costa Rica's reference to the panel's finding in China - Broiler Products (Article 21.5 - US) is 
erroneous . When the panel in China - Broiler Products (Article 21.5 - US) referred to the need 
to examine the effects under Article 3.2 also in the context of price undercutting, it was 
referring to potential differences in terms of the "basket" of products that could render an 
undercutting analysis largely irrelevant . The question in that case concerned the dissimilarity 
in the "basket" of products, which meant that the findings provided no information about the 
price effects of dumped imports . That consideration was clearly irrelevant to the CDC's 
investigation . The two baskets of products were comparable and, as such, the out come of the 
price comparison of these products was highly relevant to consideration of the price effects of 
dumped imports.  
61. Costa Rica argues that price undercutting was at its lowest level when imports increased, and 
claims that this inverse movement contradicts the conclusion that price undercutting was the 
effect of dumped imports . However, apart from suggesting that a smaller undercutting margin 
would in some way make it less significant in terms of quantities or would undermine the 
relevance of the  finding of undercutting for a general effects analysis, Costa Rica does not 
explain its argument . The fact that undercutting reached its highest level upon the initial entry 
of dumped imports, once it had been established that the prices of these imports could 
increase slightly while maintaining a high undercutting margin, does not prima facie  
undermine the relevance of the finding of price undercutting.  
V.2. Price depression analysis  
62. Costa Rica considers that the finding of a 6 % price depression does not reflect the trend for 
the period and, therefore, the CDC's analysis does not meet the requirements under 
Article  3.2, considered in conjunction with Article 3.1 . It is not clear what, exactly, Costa  Rica's 
argument of a violation is . Costa Rica does not link this assertion with any legal obligation . 
Rather, it states that Article 3.2 requires a dynamic analysis of price developments and trends . 
However, Costa Rica cannot deny the accuracy of the CDC's finding based on the facts on the 
record . Furthermore, Costa  Rica's argument does not appear to assess fully the CDC's price 
analysis and mistakenly separates the examination of the fall in prices from the CDC's other 
price-related findings, with which it forms a whole.  
63. First, it is clear that th e CDC's conclusion is correct in practice, and Costa Rica does not claim 
otherwise : prices were lower in 2017 than in 2015 . In the context of a price effects analysis, 
it is common practice to examine the price level close to the end of the POI and compare  it 
with the price level at the start of the injury POI . This is what the CDC did when it examined 
the price increases in 2017 and 2018 in the context of the price suppression analysis, which 
is an integral part of the CDC's examination of price effects, a s set out in section 6.3 of the 
Final Technical Report . The consideration of the decrease in prices must therefore be viewed 
in the context of the CDC's findings as a whole, which clearly show that the CDC also examined 
price trends and contextualized thes e price changes while also assessing changes in costs.  
64. Furthermore, Costa Rica is mistaken in its assertion that the CDC only examined the increase 
in prices in the last four -month period . Even Costa Rica acknowledges that table 24 clearly 
shows that t he CDC also examined the price increases in 2017 . The mere fact that the CDC 
would conclude that there had been price suppression actually shows that Costa  Rica is wrong 
in its approach . A proper reading of the CDC's price effects analysis is that it exami ned the 
facts and found that prices decreased between 2015 and 2017 and, although prices rose in 
the last two  years, they increased less than costs . Both findings of fact form part of a whole, 
and Costa  Rica's attempt to isolate the finding of a fall in pr ices to argue that the CDC ignored 
the upward price trends is misguided . The CDC acted as an objective investigating authority, 
and based its price effects analysis on all the facts and evidence on the record.  
V.3. Price suppression analysis  
65. Costa Rica  submits that the CDC's consideration of price suppression failed to demonstrate 
that there was suppression, or that any suppression was the result of dumped imports from 
Costa  Rica. It argues that the CDC failed to examine whether prices would have been h igher 
than for dumped imports . It also states that table 24 of the Final Technical Report does not 
show imports from Costa Rica . However, it does not explain what exactly it believes the CDC WT/DS605/R/Add.1  
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  should have done in this respect . The claims are unfounded and wrong . The reports published 
clearly show that the CDC considered the existence of price suppression based on positive 
evidence and linked the price suppression to the increase in dumped imports.  
66. The CDC explained that it assessed price s uppression by considering the extent to which 
domestic prices provided for the recovery of the production cost increase . It found that 
domestic prices had not followed the increase in production costs, based on a comparison of 
average selling prices with a verage total production costs . This analysis showed that the 
domestic industry's cost of production as a percentage of the selling price was constantly 
increasing throughout the POI . The CDC also explained that the suppression of domestic prices 
and the de cline in profitability coincided with the significant increase in dumped imports from 
Costa Rica.  
67. The pressure in terms of cost of production that was being exerted on the domestic industry, 
which meant that prices increased less than could be expected , is linked to the rise in 
Costa  Rican imports . Costa Rica is therefore wrong to suggest that the CDC failed to take into 
account Costa  Rican imports in the price suppression analysis . In a "normal" situation, prices 
increase as much as, or more than, cost s. The opposite occurred precisely during the period 
when dumped imports increased . It is unclear what more Costa Rica was expecting the CDC 
to find.  
68. Costa Rica prefers to disregard the fact that the CDC has already found significant price 
undercutting  by these same dumped imports, which exerts obvious pressure on domestic 
prices . In summary, Costa Rica has failed to establish any prima facie  case that the CDC acted 
in violation of Articles 3.1 and 3.2.  
69. Lastly, Costa Rica offers an irrelevant argume nt as to how the domestic industry had sufficient 
margin to increase its prices : "there was a significant margin between the domestic industry's 
ex-factory price and its average total cost" . It suggests that this demonstrates that "the 
domestic industry wa s not prevented from increasing prices and that the price adjustment 
was not an effect of imports from Costa Rica".  
70. However, the facts show that the cost -price squeeze experienced by the domestic industry 
increased throughout the POI, which suggests th at the domestic industry was not in a position 
to increase prices so easily . This argument by Costa Rica is speculative and entirely irrelevant 
since the facts are what they are, and they show that prices were suppressed precisely when 
dumped imports massi vely increased at prices that undercut those of the domestic industry.  
71. In sum, contrary to Costa Rica's argument, the CDC correctly and objectively considered the 
significance of any price suppression, based on positive evidence.  
VI. COSTA RICA'S CLAIM  REGARDING THE FINDING OF INJURY UNDER ARTICLES 3.1 
AND 3.4 OF THE ANTI -DUMPING AGREEMENT  
72. With regard to the impact on the domestic industry, the CDC examined all the injury factors, 
including all those listed in Article 3.4 of the Anti -Dumping Agreement . It observed that the 
factors examined showed that the domestic industry's performance fluctuated throughout the 
POI. In 2016, some improvement was observed in all the factors, followed by generally 
negative trends in 2017 (when dumped imports fr om Costa Rica increased considerably), and 
a continuous decline in profits and cash flow in the most recent period . Although the CDC 
examined all the injury factors under Article 3.4 objectively and based on positive evidence, 
its final determination was, however, that of a mere threat of injury rather than material 
injury . This finding reflects the varied nature of the picture painted by the injury factors 
analysis . WTO panels and the Appellate Body have taken the view that the determination of a 
threat of  material injury must take into account events during the POI as well as assumptions 
about future events . In fact, several WTO panels have acknowledged that, having regard to 
Article 3.4, the factors "establish the basis" on which to assess whether there c ould be a threat 
of injury . It would therefore be appropriate to evaluate the current situation of the domestic 
industry in the POI in order to assess likely future developments, but it is not required for 
determining threat of injury . For example, the App ellate Body has observed that "current 
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  market conditions" . The Dominican Republic agrees with this statement, and that is why the 
CDC examined all these factors . However, to be clear, in the absence of a finding of material 
injury under Article  3.4, there is no basis for a finding of violation of that article . Any concern 
related to the examination of injury factors in a threat of injury situation is governed by A rticle 
3.7 of the Anti -Dumping Agreement, not Article 3.4.  
73. In any event, Costa Rica fails to explain why this factor analysis under Article 3.4 was biased.  
74. Costa Rica attempts to present the facts differently, by focusing on trends in the last 
four months of the POI, without explaining why the CDC's evaluation of trends throughout the 
POI (insofar as necessary) was biased . Costa Rica ignores the fact that, precisely because of 
certain positively trending factors, as was the case in the most recent p eriod, the CDC did not 
arrive at a finding of material injury . It is therefore untrue that the injury examination did not 
reflect the reality of the last four months . The CDC examined and acknowledged some positive 
developments, but also pointed out that o thers remained negative, contrary to what Costa 
Rica wrongly argues . Costa Rica's claim under Article 3.4 is unfounded.  
75. First, with respect to Costa Rica's argument that seven factors showed positive trends, the 
Dominican Republic points out that the factual basis for Costa Rica's claim is not what the CDC 
did, but rather Costa Rica's own attempt to represent the facts without explaining why this 
representation is more objective than that of the CDC, which was based on a dynamic analysis . 
Presentin g the facts differently by focusing on specific periods of the POI is insufficient to 
establish a prima facie  case of violation . The WTO dispute settlement mechanism is not an 
instance in which to "appeal" a national determination, and a disagreement over how the 
national authority interpreted the facts cannot constitute sufficient grounds for finding a 
violation of the Anti -Dumping Agreement.  
76. The Dominican Republic disagrees with Costa Rica's presentation of the facts, in which it 
outlines seven positive factors and conflates the POI as a whole with the most recent period . 
The crux of the matter is that Costa Rica fails to demonstrate that there was anything wrong 
with the CDC's examination or the evidence underlying the evaluation . Rather, Costa Rica 
simply chooses to present the data differently from the CDC . However, this is not a basis for 
finding a violation of Articles 3.1 and 3.4 . In fact, the CDC's examination was not at all biased 
and the data used were not unsuitable in any wa y. If a similar approach is taken and the 
trends for the entire POI are conflated with trends for only part of that period, it could likewise 
be concluded that up to 11  injury factors showed a negative trend . This demonstrates that 
data relating to injury trends can be presented in various ways depending on the part of the 
POI chosen . However, what is essential for this dispute is not what could be done, but what 
the CDC in fact did, whether it was impartial, and whether it carried out its work properly . 
However, this is not what Costa Rica did . In any event, the CDC evaluated the injury factors 
properly.  
77. Second, Costa Rica claims that the CDC mentions four negatively trending factors . However, 
Costa Rica cites a part of the Final Technical Report where these factors are listed as examples 
of negatively trending factors . The negatively trending factors referred to in Costa  Rica's 
argument are therefore just examples . Although they are examples of negatively trending 
factors at each point of the POI, this does not mean that the other factors were considered to 
show positive trends, as Costa  Rica appears to suggest by highlighting only recent 
developments in the last four months of the POI.  
78. Third, Costa Rica submits that the CDC failed to assess the role , relevance and relative weight 
of each factor, and that the CDC failed to show how it evaluated dissimilar trends in the 
different indicators . It is unclear what Costa Rica expected the CDC to do, or why what it did 
was not objective . Costa Rica disagrees  with the CDC's weighting of th e various injury factors, 
but does not point to any particular finding of material injury that was reached in a biased 
manner . What is clear, however, is that the CDC evaluated all the relevant injury factors and 
their respec tive trends during the POI . The CDC even highlighted certain negatively trending 
factors that were especially important because they coincided with a significant increase in 
dumped imports from Costa Rica.  WT/DS605/R/Add.1  
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  79. Fourth, Costa Rica contradicts the specific fi ndings of the CDC relating to four factors that it 
claims show negative trends (profits, cash flow, employment and market share), by arguing 
that the CDC failed to examine them objectively based on positive evidence.  
80. Regarding profits, Costa Rica does not cite any rule to support its assertion that profits are 
irrelevant when examining the state of the domestic industry, nor does it give any reason as 
to why it was obvious that this factor was particularly irrelevant to the industry in question.  
81. Furthermore, Costa Rica has failed to refer to any WTO panel or Appellate Body report that 
has disregarded this factor as irrelevant . Conversely, ample jurisprudence underscores the 
need to evaluate each and every factor listed in Article 3.4 . "Profits" are listed in Article 3.4 
as a factor to be evaluated . It defies economic common sense to argue, as Costa Rica does, 
that profits are not a good indicator of the state of the domestic industry . Moreover, contrary 
to Costa Rica's contention, there is a correlation between the negative trend in the domestic 
industry's profits and the decline in other factors, such as sales . Costa Rica also fails to explain 
why only coincidence with sales would be relevant to evaluating profits, which is among the 
15 factors listed in Article  3.4. It is more relevant that profits decreased in 2017 and in the 
most recent period, when the volume of dumped imports continued to increase.  
82. Costa Rica also submits that the CDC refers to a decrease in "profit margin" witho ut providing 
figures to support it, and alleges that this means that the CDC's conclusion is not based on 
positive evidence . It also claims that the CDC's conclusion is circular given the direct 
relationship between "profit margin" and profitability . Neither of Costa Rica's arguments are 
developed and both are unfounded . It is clear that, on reading the CDC's results in the context 
of the analysis as a whole, the reference to the "profit margin" is a cross -reference to the fall 
in the profit -cost ratio ment ioned previously in the Final Technical Report (paragraph 355), 
where the actual numbers are provided . That these two methods of examining the issue of 
profitability are closely linked does not mean that they are irrelevant . The complete opposite 
is true, and the CDC was acting in a very reasonable manner when it drew this link.  
83. Costa Rica further submits that the CDC does not "provide any basis" to show that the decline 
in profits is connected to the increase in dumped imports from Costa Rica . While it  is true that 
the CDC did not address this fact in the paragraph of the Final Technical Report cited by 
Costa  Rica, the CDC did consider it explicitly in related parts . The CDC also determined that 
the strongly negative trend in profits (both before and af ter tax) throughout the injury POI 
coincided with the decline in sales on the domestic market and the decrease in the domestic 
industry's profit margin owing to the entry into the country of Costa Rican imports at dumped 
prices . The CDC's statements thus r efute Costa Rica's argument that there was no basis for 
finding a link between the two.  
84. Costa Rica mentions its allegedly limited share of total imports and submits that its prices 
were increasing in the most recent period . In fact, the CDC found that the volume of dumped 
imports increased in 2017 and in the most recent period of 2018, that dumping continued, 
and that exports entered the country at prices that significantly undercut the sales of the 
domestic producer . In terms of coincidence in trends, it is difficult to see how the CDC's 
conclusion regarding the link in terms of evolution could have been biased or baseless.  
85. As for cash flow, Costa Rica does not refute the CDC's conclusion regarding the trend in this 
factor ( i.e. that it decreased th roughout the injury POI) . Costa Rica does, however, refute the 
CDC's statement that the negative cash flow is attributable to the fall in profits as a result of 
Costa  Rica's dumping practices . Nevertheless, the CDC explicitly determined a link between 
the decline in the domestic industry's profits and the significant increase in dumped imports 
from Costa  Rica. 
86. With regard to employment, Costa Rica submits that the trend is mixed or even stable, and 
not negative . It points out that total employment was s table, and claims that the CDC focuses 
on the number of workers and not on total employment . However, it is unclear what the factual 
basis of Costa Rica's argument is, and Costa Rica does not explain what legal obligation with 
respect to the undefined term  "employment" the CDC allegedly violated.  WT/DS605/R/Add.1  
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  87. The CDC's analysis of the "employment" factor was by no means incomplete or biased . The 
CDC presented the relevant data pertaining to direct labour, workers and employees during 
the POI and included the relevant trends . It later pointed out, in direct contradiction to 
Costa  Rica's argument concerning an alleged focus on the "number of workers", that the total 
number of workers and the total number of employees both increased in 2016, but fell in 2017 
and during the most recent period.  
88. Costa Rica also submits that, in the section on employment, the CDC was under an obligation 
to explain why the change in direct labour showed that the domestic industry was in a state 
of vulnerability rather than on a pat h towards greater efficiency . It is nonetheless unclear what 
the legal basis for this alleged obligation is and why what the CDC did was biased . The CDC 
was examining the injury factors listed in Article 3.4 and did not have to explain why it was 
doing so . Nevertheless, it studied the link between the total number of workers and output in 
relation to the productivity factor, and observed that productivity decreased in 2016 and 2017, 
but increased in the first four months of 2018, since the workforce had dec lined.  
89. The CDC's examination was therefore objective and contained reasoned conclusions based on 
the positive evidence available to it, and the injury analysis as a whole addressed the link 
between employment and output under the "productivity" section . 
90. Lastly, Costa Rica refers to the increase in employment in 2016 and submits that the CDC 
does not provide any basis for asserting that "the domestic industry has been forced to reduce 
its workforce owing to the entry of imports at dumped prices", as it claims that the CDC 
determined that employment had in fact increased in 2016 . This is a good example of the 
misleading and erroneous nature of Costa Rica's arguments.  
91. There is no doubt that the employment figures fell in 2017 and 2018, the years in which 
dumped imports from Costa Rica increased considerably . Costa Rica makes an irrelevant 
reference to 2016 in its argument . The CDC explained this relationship in other parts of the 
Final Technical Report . The correlation between the increase in dumped imports and the drop 
in employment figures was what led the CDC to conclude that the domestic industry had been 
forced to reduce its workforce owing to the entry of imports at dumped prices, in order to 
reduce its fixed costs and thereby lower its average cost. 
92. With respect to the argument concerning 2016, the CDC pointed out that dumped imports 
from Costa Rica began to arrive in November  2016. Therefore, the fact that dumped imports 
only entered the Dominican Republic in the last two months of 2016 can  explain the fact that 
employment figures for 2016 were less affected than those for the subsequent part of the POI.  
93. Furthermore, the fact that the domestic industry's employment figures were negatively 
affected throughout the POI is borne out by the f acts on the record with respect to direct 
labour, the number of workers, the total number of employees and total employment.  
94. As for market share, Costa Rica disagrees with the CDC's conclusion that the domestic 
industry's loss of market share was attri butable to imports from Costa Rica, asserting that it 
"is not based on an objective assessment or positive evidence" . This argument is again 
completely centred on the growth in imports from Costa Rica in the first four months of 2018, 
in relation to which Costa  Rica submits that its imports' share of apparent domestic 
consumption in the Dominican  Republic did not remain "unchanged" during the most recent 
period.  
95. This argument is unfounded and, once again, does not point to any violation of Article 3.4 o f 
the Anti -Dumping Agreement.  
96. First, the CDC's conclusion that the domestic industry's loss of market share was attributable 
to imports from Costa Rica was not based solely on the first four months of 2018, but took 
into account evidence from the POI a s a whole, which included 2017 . The coincidence in time 
between the dumped imports and the growth in market share supports this conclusion . Costa 
Rica's only response is to focus exclusively on the first four months of 2018.  WT/DS605/R/Add.1  
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  97. Second, the facts on the re cord clearly show that the domestic market share of imports 
from Costa Rica remained stable over the first four months of 2018 compared to the same 
period of  2017. Thus, Costa Rica's argument that the share of Costa Rican imports over the 
period January -April 2018 was lower than their share in 2017 is based on a comparison of 
different periods . It is based on a comparison of data for the entire year of 2017 with the first 
four months of 2018, whereas the CDC compared the first four -month period of 2017 with  the 
same period of 2018 . In the Dominican  Republic's view, comparing the same periods of 2017 
and 2018 gives a more accurate picture of the trend in imports from Costa  Rica. Based on the 
analysis of the comparable periods of 2017 and 2018, it is obvious t hat imports from Costa 
Rica retained the same share of the entire domestic market.  
98. Furthermore, it is perfectly reasonable for the CDC to highlight the link between the domestic 
industry's loss of market share and dumped imports, even if the dumped imp orts' market 
share did not increase in the last four months . The domestic industry lost market share in 
2017 when the share of Costa Rican imports increased and retained their share of a growing 
market over the first four months, as dumped imports continue d to increase and the domestic 
industry's share of the domestic market continued to fall . Costa Rica fails to show that there 
was anything not objective about this conclusion.  
99. Costa Rica's claim that the market share analysis was not based on "positive evidence" is 
similarly baseless and unsubstantiated . It provides no supporting arguments as to why data 
used by the CDC did not constitute "positive evidence" . It has not presented any arguments 
as to why the data were not prima facie  of an "affi rmative, objective and verifiable character" 
or why they were not prima facie  "credible" . The Dominican Republic therefore considers that 
Costa Rica's argument with respect to the CDC's consideration of market share and the impact 
of dumped imports from Co sta Rica must be dismissed.  
100. Costa Rica further argued against the analysis by claiming that the CDC failed to properly 
examine the link between dumped imports and the state of the domestic industry . However, 
Costa  Rica is clearly wrong to argue that t he CDC never provided a reasoned explanation 
regarding the link between dumped imports and the impact on the domestic industry . The 
CDC did so in considerable detail . Costa Rica may disagree and argue that it would have 
weighed certain factors differently,  but it cannot seriously deny that the CDC engaged in an 
evaluation that placed the injury factors within the context of dumped imports . The CDC 
examined the injury factors relevant to the domestic industry in the light of the significant 
increase in dumpe d imports from Costa Rica, and concluded that there was a strong 
coincidence in time between the negative performance of several factors and the significant 
increase in the volume of dumped imports.  
VII. COSTA RICA'S CLAIM REGARDING THE FINDING OF A CAUSAL RELATIONSHIP 
UNDER ARTICLES 3.1 AND 3.5 OF THE ANTI -DUMPING AGREEMENT  
101. With regard to the determination of a causal relationship, the CDC examined the causality 
between the dumped imports and the determination of the threat of material injury . It also 
examined any other factor that might have injured the domestic industry at the same time . 
The CDC established a correlation in time and concluded that there was a causal relationship 
between dumped imports and the trends in the injury factors concer ning the domestic 
industry, and that there was an imminent threat of injury.  
102. Costa Rica attempts to develop the argument that the CDC failed to establish any causal 
relationship and examined only non -attribution factors by referring to section D of th e final 
determination . However, its argument is purely formalistic and incorrect, since Costa Rica 
deliberately ignored the relevant section of the published report in which the issue of causation 
was addressed . In fact, section D of the final determinatio n is not the only relevant part of the 
CDC's examination and findings concerning the existence of a causal relationship . The CDC 
also presented the relevant analysis in sections 7 and 8 of the Final Technical Report, section 
9 of the Essential Facts Report , and section C of the final determination . An authority is under 
no obligation to present the facts and analysis under a heading of a published report in order 
to act in accordance with Article  3.5. It would also be incorrect, from a substantive point of 
view, to ignore the conclusions set out in reports other than the final determination, as they 
are intrinsically linked to the conclusions summarized in the final determination . The CDC 
conducted an assessment and determined that there  was a causal link between the increase WT/DS605/R/Add.1  
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  in dumped imports from Costa Rica and the decrease in injury factors from 2016, which 
continued throughout the POI . Certain factors showing a positive trend suggested that the 
industry was not suffering material inju ry at that time, but that there was a threat of injury . 
The correlation in time was clearly part of the CDC's analysis and confirmed the findings.  
103. There is no prescribed methodology in the Anti -Dumping Agreement for determining causality . 
WTO jurispru dence endorses the practice used by many investigating authorities of 
determining causality by examining whether there is a coincidence in trends ( i.e. a correlation) 
between the volume and price effects of dumped imports and injury -related developments in  
the domestic market, provided that any coincidence is supported by an adequate and 
reasonable explanation that demonstrates the causal link . The finding of a coincidence in 
trends between dumped imports and the injury factors is, therefore, an important 
consideration that supports the determination by an investigating authority of a genuine and 
substantial relationship of cause and effect between dumped imports and injury . If Costa Rica 
considers that more detailed conclusions should have been included in the final determination 
itself, it should have submitted a claim under Article 12.2 of the Anti -Dumping Agreement . It 
did not do so.  
104. In terms of non -attribution, the CDC examined other known factors that could have injured 
the domestic industry at the  same time as the dumped imports . It found that no factor of this 
type broke the causal relationship between dumped imports from Costa Rica and the threat 
of material injury to the domestic industry.  
105. Costa Rica focuses its non -attribution argument on the increase in imports from third  countries 
during the last four months of the POI . However, Costa Rica's focus on these last four months 
is erroneous . It does not acknowledge that the authority examined the POI as a whole, as was 
necessary, and provided a reasonable and reasoned explanation as to why this recent increase 
in imports from third countries did not break the causal relationship, especially as imports 
from Costa  Rica continued to rise even during this last four -month period . Costa Rica's 
affirm ation is therefore unfounded and is not focused on the CDC's actual conclusions.  
106. For example, with regard to the volume of imports from third countries, the CDC assessed the 
customs data and determined that relevant imports had come from various count ries, but in 
significantly lower volumes compared to imports from Costa Rica . Furthermore, the volume of 
imports from third countries as a whole decreased in 2016 and 2017, before increasing in the 
most recent period . The CDC pointed out that imports from third countries increased in this 
period alone, and that the domestic industry showed signs of positive growth precisely in this 
most recent period . This limited period of rising imports from third  countries was therefore 
not considered to have broken the causal relationship with dumped imports from Costa Rica.  
107. The CDC explained its finding in a reasonable and reasoned manner, and considered 
alternative explanations for the data . It is not enough for Costa Rica to argue that a different 
conclusion coul d have been reached by strictly focusing on the 2018 trends . It is well 
established that the panel's task is not to engage in a de novo  review, since it is not the 
tribunal of fact in anti -dumping disputes . Furthermore, Article 17.6 of the Anti -Dumping 
Agreement is very clear : an authority's determination must be upheld even though the panel 
might have reached a different conclusion, provided that the establishment of the facts was 
proper and the evaluation was unbiased and objective.  
108. In a s imilar vein, it was found that the domestic industry's export performance had not broken 
the causal relationship . It fluctuated throughout the injury POI, but was significantly higher in 
2018 compared to 2017 . Furthermore, when comparing the domestic indus try's export 
performance with certain key injury factors, the CDC found no correlation . The CDC therefore 
concluded that exports rose and fell, while export performance was positive and very positive 
during the dumping POI . It is unclear what Costa Rica de ems to be partial or biased in this 
description of the facts . This argument does not establish a prima facie  case of violation of 
Articles  3.1 and 3.5.  
109. Costa Rica also appears to argue that the CDC was required to conduct a separate injury 
analysis fo r export sales and for the domestic industry's sales on the domestic market . There 
is clearly no such requirement in Article 3.4 or 3.5.  WT/DS605/R/Add.1  
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  110. As for developments in technology, Costa Rica does not establish a prima facie  case of violation 
of Articles 3.1 a nd/or 3.5 . It does not present sufficient arguments to demonstrate the absence 
of an objective examination of "developments in technology" . The factors to which Costa  Rica 
refers and which were examined by the CDC are part of the ordinary course of busines s and 
not genuine structural differences in technology . With respect to Costa Rica's assertion about 
how ArcelorMittal had, unlike the domestic industry, updated its machinery, it is unclear what 
in the record forms the basis of this claim, since ArcelorMi ttal does not provide any such 
explanations in its communications to the CDC . The CDC determined that there were no 
genuine differences in technology between the domestic producer and the Costa Rican 
producer, thus considering and rejecting another possibl e "other factor" . In any event, Article 
3.5 does not require authorities to look for or examine, on their own initiative, the effects of 
all possible factors.  
VIII.  COSTA RICA'S CLAIM REGARDING THE THREAT OF INJURY FINDING UNDER 
ARTICLE  3.7 OF THE ANTI -DUMPING AGREEMENT  
111. The determination of threat of injury was based on an examination of the factors listed in 
Article 3.7 of the Anti -Dumping Agreement, as well as on the impact examination provided for 
under Article 3.4 . On the basis of this examinati on, the CDC determined, inter alia , that 
dumped imports from Costa Rica had increased significantly, at a high rate, during the POI ; 
that they accounted for around 30 % of total imports ; that they caused the significant 
undercutting of domestic prices ; that ArcelorMittal had significant excess production capacity ; 
that ArcelorMittal had more than enough capacity to meet a significant part of total demand 
in the Dominican Republic ; and that the Dominican Republic was Costa Rica's main export 
market for variou s reasons . Based on these intermediate findings, the CDC concluded that 
there was an imminent threat of injury from dumped imports originating in Costa Rica.  
112. Costa Rica submits that this conclusion of threat of injury does not hold, arguing essentiall y 
that imports from Costa Rica lost some market share over these last four months of the POI . 
This assertion is untenable . Even Costa Rica agrees that imports from Costa Rica continued to 
increase, including during this last four -month period . Costa Rica c annot refer to any improper 
determination of the facts by the CDC in relation to the factors in Article 3.7, all of which were 
examined at great length by the CDC . Costa Rica wrongly ignores a large part of the CDC's 
analysis that explained why an addition al increase in dumped imports was likely by focusing 
on Section 7.16 of the Final Technical Report while ignoring all the conclusions in Section 6 of 
the same report . Costa Rica disagrees with the CDC's prospective analysis, but fails to explain 
why this a nalysis - which is not strictly necessary under the Anti -Dumping 
Agreement - constitutes a violation . Nor does it deny that ArcelorMittal had significant 
production and export capacity, that ArcelorMittal had an export -oriented strategy and that 
the Dominican Republic was ArcelorMittal's largest export market in recent years.  
113. Costa Rica's argument concerning the importance of other import sources does not address 
the issue at hand . As regards the effect on prices, Costa Rica simply repeats its fl awed 
arguments developed under Article 3.2 . Lastly, as regards inventories, Costa Rica does not 
disagree with the CDC's factual conclusions regarding the level of inventories . In fact, it 
confirms that it agrees with the CDC that this was not an important factor in this industry . In 
sum, Costa Rica's claim that Article  3.7 has been violated is unfounded.  
VIII.1.  Significant rate of increase of dumped imports and likelihood of 
substantially increased imports  
114. Costa Rica overlooks the fact that the CDC's actual analysis of this Article 3.7 factor is based 
on an analysis of volumes of dumped imports from Costa Rica during the POI . The situation 
during the POI is obviously relevant as a basis for drawing inferences about future events . 
Costa Rica's deliberat e choice to ignore the relevant factual conclusions reveals the weakness 
of its argument.  
115. The CDC's analysis of the data from the POI shows that dumped imports from Costa Rica 
increased significantly in 2016, followed by another significant increase i n 2017 . This upward 
trend in imports continued during the most recent period.  WT/DS605/R/Add.1  
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  116. As regards the volume of imports relative to consumption in the Dominican Republic, the CDC 
determined that imports from Costa Rica had a 0% market share in 2015 (there bein g no 
imports), but this share increased to 3 % in 2016 (only two months of imports) and to 10 % in 
2017, and remained at 6 % in the most recent period, as in the first four months of 2017 . The 
market share of dumped imports from Costa Rica was approximately 5 0% higher at the end 
of the injury POI than in 2016 . In addition, the CDC noted that the full -year data for 2018, 
when compared to the full -year data for 2017, also showed that imports from Costa Rica had 
continued to increase - in this case by 13.1 %. Data were also submitted by the applicant 
indicating that imports from Costa Rica had continued to increase considerably in the first 
quarter of 2019.  
117. While the CDC has been careful to note that the data for the year 2018 in full and the 
first quarter of 2019 fell outside the POI, the fact that it does not ignore data that is relevant 
for assessing the likely future increase in dumped imports reveals the exhaustive and objective 
nature of its analysis . The CDC conclusively showed that these dumped imports continued to 
increase at a significant pace and to flow into the Dominican Republic in significant volumes . 
In addition, the CDC concluded that imports from Costa Rica were the main source of total 
imports . The only third  countries supplying import s throughout the dumping POI were Japan, 
the United States and Chinese  Taipei, but their volumes were significantly lower compared to 
imports from Costa Rica . Furthermore, the fact that Costa  Rica's prices were higher than those 
of other exporters in almos t all the periods of the POI, including in 2017, and that Costa Rica's 
exports continued to increase, indicates that there was no competition from third countries . 
Moreover, the CDC went beyond the call of duty and developed a new analytical method to 
assess the likelihood of future import volumes in the context of its injury analysis.  
VIII.2.  Sufficient freely disposable capacity in Costa Rica  
118. First, it is important to note that Costa Rica does not object to the CDC's conclusion that the 
data show tha t there was freely disposable capacity in Costa Rica . These CDC conclusions 
have not been challenged and are the essence of what Article 3.7(ii) requires the authorities 
to examine . Rather, its main argument is that the analysis was, in its view, insuffici ent to 
demonstrate that this capacity could be used for exports to the Dominican Republic . Therefore, 
the question is whether there was "sufficient" information to support the likelihood that 
additional production could be exported to the Dominican Republi c. 
119. In this regard, the CDC determined that ArcelorMittal had developed a strategy for 
exporting  its products to international markets, which included exportation at dumped prices 
to the  Dominican Republic.  
120. Costa Rica takes the view that this finding was not based on an objective examination and 
positive evidence, as required by Article 3.1 of the Anti -Dumping Agreement . As noted, Costa 
Rica did not present, in its request for the establishment of a panel, any claim under Article 
3.1 regarding the CDC's threat of injury determination . It is therefore not within the Panel's 
terms of reference.  
121. In any event, Costa Rica's argument is without merit . It merely asserts that there was no 
evidence to support the CDC's conclusion regarding the fact that ArcelorMittal's export 
strategy proves that the company was likely to continue exporting to the Dominican  Republic . 
Costa Rica's entire argument is reduced to one short paragraph, covering two sentences, in 
which it makes baseless assertions that are not supported by any evidence . These assertions 
alone do not constitute a prima facie  case of violation by the CDC.  
122. With regard to the positive evidence confirming ArcelorMittal's contractual obligations to 
continue supplying large volumes to the Domi nican Republic, Costa Rica suggests that it "does 
not allow for a clear determination as to whether sales to the Dominican market of the product 
under investigation would indeed increase" . Article 3.7 does not require a clear determination 
that exports will occur in the future . It requires an investigating authority to examine whether 
these exports are likely to occur . In addition, Article 3.7 recognizes that the investigating 
authority has some discretion to draw reasonable inferences from the f acts before it.  WT/DS605/R/Add.1  
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  123. Costa Rica submits that the CDC failed to explain why other markets could not absorb 
additional ArcelorMittal exports . Nevertheless, Costa Rica appears to choose to ignore the 
CDC's relevant analysis in the report . The CDC examined whe ther there were export markets 
other than the Dominican Republic that could absorb any additional exports from Costa Rica, 
if the large freely disposable production capacity were used.  
124. None of Costa Rica's other arguments address the question of relev ance under Article  3.7(ii), 
which refers to freely disposable capacity and the likelihood of substantially increased imports 
into the Dominican Republic.  
125. Furthermore, contrary to Costa Rica's assertions, it is not true that the CDC "ignored" imports 
from third countries in its analysis . That said, Costa Rica fails to explain why these imports 
from third countries are particularly relevant in the context of the second factor in Article 3.7 
or what exactly the CDC has done that would amount to a violatio n of that provision.  
VIII.3.  Likely price effects  
126. Costa Rica submits that the CDC's analysis of the likely price effects of future imports from 
Costa Rica violated Article 3.7, without explaining what this violation involved . Its argument 
consists of a series of baseless assertions, without establishing a prima facie  case of violation . 
What Costa  Rica seeks to argue is not very clear, as the Dominican Republic has demonstrated 
by contradicting each of these assertions with facts.  
127. In terms of the l ikely price effects of dumped imports, the significant degree of price 
undercutting and the undisputed increase in the cost -price ratio support the conclusion of 
threat of injury . The analysis was obviously based on POI data and the market conditions that 
existed during the POI . This is what an authority is required to do in order to ensure that its 
analysis is based on facts and not on conjecture or speculation . This is fully consistent with 
the text of Article  3.7(iii), which also focuses on current price s. Furthermore, the CDC 
supplemented the price effect considerations with a quantitative analysis of the possible future 
volume and price effects of imports from Costa Rica.  
VIII.4.  Inventories  
128. Fourth, inventories are a factor that an authority is req uired to examine under Article  3.7(iv), 
although, depending on how an industry operates, they are not always a very important factor . 
The CDC determined that the inventory level accounted for around 5 -10% of total production 
at the end of each calendar year, and that in 2018 this level was higher, reaching 17 %. 
Inventory levels had also increased throughout the POI, and Costa Rica confirms that this 
inventory level represented "5.8 % of the Dominican Republ ic's total annual imports in 2017" . 
While this factor is not so important in this industry, as acknowledged by the CDC, it certainly 
supported the overall conclusion of threat of injury.  
129. In sum, as explained by the CDC, its threat conclusion was based  on an examination of the 
factors listed in Article 3.7 of the Anti -Dumping Agreement, as well as on the impact 
examination provided for under Article 3.4 . The four factors in Article 3.7 all pointed in the 
same direction and supported a reasonable conclus ion of threat of injury.  
130. Costa Rica cannot deny that dumped imports from Costa Rica continued to increase 
significantly, including during the most recent period of the POI, and that this is, according to 
the text of Article 3.7 and footnote 10, a key factor in the determination of threat of injury.  
IX. COSTA RICA'S CLAIM REGARDING THE ASSESSMENT OF THE EVIDENCE PROVIDED 
IN THE INVESTIGATION APPLICATION UNDER ARTICLE 5.3 OF THE ANTI -DUMPING 
AGREEMENT AND THE REQUIREMENT TO TERMINATE THE INVESTIGATION UN DER 
ARTICLE 5.8  
131. The investigation was initiated on the basis of an application that provided sufficient 
information on dumping, injury and a causal link in relation to imports from Costa Rica . Before 
initiating the investigation, the CDC fully examine d the application . On the basis of this review, 
the CDC made a number of requests to the applicant for additional information . The CDC WT/DS605/R/Add.1  
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  sought to confirm the accuracy and adequacy of this information and confirmed that the 
invoices corresponded to the estab lished distributors of ArcelorMittal products in Costa Rica . 
In addition, the CDC used price information from the website of the distributor Construplaza 
to examine the normal value as close as possible to the initiation of the investigation and 
compared i t to the official information on export prices for the same period to confirm the 
evidence submitted by the applicant.  
132. Following such an active investigation, and after noting the inevitable difference in terms of 
the quality and quantity of the evide nce at the time of initiation when compared with 
subsequent preliminary and final determinations, the CDC determined that there was sufficient 
evidence to justify initiation . It found that the application was supported by actual invoices 
from reliable sour ces, meaning that these invoices could be given appropriate weight.  
133. Costa Rica asserts that the CDC failed to properly examine the accuracy and adequacy of the 
evidence provided in the application to determine whether there was sufficient evidence of 
dumping to justify the initiation of an investigation . It focuses, in particular, on the fact that 
the applicant only provided four Costa Rican domestic market sales invoices to establish the 
normal value.  
134. These invoices nevertheless constituted relev ant evidence, as Costa Rica does not disagree 
with their accuracy or reliability . Nor is there any calling into question of the fact that the CDC 
did not remain impassive in the light of the information in the application, but actively 
examined the accurac y and adequacy of the information provided and sought to obtain 
additional information . Therefore, the CDC did not simply accept the information submitted 
by the applicant, but took a critical and investigative approach to ensure that the available 
evidenc e was sufficient to initiate the investigation . In reality, it is quite noteworthy that actual 
sales invoices have been obtained and included . The actual invoices for domestic sales made 
during a relevant period for the product under consideration are the best source of information 
for establishing the normal value . As confirmed by the panel in Morocco  - Definitive AD 
Measures on Exercise Books (Tunisia) , "invoices for sales of the product concerned during the 
relevant period normally have a high probative value" . Often, applicants provide sufficient 
information to establish the normal value by constructing the domestic price based on an 
accumulation of costs and profits or use price ranges for a group of products based on 
consultancy d ata or trade publications . Such evidence is clearly of lower quality than the actual 
invoices submitted by the applicant . The relevant jurisprudence also recognizes that applicants 
do not normally have at their disposal multiple invoices for a large sample  of transactions and 
models of the product concerned over the period covered by the complaint . In this case, there 
were four invoices of this type from two distributors other than ArcelorMittal from slightly 
different time periods . It is important to note that the CDC did not limit itself to these invoices, 
but examined additional evidence to assess whether there was sufficient evidence of dumping.  
135. It is not clear what more the CDC could have done prior to initiation, especially in view of it 
being an authority in a developing country . The Anti -Dumping Agreement clearly does not 
impose any specific obligation on investigating authorities as to type of evidence . In this 
investigation, there were sufficient indications of a possible dumping situation invo lving 
imports from Costa Rica . Therefore, Costa Rica's claim that Article 5.3 has been violated should 
be rejected, as should its entirely consequential and undeveloped claim under Article  5.8 of 
the Anti -Dumping Agreement.  
136. It remains undisputed that the decision to initiate was not based on mere conjecture or 
allegation, but was supported by relevant evidence of dumping that caused injury . The only 
question raised in Costa Rica's claim is whether that information was "sufficient" to justify 
initiation . This is important, as initiation requires only evidence that constitutes more than 
mere allegations or assumptions . As such, the evidence submitted by the applicant was prima 
facie adequate to initiate the investigation . Nor does Costa Rica disagree with  the accuracy or 
reliability of the invoices as such . It does not deny that they refer to products produced by 
ArcelorMittal that were covered by the underlying investigation . Therefore, the prima facie  
conclusion is that there was relevant evidence to justify initiation and it was not mere 
conjecture.  WT/DS605/R/Add.1  
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  137. Second, it is further undisputed that the CDC did not adopt a passive position, but actively 
examined the accuracy and adequacy of the evidence provi ded and sought to obtain additional 
evidence, acting as a reasonable and impartial authority.  
138. Third, none of the reasons put forward by Costa Rica to argue against the reliability of the 
four invoices are valid . Costa Rica submits that the invoices were not representative in terms 
of their time coverage or types of product . However, it is not at all necessary for the evidence 
to cover the entire time period and all product types, provided that it covers some . This was 
the case with these fou r invoices . Costa Rica does not at all demonstrate why, in the 
circumstances of this case, the invoices relating to the months of June and July were obviously 
unrepresentative, despite clearly forming part of the POI and covering the exact type of 
product under consideration . Nor does Costa  Rica demonstrate that the fact that the invoices 
related to grade 40 instead of grade 60 has had a significant impact on the relevance or 
representativeness of these invoices for the product under investigation . The prod uct under 
investigation was not defined according to qualities, but according to HS  codes and certain 
product characteristics other than qualities . There is no evidence on the record to show that 
this difference in grade had an impact on prices . The export er in the investigation, as well as 
Costa Rica in this dispute, develop theoretical arguments about what might have been more 
exemplary evidence at the time of initiation, but never actually provided contrary evidence to 
demonstrate that the evidence relie d upon by the CDC was not sufficiently reliable and 
accurate to justify the initiation of the investigation.  
139. Lastly, Costa Rica argues that the CDC should have rejected the application and terminated 
the investigation due to having insufficient inform ation on the existence of dumping, in 
accordance with Article 5.8 of the Anti -Dumping Agreement . However, the text of Article 5.8 
does not support Costa Rica's purely consequential argument . Costa Rica does not respond to 
our argument, supported by establi shed jurisprudence, that Article 5.8 is not merely 
consequential to Article 5.3 . What follows from the text of Article 5.8 is that this only applies 
once the authority finds that there is not sufficient evidence to justify initiation . The CDC did 
not make any such determination . 
X. COSTA RICA'S CLAIM UNDER ARTICLE 6.1.3 OF THE ANTI -DUMPING AGREEMENT IS 
NOT SUPPORTED BY THE FACTS  
140. The CDC complied with Article 6.1.3 of the Anti -Dumping Agreement by providing the 
non-confidential version of the application to ArcelorMittal immediately after initiating the 
investigation . ArcelorMittal acknowledged receipt of the relevant application and made 
comments based thereon . Its rights of defence were therefore safeguarded by the CDC in the 
investigation.  
141. Costa Rica erroneously focuses on the fact that the application - which was immediately shared 
with ArcelorMittal - was not the full version with the most recent updates in the annexes, but 
a non -confidential version of the actual application as origin ally submitted . However, nothing 
in Article  6.1.3 specifies that all annexes and updates must be provided immediately . 
Reference is made only to the "full text of the ... application" . The non -confidential version of 
the "text" of the application ("applica tion for initiation") was provided upon the initiation of 
the investigation . In addition, the CDC subsequently provided non -confidential information in 
the annexes when requested, and allowed ArcelorMittal enough time to comment thereon, so 
that its rights  of defence were safeguarded.  
X.1. The CDC provided the application to the exporting company as soon as it 
initiated the investigation  
142. Contrary to what Costa Rica maintains, the CDC provided the text of the application for 
initiation on the same day a s it initiated the investigation process . Therefore, Costa Rica's 
argument is factually incorrect . As indicated in Resolution CRC -RD-AD-001-2018 of 
30 July 2018 and the Final Technical Report, the CDC shared with the exporting company the 
non-confidential version of the written application for initiation on 3 0 July 2018. The 
application was transmitted to the exporting company immediately . WT/DS605/R/Add.1  
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  143. Article 6.1.3 requires only that the "full text of the ... application" be provided, but does not 
require that annexes containing specific information in support of the application be shared 
with the exporter . The fact that Article 6.1.3 does not refer only to the full "application", but 
to the "full text" of the application, intentionally limits the obli gation to the "text" of the 
application and not to all the information that may have been provided in an annex or other 
forms relating to the application . It was therefore entirely reasonable for the CDC to consider 
that the application for initiation shou ld be shared with the exporter, but not the initiation 
form.  
X.2. The CDC provided the full version of the application  
144. Costa Rica argues that the CDC did not provide the full text of the application to the exporting 
company.  
145. On 29 May 2018, the a pplicant submitted the required revised public version of the application 
form for the initiation of an investigation, as well as the written application for initiation, in 
response to a request made by the CDC on 2 4 May 2018. On 4 June 2018, the CDC reque sted 
additional information that was required to properly consider the application . This was 
submitted by the applicant on 1 1 June 2018. However, this additional information did not form 
part of the "full text of the ... application", but consisted of info rmation that enabled the CDC 
to examine the accuracy and adequacy of the information contained in the application filed on 
29 May 2018, the non -confidential version of which was made available to the known exporter 
immediately after initiating the investig ation on 3 0 July and, again, with its annexed 
questionnaire on 2 2 November  2018. No changes have ever been made to the full text of the 
application for initiation that was provided to the known exporter and, therefore, there was 
nothing more to provide.  
146. Regarding the power of the CDC plenary to reserve the right to decide on the confidentiality 
of the information submitted by the applicant, we recall that the obligation to provide the text 
of the written application is conditioned by the inv estigating authorities' obligation to protect 
confidential information . Therefore, an application that includes confidential information, as 
defined in Article 6.5 of the Anti -Dumping Agreement, cannot be "provided" or "made 
available" to other interested parties.  
X.3. The application for the initiation of an investigation was commented on 
by the exporting company on 3 0 October  2018 
147. The most conclusive evidence that Costa Rica's arguments concerning Article 6.1.3 of the 
Anti-Dumping Agreement are falla cious and that the full text of the application was submitted 
to the exporting company before 2 2 November  2018, is the fact that on 3 0 October  2018, the 
exporting company was able to submit detailed comments on the application to the CDC, in 
proper exercis e of its rights of defence, as an annex to the anti -dumping questionnaire for 
exporters of 30  October  2018, in which it shared at length its comments on the application.  
XI. COSTA RICA'S CLAIM UNDER ARTICLE 6.4 OF THE ANTI -DUMPING AGREEMENT  
148. Costa Rica disagrees with the verification report relating to the verification visit to the DI, 
arguing that none of the documents mentioned in this verification report were made available 
to the Costa Rican exporter . Costa Rica's assertion runs counter to the t ext of Article 6.4, 
which does not require that all documents collected at the time of verification be made 
available to other interested parties . It does not impose an active disclosure obligation and 
does not require the disclosure of confidential inform ation. It is important to recall (1)  that 
the exporter never asked to be given an opportunity to see these documents and (2) that, in 
any case, they were of a confidential nature . Given that Article 6.4 does not impose an active 
disclosure obligation or re quire the disclosure of confidential information, there was no basis 
for Costa Rica's complaint.  
149.  In fact, Article 6.7, which relates directly to the verification report, indicates otherwise, since 
it requires the authority to make the verification re port available to the interested party and 
only permits the authority to provide it to other interested parties . In the absence of any 
obligation to share the report, it is not clear what legal obligation the CDC has violated.  WT/DS605/R/Add.1  
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  150. In addition, the CDC sha red the DI verification record with ArcelorMittal, providing detailed 
information summarizing what had happened, what information was verified and which 
supporting documents were obtained during verification . Only certain confidential information 
supportin g the information contained in the questionnaire response was not shared . The CDC 
was under no obligation to disclose the confidential information, which, in any case, was not 
information on which the CDC relied, since it simply enabled the CDC to verify t he information 
provided by the DI, which had been shared on a non -confidential basis with the exporter . 
Costa Rica's claim that Article 6.4 has been violated is without merit.  
151. The text of the Anti -Dumping Agreement contradicts the argument that the ve rification results 
should be shared with a party other than the verified company . Article 6.7 expressly provides 
that there is no such obligation . Article 6.7 refers to the authorities' verification of the 
information provided by investigated companies . When the authorities conduct on -the-spot 
verifications of investigated companies, they are required to disclose the "results of any such 
investigations" to the investigated companies . However, even in this case, there is no 
obligation to communicate these ve rification results to any other party . Moreover, Article 6.7 
expressly provides that such disclosure may take place, in accordance with Article 6.9, in the 
context of the disclosure of the essential facts . Consequently, Costa  Rica's argument that the 
results of the CDC's verification should have been provided to ArcelorMittal in the form of 
"findings" after the verification visit has no legal basis.  
152. Second, the documents received, as well as the CDC's conclusions relating to those 
documents, fall withi n the definition of confidential information in Article 6.5 and are therefore 
not required to be disclosed . Costa Rica claims that the information received for verification 
during the verification visits was never "declared confidential" . This argument has  no legal 
basis. Article 6.4 requires the authorities to provide opportunities for interested parties to see 
information that "is not confidential as defined in paragraph 5" . Article 6.5, in turn, defines 
confidential information as (a) information which is by nature confidential ; and (b) information 
which is provided on a confidential basis . Therefore, there is no legal basis for a claim that the 
information must be "declared confidential" by an investigating authority so as not to f all 
within the scope of Article 6.4.  
153. It is important to note that ArcelorMittal was well aware of the documents collected during the 
verification, as it was given an opportunity to review the verification record detailing what 
happened during the veri fication of the domestic producer . Moreover, this information was by 
nature confidential and its disclosure "would be of significant competitive advantage to a 
competitor" or "would have a significantly adverse effect upon a person supplying the 
informatio n or upon a person from whom that person acquired the information" . Furthermore, 
the final paragraph of the verification record clearly states that the domestic producer 
requested that these documents be treated as confidential . This request was accepted, as the 
final determination reflects that they were included in the confidential record . It is not 
necessary to declare such documents confidential, provided that they meet the definition in 
Article 6.5 . ArcelorMittal never refuted the confidential treatmen t given to that information.  
154. Third, Costa Rica cites two paragraphs of the CDC's Final Technical Report that allegedly 
illustrate that the "information" collected during the verification visit was "used" by the CDC . 
However, these two excerpts describe only the purpose of the verification and what happened 
during this visit . Accordingly, Costa Rica has failed to prove that the alleged "information" 
complies with the legal standard of being "used" by the investigating authorities within the 
meani ng of Article 6.4.  
155. Fourth, there is no evidence on the record to suggest that the interested party requested an 
opportunity to see the alleged "information" and that this request was denied . This is 
important in this case because ArcelorMittal knew ex actly what had happened during the 
verification at the premises of the domestic producer and what documents had been collected, 
since it was given an opportunity to see the verification record . Therefore, this was not a 
situation in which an interested par ty was in the dark about the information it could have and 
should have had an opportunity to see . Article 6.4 requires the authorities to provide "timely 
opportunities ... to see" information, which is different, as claimed by Costa  Rica, from the 
requirem ent to "provide [information] to the exporting company" . Past dispute settlement 
practice has clarified that Article 6.4 does not impose an obligation to "actively disclose" 
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  from Article 6.9, which contains an obligation to actively disclose "essential facts" . In the 
present case, there is no evidence to suggest that the interested party, despite its obvious 
knowledge of the documents gathered, had requested an opportunity to see the alleged 
information and was denied this opportunity . If the interested party considered the alleged 
information to be "relevant to the presentation of [its] cases", it could have requested and 
should have requested an opportunity to see that information . It did not do so.  
156. Costa Rica argues that it is not true that Article 6.4 is applicable only when the interested 
party has requested to see the information . In this regard, Costa Rica considers that there is 
no basis for requiring  a request to see information before a claim of violation of Article 6.4 can 
be made . Costa Rica's argument is beside the point . The Dominican Republic's argument is 
that Article 6.4 does not impose an active disclosure obligation . This means that the burden 
falls on Costa Rica to demonstrate that the authorities did not provide opportunities to see the 
information in question . In this situation, the exporter cannot be faulted for not having 
requested information from the authorities that may be relevan t to its case, since the 
authorities rely on it . The Costa  Rican exporter knew exactly what had happened during the 
verification given that the verification record was part of the public record . Thus, it knew about 
the preparation of a "verification report " and also knew exactly what additional evidence was 
collected during the verification.  
157. In any event, the documents collected at the time of the verification at the premises of the 
domestic producer are not "information" within the meaning of Article 6.4, but rather 
constitute documentary evidence supporting the information already provided in the 
questionnaire response . Since the actual information contained in the questionnaire response, 
insofar as it was not confidential, had already been made avail able to the exporter, giving it 
the opportunity to comment on that information and to make presentations in that respect, 
there was no additional obligation for the CDC to also provide an opportunity to see additional 
documentary evidence related to such i nformation.  
158. Costa Rica also argues that the fact that Article 6.4 refers to "all information that is relevant" 
means that Article 6.7 does not limit its scope and that it should be understood to have a 
"broad coverage" limited only by the limitations expressly indicated in the Article . Costa Rica 
points out that Article 6.4 does not contain any cross -reference to Article 6.7.  
159. This may be correct, but an appropriate approach to interpretation requires the interpreter to 
take into account the contex t of a provision . This is all the more true when reference is made 
to a general provision such as Article 6.4, which refers to "information" in general, while Article 
6.7 applies specifically to verification and establishes what type of disclosure is requi red for 
verification results . The principle of lex specialis  applies in this context and requires that the 
interpreter give priority to the specific provision that deals with verification results, which 
constitute the matter at issue . However, Costa Rica d id not include any claims under Article 
6.7 concerning the results of the verification visit to the domestic producer . This is 
understandable because Article 6.7 clearly does not impose any obligation to actively disclose 
verification results to any party other than the verified party . Thus, it is clear that the CDC did 
not violate the specific Anti -Dumping Agreement provision concerning verification results by 
not actively disclosing to the exporter the information (confidential) gathered during the 
verification of the domestic producer . This necessarily means that there can be no violation of 
the more general provision on access to information in Article 6.4.  
XII. COSTA RICA'S CLAIM UNDER ARTICLE 6.5 OF THE ANTI -DUMPING AGREEMENT  
160. The CDC objectively considered whether "good cause" had been shown for the information 
that had been treated as confidential pursuant to Article 6.5.  
161. Costa Rica considers that a "reasoned and developed explanation" of each case of confidential 
treatment was r equired, while there is clearly no legal basis in the text of the Anti -Dumping 
Agreement for such an obligation . It is sufficient to be able to infer from the record that 
consideration had been given to whether good cause had been shown . This is clearly th e case 
here, as a number of interim resolutions addressed the question of why confidential treatment 
was justified for certain information, but also because of the fact that certain requests for 
confidential treatment were rejected . Costa Rica does not eve n attempt to demonstrate that WT/DS605/R/Add.1  
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  some of the information treated as confidential did not warrant such protection, and therefore 
its argument concerning Article 6.5 should be rejected.  
162. The CDC analysed the various pieces of information submitted by the ap plicant, and checked 
both domestic regulations and WTO rules in this respect to assess whether it was appropriate 
to grant confidential treatment to the documentation submitted by that company, which it did 
on 29  October  2019. The confidentiality rulings w ere shared with the parties to the 
investigation at the time they were issued, and ArcelorMittal therefore had the right to request 
the CDC to review any information that had been considered confidential and that ArcelorMittal 
considered not applicable in the light of Article 6.5 of the Agreement . This confidential 
treatment was granted because, as explained by the CDC itself, the CDC conducted an analysis 
as to whether the applicant had shown good cause when requesting confidential treatment . 
The existence  of this analysis was reflected in the text of Resolutions 
No. CDC-RD-AD-003-2018 and No. CDC-RD-AD-005-2019. As such, respect for the criteria 
imposed by Article 6.5 of the Anti -Dumping Agreement was undoubtedly the CDC's greatest 
concern when analysing t he applicant's requests for confidential treatment to be granted to 
certain information that it was supplying to the CDC.  
163. We note that Costa Rica does not at all address the specific type of information 
that was granted confidential treatment in the t wo Resolutions No. CDC-RD-AD-003-2018 and 
No. CDC-RD-AD-005-2019. Nor does it explain why the information in these Resolutions was 
such that it did not clearly merit protection, in accordance with what is established in domestic 
law. It therefore fails to establish a prima facie  case. 
164. The investigating authorities must treat information as confidential if it is "by nature" 
confidential or if it was provided "on a confidential basis" and upon "good cause shown" . All 
the information declared confidential would have afforded a significant advantage to a 
competitor, and would have had an adverse effect upon the person supplying the information, 
i.e. the applicant . The information concerned was, in particular, commercially sensitive 
information not typically disclosed in the normal course of business, which would normally be 
treated as confidential in anti -dumping investigations . As such, the classification of this 
information as confidential is fully justified.  
165. Costa Rica fails to d emonstrate that any of the information given confidential status is 
inconsistent with any of the legal criteria . It focuses entirely on the alleged lack of "good 
cause" in the two Resolutions . However, first, the record contains many indications that the 
CDC examined the need for the confidential protection requested by the domestic producer 
and provided an explanation as to why such information met the legal criteria . The CDC clearly 
assessed whether cause had been shown.  
166. Second, the argument really m ade by Costa Rica is that more than one explanation was 
required from the CDC in the form of a "reasoned explanation" . Costa Rica never elaborated 
upon this point and does not indicate what exactly it expects an authority to do with respect 
to each request  for confidential treatment . In any event, Article 6.5 does not require any 
particular detail in the presentation of the reasoning in support of its decision to consider 
information as confidential . The Article imposes a substantive obligation not to treat  as 
confidential information that does not merit such treatment . While some indication is required 
of the fact that this assessment was conducted, there is no obligation to provide specific details 
in the Article 6.5 explanation.  
167. Instead of recognizin g that it should simply be able to infer from the published report or the 
related supporting documents that the authority conducted an objective assessment as to 
whether "good cause" was shown, Costa Rica claims that a "reasoned explanation" is 
necessary a s for a determination of dumping, injury or causation . This would be a very 
different and much stricter criterion than that which was described in the jurisprudence . As 
such, Costa Rica's argument is not acceptable.  
168. Moreover, in Resolutions CDC -RD-AD-003-2018 and CDC -RD-AD-005-2019, the CDC fully 
complied with the standard articulated by the Appellate Body by setting out the criteria 
according to which it would assess whether good cause had been shown (by citing Article  6.5 
of the Anti -Dumping Agreement and the various articles of the Implementing Regulations for WT/DS605/R/Add.1  
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  Law No. 1-02) and by explaining that it had analysed whether it was appropriate to grant 
confidential treatment to the information supplied by the applicant.  
169. Costa Rica att empts to shift its burden of proof as the complainant in this case to the 
Dominican Republic . The burden of proof for establishing a prima facie  violation clearly rests 
upon the complaining party . Costa Rica claims that the CDC did not examine whether good  
cause had been shown . Therefore, it falls to Costa Rica to provide evidence in support of this 
claim . It is not for the Dominican Republic to demonstrate compliance with the Agreement . In 
fact, the Dominican  Republic is considered to have acted in conform ity with the Agreement 
until proven otherwise.  
XIII.  COSTA RICA'S CLAIM UNDER ARTICLE 6.7 AND ANNEX I OF THE ANTI -DUMPING 
AGREEMENT  
170. Although not strictly required by the Anti -Dumping Agreement, the CDC properly notified 
ArcelorMittal of the scope and general dates of the visits prior to the on -the-spot verifications, 
and complied with Article 6.7 and Annex I of the Anti -Dumping Agreement.  
171. Costa Rica includes a strange argument that bears no relation to the issue of verification and 
is therefore irrelevant . It seeks to blame the CDC for not having notified, prior to verification, 
that ArcelorMittal was to provide data on sales in the domestic market from before the start 
of the POI for the purpose of evaluating ArcelorMittal's argument t hat certain export sales 
should be excluded . This has nothing to do with verification . Verification has to do with 
documentary support for the information already provided . If ArcelorMittal did not provide 
information on domestic sales in November  2016 or April 2017, there was nothing to verify . 
The burden of providing evidence to support its claim lies with ArcelorMittal.  
172. It is clear that there is no legal obligation under Article 6.7, Annex I or any other provision of 
the Anti -Dumping Agreement, for investigating authorities to "[advise] the company … prior 
to the visit" of "the general nature of the information [they seek] to verify and of any further 
information the company [needs] to provide" . Costa Rica has not established that such a 
requirement is mandatory under the Anti -Dumping Agreement . In fact, as noted, paragraph 
7 of Annex I merely recommends that investigating authorities should "[consider it] standard 
practice" to advise the parties concerned of the general nature of the information to b e 
verified . This is exactly what the CDC did.  
173. Costa Rica questions the fact that two export sales that clearly entered the Dominican  Republic 
during the POI and that ArcelorMittal itself included in its questionnaire response as relevant 
export sales made during the POI should not be included in the examination of dumping . 
However, its presentation of the facts is completely distorted, in addition to being legally 
irrelevant.  
174. Costa Rica suggests that the CDC blamed the exporting company for not pr oviding that 
information, despite the CDC not having specified that the exporting company needed to 
supply it . However, this is not what the CDC did . The CDC never said that ArcelorMittal had to 
provide evidence during the verifications and that this evide nce was required or requested to 
verify the questionnaire response . The CDC noted that ArcelorMittal did not provide evidence 
to support its argument that the CDC had failed to make a fair comparison between the export 
price and the normal value . This resp onse related to the argument of ArcelorMittal (and that 
of Costa Rica in this dispute) that two export sales transactions were erroneously included in 
the CDC's dumping calculation . However, the CDC explained how these two sales entered the 
Dominican Repub lic during the dumping POI and were therefore included in the calculation . 
Thus, these sales were duly taken into account by the CDC.  
175. ArcelorMittal itself reported these sales in its response to the questionnaire for exporters 
because they entered the  Dominican Republic during the POI . The company commented on 
the inclusion of these two sales in its presentation of the essential facts, and could have 
presented, but did not, the type of evidence that the CDC considers it should have provided 
to support its argument . It was ArcelorMittal's argument, and therefore ArcelorMittal bore the 
burden of presenting the evidence that would allow the CDC to examine the validity of that 
argument . Once that information had been provided, the CDC may have had an interest in WT/DS605/R/Add.1  
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  verifying it on -the-spot. But none of this happened . What the CDC noted in the Final Technical 
Report is that ArcelorMittal failed to present evidence to support its argument.  
176. Furthermore, what is clear is that, at the time of the verification, the CDC did not know  that 
ArcelorMittal would later oppose the inclusion of these two operations, given that it was 
ArcelorMittal itself that had included them in Section D of the questi onnaire response of 
30 October  2018, on the basis of the "date of entry" criterion . The verification took place less 
than one month later, on  19 November  2018. 
XIV. COSTA RICA'S CLAIM UNDER ARTICLE VI:2 OF THE G ATT 1994  AND ARTICLE 9.3 OF 
THE ANTI -DUMPING AGREEMENT  
177. Costa Rica also includes a purely consequential assertion that should be rejected.  
178. Costa Rica erroneously claims that it was demonstrated that the exclusion of the two export 
sales that entered the D ominican Republic during the POI, but which Costa Rica claims were 
made before the POI, resulted in a determination of non -dumping and, therefore, that the 
imposition of duties violated Article 9.3 of the Anti -Dumping Agreement and Article VI:2 of 
the G ATT 1994.  This argument is not correct, as it flows entirely from the argument relating 
to Articles 2.1 and 2.4 . Moreover, it is incorrect that the CDC accepted ArcelorMittal's 
calculations excluding these two  sales, as it allegedly "did not determine errors in the 
calculations" . The CDC did not accept the above -mentioned condition for the exclusion of the 
two export sales on which the calculation was based . Therefore, the CDC never examined the 
accuracy of these calculations and did not reach  any conclusions thereon.  
XV. CONCLUSION  
179. For the foregoing reasons, the Dominican Republic respectfully requests the Panel to reject all 
of Costa Rica's claims that the decision to impose anti -dumping measures on imports of 
corrugated steel bars from Costa Rica was inconsistent with the Anti -Dumping Agreement and 
the G ATT 1994. 
_______________  WT/DS605/R/Add.1  
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  ANNEX C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of the United States  72 
Annex C-2 Integrated executive summary of the arguments of Japan  77 
Annex C-3 Integrated executive summary of the arguments of Mexico  82 
Annex C-4 Integrated executive summary of the arguments of European Union  86 
 
