WT/DS494/R/Add.1  
 
24 July 2020  
(20-5108) Page: 1/151 
    
 
  
EUROPEAN UNION – COST ADJUSTMENT METHODOLOGIES  
AND CERTAIN ANTI -DUMPING MEASURES ON IMPORTS  
FROM RUSSIA (SECOND COMPLAINT)  
 
REPORT OF THE PANEL  
Addendum  
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This addendum  contains Annexes A to D to the Report of the Panel to be found in document  
WT/DS494/R . 
 
 
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 WT/DS494/R/Add.1  
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LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES OF THE PANEL  AND INTERIM REVIEW  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures of the Panel concerning Business Confidential 
Information  11 
Annex  A-3 Interim Review  13 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 First integrated executive summary of the arguments of the Russian  Federation  64 
Annex  B-2 First integrated executive summary of the arguments of the European Union  76 
Annex  B-3 Second integrated executive summary of the arguments of the 
Russian  Federation  87 
Annex  B-4 Second integrated executive summary of the arguments of the European  Union  99 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Argentina  112 
Annex  C-2 Integrated executive summary of the arguments of Australia  117 
Annex  C-3 Integrated executive summary of the arguments of Japan  121 
Annex  C-4 Integrated executive summary of the arguments of the Republic of Korea  124 
Annex  C-5 Integrated executive summary of the arguments of Norway  127 
Annex  C-6 Integrated executive summary of the arguments of Ukraine  129 
Annex  C-7 Integrated executive summary of the arg uments of the United States  131 
ANNEX  D 
PRELIMINARY RULING OF THE PANEL  
Contents  Page  
Annex D -1 Preliminary Ruling of the Panel  (2 September 2019)  137 
 
 
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  ANNEX  A 
WORKING PROCEDURES OF THE PANEL  AND INTERIM REVIEW  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures of the Panel concerning Business Confidential 
Information  11 
Annex A-3 Interim Review  13 
 
 WT/DS494/R/Add.1  
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  ANNEX A -1 
WORKING PROCEDURES OF THE PANEL  
Adopted on 8 March 2019  
 
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 t hese procedures as necessary, after consultation 
with the parties.  
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) Nothing in the DSU or in these Working Procedures shall preclude a party or third party 
from disclosing statements 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, up on request of a Member, provide a non -confidential summary of the information 
contained in its submissions that could be disclosed to the public. Non-confidential summaries 
shall be submitted no later than ten days after the written submission in question is presented 
to the Panel, unless a different due date is established by the Panel upon written request of a 
party showing good cause.  
(4) Either party may request the Panel to adopt Additional Working Procedures Concerning 
Business Confidential Informatio n. In the event of such a request, the Panel will consider any 
proposals concerning such procedures submitted by the parties, either jointly or separately, 
and will consult with the parties before adopting any such procedures. In the event such 
procedures are adopted by the Panel, the parties shall treat business confidential information 
in accordance with those procedures.  
Submissions  
 
3. (1) Before the first substantive meeting of the Panel with the parties, each party shall 
submit a written submission i n 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 t he 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/DS494/R/Add.1  
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  Preliminary rulings  
4. (1) If the European Union considers that the Pane l should make a ruling 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 sha ll be granted upon a showing of good cause.  
a. The European Union 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. The Russian Federati on 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 subsequen t 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 fo r in the timetable or separately. 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 communicated to all third parties.  
(2) This procedure is without  prejudice to the parties' right to 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 P anel no later than during the first 
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 show ing 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 language, 
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 P anel 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 a detailed explanation of the grounds for the objection and an alternative translation.  
7. (1) To facilitate the maintena nce of the record of the dispute and maximize the clarity of 
submissions, each party and third 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 p age. Exhibits submitted by the Russian Federation should be numbered RUS -1, RUS -2, 
etc. Exhibits submitted by the European Union should be numbered EU -1, EU -2, etc. If the WT/DS494/R/Add.1  
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  last exhibit in connection with the first submission was numbered RUS -5, the first e xhibit in 
connection with the next submission thus would be numbered RUS -6.  
(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 par ty 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 hyperlink 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.  
Editorial Guide  
8. In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in accord ance with the WTO Editorial Guide for Panel Submissions (electronic copy 
provided).  
Questions  
 
9. The Panel may pose questions to the parties and third parties at any time, including:  
a. Before any meeting, the Panel may send written questions, or a list o f topics it intends 
to pursue in questioning orally during a meeting. The Panel may ask different or additional 
questions at 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 r ight to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each 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 the se Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties 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) two working days before the first day of each meeting with the Panel.  
14. A request for interpretation by any party should be made to the Panel as early as possible, 
preferably at the organizational stage, to allow sufficient time to ensure availabi lity of interpreters.  
15. The first substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall invite the Russian Federation to make an opening statement to present 
its case first. Subsequently, the Panel shall invite the European Union to present its point of 
view. Before each party takes the floor, it shall provide the Panel and ot her participants at the 
meeting with a provisional written version of its statement. If interpretation is needed, each 
party shall provide additional copies for the interpreters.  
b. Each party should avoid lengthy repetition of the arguments in its submis sions. Each 
party is invited to limit the duration of its opening statement to not more than 75 minutes. If WT/DS494/R/Add.1  
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  either party considers that it requires more time for its opening statement, it should inform 
the Panel and the other party at least three days prio r to 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, through the Panel.  
d. The Panel may subsequently pose questions to the parties.  
e. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with the Russ ian Federation 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 version 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, each party should also submit a final written version of any prepared closing 
statem ent that it delivered at the meeting.  
ii. Each party shall send in writing, within the timeframe 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 timeframe established by the Panel before 
the end of the meeting, any questions to the parties to which it wishes to receive a 
response in writing.  
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 with the parties shall be conducted in the same 
manner as the first substantive mee ting with the Panel, except that the European Union shall be 
given the opportunity to present its oral statement first. If the European Union chooses not to avail 
itself of that right, it shall inform the Panel and the other party no later than 5.00pm (Gen eva time) 
three working days day before the meeting. In that case, the Russian Federation shall present its 
opening statement first, followed by the European Union. The party that presented its opening 
statement first shall present its closing statement fi rst. 
Third party session  
 
17. The third parties shall be present at the meetings only when invited by the Panel to appear 
before it.  
18. (1) Each third party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(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, particularly with regard to the confidentiality of the pro ceeding and the 
submissions of the parties and third parties.  
19. A request for interpretation by any third party should be made to the Panel as early as 
possible, preferably upon receiving the working procedures and timetable for the proceeding, to 
allow sufficient time to ensure availability of interpreters.  
20. (1) Each third party may present its views orally during a session of the first substantive 
meeting with the parties set aside for that purpose.  WT/DS494/R/Add.1  
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  (2) Each third party shall indicate to the Panel whether it intends to make an oral statement 
during the third party session, along with the list of members of its delegation, in advance of 
this session and no later than 5.00  p.m. (Geneva time) two working days before the third 
party session of the meeti ng with the Panel.  
21. The third -party session shall be conducted as follows:  
a. All parties and third parties may be present 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 participants with a provisional written versi on 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.  
c. Each third party should limit the duration of its statement to 15 minut es, and avoid 
repetition of the arguments already 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 three days before the meeting, together with an estima te 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 part y, through the Panel, 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 timeframe to be established by the Panel 
before the end of the meeting, any questio ns to a third party or parties to which it 
wishes to receive a response in writing.  
iii. The Panel may send in writing, within the timeframe to be established by the Panel 
before the end of the meeting, any questions to a third party or parties to which i t 
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 timeframe established by the Panel before the end of the 
meeting.  
Descriptive part and exec utive summaries  
 
22. 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 annexed as addenda to the repo rt. 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.  
23. Each party shall submit two integrated executive summaries. The first integrated exec utive 
summary shall summarize the facts and arguments as presented to the Panel in the party's first 
written submission, its first oral statement, and if possible, its responses to questions following the 
first substantive meeting. The second integrated ex ecutive summary shall summarize its second 
written submission, its second oral statement, and if possible, its responses to the second set of 
questions and comments thereon following the second substantive meeting. The timing of the 
submission of these two  integrated executive summaries shall be indicated in the timetable adopted 
by the Panel.  WT/DS494/R/Add.1  
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  24. Each integrated executive summary shall be limited to no more than 15 pages.  
25. The Panel may request the parties and third parties to provide executive summar ies of facts 
and arguments presented in any other submissions to the Panel for which a deadline may not be 
specified in the timetable.  
26. Each third party shall submit an integrated executive summary of its arguments as presented 
in its written 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, if relevant. 
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 may serve as the executive 
summary of that third party's arguments.  
Interim review  
 
27. Following issuance of the interim report, each party may submit a written req uest to review 
precise aspects of the interim report and request 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 f or review is submitted.  
28. If no further meeting with the Panel 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 comments shall be limited to  commenting on the other party's written request for 
review.  
Interim and Final Report  
29. The interim report, as well as the final report before its official circulation, shall be kept strictly 
confidential and shall not be disclosed.  
Service of documents  
 
30. 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 Panel by submitting them 
with the DS  Registry (office No. 2047).  
b. Each party and third party shall submit [1] paper copy of its submissions and [1] paper 
copy of its Exhibits to the Panel by 5 .00 p.m. (Geneva time) on the due dates established 
by the Panel. The DS  Registrar shall stamp the documents with the date and time of 
submission. The paper version submitted to the DS Registry shall constitute the official 
version for the purposes of subm ission deadlines and the record of the dispute. If any 
documents are in a format that is impractical to submit as a paper copy, then the party 
may submit such documents to the DS Registrar by email or on a CD -ROM, DVD or 
USB key only.  
c. Each party and thi rd party shall also send an email to the DS Registry, at the same time 
that it submits the paper versions, attaching an electronic copy of all documents that it 
submits to the Panel, preferably in both Microsoft Word/Excel and PDF format. All such 
emails t o the Panel shall be addressed to DSRegistry@wto.org , and copied to other 
WTO Secretariat staff whose email addresses have been provided to the parties during the 
proceeding. If it is not possible to attach all the Exhibi ts to one email, the submitting party 
or third party shall provide the DS Registry with four copies of the Exhibits on USB keys, 
CD-ROMs or DVDs.  
d. In addition, each party and third party is invited to submit all documents through the 
Digital Dispute Sett lement Registry (DDSR) within 24 hours following the deadline for the 
submission of the paper versions. If the parties or third parties have any questions or 
technical difficulties relating to the DDSR, they are invited to consult the DDSR User Guide 
(electronic copy provided) or contact the DS Registry at DSRegistry@wto.org . WT/DS494/R/Add.1  
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  e. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall, in addition, serve any submissions in advance of the first substantive 
meeting with the Panel directly on the third parties. Each third party shall serve any 
document submitted to the Panel directly on the parties and on all other third parties. 
A party or third party may serve its documents on another party or third party by email 
or on a CD -ROM, DVD or USB key only, unless the recipient party or third party has 
previously requested a paper copy. Each party and third party shall confirm, in writing, 
that copies have been served on the parties and third parties, as appropriate, at the time 
it provides each document to the Panel.  
f. Each party and third party shall submit its documents with the DS Registry and serve 
copies on the other party (and third parties if appropriate) by 5. 00 p.m. (Geneva time) on 
the due dates established by the Panel.  
g.  As a general rule, all communications from the Panel to the parties and third parties will 
be via email. In addition to transmitting them to the parties by email, the Panel shall 
provide  the parties with a paper copy of the Interim Report and the Final Report.  
Correction of clerical errors in submissions  
31. The Panel may grant leave to a party or third party to correct clerical errors in any of its 
submissions (including paragraph numbe ring and typographical mistakes). Any such request should 
identify the nature of the errors to be corrected, and should be made promptly following the filing 
of the submission in question.  
  WT/DS494/R/Add.1  
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  ANNEX A -2 
ADDITIONAL WORKING PROCEDURES OF THE PANEL CONCERNING  
BUSINESS CONFIDENTIAL INFORMATION  
Adopted on 22 March 2019  
1. These procedures apply to any business confidential information ("BCI") that a party wishes 
to submit to the Panel. For the purposes of these procedures, BCI is defined as any information that 
has been designated as such by the party submitting the information, that is not available in the 
public domain, and the release of which would seriously prejudice an essential interest of the person 
or entity that supplied the information to the party. In this regard, BCI shall include any information 
that was treated as confidential in the course of the European Commission ("EC") anti -dumping 
investigations at issue in the Panel process, unless the person that provided the information in the 
course of the EC's anti -dumping investigations agrees in writing otherwise. These procedures do not 
apply to information that is available in the public domain.  
2. No person may have access to BCI except a member of the Panel or the WTO Secretariat, an 
employee of a pa rty or third party, and an outside advisor acting on behalf of a party or third party 
for the purposes of this dispute. However, an outside advisor is not permitted access to BCI if that 
advisor is an officer or employee of an enterprise engaged in the pro duction, export, or import of 
the products that were subject of the investigation at issue in this dispute or an officer or employee 
of an association of which the enterprise is a member.  
3. A party or third -party having access to BCI shall treat it as co nfidential, i.e. shall not disclose 
that information other than to those persons authorized to have access to it pursuant to these 
procedures. Each party and third party shall have responsibility in this regard for its employees as 
well as any outside advi sors 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.  
4. The party submitting BCI shall mark the cover and/or fi rst page of the document containing 
BCI, and each page of the document, to indicate the presence of such information. The specific 
information in question shall be placed between double brackets, as follows: [[xx,xxx.xx]]. The first 
page or cover of the do cument shall state "Contains business confidential information on pages 
xxxxxx", and each page of the document shall contain the notice "Contains Business Confidential 
Information" at the top of the page. In case of exhibits, the party submitting BCI in th e form of an 
Exhibit shall mark it as (BCI) next to the exhibit number (e.g. Exhibit RUS -1 (BCI)). Should the party 
submit specific BCI within a document which is considered to be public, the specific information in 
question shall be placed between double brackets, as follows: [[xx,xxx.xx]]".  
5. Any BCI that is submitted in binary -encoded form shall be clearly marked with the statement 
"Business Confidential Information" on a label on the storage medium, and clearly marked with the 
statement "Business Confi dential Information" in the binary -encoded files.  
6. 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 contain BCI, and the Panel 
will ensure th at only persons authorized to have access to BCI pursuant to these procedures are in 
the room to hear that statement.  
7. If a party considers that information submitted by the other party should have been 
designated as BCI and it objects to such submission without BCI designation, it shall forthwith bring 
this objection to the attention of the Panel, the other party, and, where relevant, the third parties. 
The Panel shall deal with the objections, as appropriate, in accordance with the criteria se t out in 
paragraph 1. The same procedure shall be followed if a party considers that information submitted 
by the other party with the notice "Contains Business Confidential Information" should not be 
designated as BCI.  
8. The parties, third parties, the P anel, the WTO Secretariat, and any others who have access to 
documents containing BCI under the terms of these Additional Working Procedures shall store all 
documents containing BCI so as to prevent unauthorized access to such information.  WT/DS494/R/Add.1  
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  9. The Panel wil l 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 t o the Members, 
the Panel will give each party an opportunity to review the report to ensure that it does not disclose 
any information that the party has designated as BCI.  
10. If (a) pursuant to Article 16.4 of the DSU, the Panel report is adopted by the D SB, or the 
DSB decides by consensus not to adopt the Panel report, (b) pursuant to Article 12.12 of the DSU, 
the authority for establishment of the Panel lapses, or (c) pursuant to Article 3.6 of the DSU, a 
mutually satisfactory solution is notified to the  DSB before the Panel completes its task, within a 
period to be fixed by the Panel, each party and third party shall return all documents (including 
electronic material and photocopies) containing BCI to the party that submitted such documents, or 
certify in writing to the Panel and the other party (or the parties, in the case of a third party returning 
such documents) that all such documents (including electronic material and photocopies) have been 
destroyed, consistent with the party's record -keeping obli gations under its domestic laws. This 
obligation is without prejudice to the confidential information separately obtained by the EC and 
stored in its own record of the anti -dumping investigations at issue in the Panel process. The Panel 
and the WTO Secreta riat shall likewise return all such documents or certify to the parties that all 
such documents have been destroyed. The WTO Secretariat shall, however, have the right to retain 
one copy of each of the documents containing BCI for the archives of the WTO o r for transmission 
to the Appellate Body in accordance with paragraph 11 below.  
11. If a party formally notifies the DSB of its decision to appeal pursuant to Article 16.4 of the 
DSU, the WTO Secretariat will inform the Appellate Body of these procedures a nd will transmit to 
the Appellate Body any BCI governed by these procedures as part of the record, including any 
submissions containing information designated as BCI under these working procedures. Such 
transmission shall occur separately from the rest of the Panel record, to the extent possible. In the 
event of an appeal, the Panel and the WTO Secretariat shall return all documents (including 
electronic material and photocopies) containing BCI to the party that submitted such documents or 
certify to the pa rties that all such documents (including electronic material and photocopies) have 
been destroyed, except as otherwise provided above. Following the completion or withdrawal of an 
appeal, the parties and third parties shall promptly return all such documen ts or certify to the parties 
that all such documents have been destroyed, taking account of any applicable procedures adopted 
by the Appellate Body.  
12. At the request of a party, the Panel may apply these working procedures or an amended form 
of these wo rking procedures to protect information that does not fall within the scope of the 
information set out in paragraph 1. The Panel may, with the consent of the parties, waive any part 
of these procedures.  WT/DS494/R/Add.1  
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  ANNEX A -3 
INTERIM REVIEW  
1  INTRODUCTION  
1.1.  The Panel issued its Interim Report to the parties on 17 April 2020. Both parties submitted 
written requests for review of precise aspects of the Interim Report on 1 May 2020, and written 
comments on each other's written requests on 15 May 2020. Neither party requested the Panel to 
hold an interim review meeting.  
1.2.  In accordance with Article  15.3 of the DSU, this Annex responds to the issues raised by the 
parties in the context of the interim review. We discu ss the parties' requests for substantive 
modifications below, in sequence, according to the sections and paragraphs of the Interim Report to 
which the requests pertain. We modified certain aspects of the Report in light of the parties' 
comments where we co nsidered it appropriate, as explained below. In addition, the Panel has made 
a number of changes of an editorial nature to improve the clarity and accuracy of the Report or to 
correct typographical and other non -substantive errors, certain of which were su ggested by the 
parties.  
1.3.  In addressing the parties' requests for substantive modifications below, we are mindful of the 
specific scope, nature and purpose of the interim review. With respect to the scope of our review, 
we observe that Article  15.2 of the D SU, and paragraph  27 of the Panel's Working Procedures, 
provide parties with an opportunity to request the Panel "to review precise aspects of the interim 
report". Previous panels have declined to expand the scope of the interim review beyond that 
provided  for in Article  15.2 of the DSU and have accordingly circumscribed their review to address 
only those requests related to "precise aspects" of the interim report.1 With respect to the nature 
and purpose of our review, it is well -established that the inter im review is not an appropriate stage 
for the parties to raise new arguments or submit new evidence not previously presented before a 
panel; nor is it an appropriate stage for the parties to re -argue their case on the basis of the 
arguments already put bef ore a panel.2 
1.4.  In light of the considerations stated above, we have reviewed our Interim Report only in light 
of the parties' requests that related to its "precise aspects". We have not accepted requests 
amounting to a party's attempt to re -argue its case.   
1.5.  Moreover, we are guided by the consideration that the descriptions of the parties' arguments 
in our Report are not intended to reflect the entirety of the parties'  arguments. Rather, they focus 
on the principal points we considered relevant to the resolu tion of this dispute. In this respect, we 
recall that "a panel ha[s] the discretion to address only those arguments it deems necessary to 
resolve a particular claim".3 We further note that the integrated executive summaries of the 
arguments of the parties  are set out in Annexes B1 -B4. Those summaries have been prepared by 
the parties themselves and therefore have provided the parties with the full opportunity to reflect 
their arguments as they see fit.  
1.6.  As a result of the changes made, the numbering of foot notes in the Final Report has changed 
from the Interim Report. In the discussion below, we use the numbering in the Interim Report.  
 