 
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  ANNEX C -1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES* 
EXECUTIVE SUMMARY OF U.S. THIRD PARTY SUBMISSION  
I. CLAIMS RELATING TO THE DUMPING DETERMINATION  
1. Article  2.1 of the AD Agreement provides the definitional character of dumping - a product 
that is introduced into the commerce of another country at an export price that is less than its normal 
value . Thus, Article  2.1 is a definitional provision that plays an important role in the interpretation 
of other provisions of the Anti -Dumpi ng Agreement, but does not specify how an investigating 
authority should determine which sales are included in the period of investigation . Rather, Article  2.1 
reflects that dumping is determined based on a "comparable price, in the ordinary course of trad e". 
2. While the definitional terms set out in Article  2.1 may guide the interpretation of other 
provisions in the AD Agreement, when read in isolation, Article  2.1 does "not impose independent 
obligations" . As such, Article  2.1 cannot be the legal basis f or an independent claim . Therefore, the 
text of Article  2.1 does not prescribe the conduct or obligations of the investigating authority and 
does not establish the temporal scope of evidence for the purposes of a dumping determination . Put 
differently, Art icle 2.1 of the AD Agreement, a definitional provision, does not instruct on the manner 
in which an investigating authority may decide upon the date criteria to determine which transactions 
should or should not be included in the period of investigation.  
3. Next, Article  2.4 obligates an investigating authority to make a "fair comparison" between the 
export price and the normal value when determining the existence of dumping and calculating a 
dumping margin . The text of Article  2.4 presupposes that the appr opriate normal value has been 
identified . Once normal value and export price have been established, the investigating authority is 
required to select the proper sales for comparison (sales at the same level of trade and as nearly as 
possible at the same ti me) and make appropriate adjustments to those sales (due allowances for 
differences which affect price comparability).  
4. As the panel in Egypt - Steel Rebar  explained, "[A]rticle  2.4 in its entirety, including its burden 
of proof requirement, has to do wi th ensuring a fair comparison, through various adjustments as 
appropriate, of export price and normal value . A straightforward consideration of the ordinary 
meaning of this provision confirms that it has to do not with the basis for and basic establishment  
of the export price and normal value (which are addressed in detail in other provisions), but with 
the nature of the comparison of export price and normal value."  
5. Further, there would be no basis for the investigating authority to make an adjustment, a nd 
no requirement to do so, if the exporters have not provided evidence demonstrating to the 
authorities that there is a difference affecting price comparability, or argument showing that existing 
information on the record reflects a difference that affect s price comparability.  
6. A determination of compliance with Article  2.4 will depend on the specific facts and 
circumstances at issue . Therefore, consistent with DSU Article  11 and AD Agreement Article  17.6(i), 
the question of whether the Dominican Republi c made a fair comparison - including whether it failed 
to make adjustments to ensure a fair comparison, or was required to request information from 
ArcelorMittal to make such adjustments - will depend on whether the Panel determines that 
Costa  Rica has sho wn that a fair comparison could not have been made by an unbiased and objective 
investigating authority on the same basis found by the Commission.  
II. CLAIMS RELATING TO THE INJURY AND CAUSATION DETERMINATIONS  
7. Article  3.2 recognizes three alternative wa ys in which subject imports can have an "effect" on 
prices : through undercutting, "or" through price depression, "or" through price suppression . The 
 
* In English original language.  WT/DS605/R/Add.1  
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  inquiry into undercutting, on the one hand, and the inquiry into price depression or suppression, on 
the ot her, are separate inquiries, either of which can demonstrate price effects under Article  3.2. 
8. To the extent Article  3.2 provides for an investigating authority to examine whether subject 
imports significantly depressed or suppressed the prices of like d omestic products, it does not impose 
specific obligations on how an authority must conduct a price depression or suppression analysis . 
Nor does it prescribe a particular methodology or set of factors that must apply in any such analysis . 
However, Article  3.1 does provide that an injury determination must be based on "positive evidence 
and involve an objective examination of … the effect of the dumped imports on prices in the domestic 
market for like products".  
9. Further, for purposes of Article  3.2, the obligation for investigating authorities to "consider" 
whether there has been a significant price undercutting by the dumped imports or whether the effect 
of such imports is otherwise to depress prices to a significant degree or to prevent  price increases, 
which otherwise would have occurred, to a significant degree does not require an authority to make 
a definitive determination . Addressing the obligation to consider the "effect" of dumped imports on 
prices, the definition of "effect" is, "something accomplished, caused, or produced ; a result, a 
consequence" . The definition of this word thus implies that an "effect" is "a result" of something 
else. 
10. Additionally, the term "price undercutting" in Article  3.2 is qualified by t he word "significant", 
which is defined as "important, notable, consequential" . The term "price undercutting" requires an 
investigating authority to undertake a "dynamic assessment of price developments and trends in the 
relationship between the prices of the dumped imports and those of domestic like products over the 
duration of the POI", whereas the qualifier "significant" requires an assessment of the "magnitude" 
of any price undercutting.  
11. With the foregoing considerations in mind, the Panel in the p resent dispute is to assess 
whether the Commission's price effects analysis was based on positive evidence and involved an 
objective examination.  
12. Next, Article  3.4 mandates that "[t]he examination of the impact of dumped imports on the 
domestic industr y concerned shall include an evaluation of all relevant economic factors and indices 
having a bearing on the state of the industry" and lists specific economic factors that an authority 
must evaluate . Article 3.4 also provides that its list of factors and indices "is not exhaustive, nor can 
one or several of these factors necessarily give decisive guidance" . The importance of certain factors 
may vary significantly from case to case, and the relative weight that an investigating authority may 
give to certain  factors in an investigation has no bearing on their importance vis -à-vis other factors 
addressed in Article  3.4. 
13. Article  3.4 does not dictate the methodology that should be employed in conducting the 
examination of the impact of dumped imports on the domestic industry, or the manner in which the 
results of this examination are to be set out in the record of the investigation . A determination, 
through its demonstration of why the investigating authority relied on the specific factors it found to 
be mate rial in the case, may disclose why other factors on which it did not make specific findings 
were accorded little weight or deemed irrelevant.  
14. Finally, nothing in Article  3.4 requires an investigating authority to reach a negative 
determination of injur y merely because a domestic industry has reported a number of positive or 
improving economic indicators during the period of investigation . Nor does it follow as matter of 
logic from a conclusion that an industry is being injured that every indicator must be negative . As 
the panel in EC - Footwear  reasoned, "it [is] clear that it is not necessary that all relevant factors, 
or even most or a majority of them, show negative developments in order for an investigating 
authority to make a determination of injury ". Therefore, an authority is not required to find that a 
certain number of injury factors declined during the period of investigation in order to make an 
affirmative determination of injury.  
III. CLAIMS RELATING TO THE CONDUCT OF THE INVESTIGATIONS  
15. The role of a panel in a dispute involving a Member's application of an anti -dumping or 
countervailing duty measure is to assess "whether the investigating authorities properly established WT/DS605/R/Add.1  
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  the facts and evaluated them in an unbiased and objective manner" - and not, therefore, to serve 
an initial trier of fact.  
16. Article  6 of the AD  Agreement balances the protection of confidential information with the 
parties' right to be given a full and fair opportunity to see relevant information and defend their 
interes ts. Indeed, in anti -dumping investigations, the submission of confidential information is a 
necessary and frequent occurrence . Article 6.5 requires investigating authorities to ensure that 
information receives confidential treatment upon a showing of good cause . Additionally, footnote  17 
of the AD  Agreement provides a means by which authorities can balance this competing 
interest - through a narrowly -drawn protective order.  
17. Under Article  6.5, investigating authorities must treat information as conf idential that is "by 
nature" confidential or that is provided "on a confidential basis", and for which "good cause" is shown 
for such treatment . In the present dispute, under the chapeau of Article  6.5, the Panel should first 
determine whether an unbiased and objective investigating authority could have determined that 
the information was "by nature" confidential or was "provided on a confidential basis" by an 
interested party . The Panel should then determine whether the investigating authority ensured that  
a summary of that confidential information was provided to other parties in sufficient detail to permit 
a reasonable understanding of the substance of the information . Where an investigating authority 
does not provide a way to effectively communicate pert inent information to interested parties to an 
investigation, such parties are unable to adequately defend their interests.  
EXECUTIVE SUMMARY OF US  THIRD PARTY ORAL STATEMENT  
18. Article  3.1 of the AD Agreement requires an investigating authority to base it s injury 
determination on "positive evidence," and that its injury determination also involve an "objective 
examination" of the volume of the dumped imports, their price effects, and their impact on the 
domestic industry . However, Article  3.1 does not pres cribe the assessment that an authority must 
undertake to demonstrate the "causal relationship between the dumped imports and the injury to 
the domestic industry".  
19. Rather, the second sentence of Article  3.5 requires an authority to examine "all relevant  
evidence" before it to ascertain whether there was a causal link between the dumped imports and 
the injury experienced by the domestic industry, and to examine whether known factors other than 
the dumped imports were also injuring the domestic industry.  
20. The third sentence of Article  3.5 requires an authority to examine "any known factors other 
than the dumped imports which at the same time are injuring the domestic industry" and not to 
attribute "the injuries caused by these other factors … to the dump ed imports" . An analysis of other 
known factors is therefore necessary if (1) there are one or more known factors other than the 
dumped imports that (2) are injuring the domestic industry (3) at the same time.  
21. When examining "all relevant evidence" in its determination of the causal link between the 
dumped imports and injury to the domestic industry, an authority has discretion to choose the 
methodology that it will use . Further, the extent to which a factor other than the dumped imports is 
causing inju ry and becomes "known" to an authority may vary according to the nature of the alleged 
factor, and the manner in which the authority evaluates it in a given investigation.  
22. While an authority is not expressly required to "seek out and examine in each ca se on their 
own initiative the effects of all possible factors other than imports that may be causing injury to the 
domestic industry under investigation," an authority's analysis and findings under Article  3.5 
"demonstrat[ing] that the dumped imports … ar e causing injury within the meaning of this 
Agreement" must comply with the "positive evidence" and "objective examination" requirements of 
Article  3.1 for a "determination of injury".  
EXECUTIVE SUMMARY OF US  THIRD PARTY RESPONSES TO QUESTIONS  
I. CLAIMS UN DER ARTICLE  2.4 
23. Footnote  8, of the AD  Agreement provides that "Normally, the date of sale would be the date 
of contract, purchase order, order confirmation, or invoice, whichever establishes the material terms WT/DS605/R/Add.1  
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  of sale" . Footnote  8 appears in the contex t of Article  2.4.1, which specifically applies to "When the 
comparison under paragraph  4 requests a conversion of currencies", which in turn requires "using 
the rate of exchange on the date of sale" . Footnote  8 of Article  2.4.1 therefore pertains to a spec ific 
situation requiring a certain degree of precision . Footnote  8 does not itself apply writ large to the 
preceding paragraph of Article  2.4. However, it may provide interpretative context . The degree of 
precision found in footnote  8 may indicate, for exa mple, that the determination of when a sale is 
made encompasses a range of understandings, one of which may be specified as the date of sale as 
defined by footnote  8. Even so, footnote 8 by its own terms conveys a significant degree of flexibility 
in that it uses the term "Normally" and provides a number of options, all of which may presumably 
qualify as "whichever establishes the material terms of sale" depending on a given factual scenario.  
24. The term "sales made" in Article  2.4 of the AD Agreement, as it appears in the phrase "in 
respect of sales made at as nearly as possible the same time", refers to identifying the sales with 
which to make the comparison for purposes of establishing a dumping margin . As context, the 
provisions of footnote  8 may inform  the question of when a sale is made, e.g., the date on which 
the material terms of the sale are established, but footnote 8 should not be understood as governing 
the interpretation of the Article  2.4 term "sales made".  
II. CLAIMS UNDER ARTICLE  2.2.1  
25. Article 2.2.1 anticipates circumstances arising during an investigation in which prices below 
unit costs at the time of sale are above weighted average per unit costs for the period of 
investigation, and establishes that such prices shall be considered to p rovide for recovery of costs 
within a reasonable period of time . By the plain meaning of Article  2.2.1, an investigating authority 
is not required to use any particular methodology to determine whether a certain sale is in the 
ordinary course of trade . Therefore, where production costs increase significantly during the period 
of investigation, it is reasonable to use a methodology that considers average costs determined on 
a basis other than annual weighted average unit cost.  
III. CLAIMS UNDER ARTICLE  3.7 
26. The text of Article  3.7 does not require an investigating authority to afford particular probative 
value to data referring to the entire period of investigation or any part thereof, including the most 
recent part . While investigating authorities have discretion in how they weigh evidence, this 
discretion is not unbounded, and any analysis of the data must conform with the "positive evidence" 
and "objective examination" standards specified in Article  3.1. 
27. An investigation authority's analysis must l ikewise conform with the standards of Article  3.5, 
which requires an authority to examine "all relevant evidence" before it . An investigation authority 
may focus its analysis on a particular part of the period of investigation, including the most recent 
part, provided that there is a reasoned and justifiable reason to do so . However, nothing in 
Articles  3.1, 3.5, and 3.7 specifically requires an investigating authority to do so.  
28. Further, a threat determination necessitates making projections about the imminent future . 
As the panel in Mexico - Corn Syrup  stated, "the investigating authorities will necessarily have to 
make assumptions relating to 'the occurrence of future events' since such future events 'can never 
be definitively proven by facts'" . Consequently, while events that occurred during the period of 
investigation inform an investigating authority's analysis of threat of material injury, those events 
do not necessarily limit the scope of projections regarding the imminent future . As the panel  in 
US - Coated Paper (Indonesia)  explained, "events that took place during the [period of investigation] 
provide the background against which an investigating authority can evaluate the likely future 
events, but do not limit the scope of projections that the authority may make concerning future 
events".  
29. The first sentence of Article  3.7 provides that "A determination of a threat of material injury 
shall be based on facts and not merely on allegation, conjecture or remote possibility" . However, 
nothing in Article  3.7 dictates the way or form that an investigating authority must form the basis 
for its determination . Rather, Article  3.7 leaves latitude for authorities to draw reasonable inferences 
from the facts.  WT/DS605/R/Add.1  
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  IV. CLAIMS UNDER ARTICLE  5.3 
30. The text o f Article  5.3 of the AD Agreement requires investigating authorities to "examine the 
accuracy and adequacy of the evidence provided in the application to determine whether there is 
sufficient evidence to justify the initiation of an investigation" . On its face, Article  5.3 does not refer 
to a temporal limitation on the information provided in an application . Accordingly, Article  5.3 does 
not impose a temporal limitation on the relevant evidence.  
V. CLAIMS UNDER ARTICLES  5.1 AND 6.1.3  
31. As provided in Arti cle 5.1 of the AD Agreement, an investigation is to be initiated "upon a 
written application by or on behalf of the domestic industry" . Article 5.2 of the AD Agreement further 
provides what must be contained within the same "written application" . Therefore, the use of the 
phrase "written application" and "application" throughout the AD Agreement is intended to be 
interpreted to mean the same "written application" provided for in Article  5.1. 
32. Footnote  16 to the AD Agreement, located in Article  6.1.3, explains that providing the "full 
text of the written application" to "the known exporters" would be burdensome to the investigating 
authority if the number of exporters involved is particularly high, and that instead, the "full text of 
the written ap plication" need only be provided to the authorities of the exporting Member or to the 
relevant trade association . This explanation indicates an understanding by the Members that the 
"written application" that is to be provided constitutes the written appli cation filed by or on behalf 
of the domestic industry, including any supplemental aspects of the written application.  
VI. CLAIMS UNDER ARTICLE  6.7 
33. Article  6.7 of the AD Agreement provides that, subject to the requirement to protect 
confidential informa tion, an investigating authority "shall make the results of any such investigations 
available, or shall provide disclosure therefore pursuant to paragraph  9, to the firms to which they 
pertain and may make such results available to the applicants" . Thus, t he text of Article  6.7 does 
not have an affirmative disclosure obligation to any other interested party of the results of a 
verification investigation carried out in the territory of other Members, and indeed only references 
the applicant as an interested party to which the investigating authority may consider making such 
a disclosure.  
34. Finally, Article  6.4 of the AD Agreement explains that an investigating authority shall 
"whenever practicable" provide timely opportunities for all interested parties to see all information 
that is relevant to the presentation of their cases, subject to the requirement to protect confidential 
information . As such, it is possible that an investigating authority may choose to make the results 
of a verification investigation carried out in the territory of a Member available to all interested 
parties, but it is not obligated to do so.  
 WT/DS605/R/Add.1  
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  ANNEX C -2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN* 
I. INTRODUCTION  
1. As a third party, Japan has a systemic i nterest in ensuring the proper and consistent 
interpretation of the Agreement on Implementation of Article VI of the General Agreement on 
Tariffs and Trade  1994 ("Anti -Dumping Agreement") discussed in this case. Japan notes that 
it does not take any views on the specific factual aspects of this dispute.  
II. TERMS OF REFERENCE  
2. With regard to the Panel's terms of reference, Japan disagrees with the Dominican  Republic's 
argument that Costa Rica's claim under Articles  3.1 and 3.2 of the Anti -Dumping Agreemen t 
regarding the alleged failure to examine  the significant nature of the price effects and the 
explanatory force of the dumped imports for those price effects1 is outside the Panel's terms 
of reference.  
3. Article  6.2 of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes requires a complaining party to provide "a brief summary of the legal basis of the 
complaint sufficient to present the problem clearly". Japan submits that, in assessing whether 
the Panel request is sufficien tly precise to meet the requirements of Article  6.2, the Panel is 
to read the request as a whole, while also considering the particular circumstances of the case. 
Such circumstances may include the nature of the provision of the covered agreements alleged 
to have been breached.  
4. In its request for the establishment of the Panel, Costa Rica raises a claim under Articles  3.1 
and 3.2 of the Anti -Dumping Agreement referring to the investigating authority's analysis of 
the effects of the imports under investigation on prices in the domestic market for like 
products.2 Article  3.1 requires that a determination of injury be based on positive evidence 
and involve, amongst other things, an objective examination of the effect of the dumped 
imports on prices in the domestic market for like products . Further, Articles  3.1, 3.2, 3.4 and 
3.5 "contemplate a logical progression of inquiry leading to an investigating authority's 
ultimate injury and causation determination".3 Therefore, each analytical step pursuant  to the 
paragraphs of Article  3, including the price effects analysis, needs to be logically consistent in 
demonstrating injury, if any, and needs to reasonably explain the whole picture of what the 
situation would have been but for the dumping. Read toget her, it appears to be clear that 
Costa Rica's claim relates to whether the price effects analysis in the meaning of Article  3.2 
was reasoned and adequate, and was based on positive evidence as required under Article  3.1. 
5. In addition, the text in Article  3.2 requires an analysis as to whether there has been a 
"significant" price effect; be it a "significant" price undercutting, a "significant" price 
depression or a "significant" price suppression. As such, it could be said that the claim under 
Articles  3.1 and 3.2 also indicates a claim regarding an examination as to whether the price 
effect is "significant" and whether such examination was conducted in an objective manner 
based on positive evidence.  
III. ARGUMENTS RELATING TO THE "THREAT OF MATERIAL INJUR Y" DETERMINATION 
UNDER ARTICLE  3.7 OF THE ANTI -DUMPING AGREEMENT  
6. Article  3.7 of the Anti -Dumping Agreement requires the investigating authority to evaluate 
"how the future will be different from the immediate past, such that the situation of no present 
material injury will change in the imminent future to a situation of material injury, in the 
 