1 Panel Reports, Brazil – Taxation , paras. 6.7 -6.8; Japan – Alcoholic Beverages II , para. 5.2; Australia – 
Salmon , para. 7.3; Japan – Apples ( Article  21.5 – US), para. 7.21; India – Quantitative Restrictions , para. 4.2; 
Canada – Continued Suspension , paras. 6.16 -6.17; US – Continued Suspension , paras. 6.17 -6.18; and India – 
Agricultural Products , para. 6.5.   
2 Appellate Body Reports, EC – Sardines , para. 301; and EC – Selected Customs Matters, para. 259.  See 
also Panel Reports, Japan – DRAMs (Korea) , para. 6.2; US – Poultry (China) , para. 6.32; India – Agricultural 
Products , para. 6.5; India – Solar Cells , para. 6.24; Russia – Pigs, paras. 6.6-6.7; US – Zeroing (EC) 
(Article  21.5 – EC), para. 7.26; and Brazil – Taxation , para. 6.7.  
3 Appellate Body Reports, EC – Poultry , para. 135; US – COOL , para. 414 . WT/DS494/R/Add.1  
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  1.7.  With these preliminary remarks, we now turn to the substance of the parties' requests for 
review.  
2  SPECIFIC REQUESTS FOR REVI EW SUBMITTED BY THE PARTIES  
2.1  Treatment of BCI  
2.1.  Russia requests that the seventh sentence of paragraph  7.535 of the Interim Report be 
bracketed as BCI.4 The European  Union disagrees that such extensive BCI treatment is necessary 
and considers that Russia's request does not correspond to the manner in which similar information 
was treated during the proceedings.5  
2.2.  We disagree with the European  Union that information about the pricing behaviour of individual 
exporters was not treated confidentially during the proceedings (see, for example, paragraph  7.529 
of the Interim Report). In addition, we note that the sentence for which Russia requests BCI 
treatment is taken from recital 159 of Regulation 999/2014: however, the names of the individual 
exporters do not appear in this document.  
2.3.  We have thus decided to grant the BCI treatment requested by Russia.  
2.2  Russia's claims concerning the Cost Adjustment Methodolog y 
2.2.1   Russia's requests concerning the terms "alleged"/"allegedly"  
2.4.  Russia requests that the Panel add/delete the words "alleged" and "allegedly" to/from several 
paragraphs and footnotes of the Interim Report. Specifically, Russia asks the Panel: (i) to add, to  
the first sentence of paragraph  7.13, "allegedly" before "affecting"6; and, to the third sentence of 
paragraph  7.13, "allegedly" before "undistorted"7; (ii) to add "alleged" before "distortions" in the 
second sentence of paragraph  7.13, the first and last sentences of paragraph  7.14, the first sentence 
of paragraph  7.17, paragraph  7.28(a), the first sentence of paragraph  7.30, the last sentence of 
paragraph  7.32, the first sentence of paragraph  7.34, the second and third sentences of 
paragraph  7.68, th e third and fourth sentences of paragraph  7.79, the second sentence of 
paragraph  7.166, and the second sentence of paragraph  7.2348; (iii) to add "alleged" before 
"significant distortions" in the first sentence of paragraph  7.79; (iv) to add "allegedly" b efore 
"undistorted" in the third sentence of paragraph  7.153; and (v) to add "allegedly" before "distorted" 
in the second sentence of paragraph  7.30, the second sentence of footnote 137, the third sentence 
of paragraph  7.105, and the second and last senten ces of paragraph  7.153.9 
2.5.  Furthermore, Russia asks the Panel to delete "alleged" before "Cost Adjustment Methodology" 
and "methodology" in the first sentence of paragraph  7.13 and the sixth and seventh sentences of 
footnote 175.10 
2.6.  The European  Union object s to Russia's requests, arguing that the use of the words "alleged" 
and "allegedly" is entirely appropriate when setting out Russia's arguments. However, using these 
words is not appropriate to refer to findings in the relevant determinations, based on evi dence in 
the particular investigations.11 
2.7.  We have decided  to grant Russia's request to add to the first sentence of paragraph  7.13 
"allegedly" before "affecting", because paragraph  7.13 describes Russia's arguments in relation to 
the operation of the Cost Adjustment Methodology. For the same reason, we have decided to grant 
Russia's request to add "allegedly" before the word "undistorted" in paragraph  7.153 and to delete 
"alleged" before "Cost Adjustment Methodology" and "methodology" in the first sentence of 
paragraph  7.13. We have also decided to grant Russia's request to delete  the word "alleged"  from 
 
4 Russia's comments on the Interim Report, para. 437.  
5 European Union's comments on Russia's comments on the Interim Report, para. 72.  
6 Russia's comments on the Interim Report , para. 12. 
7 Russia's comments on the Interim Report , para. 13. 
8 Russia's co mments on the Interim Report , para. 23. 
9 Russia's comments on the Interim Report , para. 24. 
10 Russia's comments on the Interim Report , para s. 12 and 27.  
11 European Union's comments on Russia's comments on the Interim Report, paras. 5 and 8.  WT/DS494/R/Add.1  
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  the sixth and seventh sentences of footnote 175, because in paragraph  7.64 the Panel had already 
concluded that Russia has established the existence of the Cost Adjustment Methodology.  
2.8.  We have decided to reject all remaining Russia's requests because  the suggested additions are 
either unnecessary or inappropriate.  
2.9.  We consider that adding "alleged" before "distortions" or "allegedly" before "distorted"  is 
unnecessary in the case of the second sentence of paragraph  7.13, the first sentence of 
paragraph  7.14 and paragraph  7.28(a). When  referring to "distortions", those sentences already 
indicate that it is the European Commission who considers them as such. Thus, the Panel uses the 
following language: "considered as 'distortions'" in the second sentence of paragraph  7.13 and 
paragraph  7.28(a), and "which the European Commission considers … unaffected by 'distortions'" in 
the first sentence of paragraph  7.14. Likewise, in the case of the third sentence of paragraph  7.13, 
the last sentence of paragraph  7.14, the first sentence of paragraph  7.17, the first sentence of 
paragraph  7.30, the last sentence of paragraph  7.32, the second and third sentences of 
paragraph  7.68, the second sentence of paragraph  7.166, the second sentence of paragraph  7.30 
and the third  sentence of paragraph  7.105, adding "alleged" before "distortions" or "allegedly" before 
"distorted" i s unnecessary because those words are already presented within quotation marks.  
2.10.   As for Russia's requests concerning the first, third and fourth sentences  of paragraph  7.79 
adding "alleged" before "significant distortions" and "distortions" is inappropriate because in this 
paragraph  the Panel cites Regulation 2017/2321, which governs the issue of "significant distortions". 
However, to improve accuracy, we h ave decided to add "significant" before "distortions" in the third 
and fourth sentences of paragraph  7.79. In the case of Russia's request concerning  the second 
sentence of footnote 137, adding "allegedly" before "distorted" is inappropriate because this f ootnote 
quotes recital 36 of Regulation 2019/1688.  As for Russia's request concerning the second and last 
sentences of paragraph  7.153, adding "alleged" before "distorted" is also inappropriate because 
these sentences, respectively, quote and refer to a s tatement made by the European Commission 
to the Council of the European  Union  in 2002. Finally, as for Russia's request concerning the second 
sentence of paragraph  7.234, we also find it inappropriate to add "alleged" before "distortions" as 
this sentence r epresents an argument of the European  Union.  
2.2.2   Russia's requests concerning the term "surrogate"  
2.11.   Russia requests that the Panel change the "text of the Panel Report, including subtitles" by 
using formulations such as "surrogate input data"12 or "surrogate input price"13 when referring to 
the input price data used by the European Commission to calculate the costs of production of 
investigated producers pursuant to the Cost Adjustment Methodology. Specifically, Russia requests 
the Panel: (i) to  delete "information" after "out -of-country input price" in the first sentence of 
paragraph  7.1414; (ii) to use "surrogate input price" instead of "out -of-country input cost data" in 
paragraph  7.28 (b)15; (iii) to use "surrogate prices" instead of "out -of-country input price data" in 
the first sentence of paragraph  7.3416; (iv) to use "surrogate prices" instead of "out -of-country input 
price information" in the last sentence of paragraph  7.3417; (v) to delete " out-of-country" before 
"'surrogate' input price s" in paragraph  7.11518; and (vi) to delete "information" after "'surrogate' 
input price" in the first sentence of paragraph  7.116.  
2.12.   Russia argues that the European  Union replaces the actual cost with that from another market 
considered by the European Comm ission as more "representative" in order to remove the alleged 
distortions.  
2.13.   Russia further argues that, in EU – Biodiesel (Argentina) , the Appellate Body used the term 
"the surrogate price for soybeans" to refer to the replacement of the actual costs of so ya beans 
recorded by the Argentinean producers under investigation used by the European Commission. 
Accordingly, for Russia, "it is acceptable and appropriate" to refer to similar replacements by the 
 
12 Russia's com ments on the Interim Report , para. 21. 
13 Russia's comments on the Interim Report , para. 16. 
14 Russia's comments on the Interim Report, para. 14.  
15 Russia's comments on the Interim Report , para. 16. 
16 Russia's comments on the Interim Report , paras. 33-34. 
17 Russia's comments on the Interim Report , paras. 33-34. 
18 Russia's comments on the Interim Report , para. 44.  WT/DS494/R/Add.1  
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  European Commission pursuant to the Cost Adjustment Meth odology as "surrogate input prices".19 
According to Russia, formulations such as "out -of-country input cost data" do not represent "all 
seriousness of the challenged measure and business losses by producers and exporters".20 
2.14.   The European  Union asks the Panel to reject Russia's requests, arguing that it fails to 
understand why either "surrogate input price" or "out -of-country input cost data" should or could 
reflect "seriousness of the challenged measure and business losses by prod ucers and exporters". For 
the European  Union, any suggestions Russia makes are baseless and the words Russia uses do not 
have the connotation that Russia suggest they have, nor does Russia substantiate this.21 Finally, the 
European  Union argues that the us e of "surrogate prices" was specific to the EU – Biodiesel 
(Argentina) dispute  and has not application in the present dispute.22 
2.15.   We note that Russia's requests effectively seek (i) to remove the references to "data" or 
"information" in relation to what the  European Commission uses to calculate the costs of production 
for investigated producers pursuant to the Cost Adjustment Methodology, asking the Panel to refer 
to this as "input prices" or "prices"; (ii) to remove the reference to the origin of the inform ation or 
data used by the European Commission for these purposes; and (iii) to add instead the adjective 
"surrogate" to describe this information or data.  
2.16.   We have decided to decline all Russia's requests. As for Russia's request to delete the 
reference to "data" or "information", we note Russia's argument that this would represent the fact 
that the European  Union actually uses input prices from other countries or markets instead of 
domestic input prices.23 We also note the European  Union's argument that the  word "information" 
correctly represents Russia's position.24 In our view, Russia's request is at odds with Russia's own 
description of the Cost Adjustment Methodology. As noted in paragraph  7.7(b), Russia challenges 
the replacement or adjustment of the co sts recorded in the records of the producer under 
investigation "using the cost data obtained from other sources".25 Moreover, we note that Russia's 
request for review considers acceptable to use formulations such as "surrogate input data".26 In light 
of this, to improve consistency, we have decided to add "information" after "out -of-country input 
price" in the second sentence of paragraph  7.14. 
2.17.   As for Russia's requests to delete the references to the origin of the information or data used 
by the European C ommission pursuant to the Cost Adjustment Methodology, we fail to see how 
maintaining these references would not represent "all seriousness of the challenged measure and 
business losses by producers and exporters". The fact that, pursuant to this methodolo gy, the 
European Commission calculates the costs of production of investigated producers on the basis of 
out-of-country data or information constitutes an essential feature of the challenged measure, as 
alleged by Russia during the panel proceeding.27 The adjective "surrogate" suggested by Russia, 
which focuses on the alleged replacement or substitution of the input prices reflected in the records 
of the investigated producers with out -of-country input prices, does not describe the origin of the 
inform ation or data used by the European Commission.  
2.18.   As for Russia's request to add "surrogate" to paragraphs  7.28 (b)  and 7.34, we do not believe 
it is necessary to add this adjective to the description of the input price data used by the 
European  Commission to  calculate the costs of production pursuant to the Cost Adjustment 
Methodology.  Russia's characterization of the out -of-country input price information as "surrogate" 
is already noted in paragraph  7.14. Moreover, we note that, in EU – Biodiesel (Argentina) , the 
Appellate Body decided to refer, in its report, to the replacement of actual costs by the average of 
the reference prices of soya beans used by the European Commission in the relevant regulation as 
the "surrogate price for soybeans".28 However, we ag ree with the European  Union that this 
terminology represents the specific facts underlying the biodiesel investigation conducted by the 
European Commission. As for the Cost Adjustment Methodology, as concluded in paragraph  7.41, 
 
19 Russia's comments on the Interim Report , para. 20.  
20 Russia's comments on the Interim Report, para. 16.  
21 European Union's com ments on Russia's comments on the Interim Report, para. 6.  
22 European Union's comments on Russia's comments on the Interim Report, para. 7.  
23 Russia's comments on the Interim Report , para. 14. 
24 European Union's comments on Russia's comments on the Interim  Report, para. 13.  
25 Russia's first written submission, para. 299. (emphasis added)  
26 Russia's comments on the Interim Report , para. 21. (emphasis added)  
27 See, e.g. Panel Report, paras. 7.41 and 7.124.  
28 Appellate Body Report, EU – Biodiesel (Argentina),  para. 5. 7. WT/DS494/R/Add.1  
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  pursuant to this methodolog y, the European Commission "adjusted" the costs of the 
producer/exporter under investigation on the basis of out -of-country input price information, in 
application of the second subparagraph  of Article  2(5) of the Basic  AD Regulation.  
2.2.3   Paragraphs 7.7 and 7. 8(a) of the Interim Report  
2.19.   Paragraphs 7.7 and 7.8(a) of the Interim Report reproduce, respectively, Russia's description 
of the Cost Adjustment Methodology and its request that we find this measure inconsistent with the 
first sentence of Article 2.2.1.1 of  the Anti -Dumping Agreement. Russia notes that these paragraphs 
do not reflect Russia's position that, pursuant to the Cost Adjustment Methodology, the 
European  Commission rejects part of the costs reflected in the records, even though the records 
comply w ith the two conditions set out in the first sentence of Article  2.2.1.1 of the 
Anti-Dumping  Agreement (i.e. the records are "in accordance with the GAAP of the exporting 
country" and "reasonably reflect the costs associated with the production and sale of the product 
under consideration"). Asserting that compliance with the two above -mentioned conditions 
constitutes an "important part of the description of the measure", Russia requests the Panel to (i) 
revise paragraphs 7.7 and 7.8(a); and (ii) "take into a ccount this comment in its considerations and 
findings".29 The European Union did not specifically comment on this request.  
2.20.   We have decided to grant Russia's request to amend paragraphs 7.7 and 7.8(a) in order to 
properly reflect Russia's description of th e Cost Adjustment Methodology and its request for findings 
under the first sentence of Article 2.2.1.1. Accordingly, we have added to paragraphs 7.7 and 7.8(a) 
Russia's allegation that the records of the investigated producers examined by the 
European  Comm ission pursuant to the Cost Adjustment Methodology are "in accordance with the 
GAAP of the exporting country" and "reasonably reflect the costs associated with the production and 
sale of the product under consideration". As for Russia's second request, the  Interim Report already 
takes into account Russia's above -mentioned allegation in the Panel's considerations and findings 
on the Cost Adjustment Methodology:  paragraph  7.32 sets out our understanding that, by claiming 
that the records of the investigated p roducers are rejected notwithstanding their compliance with 
the two conditions set out in Article  2.2.1.1 of the Anti -Dumping Agreement , Russia is in fact 
challenging the rejection of the records of the investigated producers on grounds that are unrelated 
to compliance with these two conditions. Paragraph  7.32 identifies these grounds to be: the fact that 
the recorded input prices are signi ficantly low or affected by government regulation, or other 
situations considered as "distortions" in the country of origin . 
2.2.4   Paragraphs 7.12, 7.13 and 7.113 of the Interim Report  
2.21.   Referring to paragraphs 304 and 427 of its first written submission, Russia a sks the Panel: 
(i) to add "of the product under consideration" after "costs of production" in paragraph  7.12 and the 
fourth sentence of paragraph  7.1330; and (ii) to include "the product under consideration in the 
country of origin" instead of "a product" in the third sentence of paragraph  7.113.31 The 
European  Union does not object to Russia's requests.32 To better reflect Russia's arguments, we 
have decided to grant Russia's requests.  
2.2.5   Paragraph  7.13 of the Interim Report  
2.22.   Russia requests the Panel to add " and so -called 'representative markets'" after "in other 
countries" in the second sentence of paragraph  7.13. In the fourth sentence of paragraph  7.13, 
Russia requests the Panel to add "or markets" after "in other countries".33 
2.23.   We have decided to partially grant Russia's request. Thus, we have added a reference to 
"markets" in the second and fourth sentences of paragraph  7.13 to reflect Russia's argument that, 
pursuant to the Cost Adjustment Methodology, the European Commission c ompares the domestic 
input prices with those in other countries or "markets". However, we have decided not to grant 
Russia's request to refer to the other countries or markets used as benchmarks as "representative". 
To us, this request stands at odds with Russia's description of the challenged measure, in which 
 