* In English original language.  
1 Dominican Republic's first written submission, para.  203. 
2 Request for establishment of a Panel by Costa Rica, WT/DS605/2, Sec tion II, claim  8. 
3 Appellate Body Report, China – GOES , para.  128. WT/DS605/R/Add.1  
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  absence of measures".4 Further, the provision provides a number of  factors that an 
investigating authority should consider , and also clarifies that  not one of such factors alone 
can necessarily give decisive guidance. The totality of the factors considered must lead to the 
conclusion that further dumped exports are imminent and that, unless protective action is 
taken, material injury would occur.  The totality of th e factors considered must lead to the 
conclusion that further dumped exports are imminent and that, unless protective action is 
taken, material injury would occur.  
7. In this regard, mere speculation is not sufficient as Article  3.7 also makes it clear tha t 
investigating authority should provide an adequate and appropriate explanation of the current 
situation and the prospects for a change in that situation based on positive evidence. If there 
are both negative and positive factors, there must be an adequat e explanation of how the 
case was assessed as a whole and how the decision was reached.  
8. Accordingly, the Panel should carefully consider whether the investigating authority explained 
that volume effects and price effects would occur in the future due to  the allegedly dumped 
imports. More precisely, it must be considered whether the investigating authority has indeed 
recognized and reasonably explained that the allegedly dumped imports and the domestic 
products actually compete in the domestic market, in order to determine the likelihood of 
future volume/price effects. If the finding concludes that there is a competitive relationship 
among the two groups of products and therefore a threat of material injury, positive evidence 
and objective analysis on this  point should be recorded in the final report.  
9. Japan highlights that Article  3.7 also requires the change in situation to be "imminent" based 
on objective evidence that the foreseeable occurrences of material injury would arise with "a 
high degree of li kelihood (imminence)".5 
10. In a case where current figures can be seen as not having impact on the domestic industry, 
in order for the investigating authority to determine that such situation may change and 
material injury may be caused in the near futur e due to the allegedly dumped imports, the 
investigating authority should explain the reason why it reached the decision that such change 
in the situation may occur imminently, despite that, at the moment, there seems to be no 
material injury caused by the  allegedly dumped imports.  
11. Taking into account the "overarching" nature of Article  3.1, as noted above, Japan highlights 
that the investigating authority is required to carefully conduct its analysis based on positive 
evidence and objective analysis. O therwise, anti -dumping duties may be too easily imposed 
based on Article  3.7, even in the absence of any threat of material injury. This conclusion is 
supported by "special care" required under Article  3.8, which serves as a context for the 
interpretation of the investigating authority's obligations under Article  3.7. Bearing in mind 
the "high standard" for the determination of a threat of material injury6, Japan emphasizes 
that affirmative findings of a threat of material injury should be allowed on limit ed occasions, 
so that it will not become a loophole of the strictly applied injury analysis.  
IV. ARGUMENTS RELATING TO THE "THREAT OF MATERIAL INJURY" DETERMINATION 
AND THE INTERPRETATION OF ARTICLES  3.1, 3.2, 3.4 AND  3.5 OF THE 
ANTI -DUMPING AGREEMENT  
A. The Interpretation of Article 3 of the Anti -Dumping Agreement  
12. As the Appellate Body clarified in  China - GOES , the paragraphs of Article  3 "contemplate a 
logical progression of inquiry leading to an investigating authority's ultimate injury and 
causatio n determination".7 Based on this overall structure of Article  3, Japan highlights that 
the inquiries under Articles  3.2 and 3.4 are necessary in order to answer the ultimate question 
in Article  3.5 as to whether subject imports are causing injury to the domestic industry. T he 
outcomes of these inquiries thus form the basis for the overall causation analysis contemplated 
 
4 Panel Report, US – Softwood Lumber VI , para.  7.58.  
5 Panel Report, US – Coated Paper (Indonesia) , para. 7.261.  
6 See e.g. Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para.  100. 
7 Appellate Body Report, China – GOES , para.  128. WT/DS605/R/Add.1  
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  in Article  3.5.8 Without a proper examination under these provisions, an affirmative finding of 
the effect of the dumped imports or the impact of the dumped  imports would neither be 
reasonable nor objective because it would lack positive evidence as required by Article  3.1. 
13. These specific obligations are important both individually, and in how they fit together. The 
overall finding that dumped imports cau sed injury under Article  3 must tie these different 
elements into an internally consistent, persuasive, fact -based written explanation by the 
investigating authority. The written explanation at the time of the determination is the 
authority's opportunity t o show that they are complying with the important requirements of 
the injury determination of Article  3. 
14. The plain text of footnote  9, as confirmed by the Appellate Body9, requires that all 
Anti-Dumping Agreement provisions on "injury" apply to a dete rmination of "threat of material 
injury". This includes the core disciplines governing an authority's determination of "injury" 
under Article  3 (i.e., Articles  3.1, 3.2, 3.4 and 3.5).10 Therefore, the above reasoning is also 
relevant for the determination of a "threat of material injury" although the investigation in this 
case is focused on projections relating to the occurrence of future events. The analysis of a 
threat of material injury cannot be conducted merely based on the requirements prescribed 
in Article 3.7, but requires consideration on whether the consequent impact of the continued 
dumped imports will likely cause a material injury to the domestic industry.  
15. As such, as in a typical injury analysis, the investigating authorities should analyse the 
likelihood of the significant (i)  price effect of dumped imports on domestic like products, and 
(ii) volume increases of the dumped imports, revealing whether there are market interactions 
between the dumped imports and domestic like products i n terms of their sales prices and/or 
volume, thus providing a logical basis for the analysis of the impact of the dumped imports on 
the domestic industry producing the domestic like products.  
B. The Threat of Material Injury Determination and the Interpret ation of Articles  3.1 
and 3.2 of the Anti -Dumping Agreement  
16. With respect to the price effects analysis under Article  3.2, an analysis on "whether there has 
been significant price undercutting by the [dumped […] ] imports as compared with the price 
of a like product of the importing Member" is required. Further, the price effects analysis must 
contain a consideration on "' whether the effect of such [dumped […] ] imports' on the prices 
of the like domestic products is to depress or suppress such prices to a  significant degree".11 
Panels and the Appellate Body have recognized that investigating authorities enjoy a certain 
degree of discretion in adopting a methodology to guide their injury analysis.12 Yet, without 
an analysis of factors that show what the pri ce would have been but for the dumping when 
determining price effects in the meaning of Article  3.2, it is questionable whether such an 
analysis is objective and is based on positive evidence. This equally applies to the analysis of 
a threat of material in jury. Moreover, the price effect analysis logically requires an examination 
as to whether the subject imports and the domestic like products are actually in a competitive 
relationship.  
17. In Japan's view, the Panel should carefully review whether the inve stigating authority's view 
is explained in the final determination, notably focusing on whether the authority provides a 
sufficient basis on how the price of dumped imports will have an effect on the price of domestic 
like products. A mere identification o f price trends without any explanation of how, in the 
investigating authority's view, the price trends show the existence of price effect will fail to 
comply with the request for an objective examination based on positive evidence.13 
 