29 Russia's comments on the Interim Report , para . 5. 
30 Russia's comments  on the Interim Report , para. 8. 
31 Russia's comments  on the Interim Report , para. 11. 
32 European Union's comments on Russia's comments  on the Interim Report , para. 4. 
33 Russia's comments  on the Interim Report , para. 13.  WT/DS494/R/Add.1  
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  Russia uses the terminology "representative markets" to describe the source from which the 
European Commission obtains the cost data used to perform the adjustment34; Russia does not 
consistently ref er to the countries or markets used as benchmarks as "representative". Furthermore, 
the anti -dumping determinations Russia puts forward in support of the existence of the Cost 
Adjustment Methodology do not refer to the countries or markets used as benchmar ks as 
"representative".  
2.2.6   Paragraph  7.34 of the Interim Report  
2.24.   Russia requests the Panel to change the wording of item (ii) of the last sentence of 
paragraph  7.34. In item (ii), the Panel sets out its understanding that the second element of the 
Cost Adjustm ent Methodology consists in "not adapting the out -of-country input price information 
used in its calculations in order to reflect the cost of production of the product under consideration 
'in the country of origin'". Russia asks the Panel to, instead, stat e that the second element of the 
Cost Adjustment Methodology consists in "not mandating to use the cost of production in the country 
of origin when calculating and constructing normal value".35 According to Russia, this reflects "a 
more correct understandi ng and description of Russia's challenge".36 
2.25.   We have decided not to grant Russia's request. As noted in paragraph  7.34, our understanding 
of the Cost Adjustment Methodology and the operation of its two elements is based on the description 
and explanations given by Russia during the panel proceedings. While Russia asserts that the 
suggested language would better reflect Russia's complaint in relation to the Cost Adjustment 
Methodology, Russia does not identify any reference to support such an allegation in 
Russia's  submissions. Accordingly, we do not agree with Russia's request to change our 
understanding of this aspect of the challenged measure and consider that such a request goes 
beyond the scope of this interim review.  
2.2.7   Paragraph  7.38 of the Interim Report  
2.26.   Referring to the European  Union's response to Panel question No. 70, the  European  Union 
requests the Panel to insert, before the last sentence of paragraph  7.38, a sentence that reflects the 
following  arguments of the European  Union, in relation to the an ti-dumping determinations Russia 
advances  to demonstrate the precise content  of the Cost Adjustment Methodology : 
The European  Union argued that these determinations concern different countries 
(Russia, Ukraine, Algeria, Libya, Croatia, Argentina, Indonesia  …); different products 
(tubes, pipes, urea, ammonium nitrate, potassium chloride, ferro -silicon, biodiesel…); 
and different reasons for rejection (regulated prices, abnormally low prices, export 
taxes…) and that there is no indication that the competent a uthorities could not reach 
a different conclusion in the future depending on the facts of the case before them.  
2.27.   According to the European  Union, adding the suggested sentence would "fully and correctly 
reflect the European  Union's arguments". The European  Union also requests the Panel to add the 
word "further" between "advanced no" and "evidence" in the last sentence of paragraph  7.38. 
2.28.   Russia objects to the European  Union's requests . As for the European  Union's first request, 
Russia submits that the suggested sentence concerns an argument  of the European  Union, whereas 
in paragraph  7.38 the Panel describes the evidence  advanced by Russia to demonstrate the precise 
content of the Cost Adjustment Methodology (i.e. a set of 17 anti -dumping determinations by the 
European Commission), and the fact that the European  Union advanced no evidence to respond to 
the specific findings in these an ti-dumping determinations. Furthermore, Russia  argues that 
paragraph  7.44 of the Interim Report already takes note of the European  Union's arguments . As for 
the European  Union's second request, Russia considers that the addition requested would suggest 
that the European  Union has provided evidence  to rebut the anti -dumping determinations put 
forward by Russia , which is not the case.  
2.29.   We have decided to grant the European  Union's first request. Paragraph  7.44 of the 
Interim  Report does not take note of the Eu ropean  Union's arguments reflected in the suggested 
 
34 Russia's first written submission, p ara. 299.  
35 Russia's comments  on the Interim Report , para. 34. 
36 Russia's comments  on the Interim Report , para. 35. WT/DS494/R/Add.1  
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  sentence. Accordingly, to  better reflect the European  Union's arguments in relation to the 
anti-dumping determinations that substantiate Russia's factual assertions regarding the precise 
content of the Co st Adjustment Methodology, we have added the sentence suggested by the 
European  Union to paragraph  7.38. However, to avoid repetition with the language used in 
paragraph  7.38, we have slightly modified the wording of the European  Union's suggested sentence . 
A footnote with a reference to the relevant European  Union's submission has also been added.  
2.30.   Moreover, we have decided not to grant the European  Union's second request. Indicating that 
the European  Union has provided no "further" evidence would suggest t hat the European  Union has 
provided some  evidence to respond to the specific findings in the European Commission's 
anti-dumping determinations Russia relies upon to support the precise content of the Cost 
Adjustment Methodology.  However, as noted in the la st sentence of paragraph  7.38, the 
European  Union has advanced no evidence in this connection during the panel proceeding . 
2.2.8   Section  7.2.2.3 of the Interim Report  
2.31.   Russia requests the Panel to amend section  7.2.2.3 ("Evaluation by the Panel") of the 
Interim  Report, which contains the Panel's assessment and conclusions on whether Russia has 
demonstrated the existence of the Cost Adjustment Methodology, in order to include "additional 
findings" in relation to the alleged effect of the challenged measure in dump ing margin calculation. 
Specifically, Russia submits that, in paragraphs 379 to 398 of its first written submission, Russia 
"demonstrated that, by using the Cost Adjustment Methodology in anti -dumping proceedings,  the 
European  Union significantly increases  the cost of production in its calculations and corresponding 
margins of dumping and anti -dumping duties".37 Moreover, in its comments to paragraph 7.34, 
Russia asks the Panel to "review the evidence" provided in paragraphs 379 to 386 of Russia's first 
written submission and "make findings that [the] rejection of actually incurred input cost and 
substitution … with … surrogate prices is a deliberate policy of the European  Union" to remove alleged 
distortions.38 
2.32.   The European  Union responds that Russia has no t substantiated why the Panel should make 
any additional findings or what findings the Panel missed, and that Russia does not substantiate why 
there would be "increases" in the relevant cases.39 Moreover, the European  Union argues that there 
is no evidence  of any "deliberate" intent. Determinations are based on the facts of an investigation 
and do not involve "deliberate" "policy" choices.40 
2.33.   We have decided to grant Russia's requests and include in Section  7.2.2.3 Russia's above -
mentioned allegations, as we ll as our conclusion on these allegations. Accordingly, we have added 
to paragraphs 7.16 and 7.17 Russia's arguments that the application of the Cost Adjustment 
Methodology significantly increases the cost of production to establish normal value and 
corres ponding dumping margin, and that this measure reflects a "deliberate policy" of the 
European  Union to remove alleged distortions. We have added three sentences at the end of 
paragraph 7.61 with our conclusion on these arguments.  
2.2.9   Section  7.2.4.1.1 of the I nterim Report  
2.34.   Russia notes that section  7.2.4.1.2, which describes the European  Union's main arguments in 
response to Russia's claims under Article  2.2.1.1 of the Anti -Dumping Agreement , includes the 
European  Union's arguments concerning the term "normally " in the first sentence of Article  2.2.1.1 
of the Anti -Dumping Agreement and the meaning of "normal value" in Article  2.1 of the 
Anti-Dumping Agreement. Russia also notes that section  7.2.4.1.1, which describes Russia's  main 
arguments, does not include Rus sia's response to these arguments of the European  Union. 
Suggesting a five -sentence paragraph, Russia thus requests the Panel to amend section  7.2.4.1.1  
in order to incorporate Russia's arguments.41 
2.35.   We have decided not to grant Russia's request. Paragraph  7.104 in section  7.2.4.1.3 
("Evaluation by the Panel") already includes Russia's main arguments in response to the 
 
37 Russia's com ments  on the Interim Report , para. 30. 
38 Russia's comments  on the Interim Report , para. 37. 
39 European Union's comments on Russia's comments on the Interim Report, para. 9.  
40 European Union's comments on Russia's comments on the Interim Report, para. 11.  
41 Russia's comments  on the Interim Report , para. 31. WT/DS494/R/Add.1  
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  European  Union's arguments concerning the term "normally" in the first sentence of Article  2.2.1.1 
of the Anti -Dumping Agreement. M oreover, we note that the paragraph  suggested by Russia focuses 
on Russia's arguments concerning the meaning of "normal value", which, as section  7.2.4.3 shows, 
is an issue the Panel does not examine to resolve Russia's challenge under the second sentence of 
Article  2.2.1.1. We recall that the description of the parties' arguments in our Interim Report is not 
intended to reflect the entirety of the parties'  arguments; rather, it focuses on the principal points 
we considered relevant to the resolution of thi s dispute.  
2.2.10   Section  7.2.4.2 of the Interim Report  
2.36.   Russia makes three separated sets of requests in relation to section  7.2.4.2 of the Interim 
Report, which set outs the legal standard applicable to the second condition in the first sentence of 
Article  2.2.1 .1 of the Anti -Dumping Agreement.  
2.2.10.1   Russia's request for an additional introductory paragraph   
2.37.   Russia requests that the Panel add an additional introductory paragraph  in section  7.2.4.2, in 
which some statements of the Appellate Body in US – Zeroing (Japan) , US – Stainless Steel (Mexico)  
and EU – Biodiesel (Argentina)  and of the panel in US – Softwo od Lumber V  in relation to the 
operation of Articles  2.2.1.1 and 2.2 of the Anti -Dumping Agreement are cited.42 Russia specifically 
asks the Panel to add this suggested introductory paragraph  before paragraph  7.92. 
2.38.   We have decided not to grant Russia's req uest. As already noted, section  7.2.4.2 sets out the 
legal standard applicable for the examination of Russia's claim under the first sentence of 
Article  2.2.1.1 of the Anti -Dumping Agreement. Russia does not substantiate why the suggested 
introductory para graph  is necessary or relevant to the Panel's analysis of Russia's claim that is 
presented in the subsequent section  7.2.4.3, but merely cites to section  6.4.3.1 of Russia's first 
submission, in which Russia sets its own understanding of the legal standard  under Article  2.2.1.1. 
In fact, we note that Russia's suggested introductory paragraph  mirrors paragraph  231 of 
Russia's  first written submission. In our view, Russia's request does not fall under the limited 
function of the interim review stage, as it do es not seek that the Panel review "precise aspects" of 
the Interim Report  but that we modify the manner we present the legal standard applicable to the 
Panel's analysis of Russia's claims.  
2.2.10.2   Paragraph  7.93 of the Interim Report  
2.39.   Russia asks the Panel to use t he "precise terms" of Article  2.2.1.1 of the 
Anti-Dumping  Agreement. Because Article  2.2.1.1 is already reproduced in paragraph  7.91, we have 
decided not to grant Russia's request to use again the wording "costs shall normally be calculated 
on the basis of  records kept by the exporter or producer under investigation" in paragraph  7.93. 
However, in order to improve accuracy, we have decided to grant Russia's request to replace, in 
item (i) of paragraph  7.93, "they are consistent  with the GAAP of the exportin g country" with the 
language used in Article  2.2.1.1 (i.e. "they are in accordance  with the GAAP of the exporting 
country").  
2.40.   Russia also asks the Panel to add two additional sentences in paragraph  7.93, in order to 
include some of the Appellate Body's stat ements in Ukraine – Ammonium Nitrate  concerning the 
term "normally" in the first sentence of Article  2.2.1.1, and the fact that the subject of the conditions 
in the first sentence of Article  2.2.1.1 is the records of the investigated producers. We have dec ided 
not to grant Russia's request. As noted in paragraph  7.105, there is no evidence suggesting that the 
Cost Adjustment Methodology is or has been applied by the European  Union in order to give effect 
to its interpretation of the term "normally" in the f irst sentence of Article  2.2.1.1. Therefore, the 
suggested Appellate Body's statements are not relevant to the Panel's resolution of Russia's claim 
under the first sentence of Article  2.2.1.1. We again recall that the description of the 
parties'  arguments in our Interim Report is not intended to reflect the entirety of the 
parties'  arguments; rather, it focuses on the principal points we considered relevant to the resolution 
of this dispute. Moreover, paragraph  7.95 already notes that the subject of the sec ond condition in 
the first sentence of Article  2.2.1.1 is the records of the producer under investigation.  
 
42 Russia's comments  on the Interim Report , para. 38. WT/DS494/R/Add.1  
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  2.2.10.3   Paragraphs 7.92 and 7.95 of the Interim Report  
2.41.   Russia asks the Panel to add to footnote 213 to paragraph  7.92 a reference to paragraph  6.86 
and footn ote 303 of the Appellate Body Report, Ukraine – Ammonium Nitrate . Russia argues that 
these references contain "important points on the interpretation of Article  2.2.1.1 of the 
Anti-Dumping Agreement".43 We have decided to grant Russia's request to add, to footnote 213, a 
reference to paragraph 6.86 of the Appellate Body Report, Ukraine – Ammonium Nitrate  as it adds 
further support to the Panel's description in paragraph  7.92 of the obligations under the first 
sentence of Article  2.2.1.1. However, we have de cided not to grant Russia's request to add a 
reference to footnote 303 of the Appellate Body Report, Ukraine – Ammonium Nitrate , as it concerns 
issues that are unaddressed in paragraph  7.92 of the Interim Report.  
2.42.   Russia also asks the Panel to add, to the t hird sentence of paragraph  7.95, a reference to 
paragraph  6.56 of the Appellate Body Report, EU – Biodiesel (Argentina) .44 We have decided to grant 
Russia's request.  
2.2.11   Paragraph  7.115 of the Interim Report  
2.43.   Russia asks the Panel to delete the word "improperly" in paragraph  7.115. With reference to 
paragraph  283 of Russia's first written submission, paragraph  7.115 describes Russia's argument 
that the Cost Adjustment Methodology is inconsistent with Article  2.2 of the 
Anti-Dumping  Agreement by replac ing the input prices actually paid by the investigated producers 
reflected in their records with out -of-country "surrogate" input prices. In addition to noting that 
Russia does not use the word "improperly", Russia asserts that there is no such thing as a "proper" 
substitution of the actually incurred input costs in the country of origin with "surrogate" prices.45 
2.44.   The European  Union disagrees with Russia's suggestions with respect to the word "proper" 
and with Russia's request to remove "improperly". Accord ing to the European  Union, there may be 
circumstances where the incurred input costs, as set out in the records, must be rejected and 
therefore there is a need for proper substitution of these costs.46 
2.45.   We have decided to grant Russia's request, in order to  better reflect Russia's arguments. 
Therefore, we have deleted the word "improperly" in paragraph  7.115.  
2.2.12   Paragraph  7.116 of the Interim Report  
2.46.   Russia asks the Panel to convert the first sentence of paragraph 7.116 into two sentences and 
to delete the terms "even though".47 Russia does not substantiate why the suggested changes are 
necessary to improve clarity or accuracy of the Interim Report. We have decided not to grant Russia's 
requests because we find them unnecessary in order to reflect Russia's a rguments. However, we 
have amended another part of the first sentence of paragraph 7.116 to better reflect 
Russia's  arguments.  
2.2.13   Section  7.2.6.1.1 of the Interim Report  
2.47.   Russia notes that section  7.2.6.1.2, which describes the European  Union's main arguments in 
response to Russia's claim under Article  2.2 of the Anti -Dumping Agreement, includes the 
European  Union's arguments concerning issues such as the meaning of "normal value" in Article  2.1 
of the Anti -Dumping Agreement, and the terms "proper comparison" a nd "fair comparison" in, 
respectively, Articles  2.2 and 2.4 of the Anti -Dumping Agreement. Russia also notes that 
section  7.2.6.1.1 does not include Russia's response to these arguments of the European  Union. 
Suggesting a six -sentence paragraph, Russia thu s requests the Panel to amend section  7.2.6.1.1 in 
order to incorporate Russia's arguments.48  
 
43 Russia's comments on the Interim Report , para. 39. 
44 Russia's comments on the Interim Report , para. 42.  
45 Russia's comments on the Interim Report , para. 44. 
46 European Union's comments on Russia's comments on the Interim Report , para. 12. 
47 Russia's comments on the Interim Report , para. 45. 
48 Russia's comments  on the Interim Report , para. 31. WT/DS494/R/Add.1  
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  2.48.   We have decided not to grant Russia's request. As noted in paragraph  7.130, the Panel does 
not find the European  Union's arguments identified by Russia to be rel evant to resolve Russia's claim 
under Article  2.2. The Panel provides an explanation for this conclusion in the fourth and fifth 
sentences of paragraph  7.130. We again recall that the description of the parties' arguments in our 
Report is not intended to r eflect the entirety of the parties'  arguments; rather, it focuses on the 
principal points we considered relevant to the resolution of this dispute.  
2.2.14   Section  7.2.6.2 of the Interim Report  
2.49.   Russia makes three separated sets of requests in relation to section  7.2.6.2, which sets out 
the legal standard applicable to Article  2.2 of the Anti -Dumping Agreement.  
2.2.14.1   Russia's request for an additional introductory paragraph   
2.50.   Russia asks the Panel to add before, paragraph  7.121, an additional introductory paragraph, 
concer ning the operation of Articles  2.2, 2.2.1, 2.2.1.1, and 2.2.2 of the Anti -Dumping Agreement.49 
Russia does not substantiate why the suggested introductory paragraph  is necessary or relevant to 
the Panel's analysis of Russia's claim that is presented in the subsequent section  7.2.6.3, but refers 
to certain paragraphs of Russia's first written submis sion and of the Appellate Body Report, 
EU – Biodiesel (Argentina) . 
2.51.   We have decided not to grant Russia's request. Referring to the Appellate Body Report, 
EU – Biodiesel (Argentina) , the suggested introductory paragraph  describes (i) the circumstances in 
which there is no need to determine the normal value on the basis of domestic sales pursuant 
Article  2.2; (ii) the alternative methods to calculate normal value under Article  2.2; and (iii) that 
Articles  2.2.1, 2.2.1.1, and 2.2.2 of the Anti -Dumping Agreemen t further elaborate on various 
aspects of Article  2.2. We find it unnecessary to add the suggested paragraph  to section  7.2.6.2, as 
the issues described therein are not relevant to the Panel's resolution of Russia's claim under of 
Article  2.2. 
2.2.14.2   Paragraph  7.121 of the Interim Report  
2.52.   In setting out the applicable legal standard, paragraph  7.121 refers to paragraph  6.69 of the 
Appellate Body Report, EU – Biodiesel (Argentina) . Russia asks the Panel to add, to paragraph  7.121, 
an explicit reference to Article  2.2 of the Anti -Dumping Agreement and Article  VI:1(b)(ii) of the 
GATT  1994, in order to "mirror the wording" of paragraph  6.69 of the Appellate Body Report, EU – 
Biodiesel (Argentina) .50 
2.53.   We have decided to grant Russia's request to add, to paragraph  7.121, a n explicit reference 
to Article  2.2 of the Anti -Dumping Agreement. However, as Russia does not make a claim under 
Article  VI:1(b)(ii) of the GATT 1994, we have decided not to grant Russia's request to add a reference 
to this provision of the GATT 1994.  
2.2.14.3   Paragraphs 7.122 and 7.123 of the Interim Report  
2.54.   Russia asks the Panel to revise paragraphs 7.122 and 7.123, in order to include wording 
"closer" to "the text of Article  2.2 of the Anti -Dumping Agreement" and "the Appellate Body's 
interpretations" in EU – Biodiesel (Argentina)  and Ukraine – Ammonium Nitrate .51 Russia does not 
suggest specific amendments to paragraphs 7.122 and 7.123, but asks the Panel to "reflect" in these 
paragraphs a number of "interpretations" Russia makes in relation to Article  2.2 based on, inter alia , 
certain Appellate Body's statements in the above -mentioned disputes.52 Russia further requests the 
Panel to review its "considerations in light of these interpretations of the Appellate Body and make 
appropriate changes, if necessary".53 
 
49 Russia's comments on the Interim Report , para. 49. 
50 Russia's comments on the Interim Report, para. 50.  
51 Russia's comments on the Interim Report, para. 51.  
52 Russia's comments on the Interim Report, para. 55.  
53 Russia's comments on the Interim Report, para. 56.  WT/DS494/R/Add.1  
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  2.55.   We have decided not to grant Russia's request. Russia's request does not fall under the limited 
function of the interim review stage, as it does not seek that the Panel review "precise aspects" of 
the Interim Report . 
2.2.15   Section  7.2.6.3 of the Interim Report  
2.56.   Russia requests several changes in section  7.2.6.3 ("Evaluation by the Panel").  
2.2.15.1   Paragraph  7.124 of the Interim Report  
2.57.   Russia asks the Panel to amend the last sentence of paragraph  7.124 of the Interim Report, 
which reads:  
Russia has further demonstrated that, in applying the Cost Adjustment Methodology, 
the European Commission does not explain whether or how this adapted  out-of-country 
input price information is capable of representing the costs of production in the country 
of origin.  
2.58.   Specifically, Russia requests the Panel to change: (i) "or" for "and"; and (ii) "is capable of 
representing the costs" for "represents the cost". In relation to the latter request, Russia argues that 
"an explanation on 'capability' does not turn the surrogate input price into the cost of input for 
producers of the product under consideration in the country of origin".54 
2.59.   The European  Union obj ects to Russia's suggestions. The European  Union argues that the 
Appellate Body in EU – Biodiesel  found, and the Panel correctly concludes, that an investigating 
authority can rely on out -of-country cost of production information, provided this information  is apt 
to arrive at the undistorted cost of production information in the country of origin. This may require 
adjustments to the information.55 
2.60.   We have decided not to grant Russia's requests. As for Russia's first request, we do not find 
it appropriate to  change "or" for "and", as the last sentence of paragraph  7.124 describes omissions 
in relation to the Cost Adjustment Methodology. As for Russia's second request, we find it 
unnecessary because the second sentence of paragraph  7.128, which contains the Pa nel's finding 
that the Cost Adjustment Methodology contravenes Article  2.2, explains that the Cost Adjustment 
Methodology "provides for the calculation of the costs of production of the investigated companies 
on the basis of out -of-country input price info rmation … without establishing whether or explaining 
how the adjusted out -of-country input price information reflects or represents  the cost of production 
in the country of origin".56 However, in order to improve consistency, we have amended the last 
sente nce of paragraph  7.124, albeit not in the specific terms suggested by Russia.  
2.2.15.2   Paragraph  7.125 of the Interim Report  
2.61.   The first and second sentences of paragraph  7.125 of the Interim Report read:  
As already noted, while Article  2.2 of the Anti -Dumping  Agreem ent does not limit the 
sources of information to be used to calculate the costs of production to only those 
sources inside the country of origin, an investigating authority remains bound by the 
obligation to arrive at the cost of production "in the country  of origin". This may require 
it to adapt the out -of-country information in order to ensure that it is suitable to 
determine a cost of production "in the country of origin".57 
2.62.   Russia asks the Panel (i) to convert the first sentence of paragraph  7.125 into two sentences; 
(ii) to change "to be used" for "that may be used" in the first sentence of paragraph  7.125; (iii) after 
the second comma, to finish the first sentence with the following phrase: "it does not mean that an 
investigating authority may simply substitute the costs from outside the country of origin for 'the 
cost of production in the country of origin'"; (iv) that the new suggested second sentence starts with 
 
54 Russia's comments on the Interim Report , paras. 57 -59. (emphasis omitted)  
55 European Union's comments on Russia's comments on the Interim Report, para. 14.  
56 Emphasis added.  
57 Fns omitted.  WT/DS494/R/Add.1  
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  the follo wing phrase: " An investigating authority remains bound by the obligation"; (v) that the new 
suggested second sentence ends with the following phrase: "to construct normal value on the basis 
of the cost of production in the country of origin and thus an inv estigating authority has to ensure 
that such information is used to arrive at the cost of production in the country of origin"; and (vi) to 
change, in the current second sentence, "to ensure that it is suitable to determine a cost of 
production in the coun try of origin" for "to ensure that it represents a cost of production in the 
country of origin".  
2.63.   According to Russia, the suggested changes will bring the wording in these sentences "closer 
to the obligations under Article  2.2 of the Anti -Dumping Agreement , taking into account the language 
used in paragraphs 6.73, 6.74, 6.81, and 6.82 of the Appellate Body Report, EU – Biodiesel 
(Argentina) ".58 
2.64.   The European  Union objects to Russia's requests. For the European  Union, accepting Russia's 
requests would imply t hat an investigating authority, once it has found that the cost is distorted and 
relies on other sources of information, including from outside the country, "still has [to] arrive at the 
same (distorted) cost level".59 
2.65.   We have decided to grant Russia's sec ond request. Therefore, we have changed "to be used" 
for "that may be used" in the first sentence of paragraph  7.125.  
2.66.   However, we have decided not to grant Russia's remaining requests because the suggested 
additions are either unnecessary or inappropriate . As for Russia's third request, the last sentence of 
paragraph  7.122, in section  7.2.6.2 ("Legal standard") already includes a reference to the 
Appellate  Body's statement in EU – Biodiesel (Argentina) , paragraph  6.73, that " [a]n investigating 
authority is  not allowed to simply substitute the costs from outside the country of origin for the 'cost 
of production in the country of origin'". As for Russia's fifth request, the suggested language, which 
focuses on the construction of normal value, would be mispla ced in paragraph  7.125, which instead 
focuses on the obligations related to the calculation of "the cost of production in the country of 
origin".  Finally, as for Russia's sixth request, we note that the language used in paragraph  7.125 
("to ensure that it is suitable to determine a cost of production 'in the country of origin'") mirrors 
that used in paragraph  7.122, in section  7.2.6.2 ("Legal standard"), which in turn quotes 
paragraph  6.73 of the Appellate Body Report, EU – Biodiesel (Argentina) . As noted i n 
paragraph  7.123, we agree with the Appellate Body's interpretation of the obligation in Article  2.2 
to determine "the cost of production in the country of origin". Based on the foregoing, we have also 
decided not to grant Russia's first and fourth reques ts. 
2.2.15.3   Paragraph  7.129 of the Interim Report  
2.67.   The third sentence of paragraph  7.129 of the Interim Report reads:  
Article  2.2 requires investigating authorities to calculate the costs of production "in the 
country of origin" and this obligation normally requires the use of the records of the 
investigated companies.  
2.68.   Russia argues that the third sentence of paragraph  7.129 improperly combine s a reference to 
the obligation in Article  2.2 with a reference to the obligation in Article  2.2.1.1 of the Anti -Dumping 
Agreement, even though these provisions contain different obligations. Moreover, Russia argues that 
the language used to describe both o bligations "is not entirely correct".60 Russia thus requests the 
Panel to amend the third sentence of paragraph  7.129, as follows: (i) to change "calculate" for "use"; 
(ii) to add "for construction of normal value" after "'in the country of origin'"; and ( iii) to change 
"this obligation normally requires the use of the records of the investigated companies" with "the 
obligation in Article  2.2.1.1 provides that costs, including the cost of production, shall normally be 
calculated on the basis of the records of the investigated companies, provided that both conditions, 
set out in this provision, are met".  
2.69.   We have decided not to grant Russia's requests. We disagree with Russia that the third 
sentence of paragraph  7.129 incorrectly describes the obligations und er Articles  2.2 and 2.2.1.1 of 
 
58 Russia's comments on the Interim Report, para. 61.  
59 European Union's comments on Russia's comments on the Interim Report, para. 15.  
60 Russia's comments on the Interim Report, para. 63.  WT/DS494/R/Add.1  
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  the Anti -Dumping Agreement. However, we have included, in the third sentence of paragraph  7.129, 
a reference to Article  2.2.1.1, albeit not in the specific terms suggested by Russia.  
2.2.15.4   Paragraph  7.130 of the Interim Report  
2.70.   After concluding that the Cost Adjustment Methodology contravenes Article  2.2, the first 
sentence of paragraph  7.130 reproduces the European  Union's argument that an investigating 
authority cannot be required to use data that it has already determined is not a pt to ensure a 
"proper" and "fair" comparison. The second sentence of paragraph  7.130 explains that, according to 
the European  Union, that would be incompatible with the purpose of Article  2.2, namely to establish 
whether dumping takes place by making a "p roper comparison" between the normal value and the 
export price. As we conclude in the third sentence of paragraph  7.130, " [w]e do not find this 
argument to be relevant" to resolve Russia's claim in relation to the Cost Adjustment Methodology. 
In the fourt h and fifth sentences of paragraph  7.130, we present the reasons for our conclusion.  
2.71.   Russia asks the Panel to clarify whether the third sentence of paragraph  7.130 responds to 
the totality of the European  Union's arguments described in the first and second  sentences of 
paragraph  7.130. Russia also asks the Panel to reject, "in its substance", the European  Union's 
arguments. According to Russia, to resolve Russia's claim that the Cost Adjustment Methodology is 
inconsistent with Article  2.2 of the Anti -Dumpin g Agreement, "it is not enough to decline 
consideration of these arguments by the European  Union".61 The European  Union disagrees that 
paragraph  7.130 sets out two separate arguments of the European  Union.  
2.72.   We have decided not to grant Russia's requests. As  for Russia's first request, as already noted, 
in the third sentence of paragraph  7.130, we address the European  Union's argument, described in 
the first and second sentences of this paragraph  7.130, that it would be incompatible with the 
purpose of Articl e 2.2 if an investigating authority had to use data that it has already determined is 
not apt to ensure a "proper" and "fair" comparison. As already noted, we find "this argument" 
irrelevant to resolve Russia's claim under Article  2.2 for the reasons provi ded in the fourth and fifth 
sentences of paragraph  7.130. It is apparent that, by referring to "this argument", we refer to the 
European  Union's argument described in the first and second sentences of paragraph  7.130. As for 
Russia's second request, we rec all that the limited function of the interim review stage is to consider 
the review of "precise aspects" of the interim report. Insofar as Russia is requesting a reconsideration 
of the Panel's reasoning in disposing of the European  Union's argument describ ed in 
paragraph  7.130, this request amounts to an attempt to re -litigate arguments already put before 
us, which is not appropriate at the interim review stage.  
2.2.15.5   Paragraphs 7.131 and 8.1.a.iv of the Interim Report  
2.73.   Paragraph  7.131 of the Interim Report contai ns the Panel's conclusion on Russia's claim that 
the Cost Adjustment Methodology in inconsistent with Article  2.2 of the Anti -Dumping  Agreement:  
[T]he Cost Adjustment Methodology, by providing for the use of out -of-country input 
price information without e xplaining why such information is adequate to reflect the 
costs of production in the country of origin, contravenes Article  2.2 of the 
Anti-Dumping  Agreement.  
2.74.   Russia requests that, instead of "why such information is adequate to reflect", 
paragraph  7.131 s hould read "why out -of-country information is required and how it reflects" the 
costs of production in the country of origin.62 Russia also requests the Panel to add to 
paragraph  7.131 the following phrase: "not mandating to use the cost of production in t he country 
of origin when calculating and constructing normal value".63 Russia requests the same amendments 
are made in paragraph  8.1.a.iv, in section  8 ("Conclusions and recommendation").  
2.75.   The European  Union objects to Russia's first request arguing that R ussia seeks to introduce a 
new explanation requirement that is nowhere provided for.64 The European  Union also objects to 
 
61 Russia's comments on the Interim Report, para. 68.  
62 Russia's comments on the Interim Report, para. 82.  
63 Russia's comments on the Interim Report, para. 84.  
64 European Union's comments on Russia's comments on the Interim Report, para. 18.  WT/DS494/R/Add.1  
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  Russia's second request arguing that Russia does not explain why the suggested addition is 
appropriate.65 
2.76.   We have decided not to grant Russia's requests. The language suggested by Russia does not 
find support in our considerations or findings but appears to be based on Russia's understanding of 
the operation of the challenged measure and the legal standard app licable to Article  2.2 of the 
Anti-Dumping Agreement. As for Russia's requests that the Panel finds that the Cost Adjustment 
Methodology consists in "not mandating to use the cost of production in the country of origin when 
calculating and constructing nor mal value", we have already rejected that request.66 However, in 
order to improve consistency, we have amended these paragraphs, albeit not in the specific terms 
suggested by Russia.  
2.3  Russia's claim concerning the first subparagraph of Article  2(3) of the B asic AD 
Regulation  
2.3.1   Paragraph 7.132 of the Interim Report  
2.77.   Russia requests the wording of paragraph 7.132 of the Interim Report be modified to more 
closely reflect the wording of Russia's argumentation with references to Russia's first written 
submission.67 The European Union did not specifically comment on this request. We consider that 
Russia's requested modifications more precisely describe Russia's argumentation, and we have 
accepted Russia's request with minor editorial changes.  
2.3.2   Paragraph 7 .137 of the Interim Report  
2.78.   Russia requests inclusion of a reference after the second sentence of paragraph 7.137 of the 
Interim Report. Russia further requests an additional sentence be added to this paragraph to 
describe an additional step in Russia's arg umentation under this claim.68 The European  Union did 
not specifically comment on these requests. We have granted the request for a reference to 
Russia's  first written submission, but we have declined the request to include the additional sentence 
as this aspect of Russia's argumentation is not the subject of this paragraph.  
2.3.3   Paragraph 7.139 of the Interim Report  
2.79.   Russia requests inclusion in the penultimate sentence of paragraph 7.139 of the Interim 
Report of a more fulsome description of the categories of R ussia's argument that are to be addressed 
in the following paragraphs and a reference to its submissions.69 The European Union has not 
specifically commented on this request. We have granted Russia's requested inclusion of more 
fulsome descriptions. We hav e declined to add a reference to Russia's submissions here because the 
purpose of the sentence in question is simply to signal the topics to be addressed in subsequent 
paragraphs where the appropriate references do appear.  
2.3.4   Paragraph 7.141 of the Interim Re port 
2.80.   For paragraph 7.141, Russia requests (i) a revision of the description of its argument; 
(ii) deletion of a reference to Russia's response to a Panel question; (iii) revision of footnote 
reference to dictionary definition of "those" rather than "situat ion"; (iv) deletion of references to 
precise dictionary meanings of terms quoted by Russia in its first written submission.70 The 
European  Union opposes deletion of Russia's response to a Panel question from the description of 
Russia's position.71 We have revised the description of Russia's argument to include a more complete 
quotation of Russia's argument. We decline to delete the description and reference to Russia's 
response to a Panel question because the original description was accurate. We have revis ed the 
footnote to refer to the dictionary definition of "those" rather than "situation" because this was a 
referencing error in the original footnote in the Interim Report. We decline to remove the precise 
 
65 European Union's comments on Russia's comments on the Interim Report, para. 19.  
66 See para. 2.25.  above.  
67 Russia's comments on the  Interim Report , para. 88.  
68 Russia's comments on the Interim Report , para s. 89-90.  
69 Russia's comments on the Interim Report , para. 91.  
70 Russia's comments on the Interim Report, paras . 92-98. 
71 European Union's comments on Russia's comments on the Interim Report , para. 21. WT/DS494/R/Add.1  
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  references to the portions of the dictionary entr ies that Russia quoted in its first written submission 
because these references are accurate.  
2.3.5   Paragraph 7.143 of the Interim Report  
2.81.   Russia requests the word "costs" in the footnote to paragraph 7.143 of the Interim Report be 
changed to "cost" because Artic le 2.2 of the Anti -Dumping Agreement refers to "the cost of 
production" where the word "cost" is in singular form.72 The European Union did not specifically 
comment on this request. We have revised the footnote as requested for the reason cited by Russia 
and because the footnote makes no determination in respect of the meanings of the terms "cost" 
and "costs".  
2.3.6   Paragraph 7.153 of the Interim Report  
2.82.   Russia requests inclusion in paragraph 7.153 of the Interim Report of a reference to its first 
written submission in relation to the description of its argumentation.73 The European Union did not 
specifically comment on this request. We have granted the request because the reference requested 
is accurate.  
2.3.7   Paragraph 7.155 of the Interim Report  
2.83.   Russia request s additional description of its argumentation and reference to relevant portions 
of its first written submission and to Exhibit RUS -10.74 The European Union did not specifically 
comment on this request. We have granted Russia's request with editorial revis ion to ensure the 
description is appropriately concise and accurate. We have declined to include the requested 
reference to Exhibit RUS -10 in this context because it would be redundant of the reference to this 
same exhibit in connection with Russia's reque st for revision in relation to paragraph 7.162 of the 
Interim Report which is addressed below.  
2.3.8   Paragraph 7.158 of the Interim Report  
2.84.   Russia requests to revise the second sentence of paragraph 7.158 of the Interim Report by 
altering the quotation of the ter m "particular market situation" and by deleting the article before the 
term "normal value".75 The European Union did not specifically comment on this request. We decline 
to make the requested changes because we find neither the original quotation nor the u se of the 
article to be inaccurate as Russia suggested.  
2.85.   Russia further requests to revise the reference in the penultimate sentence to "costs of 
production" to instead read as "the cost of production" because this is the precise language of 
Article  2(3) of  the Basic AD Regulation.76 The European Union did not specifically comment on this 
request. We have revised the language for the reason cited by Russia.  
2.3.9   Paragraph 7.160 of the Interim Report  
2.86.   Russia requests the article be deleted before the term "constructed normal value" in the 
penultimate sentence of paragraph 7.160 of the Interim Report.77 The European Union did not 
specifically comment on this request. We decline to make this revision because we find the use of 
the article in this context is not inaccurate.  
2.3.10   Paragraph 7.162 of th e Interim Report  
2.87.   Russia requests the footnote reference to its arguments as paragraphs 71 -72 of its first 
written submission include a parenthetical reference to Exhibit RUS -10.78 The European Union did 
 