8 Ibid. 
9 See Appellate Body Report, US - Oil Country Tubular Goods Sunset Reviews , para.  276 ("At the outset, 
we would agree with Argentina that, by virtue of its opening phrase, footnote  9 defines "injury" for the whole 
of the Anti -Dumping Agreement.").  
10 See e.g. Panel Report, Egypt – Steel Rebar , paras.  7.92-7.93.  
11 Appellate Body Report, China – GOES , para.  136. (emphasis added  by the Appellate Body)  
12 See, for example, Appellate Body Re port, Mexico – Anti-Dumping Measures on Rice , para.  204; Panel 
Report, EC – Tube or Pipe Fittings , paras.  7.278 and 7.281.  
13 See, for example, Panel Report, China – Cellulose Pulp , para.  7.77.  WT/DS605/R/Add.1  
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  C. The Threat of Mater ial Injury Determination and the Interpretation of Articles  3.1 
and 3.4 of the Anti -Dumping Agreement  
18. In accordance with Article  3.4, a finding of a threat of material injury, must rest on an actual 
"evaluation" of all the enumerated factors.14 This ev aluation is a key part of the overall logical 
progression and needs to serve as the "meaningful basis" for the eventual finding of causation 
under Article  3.5.15 The less discussion of each positive factor, the greater the risk that the 
discussion does not  rise to the level of the required evaluation. A mere listing of positive 
factors without any discussion will rarely be sufficient.  
19. In order to conclude that material injury would occur unless protective action is taken, it is 
necessary, as a precondit ion, to provide an analysis of forecast based on facts on what the 
impact of dumped imports on the domestic industry is under the current situation, and how 
the relevant figures could change from the present situation to the future due to continued 
dumped imports.  
20. Although Japan does not take any position as to the facts, it notes that if most of the indicators 
relating to the current status show positive trends and the evidence of negative impact is not 
shown by positive evidence, without further expla nation on the fact that the trends may turn 
negative leading to a material injury in the future, it appears to be unlikely that there would 
be a threat.  
21. A question on whether there is a competitive relationship between the subject imports and 
domestic products may arise when most of the economic indicators do not demonstrate any 
negative impacts on the domestic industry. The existence of a competitive relationship is 
important as a precondition for determining whether imports have had an impact, and a 
careful determination of the existence of such a competitive relationship should also be made 
in the determination of the threat of material injury.  
22. Japan emphasizes that Article  3.4 also requires "an examination of the explanatory force of 
subject impo rts for the state of the domestic industry ".16 As in the case of price effect analysis, 
the competitive relationship between the subject imports and the domestic like products form 
the basis of the impact analysis. Moreover, as referred to earlier, since Article  3 contemplates 
a "logical progression",  "the impact of" the dumped imports on the state of the domestic 
industry within the meaning of Article  3.4 is the impact that follows as an effect of an increase 
in the volume of dumped imports and/or the "effect of "the dumped imports on domestic 
prices that are subject to an inquiry under Article  3.2. It would therefore be necessary to 
consider whether and to what extent declining trends, if any, can be explained by the dumped 
imports, in the sense that such trends follow as a result of an increase in th e dumped imports 
and/or the effect of the dumped imports on domestic prices that have been identified in an 
inquiry under Article  3.2. 
23. As such, the Panel should carefully review whether there is positive evidence that 
demonstrates the competitive relat ionship and an explanation on whether and to what extent 
the changes in the relevant factors are the "impact of" or "effect of" the dumped imports on 
the domestic industry.  
D. The Threat of Material Injury Determination and the Interpretation of Articles  3.1 
and 3.5 of the Anti -Dumping Agreement  
24. Article  3.5 requires careful analysis and not simplistic conclusions. The investigating authority 
must provide a written analysis that shows how it "demonstrated" the causal link based on a 
careful "examination"  of the record. It is not enough to note a mere correlation. Nor is it 
enough to assert a connection that has not actually been demonstrated through careful 
examination of "all relevant evidence", including the evidence that suggests that there may 
not be a threat of material injury and any negative trends may not be caused by imports. That 
 