72 Russia's comments on the Interim Report, para. 99.  
73 Russia's comments on the Interim Report, para. 100.  
74 Russia's comments on the Interim Report, para. 101.  
75 Russia's comments on the Interim Report, para. 102.  
76 Russia's comments on the Interim Report, para. 103.  
77 Russia's comments on the Interim Report, para. 104.  
78 Russia's comments on the Interim Report , para. 105.  WT/DS494/R/Add.1  
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  not specifically comment on this request. We have rev ised the footnote to include the reference to 
Exhibit RUS -10 because this more accurately describes Russia's argument.  
2.3.11   Paragraphs 7.164, 7.165, and 7.166 of the Interim Report  
2.88.   Russia requests inclusion of references to the relevant exhibit for the recitals  of the regulation 
quoted in paragraphs 7.164 and 7.165 of the Interim Report.79 The European Union did not 
specifically comment on this request. We have included the requested references.  
2.89.   Russia further requests additional description of its arguments rel ated to the quoted recitals 
of the regulation quoted in paragraphs 7.164, 7.165 and 7.166 of the Interim Report.80 The 
European  Union did not specifically comment on this request. We have included brief descriptions of 
the argumentation requested by Russia  with editorial revisions for conciseness.  
2.3.12   Paragraph 7.168 of the Interim Report  
2.90.   Russia requests inclusion of exhibit references for each of the referenced regulations in the 
first sentence of paragraph 7.168 of the Interim Report.81 The European  Union did  not specifically 
comment on this request. We have included references to the relevant exhibits in the footnote 
associated with the first sentence of this paragraph.  
2.91.   Russia further requests additional description of its argumentation in relation to referen ced 
regulations in this paragraph and references to specific recitals within each regulation related to its 
argumentation.82 The European  Union did not specifically comment on this request. We have 
included additional description of Russia's argumentation with editorial revision for conciseness, and 
we have declined to include the references to specific recitals as these are not germane to our 
analysis in this paragraph.  
2.4  Russia's claims concerning the second subparagraph of Article  2(3) of the 
Basic  AD Regulation  
2.4.1   Scope, content and meaning of the second subparagraph of Article  2(3) of the 
Basic  AD Regulation  
2.92.   Russia requests the inclusion in section 7.4 of the Interim Report a more complete description 
of Russia's arguments and evidence presented  in relation to the scope, content and meaning of the 
second subparagraph of Article  2(3) of the Basic AD Regulation.83 The European  Union considers 
that an Interim Review is not the place or time to re -argue the case, and recalls that a Panel is not 
required to respond to each and every single part of an argumentation.84 Russia further requests 
the Panel to make additional findings regarding the scope, content and meaning of the second 
subparagraph of Article  2(3) of the Basic AD Regulation.85 The European  Union recalls that while 
panels have the obligation to examine the meaning and scope of the municipal law at issue in order 
to make an objective assessment of the matter before it, it is also understood that a responding 
Member's measure will be treated a s WTO -consistent until sufficient evidence is presented to prove 
the contrary, and in the view of the European  Union, Russia has argued to inappropriately place the 
burden on the responding Member.86  
2.93.   We decline to alter our analysis of the claim addressed in section 7.4 of the Interim Report. 
As explained in paragraphs 7.171 -7.173 of the Interim Report, we focus our analysis on the matter 
before us which is the particular claim that Russia has asserted . As explained in paragraph 7.174 we 
begin our analysis with our examination of Russia's asserted interpretation of Article  2.2 of the 
Anti-Dumping Agreement that Russia alleges to support its claim  of inconsistency in relation to the 
second subparagraph o f Article  2(3) of the Basic Regulation. We also analyse certain additional 
 
79 Russia's comments on the Interim Report, para. 106.  
80 Russia's comments on the Interim Report, paras. 107 -109. 
81 Russia's comments on the Interim Report, para. 110.  
82 Russia's comments on the Interim Report, paras. 111 -112. 
83 Russia's commen ts on the Interim Report, paras. 113 -116. 
84 European Union's comments on Russia's comments on the Interim Report, para. 22.  
85 Russia's comments on the Interim Report, paras. 116 -117. 
86 European Union's comments on Russia's comments on the Interim Report, para. 23.  WT/DS494/R/Add.1  
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  arguments of inconsistency that Russia develops in its written submissions. On the basis of these 
analyses we conclude that Russia has not discharged its burden of demonstrating tha t its legal 
rationale regarding the interpretation of Article  2.2 provides a valid basis for this claim. Accordingly, 
Russia's asserted claim cannot succeed as a legal matter and we need not proceed with further 
analysis of the claim.  
2.4.2   Paragraph 7.171 of th e Interim Report  
2.94.   Russia requests modification of this paragraph to "fully reflect Russia's claims as well as 
Russia's wording in paragraph 112 of its first written submission and in paragraph 127 of its second 
written submission."87 Russia also requests a more specific reference to its first written submission 
in the footnote appearing in this paragraph. The European  Union did not specifically comment on 
this request.  
2.95.   We consider that the purpose of this introductory paragraph is not to "fully reflect" eve ry 
aspect of Russia's argumentation in relation to this claim. We recall that the descriptions of the 
parties' arguments in our Report are not intended to reflect the entirety of the parties'  arguments. 
Rather, they focus on the principal points we conside red relevant to the resolution of this dispute. 
In this respect, we recall that "a panel ha[s] the discretion to address only those arguments it deems 
necessary to resolve a particular claim".88 We further note that the integrated executive summaries 
of the arguments of the parties are set out in Annexes B1 -B4. Those summaries have been prepared 
by the parties themselves and therefore have provided the parties with the full opportunity to reflect 
their arguments as they see fit. For these reasons, we declin e Russia's requested modifications to 
this paragraph. We have granted Russia's request for a more specific reference in the footnote.  
2.4.3   Paragraph 7.174 of the Interim Report  
2.96.   Russia requests the second sentence of paragraph 7.174 of the Interim Report be revi sed to 
clarify that Russia's interpretive arguments were also developed in its responses to Panel 
questions.89 The European  Union did not specifically comment on this request. We have made the 
revision as requested.  
2.4.4   Paragraph 7.175 of the Interim Report  
2.97.   Russia requests a modification of the first sentence in paragraph 7.175 of the Interim Report 
to reflect the wording used by Russia in paragraph 152, rather than paragraph 148, of its first written 
submission, and to adjust the reference in the accompanying footnote accordingly.90 The 
European  Union opposes the modification, indicating that Russia's objections are unfounded because 
the original language was unbiased.91  
2.98.   We have modified the first sentence of paragraph 7.175 of the Interim Report to more closely 
follow the wording of Russia's argumentation in both paragraphs 148 and 152 of its first written 
submission.  
2.4.5   Paragraph 7.177 of the Interim Report  
2.99.   Russia requests modification of paragraph 7.177 to more closely replicate the wording of its 
argument ation and to include additional aspects of Russia's argumentation not mentioned in the 
original paragraph.92 The European  Union did not specifically comment on this request.  
2.100.   We have made certain adjustments to the wording of this paragraph to more closely  replicate 
the wording of Russia's argumentation. We have not included a description of additional aspects of 
Russia's argumentation that are not the focus of this portion of our analysis. We recall that the 
description of the parties' arguments in our Rep ort are not intended to reflect the entirety of the 
parties'  arguments. Rather, they focus on the principal points we considered relevant to the 
 
87 Russia's comments on the Interim Report, paras. 118 -119. 
88 Appellate Body Reports, EC – Poultry , para. 135; US – COOL , para. 414 . 
89 Russia's comments on the Interim Report, para. 120.  
90 Russia's comments on the Interim Report, para. 121.  
91 European Union's comments on Russia's comments on the Interim Report, para. 24.  
92 Russia's comments on the Interim Report, paras. 123 -125. WT/DS494/R/Add.1  
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  resolution of this dispute. In this respect, we recall that "a panel ha[s] the discretion to address only 
those  arguments it deems necessary to resolve a particular claim".93 We further note that the 
integrated executive summaries of the arguments of the parties are set out in Annexes B1 -B4. Those 
summaries have been prepared by the parties themselves and therefore  have provided the parties 
with the full opportunity to reflect their arguments as they see fit.  
2.4.6   Paragraph 7.178 of the Interim Report  
2.101.   Russia requests modification of the third sentence of paragraph 7.178 of the Interim Report 
to refer to Article  2.1 of th e Anti -Dumping Agreement and additional portions of the referenced 
Appellate Body report.94 The European  Union did not specifically comment on this request. We have 
declined to make the requested modification because the original language accurately descri bes this 
portion of our analysis.  
2.102.   Russia further requests modifications to the sixth and seventh sentences of paragraph 7.178 
of the Interim Report for greater clarity.95 The European  Union did not specifically comment on this 
request. We have made certain  of the requested modifications where we found that clarity was 
enhanced, and we have declined to make certain requested modification that did not, in our view, 
enhance the clarity of these passages.  
2.103.   Russia further requests modification to the footnote con nected to the seventh sentence of 
paragraph 7.178 of the Interim Report to more accurately describe Russia's arguments in relation 
to the implications of the use of the indefinite article "una" in the Spanish version of Article  2.2 of 
the Anti -Dumping Agre ement.96 The European  Union objects to the requested modification as an 
attempt to revise the Panel's conclusions.97 We disagree with the European  Union that these 
requested modifications alter the Panel's conclusions, and we have modified the description of 
Russia's arguments for enhanced accuracy.  
2.104.   Russia further requests to replace the word "condition" with the word " term" in the first 
sentence of the footnote connected to the seventh sentence of paragraph 7.178 of the Interim Report 
consistent with Russia's argumentation on this point.98 The European  Union did not specifically 
comment on this request. We note that the  first sentence of the footnote in question is not intended 
as a description of Russia's argumentation, and we, therefore, consider that the requested revision 
of our analysis is not necessary and not appropriate.  
2.4.7   Paragraph 7.180 of the Interim Report  
2.105.   Russia requests, in the penultimate sentence of paragraph 7.180 of the Interim Report, to 
replace the word "position" with the word "interpretation" in describing Russia's argumentation, and 
to delete the word "condition" as a descriptor of "the particular mar ket situation" in the context of 
Russia's interpretation.99 The European  Union disagrees with the replacement of "position" with 
"interpretation" because it considers "position" is an accurate description.100 We have granted the 
requested revisions as a mor e accurate description of Russia's argumentation in question.  
2.4.8   Paragraph 7.181 of the Interim Report  
2.106.   Russia requests modification of the first sentence of paragraph 7.181 by including a 
reference to Russia's reliance on certain documents considered by Russi a to constitute negotiating 
history of the second Ad Note to Article  VI:1 of the GATT 1994, and to clarify the connected footnote 
to refer to these documents and the associated argumentation.101 The European  Union did not 
specifically comment on this reques t.  
 
93 Appellate Body Reports, EC – Poultry , para. 135;  US – COOL , para. 414 . 
94 Russia's comments on the Interim Report, para. 126.  
95 Russia's comments on the Interim Report, para. 127.  
96 Russia's comments on the Interim Report, paras. 128 -131. 
97 European Union's comments on Russia's comments on the Interim Re port, para. 25.  
98 Russia's comments on the Interim Report, para. 132.  
99 Russia's comments on the Interim Report, para. 133.  
100 European Union's comments on Russia's comments on the Interim Report, para. 26.  
101 Russia's comments on the Interim Report, paras. 134 -135. WT/DS494/R/Add.1  
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  2.107.   We recall that the description of the parties' arguments in our Report are not intended to 
reflect the entirety of the parties'  arguments. Rather, they focus on the principal points we 
considered relevant to the resolution of this dispute. We decline t o revise the first sentence of the 
paragraph as requested. However, we have expanded the reference in the footnote to encompass 
the particular documents and associated argumentation offered by Russia.  
2.108.   Russia further requests the Panel to consider Russia's argumentation and supporting 
evidence in Exhibits RUS -26, RUS -27, to make findings in the text of the Report.102 The 
European  Union did not specifically comment on this request.  
2.109.   We have considered all of Russia's argumentation and supporting evidence, incl uding the 
particular argumentation and evidence referenced in Russia's request. We recall that "a panel ha[s] 
the discretion to address only those arguments it deems necessary to resolve a particular claim".103 
For the reasons set forth in our Report, we do not consider additional findings to be necessary to 
resolve this claim.  
2.4.9   Paragraph 7.183 of the Interim Report  
2.110.   Russia requests modification of the first sentence of paragraph 7.183 of the Interim Report 
to bring the description of Russia's argument closer to the wording used by Russia in paragraph 148 
of its first written submission.104 The European  Union did not specifically comment on this request. 
We have made the requested revisions as they appropriately an d accurately describe Russia's 
argumentation relevant to the analysis in this paragraph.  
2.111.   Russia further requests, on the basis of arguments set forth in its submissions and new 
arguments, the Panel to reconsider and to modify its conclusions in the third a nd fourth sentences 
in paragraph 7.183 of the Report.105 The European  Union disagrees with Russia's request, 
commenting that a request for the Panel to reconsider its determinations is inappropriate in the 
context of an interim review.106  
2.112.   We recall that it is well -established that the interim review is not an appropriate stage for 
the parties to raise new arguments not previously presented before a panel; nor is it an appropriate 
stage for the parties to re -argue their case on the basis of the arguments alre ady put before a 
panel.107 Accordingly, we decline to reconsider arguments that have been already considered or to 
address new arguments not previously presented to the Panel.  
2.4.10   Paragraph 7.185 of the Interim Report  
2.113.   Russia requests modification of the second sentence in paragraph 7.185 of the 
Interim  Report to clarify Russia's argumentation presented in response to Panel question No. 14.108 
The European  Union did not specifically comment on this request.  
2.114.   We have carefully examined Russia's response to Panel question No. 14, and do not consider 
that Russia's requested modifications to the second sentence of paragraph 7.185 of the 
Interim  Report accurately clarify its arguments. We have revised the sentence to more precisely and 
accurately describe the re sponse provided by Russia. We have also made conforming modifications 
to our analysis in paragraphs 7.186 and 7.189 of the Interim Report.  
 
102 Russia's comments on the Interim Report, paras. 134 -135. 
103 Appellate Body Reports, EC – Poultry , para. 135; US – COOL, para. 414 . 
104 Russia's comments on the Interim Report, para. 137.  
105 Russia's comments on the Interim Report, paras. 138 -143.  
106 European Union's comments on Russia's comments on the Interim Report, para. 27.  
107 Appellate Body Reports, EC – Sardines , para. 301; and EC – Selected Customs Matters, para. 259.  
See also Panel Reports, Japan – DRAMs (Korea) , para. 6.2; US – Poultry (China) , para. 6.32; India – 
Agricultural Products , para. 6.5; India – Solar Cells , para. 6.24; Russia – Pigs, paras. 6.6-6.7; US – Zeroing 
(EC) (Article  21.5 – EC), para. 7.26; and Brazil – Taxation , para. 6.7.  
108 Russia's comments on the Interim Report, paras. 144 -146. WT/DS494/R/Add.1  
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  2.4.11   Paragraph 7.186 of the Interim Report  
2.115.   The European  Union requests inclusion in paragraph 7.186 of the Interim Report of a 
footnote reference to reflect the European Union's response to Panel question No. 14 after the 
sentence reading "[w]e understand Article  2.7 as preserving the operation of the second Ad Note, 
and that Article  2 of the Anti -Dumping Agreement should not  be construed in a way that negates or 
restricts the second Ad Note."109 Russia argues the request should be declined because the sentence 
in question begins with the phrase "[w]e understand" meaning that the Panel understands, which 
was not an aspect of th e European Union's response to Panel question No. 14.  
2.116.   We have declined to include the requested reference to the European Union's response to 
Panel question No. 14 because we do not consider this reference is necessary for our analysis and 
conclusion on t his point.  
2.4.12   Paragraph 7.187 of the Interim Report  
2.117.   Russia requests an unspecified modification in the last sentence of paragraph 7.187 of the 
Interim Report because of a perceived conflation of Articles  2.2 and 2.4 of the 
Anti-Dumping  Agreement referencing a rguments Russia presented in its submissions.110 The 
European  Union disagrees with Russia's request, commenting that a request for the Panel to 
reconsider its determinations is inappropriate in the context of an interim review.111  
2.118.   We recall that it is well -established that the interim review is not an a ppropriate stage for 
the parties to raise new arguments not previously presented before a panel; nor is it an appropriate 
stage for the parties to re -argue their case on the basis of the arguments already put before a 
panel.112 Accordingly, we decline to re consider arguments that have been already considered or to 
address new arguments not previously presented to the Panel. We find there is no basis for a 
modification of the last sentence of paragraph 7.187 of the Interim Report.  
2.4.13   Paragraph 7.188 of the Inter im Report  
2.119.   Russia requests a modification of the phrase in square brackets in the last sentence of 
paragraph 7.188 of the Interim Report to clarify that the Panel refers to alternative methods to 
determine normal value as provided in Article  2.2 of the Anti -Dumping Agreement.113 The 
European  Union did not specifically comment on this request. We have revised the language in 
square brackets in the last sentence of paragraph 7.188 of the Interim Report to clarify that the 
Panel refers to one of two alternative methods to determine normal value as provided in Article  2.2. 
2.4.14   Paragraph 7.190 of the Interim Report  
2.120.   Russia requests modification of the first sentence of paragraph 7.190 of the Interim Report 
to provide additional context for its argument.114 The European  Union did not specifically comment 
on this request. We have made the modification as requested.  
2.4.15   Paragraph 7.195 of the Interim Report  
2.121.   Russia requests modifications of paragraph 7.195 to include description of additional aspects 
of Russia's argumentation, an d to revise aspects of our analysis.115 The European  Union did not 
specifically comment on this request.  
 
109 European Union's comments on the Interim Report, para. 4.  
110 Russia's comment on the Interim Report, paras. 147 -152. 
111 European Union's comments on Russia's comments on the Interim Report, para. 28.  
112 Appellate Body Reports, EC – Sardines , para. 301; and EC – Selected Customs Matters, para. 259.  
See also Panel Reports, Japan – DRAMs (Korea) , para. 6.2; US – Poultry (China) , para. 6.32; India – 
Agricultural Products , para. 6.5; India – Solar Cells , para. 6.24; Russia – Pigs, paras. 6.6-6.7; US – Zeroing 
(EC) ( Article  21.5 – EC), para. 7.26; and Brazil – Taxation , para. 6.7.  
113 Russia's comments on the Interim Report, para. 153.  
114 Russia's comments on the Interim Report, paras. 154 -155. 
115 Russia's comments on the Interim Report, paras. 156 -163. WT/DS494/R/Add.1  
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  2.122.   We recall that the description of the parties' arguments in our Report are not intended to 
reflect the entirety of the parties'  arguments. Rather, they  focus on the principal points we 
considered relevant to the resolution of this dispute. In this respect, we recall that "a panel ha[s] 
the discretion to address only those arguments it deems necessary to resolve a particular claim".116 
We further note that  the integrated executive summaries of the arguments of the parties are set out 
in Annexes B1 -B4. Those summaries have been prepared by the parties themselves and therefore 
have provided the parties with the full opportunity to reflect their arguments as t hey see fit. We 
recall that it is well -established that the interim review is not an appropriate stage for the parties to 
re-argue their case on the basis of the arguments already put before a panel.117 Accordingly, we 
decline to reconsider arguments that h ave been already considered. We find there is no basis for a 
modification of paragraph 7.195 of the Interim Report.  
2.123.   The European  Union requests inclusion of a footnote reference to reflect the 
European  Union's comments on Russia's response to Panel questio n No. 114 after the sentence 
reading: "[w]e also take into consideration that the term 'market' is functioning as an adjective to 
indicate that the situation being referenced in the phrase 'the particular market situation' is a 
situation pertaining to a ma rket and that the relevance of 'the particular market situation' in the 
context of Article  2.2 turns on whether or not it causes the exporter's sales of the like product in the 
domestic market to not permit a proper comparison with the export sales of the exporter for which 
dumping is being determined."118 Russia opposes the European Union's requested reference, 
arguing, inter alia , that the sentence to which the European  Union suggests to add the footnote 
begins with the phrase "[w]e also take into consider ation", i.e. the Panel takes into consideration, 
and does not contain any reference to the European  Union's argument.119  
2.124.   We have declined to include the requested reference to the European Union's comments on 
Russia's response to Panel question No. 114 because we do not consider this reference is necessary 
for our analysis and conclusion on this point.  
2.4.16   Paragraph 7.197 of the Interim Report  
2.125.   Russia requests modifications of paragraph 7.197 to include description of additional aspects 
of Russia's argumentat ion, and requests reconsideration and modification of certain of our analysis 
and conclusions in this paragraph.120 The European  Union opposes Russia's request, claiming that 
Russia seeks to re -argue its case.121  
2.126.   We recall that the description of the parties' arguments in our Report is not intended to 
reflect the entirety of the parties'  arguments. Rather, it focuses on the principal points we considered 
relevant to the resolution of this dispute. In this respect, we recall that "a panel ha[s] the disc retion 
to address only those arguments it deems necessary to resolve a particular claim".122 We further 
note that the integrated executive summaries of the arguments of the parties are set out in 
Annexes  B1-B4. Those summaries have been prepared by the part ies themselves and therefore have 
provided the parties with the full opportunity to reflect their arguments as they see fit. We recall 
that it is well -established that the interim review is not an appropriate stage for the parties to re -
argue their case on  the basis of the arguments already put before a panel.123 Accordingly, we decline 
to reconsider arguments that have been already considered. We find there is no basis for a 
modification of paragraph 7.197 of the Interim Report.  
 
116 Appellate Body Reports, EC – Poultry , para. 135; US – COOL , para. 414 . 
117 Appellate Body Reports, EC – Sardines , para. 301; and EC – Selected Customs Matters, para. 259.  
See also Panel Reports, Japan – DRAMs (Korea) , para. 6.2; US – Poultry (China) , para. 6.32; India – 
Agricultural Products , para. 6.5; India – Solar Cells , para. 6.24; Russia – Pigs, paras. 6.6-6.7; US – Zeroing 
(EC) ( Article  21.5 – EC), para. 7.26; and Brazil – Taxation , para. 6.7.  
118 European Union's comments on the Interim Report, para. 5.  
119 Russia's comments on the European Union's comments on the Interim Report, paras. 11 -15. 
120 Russia's comments on the Interim Report, paras. 164 -175. 
121 European Union's comments on Russia's comments on the Interim Report, para. 29.  
122 Appellate Body Reports, EC – Poultry , para. 135; US – COOL , para. 414 . 
123 Appellate Body Reports, EC – Sardines , para. 301; and EC – Selected Customs Matters, para. 259.  
See also Panel Reports, Japan – DRAMs (Korea) , para. 6.2; US – Poultry (China) , para. 6.32; India – 
Agricultura l Products , para. 6.5; India – Solar Cells , para. 6.24; Russia – Pigs, paras. 6.6-6.7; US – Zeroing 
(EC) ( Article  21.5 – EC), para. 7.26; and Brazil – Taxation , para. 6.7.  WT/DS494/R/Add.1  
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  2.4.17   Paragraphs 7.197 and 7.198 o f the Interim Report  
2.127.   The European  Union invites the Panel to include in paragraphs 7.197 and 7.198 of the 
Interim Report references to the Panel Report in Australia – Anti-Dumping Measures on Paper  
pursuant to which the European  Union proposes for the Pane l to recall certain passages contained 
in that report.124 Russia opposes the requested additions, arguing that the text of paragraphs 7.197 
and 7.198 of the Interim Report makes clear that the Panel considered Russia's arguments and made 
its findings regard ing those arguments such that reference to the panel's considerations in 
Australia  – Anti-Dumping Measures on Paper  are not appropriate in these paragraphs, and also 
referring to the Panel's observations in paragraph  7.200 of the Interim Report about the d istinctions 
between the arguments and records at issue in the present dispute and the dispute in 
Australia  – Anti-Dumping Measures on Paper .125  
2.128.   We have declined to make the requested inclusions because we do not consider these 
references are necessary for our analyses and conclusions on these points.  
2.4.18   Paragraph 7.198 of the Interim Report  
2.129.   Russia requests modification of the description of its arguments presented in the first 
sentence of paragraph 7.198 of the Interim Report.126 The European  Union did not spec ifically 
comment on this request. We consider that Russia's requested modifications accurately describe its 
arguments under consideration in this paragraph, and we have accepted the modification with slight 
revision for conciseness.  
2.130.   Russia further requests  reconsideration and modification of certain of our analysis and 
conclusions in this paragraph.127 The European  Union opposes Russia's request, claiming that Russia 
seeks to re -argue its case.128  
2.131.   We recall that "a panel ha[s] the discretion to address only those arguments it deems 
necessary to resolve a particular claim".129 We recall that it is well -established that the interim review 
is not an appropriate stage for the parties to raise new arguments not previously presented before 
a panel; nor is it an appropriate stage for the parties to re -argue their case on the basis of the 
arguments already put be fore a panel.130 Accordingly, we decline to reconsider arguments that have 
been already considered or to address new arguments not previously presented to the Panel. We 
find there is no basis for these requested modifications paragraph 7.198 of the Interim Report.  
2.4.19   Paragraph 7.199 of the Interim Report  
2.132.   Russia requests modification of the description of the Appellate Body's finding on the object 
and purpose of the Anti -Dumping Agreement set forth in the fourth sentence of paragraph 7.199 of 
the Interim Report.131 The European  Union did not specifically comment on this request. We have 
declined to make the requested modification because it is not necessary as we consider that the 
sentence does not purport to quote the Appellate Body findings in their entirety, an d we consider 
the description set forth in the referenced sentence is an accurate and appropriate description in this 
context.  
 
124 European Union's comments on the Interim Report, paras. 6 -7.  
125 Russia's comments on European Union's comments on the Interim Report, paras. 16 -31. 
126 Russia's comments on the Interim Report, paras. 176 -178.  
127 Russia's comments on the Interim report, para s. 179 -184. 
128 European Union comments on Russia's comments on the Interim Report, para. 30.  
129 Appellate Body Reports, EC – Poultry , para. 135; US – COOL , para. 414 . 
130 Appellate Body Reports, EC – Sardines , para. 301; and EC – Selected Customs Matters, para. 259.  
See also Panel Reports, Japan – DRAMs (Korea) , para. 6.2; US – Poultry (China) , para. 6.32; India – 
Agricultural Products , para. 6.5; India – Solar Cells , para. 6.24; Russia – Pigs, paras. 6.6-6.7; US – Zeroing 
(EC) ( Article  21.5 – EC), para. 7.26; and Brazil – Taxation , para. 6.7.  
131 Russia's comments on the Interim Report, para. 185.  WT/DS494/R/Add.1  
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  2.4.20   Paragraphs 7.182, 7.184, 7.193, 7.194, and 7.196 and section titles 7.4.3 
and 7.4.3.1 of the Interim Report  
2.133.   Russia requests to add the words "to Article  VI:1 of the GATT 1994" after the words "the 
second Ad Note" in paras. 7.182, 7.184, 7.193, 7.194 and 7.196 and in the titles of sections 7.4.3 
and 7.4.3.1 of the Interim Report, noting that it considers the reference t o the GATT 1994 is 
significant because the second Ad Note does not appear in the Anti -Dumping Agreement.132 The 
European  Union did not specifically comment on this request. We have made the modifications as 
requested.  
2.5  Russia's claims concerning the final p art of the second subparagraph of Article  2(5) 
of the Basic AD Regulation  
2.5.1   Paragraphs 7.205, 7.213, and 7.218 of the Interim Report  
2.134.   Russia requests additional elements be included in the description of the scenario described 
in the second sentence of paragr aph 7.205 of the Interim Report.133 The European  Union disagrees 
specifically with Russia's request to insert "allegedly" because if it is a determination, it is no longer 
"alleged".134 We have made the requested modifications with the exception of the request to include 
"allegedly" because we understand that it is not accurate to say that a determination that distortions 
were alleged would be sufficient to reject the costs.  
2.135.   Russia furth er requests modification of the penultimate sentence of paragraph 7.205, 
paragraph 7.213, and paragraph 7.218 of the Interim Report to reflect more closely the wording of 
its argumentation.135 The European  Union did not specifically comment on this request.  We have 
made the modifications as requested.  
2.5.2   Paragraph 7.206 of the Interim Report  
2.136.   Russia requests modification of the last sentence paragraph 7.206 of the Interim Report to 
include additional detail and more closely conform the language to its argumentat ion.136 The 
European  Union did not specifically comment on this request. We have made the modifications as 
requested.  
2.5.3   Paragraph 7.207 of the Interim Report  
2.137.   Russia requests modification of the second sentence of paragraph 7.207 of the 
Interim  Report to refer  to "the cost of production" in the singular form as it is referred in Article  2.2 
of the Anti -Dumping Agreement.137 The European  Union does not specifically comment on this 
request. We have made the modification as requested.  
2.138.   Russia further requests modifi cation of the findings made in paragraph 7.207 to the effect 
that there is an obligation "to use the cost of production in the country of origin" in the construction 
of normal value to determine the margin of dumping, and to refer to "the" cost of producti on in the 
country of origin rather than "a" cost of production in the country of origin.138 The European  Union 
disagrees, arguing that the requested modifications would distort the findings of the Panel and does 
not correspond to the Appellate Body's findin gs in EU – Biodiesel (Argentina) .139 We decline to make 
the requested modifications because we find the original findings were appropriately phrased and 
we do not consider that revision of our original findings is necessary to resolve the matter.  
2.139.   Russia fur ther requests modification of the eighth and ninth sentences of paragraph 7.207 
of the Interim Report to refer to additional findings of the Appellate Body in EU – Biodiesel 
 
132 Russia's comments on the Interim Report, para. 186.  
133 Russia's comments on the Interim Report, paras. 187 -188. 
134 Europe an Union comments on Russia's comments on the Interim Report, para. 31.  
135 Russia's comments on the Interim Report, paras. 189 -191, 206, and 208.  
136 Russia's comments on the Interim Report, para. 192.  
137 Russia's comments on the Interim Report, para. 194.  
138 Russia's comments on the Interim Report, para. 195.  
139 European Union comments on Russia's comments on the Interim Report, para. 32.  WT/DS494/R/Add.1  
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  (Argentina)  and Ukraine – Ammonium Nitrate .140 The European  Union objects to the mo dification, 
arguing that the original description adequately reflects the findings by the panels and the 
Appellate  Body and that Russia seeks to distort the original findings.141 We have declined to make 
the requested modifications because the original desc riptions identify the findings that are relevant 
to the analysis undertaken and findings made in this paragraph.  
2.140.   Russia further requests inclusion of the word "the" before the term "cost of production".142 
The European  Union did not specifically comment on this request. We have made the inclusion as 
requested.  
2.5.4   Title of section 7.5.3 and Paragraph 7.209 of the Interim Report  
2.141.   Russia requests that the word "the" be used in connection with "cost", "cost of production" 
and "investigated exporter or producer" in the title of section 7.5.3 and the last sentence of 
paragraph 7.209 of the Interim Report.143 The European  Union did not specifically comment on this 
request. We have made the modifications as requested, although we consider that these 
modifica tions have no impact on the meaning of the associated terms in the context of the title and 
sentence affected.  
2.5.5   Paragraphs 7.211 and 7.214 of the Interim Report  
2.142.   Russia requests modification of the last sentence of paragraph 7.211 of the Interim Report 
to replace "suitable to determine a 'cost of production in the country of origin'" with "used to arrive 
at 'the cost of production in the country of origin'". Russia  further requests references to additional 
portions of the Appellate Body report in EU – Biodiesel (Argentina) .144 The European  Union argues 
that there is no reason to make the modification and considers that the original formulation was 
entirely appropriat e.145  
2.143.   We have declined to make the requested modification as we consider that the original 
sentence properly conveys the intended meaning, and the references cite to the relevant portions 
of the report.  
2.5.6   Paragraph 7.219 of the Interim Report  
2.144.   Russia requests  modifications of paragraph 7.219 to include a description of additional 
aspects of Russia's argumentation and to merge into this paragraph the quotation of 
Russia's  argumentation from paragraph 7.220 of the Interim Report.146 The European  Union 
disagrees w ith these modifications, arguing that the statements do not add anything to a correct 
representation of Russia's arguments.147  
2.145.   We recall that that the description of the parties' arguments in our Report are not intended 
to reflect the entirety of the parti es' arguments. Rather, they focus on the principal points we 
considered relevant to the resolution of this dispute. In this respect, we recall that "a panel ha[s] 
the discretion to address only those arguments it deems necessary to resolve a particular cla im".148 
We have modified the quotation of Russia's argument in paragraph 7.219 to include additional 
description as appropriate context for the original quotation. We have declined to make the 
remaining requested modifications as the original descriptions a re accurate and relate to the specific 
analysis being developed in these paragraphs.  
 
140 Russia's comments on the Interim Report, paras. 196 -199. 
141 European Union comments on Russia's comments on the Interim Re port, paras. 33 -34. 
142 Russia's comments on the Interim Report, para. 200.  
143 Russia's comments on the Interim Report, paras. 201 -202. 
144 Russia's comments on the Interim Report, paras. 203 -205 and 207.  
145 European Union comments on Russia's comments on the In terim Report, paras. 35 -36. 
146 Russia's comments on the Interim Report, paras. 209 -210. 
147 European Union comments on Russia's comments on the Interim Report, para. 38.  
148 Appellate Body Reports, EC – Poultry , para. 135; US – COOL , para. 414 . WT/DS494/R/Add.1  
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  2.5.7   Paragraph 7.220 of the Interim Report  
2.146.   In paragraph 7.220, the European  Union requests the Panel to modify the first sentence as 
follows:  
[W]e consider that Russia has demo nstrated that the adaptation of out -of-
country  information to arrive at the cost of production in the country of origin consistent 
with Article  2.2 is not explicitly  required by the challenged part of the second 
subparagraph[.]149 
The European  Union explain s that it considers that this corresponds better with the legal 
interpretation: even if the text of Article  2(5) of the Basic AD Regulation does not explicitly require 
the adaptation, it does not prevent it.150 Russia opposes the modification, arguing that such inclusion 
would contradict the European Union's own arguments and the record of this dispute.151 We have 
declined to make the requested revision as we consider that the original formulation is accurate and  
that a revision is not necessary in relation to our analysis and conclusion on this point.  
2.5.8   Paragraph 7.221 of the Interim Report  
2.147.   Russia requests modifications to the third and fourth sentences of paragraph 7.221 of the 
Interim Report to include additional  factual findings regarding the adjustments made by the 
European Commission in various determinations.152 The European  Union objects to the requested 
modifications, arguing that they are unsubstantiated arguments rather than facts supported by 
evidence, and  an attempt to modify the conclusions of the Panel.153 We have declined to make the 
requested modifications because additional factual findings are not necessary in relation to our 
conclusions in this paragraph.  
2.5.9   Paragraphs 7.222 and 7.223 of the Interim Report  
2.148.   Russia requests modification of the first sentenc e of paragraph 7.222 of the Interim Report 
to more closely reflect the argumentation it provided in relation to the issue addressed in this 
paragraph.154 The European  Union did not specifically comment on this request. We have made the 
modification as reque sted. 
2.149.   Russia further requests  modification of the last sentence of paragraph 7.222 and 
paragraph  7.223 of the Interim Report to  include an additional finding on whether the measure at 
issue prevents the European  Union from ensuring that the "adjusted" or " established" cost 
represents the cost of production in the country of origin in the scenario described by Russia.155 The 
European  Union argues the request should be rejected as an attempt to modify the conclusions of 
the Panel, and thus re -arguing an argume nt it lost.156  
2.150.   We recall that it is well -established that the interim review is not an appropriate stage for 
the parties to re -argue their case on the basis of the arguments already put before a panel.157 
Accordingly, we decline to reconsider arguments that  have been already considered.  
 