14 See Panel Report, Mexico – Corn Syrup , paras.  7.131 -132. 
15 Appellate Body Report, China – GOES , paras.  156 and 154 (quoted in Appellate Body Reports, 
China  – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.211).  
16 Appellate Body Report, China – GOES , para.  149. (emphasis added)  WT/DS605/R/Add.1  
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  is precisely why Article  3.5 specifically requires that other factors be examined, and injuries 
they cause "must not be attributed" to the dumped imports.  
25. With respe ct to the threat of material injury determination, it is required to make the 
determination based on facts, taking into consideration various factors, including those listed 
in the subparagraphs of Article  3.7. To analyse the causal relationship, it must b e borne in 
mind that the inquiries and factual analyses under each subparagraph of Article  3.7 are 
conducted. Then, building on the outcomes of such inquiries and analyses, the investigating 
authority must consider and explain the overall picture of what s ituation may be clearly 
foreseen and would be highly likely to occur but for the dumping.  
26. The investigating authority is also required to conduct a non -attribution analysis with regard 
to, for example, the combined effect of the dumping and other facto rs causing injury. When 
conducting the non -attribution analysis, it is equally important that the conclusions are based 
on a careful examination of all the evidence and a discussion of what it means. It is not enough 
to describe other factors, and then to dismiss them without a complete and adequate 
explanation of why, let alone not mentioning any other known factors will not meet the 
obligations.  WT/DS605/R/Add.1  
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  ANNEX C -3 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF MEXICO  
3. In paragraph 131 of its first written submission, the Dominican Republic claims that 
the exporter ArcelorMittal never asked the CDC to make adjustments to ensure a fair 
comparison regarding the Thorco Logic and Susie Q sales. Does an investigating 
authorit y's obligation to make "adjustments" within the meaning of Article 2.4 only 
arise when an interested party demonstrates the need to make such adjustments?  
 
As indicated in Article 2.4 of the Agreement on Implementation of Article VI of the General 
Agreemen t on Tariffs and Trade  1994 ("AD Agreement"), the investigating authority is responsible 
for ensuring a fair comparison between the export price and the normal value, making allowance for 
differences that may affect price comparability. However, in the dis pute EC - Fasteners (China)  
(DS397), the Appellate Body noted that, while the investigating authority bears this burden, the 
interested parties, for their part, bear the burden of substantiating their requests for adjustments, 
and that, otherwise, the auth ority has no obligation to make the adjustment that those parties 
request:  
 
488. "[...] this does not mean that the interested parties do not have a role to play in 
the process of ensuring a fair comparison. Rather, […] exporters bear the burden of 
substan tiating, "as constructively as possible", their requests for adjustments. [...] If it 
is not demonstrated to the authorities that there is a difference affecting price 
comparability, there is no obligation to make an adjustment."  
As such, there is a differ ence between an investigating authority's obligation to ensure price 
comparability, and simply making the adjustments requested by exporters without any further 
formalities. The investigating authority must indeed make a fair comparison, so where there is an 
obvious  problem in this regard, it must make the relevant adjustments. However, where a party 
requests that adjustments be made, the need to make them must be demonstrated by that 
requesting party, since, as noted by the Appellate Body, if the request i s not substantiated, there is 
no obligation for the authority to make those adjustments.  
 
Therefore, if the exporters fail to demonstrate that the requested adjustment is necessary and there 
is no obvious comparability problem for the investigating authori ty, there is no obligation to make 
that adjustment.  
 
4. The cost of the raw material for the production of merchandise is not mentioned as a 
difference that affects price comparability among those that appear in Article 2.4 of 
the Anti -Dumping Agreement. N evertheless, does the cost of the raw material have 
the potential to impact price comparability in the same way as the conditions listed in 
Article 2.4?  
 
Yes, there may well be distortions in the cost of an input that could affect price comparability. In 
fact, the AD Agreement itself provides for such a situation in Article 2.2.1.1.  
 
In this investigation, however, the focus is the variation in the cost of the raw material in relation to 
sales transactions that took place before the period of investigation (POI) compared to the market 
conditions during the POI, and not as a result of problems inherent in the costs themselves that may 
affect comparability. In other words, the point on the table is that it is not that the costs per se  have 
experienced a proble m, but that the market conditions changed. Therefore, in our view, the parties 
have not suggested that the costs experienced a problem affecting comparability. The point of 
discussion is actually whether or not such sales are included in the price comparis on. Claiming merely 
that the market conditions have changed and that, as a result, the costs have increased, clearly 
does not involve any aspect whatsoever that affects the comparability of the prices deriving from 
those costs. The market simply changed an d that would have been all. If a simple change in the 
market were considered a comparability problem, then one would go as far as requiring that all 
transactions made during the POI had been made at the same price, which makes no sense.  
 WT/DS605/R/Add.1  
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  7. In paragraph 7.277 of the report in US - Coated Paper (Indonesia) , the panel 
mentioned that "we would expect the authority to rely on facts from the present to 
support the projections it makes about the future and its resulting conclusions about 
the future ". In what way should an investigating authority "rely on facts from the 
present" to ensure that its projections do not become "conjecture"?  
 
In Mexico's view, the investigating authority must evaluate the present facts before it (the existence 
of which has been established) to determine how they are relevant to the projections it seeks to 
make. Subsequently, the authority must objectively and impartially analyse the outcomes that these 
present facts would generate in the future, making the correspo nding inferences and engaging in 
the corresponding reasoning. The projections will not be conjecture insofar as it may be concluded, 
in view of the foregoing, that the facts from the present on which the investigating authority has 
relied provide a reasona bly sound basis for concluding that there is considerable likelihood that its 
projections will actually occur.  
 
9. In paragraph 233 of its first written submission, Costa Rica states that "the invoices 
[in question] corresponded to sales allegedly made alm ost a year before the filing of 
the application" and, as such, "the invoices could not constitute evidence of current 
dumping". In your opinion, does Article 5.3 of the Anti -Dumping Agreement impose 
any kind of temporal limitation on the evidence on which the initiation of an 
investigation must be based?  
 
Not expressly. However, with regard to examining the accuracy and adequacy of the evidence for 
the initiation of an investigation, the panel in Pakistan - BOPP Film (UAE)  (DS538), noted that "for 
evidence to be 'sufficient evidence to justify the initiation of an investigation' under Article 5.3, it 
must pertain to current  dumping, injury, and causation" and that "[w]hether a temporal gap between 
the date of initiation and the evidence on which initiation i s based means that the evidence does not 
relate to current dumping, injury, and causation, must be assessed case by case in light of the 
relevant circumstances" (paragraph 7.29).  
 
The panel also noted that "[t]he more recent the data are at the time of ini tiation, the more likely 
they will be to provide evidence of current dumping, injury, and causal link, and vice versa" 
(paragraph 7.29). In this respect, while Article 5.3 of the AD Agreement does not impose temporal 
limitations on the evidence examined fo r the initiation of an investigation, temporal -gap issues must 
be analysed within the context of each particular case.  
 
As for invoices not being able to constitute evidence of current dumping because they correspond to 
sales made almost one year before th e application was filed, we view this situation as one that must 
be examined on a case -by-case basis. There are times when it is not possible to disregard invoices 
with these characteristics because of their age. For example, suppose the dumping POI runs f rom 
1 January to 31  December  2021 and that the application had been filed on 1  March  2022. In this 
case, many of the sales transactions included in the January -December  2021 period could have been 
made more than one year before the date when the applicatio n for initiation was filed (all of those 
made in January and February  2021). It would, however, be difficult to successfully argue that the 
POI is too remote in time to conclude the existence of current dumping, since the application would 
have been filed only three months after the expiry of that POI. Thus, even if those transactions date 
back more than one year, they cannot be considered inappropriate for reflecting current dumping, 
as they fall within an entirely proper POI.  
 
10. In paragraph 617 of its first written submission, the Dominican Republic notes that 
"[t]he fact that Article 6.1.3 does not refer only to the full 'application', but to the 'full 
text' of the application, intentionally limits the obligation to the 'text' of the 
application and no t to all the information that may have been provided in an annex or 
other forms related to the application". For its part, Costa Rica, in paragraphs 106 and 
108 of its opening statement at the first meeting of the Panel, notes that the use of 
the term "ful l" in Article 6.1.3 indicates a "broad and exhaustive sense" and that "the 
purpose of [the information subsequently provided on 11  June] was to complete and 
correct the application" and therefore this information forms part of the "full text of 
the applica tion".  
 WT/DS605/R/Add.1  
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  a. Please indicate what is the relevance, if any, of Article 5.2 of the Anti -Dumping 
Agreement regarding the information that an application must contain, to the 
meaning of the phrase "full text of the written application" in Article 6.1.3?  
The rel evance of Article 5.2 of the AD Agreement in this regard is that it establishes, with a good 
level of precision, what should be considered as the "application" referred to in Article 6.1.3 of the 
AD Agreement, as detailed below.  
 
First, we note that AD Agr eement Article 6.1.3 itself expressly states that what must be provided to 
exporters is the "full text" of the application received under Article 5.1 of that Agreement. Thus, in 
order to understand what is meant by "full text of the [...] application" in A rticle 6.1.3, it is 
appropriate to look to Article 5.1 of the AD Agreement. We note that Article 6.1.3 makes no 
differentiation between the application and the elements that support it. It only mentions the 
"application" as a single set of information and indicates that it is the same set of information as 
that referred to in Article 5.1 of the AD Agreement. In other words, there is an identity between the 
set of information that Article 6.1.3 identifies as the "application" and that which, for its part, 
Article 5.1 identifies as the "application".  
 
In this context, we note that Article 5.1 does not specify what we are to understand by the 
"application", but only mentions that investigations shall be initiated upon a written application by 
or on behalf of th e domestic industry. However, Article 5.2 of the AD Agreement does explain what 
is to be included in the application referred to in Articles 5.1 and 6.1.3 (" The application shall contain 
such information as is reasonably available to the applicant on the f ollowing: [...]"). The same idea 
is also clearly set out in the [Spanish] and French versions of the AD Agreement. Clearly, Article 5.2 
of the AD Agreement is the provision that provides a fairly precise idea of what the "application" 
referred to in those A rticles comprises.  
 
Indeed, we can assert that the "application" comprises the set of elements contained in the request 
to initiate an investigation, and all the pieces of evidence, inferences and lines of reasoning, etc. 
that support that request, including those listed in Article 5.2 of the AD Agreement. The "application" 
is therefore this entire set of information, regardless of the format in which it has been submitted. 
Nothing in the AD Agreement suggests that the Agreement, when referring to th e "application", 
excluded supporting information merely because it was presented in annexes, or other elements.  
 
In addition, the findings contained in paragraph 8.102 of the final report of the panel in 
Guatemala  - Cement II  (DS156) treat as synonyms the terms the "full text of the application" and 
"the application", which suggests that there is no conceptual difference between them and that, 
therefore, the Dominican Republic's position is not permissible.  
 
8.102  We further consider that the timeliness of the provision of the text of the application 
should be evaluated in the context of its purpose and function. Timely access to the application 
is important for the exporters to enable preparation of the arguments in defence of their 
interests before the inv estigating authorities. [...] Since deadlines in the timetable of the 
investigation are counted from the date of initiation it is critical that the investigating authority 
provide the text of the application "as soon as an investigation has been initiated" , for the 
exporter to be able to devise a strategy to defend the allegations it is being confronted with.  
Accordingly, the Dominican Republic's position would completely defeat the purpose of Article  6.1.3, 
since, as we said earlier, making the conceptual difference that the Dominican  Republic proposes, 
and consequently submitting the supporting information in annexes, would be enough to leave the 
exporters defenceless, by preventing them from learning about the substance of the request to 
initiate and, in doing so, by preventing them from properly defending themselves.  
 