149 European Union 's comments on the Interim Report, para. 8. (e mphasis original ) 
150 European Union's comments on the Interim Report, para. 9.  
151 Russia's comments on the European Union's comments on the Interim Report, paras. 32 -35. 
152 Russia's comments on the Interim Report , paras. 211 -218. 
153 European Union comments on Russia's comments on the Interim Report, paras. 39 -40. 
154 Russia's comments on the Interim Report, paras. 219 -220.  
155 Russia's comments on the Interim Report, para. 221.  
156 European Union comments on Russia's comments on the Interim Report, para. 41.  
157 Appellate Body Reports, EC – Sardines , para. 301; and EC – Selected Customs Matters, para. 259.  
See also Panel Reports, Japan – DRAMs (Korea) , para. 6.2; US – Poultry (China) , para. 6.32; India – 
Agricultural Products , para. 6.5; India – Solar Cells , para. 6.24; Russia – Pigs, paras. 6.6-6.7; US – Zeroing 
(EC) ( Article  21.5 – EC), para. 7.26; and Brazil – Taxation , para. 6. 7.  WT/DS494/R/Add.1  
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  2.6  Russia's claims concerning the anti -dumping measures on imports of certain welded 
tubes and pipes originating in Russia  
2.6.1   Paragraph  7.230 of the Interim Report  
2.151.   Russia requests that the Panel add, to the third sentence of paragraph  7.230, the word 
"allegedly" before "represented only 30% of the Russian export gas price". In Russia's view, this "is 
necessary to provide [an] accurate description of the facts of the dispute".158 
2.152.   The European  Union objects to Russia's request. According to the European  Union, Russia's 
request does not constitute a factual modification, but an appreciation of the facts from the 
perspective of Russia that must be rejected.159 
2.153.   We have decid ed not to grant Russia's request. Paragraph  7.230 describes Russia's 
argument that, in the expiry review concerning certain welded tubes and pipes from Russia, the 
European Commission discarded domestic gas prices because, inter alia , they represented only  30% 
of the Russian export gas price. That domestic gas prices represented 30% of Russian export gas 
price is not an alleged fact, but an explicit finding made by the European Commission. Recital  69 of 
Regulation 2015/110 states that " [i]t was found that t he domestic gas price paid by the exporting 
producers was around 30% of the export price of natural gas from Russia".160 Therefore, we disagree 
that Russia's suggested addition is necessary to provide an accurate description of the facts of the 
dispute.  
2.6.2   Paragraph  7.251 of the Interim Report  
2.154.   Russia requests the Panel to add, in the second sentence of paragraph  7.251, the word 
"allegedly" before "far below market prices paid in unregulated export markets for Russian natural 
gas". According to Russia, this addi tion would accurately reflect the facts of the dispute and avoid 
any assumptions, not necessary for the effective resolution of this dispute.161 
2.155.   Paragraph  7.251 addresses the European  Union's arguments concerning the Working Party 
Report on Russia's accessi on to the WTO. Noting that paragraph  132 of the Working Party Report 
records the statement of the representative of Russia that producers of natural gas in Russia would 
operate based on normal commercial considerations, the Panel concludes in the second an d fifth 
sentences of paragraph  7.251:  
There is, however, no indication in paragraph  132 that this statement was meant to 
establish the legal basis to disregard domestic gas costs in Russia, pursuant to the 
second condition in Article  2.2.1.1, for reasons t hat these costs are regulated or far 
below market prices paid in unregulated export markets for Russian natural gas  … For 
these reasons, we disagree that the commitment reflected in paragraph 132 of the 
Working Party Report on Russia's accession to the WTO  justifies the rejection of the cost 
of natural gas in the expiry review for welded tubes and pipes.  
2.156.   We have decided not to grant Russia's request as we find it misplaced. As noted in 
paragraph  7.251, we do not read paragraph  132 of the Working Party Report as establishing the 
legal basis to disregard domestic gas costs in Russia pursuant to the second condition in 
Article  2.2.1.1, and disagree that this commitment justifies the rejection of these costs in the expiry 
review for certain we lded tubes and pipes from Russia.  Whether it was found, or merely "alleged", 
that domestic gas costs in Russia were " far below market prices paid in unregulated export markets 
for Russian natural gas"  does not change our conclusion on paragraph  132 of the Working Party 
Report .162 
 
158 Russia's comments  on the Interim Report , paras. 224 -225. 
159 European Union 's comments  on Russia's comments on the Interim Report , para. 42.  
160 Regulation 2015/110, (Exhibit RUS -21), recital 69.  
161 Russia's comments  on the Interim Report , para . 240.  
162 In any event, we find it relevant to mention that as noted in paragraph 7.239 of the Interim Report, 
in the expiry review for certain welded tubes and pipes from Russia, the European Commission found, based on 
"all ava ilable data", that domestic gas prices were "far below market prices paid in unregulated export markets 
for Russian natural gas". ( Regulation 2015/110, (Exhibit RUS -21), recital 69 ) WT/DS494/R/Add.1  
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  2.6.3   Footnote 405 of the Interim Report  
2.157.   Russia requests that the Panel delete footnote 405 to paragraph  7.243. Footnote 405 states 
the Panel's "understand[ing] [that] the European Commission did not examine whether the first 
condition in the first sentence of Article  2.2.1.1 was satisfied" in the expiry review for certain welded 
tubes and pipes from Russia.  According to Russia, this statement "is not accurate". In support of 
this assertion, Russia quotes paragraph  465 of its first written submission. In this paragraph, Russia 
states its view that  the European Commission "confirmed" that the records of the investigated 
producer were in accordance with the GAAP of the exporting country by not "alleg[ing]" otherwise 
and because "no arguments regarding such inconsistency appear in the Definitive Discl osure". Russia 
also submits that, in the course of the panel proceeding, the European  Union has not rebutted 
Russia's position that the records of the investigated producer were GAAP -consistent.163 
2.158.   The European  Union objects to Russia's request arguing that  the fact that nothing is said in 
an anti -dumping determination does not mean that there was a confirmation that the records of the 
investigated producer were GAAP -consistent.164 
2.159.   We have decided not to grant Russia's request because we are not persuaded tha t our 
understanding of Regulation 2015/110 is inaccurate. As noted in footnote 405, Regulation  2015/110 
does not address whether the records of the Russian producer under investigation were in 
accordance with the GAAP of the exporting country. Unlike Russi a, we do not consider that this 
means that, in the expiry review, the records of the Russian producer under investigation were found 
to be GAAP -consistent. As indicated in footnote 405, the absence of any findings in the determination 
in this connection su ggests to us that the European Commission did not examine this issue and  we 
see nothing in Russia's request that would cause us to question or revise this conclusion. We also 
disagree with Russia that the fact that the European  Union has not rebutted Russi a's allegation 
during the panel proceeding means that the records of the Russian producer were in accordance 
with the GAAP of the exporting country . Because it is generally for each party asserting a fact to 
provide proof thereof165, Russia bears the burden  of demonstrating the factual allegations it makes 
in support of its claims.  
2.6.4   Paragraphs 7.247 and 7.248 of the Interim Report  
2.160.   Paragraph  7.247 reflects the European  Union's argument that the rejection of "distorted" 
gas cost information recorded in the Rus sian producer's records was justified by two sets of reasons; 
paragraph  7.248 contains the Panel's disposition of the European  Union's argument.  
2.161.   Russia asks the Panel to include "the European  Union argues" between the second and third 
sentences of paragrap h 7.247 to make it clear that "all words in this paragraph  belong to the 
European  Union only". Russia also asks that the Panel "complete its findings" in paragraph  7.248. 
According to Russia, from the context of paragraph  7.248, "it becomes clear" that whe n using the 
wording "[w]e do not consider this argument to be relevant", the Panel refers to the 
European  Union's "first argument", concerning the words "normally" and "[f]or the purpose of 
paragraph 2". For  Russia, there is no finding of the Panel with re spect to the European  Union's 
"second argument", concerning Article  2. Russia, thus, requests the Panel to reject the 
European  Union's second argument. 166 
2.162.   We have decided not to grant Russia's requests. As for Russia's first request, we do not find 
the sug gested addition necessary to make clear that this paragraph  reflects an argument of the 
European  Union.  
2.163.   As for Russia's second request, we note that Russia reads paragraph  7.247 as describing 
two arguments of the European  Union: one related to the words "normally" and "[f]or the purpose 
of paragraph 2", and one related to Article  2 of the Anti -Dumping Agreement. However, 
paragraph  7.247 sets out one single argument of the European  Union (i.e. the European  Union's 
argument that the rejection of "distorted" gas cost information recorded in the Russian producer's 
records was justified) , which, as noted in paragraph  7.247, the European  Union bases on two 
 
163 Russia's comments  on the Interim Report , paras. 232-234.  
164 European Uni on's comments  on Russia's comments on the Interim Report , para. 43. 
165 Appellate  Body Report, US – Wool Shirts and Blouses , DSR 1997: I, p. 335. 
166 Russia's comments on the Interim Report, paras. 238 -239. WT/DS494/R/Add.1  
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  reasons: the operation of (i) the words "normall y" and "[f]or the purpose of paragraph 2"; and (ii) 
Article  2 of the Anti -Dumping Agreement.  As already noted, we address the European  Union's 
argument in paragraph  7.248 by stating that we do not consider it to be relevant to the issue 
underlying Russia's  claim, i.e. the application of the second condition in Article  2.2.1.1. It is apparent 
that, by referring to "this argument", we refer to the argument of the European  Union described in 
paragraph  7.247. We recall that the limited function of the interim r eview stage is to consider the 
review of "precise aspects" of the interim report. Insofar as Russia is requesting a reconsideration 
of the Panel's  reasoning in disposing of the European  Union's argument described in 
paragraph  7.247, this request amounts to  an attempt to re -litigate arguments already put before 
us, which is not appropriate at the interim review stage.  
2.6.5   Paragraph  7.258 of the Interim Report  
2.164.   Russia argues that paragraph  7.258, which sets out the legal standard applicable to 
Article  2.2.1 of the  Anti-Dumping Agreement, provides for a "wrong test", and does not reflect the 
wording of Article  2.2.1 and Appellate Body's "interpretations" on this provision.167 Russia thus asks 
the Panel: (i) to delete the second and third sentences of paragraph 7.258;  (ii) to change the 
language of the fourth sentence of paragraph 7.258; and (iii) to add the following two additional 
sentences at the beginning of paragraph 7.258, including the relevant references to Appellate Body 
Reports, China – HP-SSST (Japan) / Chin a – HP-SSST (EU) , and Panel Reports, EC – Salmon 
(Norway) and Ukraine – Ammonium Nitrate : 
Article  2.2.1 sets forth rules concerning when sales of the like product in the domestic 
market or to a third country may be treated as not being in the ordinary cour se of trade 
and disregarded in determining the normal value for the exporter or producer under 
investigation.  
Article  2.2.1 sets out a single obligation whereby an investigating authority may 
disregard below -cost sales of the like product only if it determ ines that "such" below -
cost sales display the three specific characteristics mentioned above.  
2.165.   We have decided not to grant Russia's requests. As for Russia's first request, we find it 
inappropriate to delete the second and third sentences of paragraph 7.25 8, as these sentences are 
relevant to the Panel's analysis that is presented in section 7.6.3.3. Russia does not substantiate 
why these sentences reflect an incorrect legal standard under Article  2.2.1 of the 
Anti-Dumping  Agreement. As for Russia's second request, we find it inappropriate to change the 
language of the fourth sentence as it reproduces the panels' considerations in EC – Salmon (Norway)  
and Ukraine – Ammonium Nitrate.  As for Russia's third request, we find it unnecessary to add the 
sentences s uggested by Russia because the first sentence of paragraph 7.258 already addresses, 
albeit in different terms, the topics that are addressed in the two sentences suggested by Russia.  
2.7  Russia's claims  concerning the anti -dumping measures imposed by the 
European  Union on imports of ammonium nitrate from Russia and the underlying 
investigations and reviews  
2.7.1   Paragraph  7.282 of the Interim Report  
2.166.   The European  Union requests that the Panel include, after paragraph  7.282, a reference to 
the findings of the Appe llate Body in Brazil – Desiccated Coconut  that Article  32.3 of the 
SCM Agreement, and thus also the identical Article  18.3 of the Anti -Dumping Agreement, sets a 
temporal dividing line not just with respect to those agreements, but also with respect to the 
GATT  1994, including Article  VI.168  
2.167.   Russia objects to the European  Union's request because it conflates the disciplines of the 
SCM Agreement and the Anti -Dumping Agreement. Further, for Russia, Article  18.3 of the 
Anti-Dumping Agreement does not contain any reference to Article  VI of the GATT 1994 or any other 
provision of the GATT 1994. Article  18.3 explicitly states "the provisions of this Agreement [i.e. the 
Anti-Dumping Agreement] shall apply". Thus, Article  18.3 concerns only the application of the 
 
167 Russia's comments on the Interim Report, paras. 242 -244. 
168 European Union's comments on the Interim Report, para. 10.  WT/DS494/R/Add.1  
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  Anti-Dumping Agreement and does not address the issue of the temporal applicability of the 
GATT  1994. Russia also argues that in section  7.7.1 of the Interim Report, the Panel dealt only with 
the applicability of the Anti -Dumping Agreement to Russia 's claims. In addition, Russia argues that 
the Appellate Body Report in Brazil – Desiccated Coconut  does not contain the phrase quoted by the 
European  Union. 169 
2.168.   We agree with Russia that the Appellate Body Report in Brazil – Desiccated Coconut  does 
not con tain the exact words which the European  Union asks us to include after paragraph  7.282 of 
the Interim Report. The Appellate Body however does establish a parallel between Article  32.3 of 
the SCM Agreement and Article  18.3 of the Anti -Dumping Agreement.170 It also states that it sees: 
"Article  32.3 of the SCM Agreement as a clear statement that for countervailing duty investigations 
or reviews, the dividing line  between the application of the GATT 1947 system of agreements and 
the WTO Agreement is to be deter mined by the date on which the application was made for the 
countervailing duty investigation or review".171 This statement coincides with the argument made 
by the European  Union in its first written submission that:  
Article  32.3 provides a temporal "divid ing line" for countervailing duty investigations or 
reviews not just with respect to the SCM Agreement and Article  VI of the GATT 1994, 
but with respect to the WTO Agreement as a whole . This dividing line is "determined by 
the date on which the application was made for the countervailing duty investigation or 
review".172 
2.169.   We have thus decided to grant the European  Union's request and we have added a reference 
to Article  VI of the GATT 1994 in paragraph  7.278 of the Interim Report, as well as a refe rence to 
the relevant paragraphs of the European  Union's first written submission in the relevant footnote. 
This paragraph  now reads, in relevant part:  
The European  Union submits that, by virtue of Article  18.3, the provisions of the 
Anti-Dumping Agreemen t and Article  VI of the GATT 1994 apply only to investigations, 
and reviews of existing measures, initiated pursuant to applications which have been 
made on or after the date of entry into force for a Member of the WTO Agreement.  
2.7.2   Paragraph  7.290 of the Int erim Report  
2.170.   Russia asks the Panel to set out more clearly in its Final Report its reasons for rejecting 
Russia's argument that the term "a Member" found in Article  18.3 of the Anti -Dumping Agreement 
exclusively refers to an importing Member .173  
2.171.   We have dec ided to grant Russia's request and we have modified paragraph  7.290 
accordingly. This paragraph  now reads:  
The second reason why we cannot agree with Russia's argument is that Russia's 
understanding would result in an asymmetry between the relevant rights  and the 
relevant obligations contained in the Anti -Dumping Agreement. We consider that the 
provisions of Article  18.3 of the Anti -Dumping Agreement apply equally to all Members 
of the WTO from the date of their accession.  
2.172.   The European  Union asks the Pane l to include in the Report its response (which appears in 
paragraph  64 of its second written submission) to Russia's interpretation of Article  18.3 of the 
Anti-Dumping Agreement.174  
 
169 Russia's comments on the European Union's comments on the Interim Report, paras. 36 -45. 
170 "There is an identical provision to Article  32.3 of the SCM Agreement contained in Article  18.3 of  the 
Agreement on Implementation of Article  VI of the General Agreement on Tariffs and Trade 1994 (the 
'Anti-Dumping Agreement ')." (Appellate Body Report, Brazil – Desiccated Coconut , DSR 1997:I, fn 23).  
171 Appellate Body Report, Brazil – Desiccated Coconut , DSR 1997:I, p. 182. (emphasis added)  
172 European Union's first written submission, para. 149. (emphasis original)  
173 Russia's comments on the Interim Report, para. 246.  
174 European Union's comments on the Interim Report, para. 11.  WT/DS494/R/Add.1  
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  2.173.   We have decided to grant the European  Union's request and we have inserted  in the Report 
a paragraph  and a footnote reflecting the content of paragraph  64 of the European  Union's second 
written submission. Paragraph  7.289 of the Final Report now reads:  
The European  Union responds that Russia's interpretation would create an imb alance 
between the rights and obligations provided in the Anti-Dumping  Agreement, such that 
rights would somehow begin to apply before the corresponding obligations. For the 
European  Union, it would, in effect, apply the Anti-Dumping  Agreement retroactively to 
the extent that it creates rights for Russia to invoke, which would be contrary to the 
non-retroactivity rule in Article  28 of the Vienna Convention. Russia's  interpretation 
would "contradict the rather elementary notion that, w hen a new Member accedes, the 
WTO agreements – including both the rights and obligations therein - enter into force 
for that Member ."175 
2.7.3   Section  7.7.2.2 of the Interim Report  
2.174.   With regard to its claim #1, Russia argues that the Panel failed to address Russia 's claims 
under Articles  I, VI:1 and VI:2 of the GATT 1994 and treated Russia's claim under Article  II of the 
GATT 1994 as consequential, although this provision contains separate obligations whose violation 
is not consequential to a violation of the Anti -Dumping Agreement.176  
2.175.   We disagree with Russia that we failed to address claims under the GATT 1994 in our analysis 
of its claim #1.  
2.176.   First, we found that "there has been no re -examination, and consequently no extension, of 
the product scope in the 2014, 'post WTO' third expiry review".177 We thus rejected this aspect of 
Russia's claim #1 because we disagreed that the product scope had been extended to IGAN in the 
context of the third expiry review.  
2.177.   Second, we found that, by virtue of Article  18.3 of  the Anti -Dumping  Agreement, Russia was 
precluded from challenging a non -re-examined aspect of a determination made in investigations 
initiated before Russia's accession to the WTO: this finding concerned the alleged extension of the 
product scope to stabi lized AN in Regulation  945/2005.178 As a consequence, we rejected 
Russia's  claim #1 under Articles  1 and 18.1 of the Anti -Dumping Agreement that the European  Union 
imposed anti -dumping duties on stabilized AN and IGAN in the absence of dumping determination s 
for these products.  
2.178.   For us, Russia's claims on the basis of Articles  2, 3, 4, and 9 of the Anti -Dumping Agreement 
and Articles  I, II and VI of the GATT 1994 are consequential to a finding that the European  Union 
imposed anti -dumping duties on stabilized AN and IGAN in the absence of dumping determinations 
for these products. As we have declined to make such a finding, we also reject these consequential 
claims. The consequential nature of Russia's additional claims is clear in particular from 
sections  9.3.1.1.3 and 9.3.1.1.5 of Russia's first written submission, which state that these violations 
"resulted " from [t]he EU's imposition and levy of anti -dumping duties on Stabilized AN and IGAN " in 
the absence"  of dumping determinations for these products. Simil arly, section  9.3.1.1.6 challenges 
the "imposition and levy of anti -dumping duties on IGAN and Stabilized AN, in the absence  of an 
original anti -dumping investigation".179 
2.179.   We have however partially granted Russia's request by modifying paragraph  7.299 of th e 
Interim Report to reflect fully the content of Russia's claims, including under Article  I of the 
GATT  1994. We have also modified our conclusion (at paragraph  7.319) to reflect more clearly that 
we consider Russia's claims under Articles  I, II, and VI of  the GATT 1994, as well as under Articles  2, 
3, 4, and 9 of the Anti -Dumping Agreement to be consequential to a finding that the European  Union 
imposed anti -dumping duties on stabilized AN and IGAN in the absence of dumping determinations 
for these product s. Our conclusion now reads:  
 