In fact, as well as being inconsistent with Articles 6.1.3, 5.1 and 5.2, this position leads to outcomes 
that are difficult to justify, since it is tantamount to saying that under  the AD  Agreement, if the 
applicants submit a relatively simple written submission, in which they make cross -references to a 
series of annexes, and those annexes detail the reasoning and evidence to request the initiation of 
the investigation, then the inv estigating authority could withhold the information that actually 
contains the substance of the case and only make known to the exporters the information on the 
basis of which, for practical purposes, virtually no argument can be built.  
 WT/DS605/R/Add.1  
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  In other words, th is position is tantamount to saying that the AD Agreement allows, for reasons 
pertaining merely to form (the manner in which the supporting elements of the application have 
been submitted), action that runs counter to due process, which is inadmissible. Fo r practical 
purposes, this would render a good number of articles inutile.  
 
b. Please indicate whether, in your view, the phrase "full text of the written 
application" in Article 6.1.3 refers to (or also includes) responses and 
information that an applican t provides pursuant to requests made by an 
investigating authority within the scope of the examination of evidence under 
Article 5.3 of the Anti -Dumping Agreement.  
Yes. Article 5.3 of the AD Agreement establishes the investigating authority's obligation to  examine 
whether the evidence provided in the application is sufficient to justify the initiation of an 
investigation. Accordingly, if the investigating authority perceives any deficiency or inaccuracy 
requiring the clarification, correction or addition of  information in respect of what was originally 
submitted, and if, with that, the initiation of an investigation is justified, it should be considered as 
a complementary part of the original text, since without it the initiation of the investigation itself 
could not have taken place. Therefore, since Article 6.1.3 of the AD Agreement indicates that once 
the investigation has been initiated, the full text of the application must be provided, it is understood 
that this includes all the information, including t hat submitted in compliance with a request, that led 
to the initiation of the said investigation.  
 
11. Please provide your views on the interpretation of the term "good cause" in Article  6.5 
of the Anti -Dumping Agreement. In particular, please explain: Who , in your view, 
must show "good cause" as provided for in Article 6.5? Do you consider that the party 
submitting the information for which confidential treatment is sought must show 
"good cause" for the granting of such treatment, or could "good cause" be presumed 
or inferred by the investigating authorities?  
 
Article 6.5 of the AD Agreement provides that any information which is by nature confidential, or 
which is provided on a confidential basis, shall be treated as such, upon good cause shown. In 
respons e to the question, it will clearly fall to the parties providing the information to show relevant 
cause for that information to be given confidential treatment. This is supported by paragraph 8.220 
of the final report of the panel in Guatemala - Cement II  (DS156).  
 
12. In your view, does Article 6.7 of the Anti -Dumping Agreement require an investigating 
authority to make available (under Article 6.4) to an interested party information 
resulting from a verification visit made to another party?  
 
It is AD Agreement Article 6.4 itself that establishes this obligation, provided that the requirements 
laid down therein are met. In the case of the results of a verification visit, whenever practicable and 
where the information is relevant to the presenta tion of their cases, is not confidential under 
Article  6.5 of the AD Agreement and is information used by the authority in the investigation, the 
interested parties must be provided with opportunities to see all that information. In this respect, as 
determ ined by the Appellate Body in European Communities - Anti-Dumping Duties on Malleable 
Cast Iron Tube or Pipe Fittings from Brazil  (DS219)1 if the interested parties consider the information 
relevant to the presentation of their cases, the information is r elevant for the purposes of Article 6.4 
of the AD Agreement. Furthermore, if the authority has used that information in the investigation, 
as provided for in the same Article, it is clear that the authority must provide the parties with 
opportunities to se e it. 
 
 
1 Appellate Body Report, paras.  145-147. WT/DS605/R/Add.1  
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  ANNEX C-4 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEA N UNION* 
1. INTRODUCTION  
1. The European Union exercises its right to participate as a third party in this case because of 
its systemic interest in the correct and consistent interpretation and application of the covered 
agreements, and the multilateral nature of the rights and oblig ations contained therein, in 
particular the Agreement on Implementation of Article  VI of the General Agreement on Tariffs 
and Trade  ("ADA").  
2. CLAIMS CONCERNING THE DUMPING DETERMINATION  
2.1. Article  2.1 of the ADA  
2. In US - Zeroing  (Japan), the Appellat e Body noted that Article  2.1 of the ADA is definitional 
provision setting a definition of "dumping". Yet, in that case, the Appellate Body did not find 
that a claim under Article  2.1 of the ADA is inapposite; rather, in that case, because a violation 
of Article 2.4.2 of the ADA had already been established, there was no need to make additional 
findings under Article  2.1 of the ADA. Indeed, in US - Hot-Rolled Steel , the Appellate Body 
noted that Article  2.1 of the ADA requires investigating authorities to e xclude sales not made 
"in the ordinary course of trade", from the calculation of normal value, precisely to ensure 
that normal value is the "normal" price of the like product in the home market of the exporter 
(paras.  140 and 153) . Therefore, the European Union considers that a claim of breach of 
Article  2.1 of the ADA can be made in isolation. Members may question the existence of 
"dumping" as defined in that provision.  
3. Article  2.1 of the ADA is silent as to the selection of "historical data". Yet, Arti cle 2.1 of the 
ADA refers to "dumping" when "the export price of the product exported from one country to 
another is less than the comparable  price" (emphasis added). Embedded in the notion of 
comparability is the requirement to compare prices from the sam e time period, i.e. the POI. 
Investigating authorities may have certain discretion in selecting data for establishing the 
existence of "dumping", as defined in such provision. However, as noted by the Appellate Body 
in US - Hot-rolled Steel , para. 148, "[such] discretion must be exercised in an even -handed 
way that is fair to all parties affected by an anti -dumping investigation". Whether the 
investigating authority takes the date of the sales contract, the invoice date or any other point 
in time belongs to  the discretion given to the investigating authorities. In contrast, once a 
reference point is chosen, it must be consistently applied to both sides, export prices and 
normal value, for those prices to remain comparable . 
2.2. Article  2.4 of the ADA  
4. Article 2.4 of the ADA requires that investigating authorities make a fair comparison between 
the export price and the normal value, and sets forth certain requirements to ensure that the 
comparison is fair. The relevant differences are those "which affect pri ce comparability". 
However, the existence of one of the differences listed in Article  2.4 does not automatically 
mean that price comparability has been affected, as "there may be situations when those 
differences do not affect price comparability".1 Indee d, Article  2.4 does not require that an 
adjustment be made automatically in all cases where a difference is found to exist, but only 
where, based on the merits of the case, that difference is demonstrated to affect price 
comparability.2 Thus, in order to make a prima facie  case of violation of Article  2.4, a 
complaining party must demonstrate that due allowance should have been made with respect 
to (i) a difference, (ii) that was demonstrated to affect price comparability between the normal 
value and the export price, and ( iii) that the investigating authority failed to make the 
 
* In English original language.  
1 Appellate Body Report, EU–Fatty Alcohols (Indonesia) , para.  5.23.  
2 Panel Report, US–Softwood Lumber V , para.  7.165.  WT/DS605/R/Add.1  
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  adjustment.3 The European Union considers that a fair comparison requires using consistent 
data having the same reference points from the same time periods. Once the POI has been 
chosen, investigati ng authorities should match export and domestic prices falling within the 
same POI and on the basis of the same criteria ( e.g. the date of the invoice). Whether the 
investigating authority should make an adjustment for differences in costs depends on 
wheth er such differences affect prices, a matter for the party requesting the adjustment to 
show.  
2.3. Article  2.2.1 of the ADA  
5. As noted by the Panel in EC - Bed Linen  (Article  21.5 DSU - India) , Article  2.2.1 of the ADA 
does not contain any guidance on how the weighted average should be calculated and, thus, 
it should be up to the investigating authority to choose the most appropriate method in view 
of the specific circumstances of the case.4 Generally, because Article  2.2.1 of the ADA explicitly 
refers  to the "weighted average per unit costs for the period of investigation " (as opposed to 
the specific "time of sale" used for the reference point as regards domestic prices), the use of 
an annual weighted average would appear appropriate in most cases. Tha t being said, 
investigating authorities may take into account certain elements, such as the concentration of 
sales in a particular period of time within the POI, with a view to being more granular in the 
application of this sentence.  
3. CLAIMS CONCERNING T HE INITIATION OF THE INVESTIGATION (ARTICLE  5.3 OF 
THE ADA)5 
6. Article  5.3 of the ADA imposes a comprehensive obligation on the investigating authority to 
determine whether the initiation of an investigation would be justified in view of the objectively 
available evidence. This obligation does not only encompass an examination of the application, 
but it may also require the investigating authority to take further steps in gathering the 
necessary evidence before initiating an investigation.6 
7. The fact t hat a complainant must provide such information as is "reasonably available" to it7 
confirms that the quantity and quality of the evidence required at the stage of initiating an 
investigation is not of the same standard as that required for a provisional or definitive 
finding.8 That being said, an investigation cannot be justified where, for example, there is no 
evidence of the existence of dumping before an investigating authority, even if such evidence 
is not "reasonably available" to the applicant. Ind eed, to justify initiation, an investigating 
authority must have "sufficient evidence" (whether from the applicant or arising out of its own 
enquiries). A mere assertion will not suffice.9 The question of the existence of "sufficient 
evidence" in a partic ular case has to be adjudicated in the light of the standard set in 
Article  17.6(i) of the ADA.10 It is in accordance with those principles that the Panel will have 
to examine the CDC's decision as to the sufficiency of the evidence available to it.  
 
3 Panel Report, EU – Footwear (China) , para.  7.278.  
4 Panel Report, EC – Bed Linen (Article  21.5 DSU - India) , para.  6.87.  
5 The European Union focuses its comments on Article  5.3 of the ADA, since, as a previous panel found, 
the part of Article  5.8 of the ADA which refers to the stage prior to the initiation of an investigation does not  
impose on the authorities concerned, as regards the initiation of an investigation, any substantive obligations 
additional to those arising from Article  5.3 (Panel Report, Mexico – Steel Pipes and Tubes , para.  7.25).  
6 Panel Report, Guatemala – Cement I , para. 7.53; and Panel Report, Guatemala – Cement II , 
para. 8.31.  
7 Panel Report, US – Softwood Lumber V , para.  7.87.  
8 For instance, "evidence of government ownership may be considered to amount to evidence 'tending 
to prove or indicating' that an entity i s a public body capable of conferring a financial contribution" (see Panel 
Report, US – Countervailing Measures (China) , para. 7.152).  
9 See Panel Report, China – GOES , paras. 7.55 and 7.56; and Panel Report, US – Countervailing 
Measures (China) , WT/DS437/R , para. 7.146.  
10 Panel Report, Guatemala – Cement I , para.  7.57 (confirmed in Panel Report, Mexico – Corn Syrup , 
paras.  7.94 et seq ). WT/DS605/R/Add.1  
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  4. CLAIMS CONCERNING PROCEDURAL RIGHTS OF INTERESTED PARTIES  
4.1. Article  6.4 of the ADA  
8. The European Union recalls that Article  6.4 of the ADA requires that, wherever practicable, 
authorities provide timely opportunities for all interested parties to see and  prepare 
presentations on the basis of "all information" that is relevant to the presentation of the 
interested parties' cases, not confidential as defined in Article  6.5, and is used by the 
authorities in an anti -dumping investigation.11 The obligation in  Article  6.4 is limited by the 
requirements that providing opportunities be "practicable" and that the information be 
"relevant", "not confidential" and "used".12 Further, the obligation in Article  6.4 of the ADA is 
not an "active" disclosure obligation in the sense that it requires an investigating authority to 
reach out to the interested parties, in particular by giving notice to, or otherwise informing 
the inter ested parties.13 The permissive language in Article  6.7 of the ADA should be read 
together with the obligation to have access to file in Article  6.4 of the ADA. Therefore, to the 
extent that the information contained in the verification report of the domes tic producers is 
not confidential as defined in Article  6.5, and is used by the authorities in an anti -dumping 
investigation, it should be made available to interested parties. In this respect, the 
European  Union observes that the type of information conta ined in those verification reports, 
as noted by the Panel in EU - Fatty Alcohols14,will be either quite generic ( e.g. a particular 
section of the questionnaire was verified) or subject to confidential treatment (because of the 
nature of the information col lected during the visit).  
4.2. Article  6.5 of the ADA  
9. The European Union recalls that, according to Article  6.5 of the ADA, information that is "by 
nature" confidential or "provided on a confidential basis" shall, upon "good cause" shown, be 
treated as such by the investigating authorities. Such information shall not be disclosed 
without specific permission of the party submitting it. The Appellate Body in EC - Fasteners 
(China)  considered that Article  6.5 of the ADA "set[s] out specific rules governing an 
investigating authority's acceptance and treatment of confidential information".15 Article  6.5 
imposes two conditions in order for the investigating authority to be obliged to treat 
information submitted by the parties to an investigation as "confidenti al". The first condition 
is split up in two alternatives. Authorities must treat information as confidential (i) if it is "by 
nature" confidential or if it is "provided on a confidential basis" and (ii) "upon good cause 
shown". With regard specifically to the first alternative in the first condition (information that 
is "by nature" confidential), the Appellate Body has noted that the "question whether 
information is 'by nature' confidential depends on the content of the information".16 The 
Appellate Body no ted that commercial sensitive information that is not typically disclosed in 
the normal course of business, and which would likely be regularly treated as confidential in 
anti-dumping investigations, such as certain profit or cost data or proprietary custo mer 
information, qualifies as such information.17 
10. The second condition to be met in order for the investigating authority to be obliged to treat 
information submitted by the parties to an investigation as "confidential" is that a "good cause" 
must be shown. This requirement applies to both information tha t is "by nature" confidential 
 
11 Appellate Body Report, EC – Fasteners (China) , para.  5.97.  
12 Panel Report, China – Broiler Products (Article  21.5 - US), para.  7.290.  
13 Panel Report, China – Broiler Products (Article  21.5 - US), para.  7.277.  
14 Panel Report, EU – Fatty Alcohols (Indonesia) , para.  7.224 ("At a minimum, the authorities should 
disclose the part of the questionnaire response or other information supplied for w hich supporting evidence was 
requested, whether any further information was requested, and whether documents were collected  by the 
authorities. Further, the results of the verification should state whether the producer made available the 
evidence and addi tional information requested and indicate whether the investigating authorities were or were 
not able to confirm the accuracy of the information supplied by the  verified companies in, inter alia, their 
questionnaire responses").  
15 Appellate Body Report, EC – Fasteners (China) , para.  535. 
16 Appellate Body Report, EC – Fasteners (China) , para.  536. 
17 Appellate Body Report, EC – Fasteners (China) , para.  536. WT/DS605/R/Add.1  
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  and that which is provided to the authority "on a confidential basis".18 Such "good cause" must 
be a reason that is sufficient to justify the withholding of information from both the public and 
from the other parties intereste d in the investigation.  
11. A panel tasked with reviewing whether an investigating authority has objectively assessed the 
"good cause" alleged by a party must examine this issue on the basis of the investigating 
authority's published report and its related  supporting documents, and in the light of the 
nature of the information at issue and the reasons given by the submitting party for its request 
for confidential treatment. This does not entail a de novo  review of the record of the 
investigation in order de termine whether the existence of "good cause" has been sufficiently 
substantiated by the submitting party.19 It does, on the other hand, entail asking whether 
there is evidence that the investigating authority objectively assessed the alleged "good 
cause".20 The fact that the investigating authority has conducted this objective assessment 
must be discernible from its published report or related supporting documents.21 
__________  
 
18 Appellate Body Report, EC – Fasteners (China) , para.  537, referring to Panel Report, EC – Fasteners 
(China) , para.  7.451; Panel Report, Korea – Certain Paper , para.  7.335; and Panel Report, 
Guatemala  - Cement II , para.  8.219.  
19 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.97.  
20 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.98.  
21 Appellate Body Report, Korea – Pneumatic Valves (Japan) , paras.  5.416 and 5.417.