175 Fn omi tted; emphasis original.  
176 Russia's comments on the Interim Report, paras. 364 -368. 
177 Interim Report,  para. 7.316.  
178 Interim Report,  para. 7.317.  
179 Emphasis added.  WT/DS494/R/Add.1  
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  For these reasons, we reject Russia's claim #1 that the European  Union "violated 
Articles  1 and 18.1 of the Anti -Dumping Agreement because it imposed the 
anti-dumping measures on import of IGAN and Stabilized AN for which no a nti-dumping 
investigation was ever conducted and no dumping and injury determinations were ever 
made". As the part of Russia's claim #1 that is raised on the basis of Articles  2, 3, 4, 
and 9 of the Anti -Dumping Agreement and Articles  I, II and VI of the GA TT 1994 is 
consequential to a finding that the European  Union imposed anti -dumping duties on 
stabilized AN and IGAN in the absence of dumping determinations for these products, 
we also reject these claims.180 
2.180.   Russia also argues that our conclusion, reached in paragraphs 7.310 and 7.318 of the 
Interim  Report that there was no re -examination of the inclusion of stabilized AN within the product 
scope after Russia's WTO accession is not based on the record of the Panel proceedings. Russia thus 
requests the Panel to review the entire factual record of claim #1 and modify its analysis and findings 
accordingly.181 
2.181.   We recall our extensive analysis of the evolution of the product scope in section  7.7.2.2.1 of 
the Interim Report. We also recall our conclusion that no re-examination of the product scope took 
place after Russia's accession to the WTO. On this basis, we decline Russia's request to modify our 
conclusion in paragraphs 7.310 and 7.318. Nevertheless, we added a footnote at paragraph  7.307 
of the Interim Re port to note that the events reflected at recitals 20 to 22 of Regulation 999/2014 
did not amount, in our view, to a re -examination of the product scope in the context of the third 
expiry review.  
2.7.4   Section  7.7.2.2.1 of the Interim Report  
2.182.   Russia asks the Pan el to insert in its Final Report a new subsection  reflecting the facts that 
Russian exporters asked the European Commission to exclude stabilised AN from the scope of the 
measure and expiry review and that the European Commission refused to grant this requ est. 
According to Russia, these facts are " highly relevant for Russia's claim that a re -examination of the 
product scope actually took place in the third expiry review".182  
2.183.   We have decided to grant Russia's request and we have reflected Russia's argument i n a 
footnote affixed to paragraph  7.309 of the Final Report.  
2.184.   In relation to the same section  of the Interim Report, Russia also requests that the Final 
Report "should summarize Russia's and EU's arguments on the fact that the [European Union]  never 
conduc ted anti -dumping investigations into Stabilized AN and IGAN".183 We consider that the history 
of the measures on imports of ammonium nitrate has been described in detail in this section  of the 
Interim Report and we therefore decline to grant Russia's reques t.  
2.7.5   Section  7.7.2.2.1(d) of the Interim Report  
2.185.   Russia asks the Panel to include a subsection  called "Findings" at the end of this section.184 
We consider that the findings made by the Panel in this section  are set out sufficiently clearly at the 
end of sect ion 7.7.2.2.1 and we therefore decline to grant Russia's request.  
2.7.6   Paragraph  7.301 of the Interim Report  
2.186.    The European  Union asks us to replace the phrase "makes claims #1 inadmissible" in this 
paragraph  with "means that claim #1 must be rejected because t he relevant provisions of the 
 
180 Fn omitted.  
181 Russia's comments on the Interim Report, para. 371.  
182 Russia's comments o n the Interim Report, paras. 247 -248. Russia's arguments on this issue appear 
at para. 744 of its second written submission.  
183 Russia's comments on the Interim Report, para. 249.  
184 Russia's comments on the Interim Report, paras. 250 -251. WT/DS494/R/Add.1  
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  Anti-Dumping Agreement and the GATT 1994 do not apply."185 The European  Union makes a similar 
request with respect to paragraphs 7.318, 7.319, and paragraph  8.1(g)(i) of the Interim Report.186  
2.187.   Similarly, in paragraph  7.317 of the Interim Report, the European  Union asks us to replace 
the words "outside the scope of this proceeding" with "not subject to the Anti -Dumping 
Agreement".187  
2.188.   Russia objects to the proposed changes. It notes that the paragraphs at issue  contain the 
Panel's own wording, considerations and findings and not the European  Union's arguments.188  
2.189.   We have decided to grant the European  Union's request and we have modified 
paragraphs  7.301, 7.317, 7.318 and 8.1(g)(i) of the Interim Report according ly. 
2.7.7   Paragraph  7.314 of the Interim Report  
2.190.   The European  Union asks the Panel to reflect its argument in response to Panel question 
No. 33, that: "[t]he European  Union further argues that the fact that Chapter 31 of the Harmonized 
System Code, an element that should be taken into account when interp reting both WTO and EU 
law, is entitled 'Fertilizers', suggests that describing a group of products as 'fertilizers' does not 
exclude that at least some among those products can be, or are, used for industrial purposes."189 
2.191.   Russia objects to the European Un ion's request because the argument in question does not 
provide any reference to the European  Commission's finding in the context of the third expiry review, 
and, therefore, constitutes an " ex post facto rationalization".190 
2.192.   We agree with Russia and we thus  decline to grant the European  Union's request.  
2.7.8   Paragraph 7.320(a) of the Interim Report  
2.193.   Russia asks the Panel to revise its description of Russia's claim #2 in order to reflect 
paragraph 43 of Russia's First integrated executive summary.191  
2.194.   We recall that  Russia described its claim in section  7.1.4.2 of its second written submission 
as follows: " [t]he EU erred when it accepted the expiry review request of the domestic industry 
which covered imports of Stabilized AN and IGAN for which no anti -dumping invest igation was ever 
conducted and no dumping and injury determinations were ever made in accordance with the 
AD Agreement".192 We consider that the description contained in paragraph  7.320(a) of the Interim 
Report is consistent with Russia's description of its  claim.  
2.195.   We therefore decline to grant Russia's request.  
2.7.9   Paragraph  7.329 of the Interim Report  
2.196.   The European  Union asks the Panel to insert a reference to its argument in response to Panel 
question No. 88, paragraph 55, that: "[i]n order to 'duly substantiate' an expiry review request, the 
applicant must put forward facts and evidence, not limited to any  particular 'type or quality', that 
make it plausible  that dumping and injury will continue or recur in the future, should measures 
lapse."193 
 
185 European Union 's comments on the Interim Report, para. 12.  
186 European Union's comments on the Interim Report, paras. 15 -16 and 37.  
187 European Union's comments on the Interim Report, para. 14.  
188 Russia's comments on the European Union's comments on the Interim Report, para. 54.  
189 European Union's comments  on the Interim Report , para. 13.  
190 Russia's comments on the European Union's comment  on the Interim Report , paras. 59-60. 
191 Russia's comments o n the Interim Report, para. 252.  
192 Emphasis added.  
193 European Union's comments on the Interim Report, para. 17.  WT/DS494/R/Add.1  
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  2.197.   We consider that paragraph  7.329 of the Interim Report sufficiently reflects the arguments 
made by the European  Union on this issue, but we have decided to include a reference to the relevant 
paragraph  of the European  Union's response to question No. 88 in the corresponding footnote.  
2.7.10   Paragraphs  7.334, 7.336, and 7.337 of the Interim Report  
2.198.   Russia asks the Panel to ref lect in its Final Report that "Fertilizers Europe sought an expiry 
review of the measure with respect to the same product scope that was set previously in the 2005 
review by means of the Regulation 945/2005, and not in 2008 review".194 Russia also asks the Panel 
to modify footnote 512 to paragraph 7.334 of the Interim Report to remove the reference to 
recital  44 of Regulation  999/2014. Finally, Russia asks the Panel to modify the last sentence of 
paragraph  7.336 of the Interim Report because it is "not factu ally correct to suggest, as is done in 
the last sentence of [paragraph]  7.336, that the decision to initiate the third expiry review was taken 
on the basis of the same product scope as the one defined before Russia's accession to the WTO".195 
The European  Union objects to these requests because Russia attempts to "modify the factual 
findings of the Panel, which is not the purpose of interim review".196 
2.199.   We agree that paragraph  7.334 should be modified to reflect that "Fertilizers Europe sought 
an expiry review of the measure with respect to the same product scope that was set previously in 
the 2005 review". However, in view of the content of paragraph  7.336 of the Interim Report, which 
is a citation of recital 44 of Regulation 999/2014, it is appropriate for footnote 512 of the 
Interim  Report to cite both the notice of initiation and the recital of Regulation 999/2014 which 
indicates that "[t]he product concerned by this review is the same as the product defined in 
Regulation (EC) No 661/2008".197  
2.200.   Finally,  we consider that the factual description in the last sentence of paragraph  7.336 of 
the Interim Report (that the product scope was defined before Russia's accession to the WTO and 
was not re -examined in the context of the third expiry review) is correct.  
2.201.   We therefore decline to grant Russia's request and we see no reason to modify our conclusion 
in paragraph  7.336 of the Interim Report. In another section  of its comments on the Interim Report 
(paragraph  372), Russia repeats its objections against our find ing in paragraph  7.337. Russia states 
in particular that:  
[T]he initiation of an expiry review was based on the outdated 2008 product scope 
definition, and thus on a request that was not duly substantiated, contrary to 
Article  11.3 of the Anti -Dumping Agreement. Russia respectfully requests that the Panel 
should revise its findings in para. 7.337 of the Report and grant Russia's claim.198 
2.202.   We consider that Russia's request in paragraph  372 of its comments is essentially the same 
as the request mad e in paragraph  258 of its comments on the Interim Report. In addition, we note 
that Russia does not indicate in these paragraphs in which section  of its written submissions this 
argument was made during the proceedings. For these reasons, we also reject Ru ssia's request in 
paragraph  372 of its comments on the Interim Report.  
2.203.   In relation to the same paragraph  7.334 of the Interim Report, the European  Union requests 
the Panel to replace "sought an extension" in the first sentence of paragraph  7.334 of the 
Interim  Report with the following text: "sought, whether by expressly requesting or otherwise aiming 
to obtain, an extension".199  
2.204.   We consider that the evolution of Russia's position during the proceedings is sufficiently 
reflected at paragraph  7.333 of the I nterim Report and we do not think that the addition requested 
 
194 Russia's comments on the Interim Report, para. 253.  
195 Russia's comments on the Interim Report, para. 257.  
196 European Union's comments on Russia's comments on the Interim Report, para. 49.  
197 Regulation 999/2014, (Exhibit RUS -66), recital 44.  
198 Russia's comments on the Interim Report, para. 372.  
199 European U nion's comments on the Interim Report, para. 18.  WT/DS494/R/Add.1  
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  by the European  Union is necessary. We also note that Russia objects to the change requested by 
the European  Union.200  
2.205.   We have thus decided not to grant the European  Union's request.  
2.206.   Finally, Ru ssia argues that the Panel failed to address Russia's claim that the European  Union 
erred when it accepted a request for an expiry review of "anti -dumping duties" on stabilized AN and 
IGAN.201 The European  Union objects to this request and argues that "Russ ia is attempting to modify 
its claims based on the content of the Interim Report."202 
2.207.   We agree with the European  Union. Russia's first written submission clearly states at 
paragraph  590 that:  
The EU accepted the expiry review request of Fertilizers Europe in which the industry 
requested to extend the anti -dumping measures on imports, inter alia , of Stabilized AN 
and IGAN. However, the EU authorities never conducted an original anti -dumping 
investigation with regard to Stabilized AN and IGAN.  
2.208.   We consider tha t section  7.7.2.3.3 correctly describes ground #1 of Russia's claim #2. In 
particular, we noted at paragraph  7.333 of the Interim Report that:  
Russia clarifies that it does not argue that the petitioner actually requested the 
extension of the product scop e of the measure in the expiry review request, but, rather, 
that the European  Union "wrongfully accepted a request for review that was aimed at 
extending anti -dumping measures  on stabilized AN and IGAN."203  
2.209.   We thus decline to grant Russia's request at para graph  373 of its comments on the 
Interim  Report.  
2.7.11   Paragraph  7.339 of the Interim Report  
2.210.   The European  Union asks the Panel to refer to the arguments made by the European  Union 
in paragraph  61 of its response to Panel question No. 90, by inserting the following text: "[t]he 
European  Union also argues that, from the point of view of the petitioner, such exports could have 
been indirectly relevant evidence, for example demonstrating Kirovo's production capacity that could 
be redirected to products that ar e covered by the product concerned."204  
2.211.   We consider that the European  Union's arguments are sufficiently reflected at 
paragraph  7.339 of the Interim Report. We also note that Russia objects to the change requested 
by the European  Union.205 
2.212.   We have thus decided not to grant the European  Union's request.  
2.7.12   Paragraph  7.340 of the Interim Report  
2.213.   The European  Union requests the Panel to insert the following after the penultimate sentence 
of paragraph 7.340: "[t]he European  Union adds that the quan tity of Russian exports to the 
[European Union] during or preceding the RIP was in any event not the basis for the Commission's 
finding of the likelihood of recurrence of dumping and injury", with a reference to the 
European  Union's response to Panel quest ion No. 90, para. 69.206  
2.214.   Russia objects to the European Union's request arguing that this argument is irrelevant to 
ground #2 of Russia's claim #2 discussed in paragraphs 7.338 -7.341, which challenges the 
European  Union's acceptance of the expiry review re quest. Russia also highlights that 
 
200 Russia's comments on the European Union's comments on the Interim Report, para. 64.  
201 Russia's comments on the Interim Review, para. 373.  
202 European Union's comments on Russia's comments on the Interim Rep ort, para. 67.  
203 Emphasis original; fn omitted.  
204 European Union's comments on the Interim Report, para. 19.  
205 Russia's comments on the European Union's comments on the Interim Report, para. 70  
206 European Union's comments on the Interim Report, p ara. 20.  WT/DS494/R/Add.1  
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  paragraph  7.340 contains the Panel's analysis and not the European  Union's arguments. The 
relevant parts of the latter are reflected by the Panel in paragraph  7.339.207  
2.215.   We agree with Russia that the addition requested by the European  Union pertains to the 
European Commission's finding on likelihood of recurrence of dumping and injury and not to the 
expiry review request. The former is discussed in other parts of the report.  
2.216.   We therefore reject the European  Union's request . 
2.217.   In the same paragraph, Russia asks the Panel to reflect the fact that the notice of initiation 
uses the phrase "product under review" rather than the phrase "product concerned", because the 
notice of initiation allegedly defines the "product under review " as including imports of stabilized AN 
from Kirovo. In addition, Russia argues that, contrary to what paragraph  7.340 suggests, the notice 
of initiation considered not only the likely increase in imports, but also the current level of imports, 
as reflecte d in the review request, as a basis for the initiation.208  
2.218.   We disagree that the use of the phrase "product under review" or "product concerned" has 
any impact on whether imports of stabilized AN from Kirovo were, in fact, included in the scope of 
the expir y review. Further, having carefully considered the evidence on the record and the 
arguments made by the parties, the Panel is not convinced by Russia's arguments that the European 
Commission initiated the third expiry review on the basis of imports statist ics which included imports 
of stabilized AN from Kirovo. The use of such phrases as "the current import level of the product 
under review" and "the flow of imports of the product under review" does not suffice to demonstrate 
that the level of imports used by the European Commission as a basis to initiate the third expiry 
review included imports which should have been excluded from the scope of the expiry review.  
2.219.   We therefore decline to grant Russia's request and we see no reason to modify 
paragraph  7.340 o f the interim report.209  
2.7.13   Paragraph  7.341 of the Interim Report  
2.220.   The European  Union observes that paragraph  7.341 appears to have been inserted in error 
or is incomplete. It requests the Panel to replace it with the following text: "[w]e therefore find that 
Russia has failed to demonstrate that the third expiry review was initiated on the basis of a request 
which was not duly substantiated as a result of the alleged inclusion of data concerning Kirovo in 
the request."210  
2.221.   Russia asks the Panel to insert i nstead the following paragraph:  
We agree with Russia that requirements such as 'positive evidence' and 'objective 
examination' are relevant to likelihood determinations under Article  11.3 of the 
Anti-Dumping Agreement. We find that Russia demonstrated tha t the third expiry 
review was initiated on the basis of a request which was not duly substantiated as a 
result of the alleged inclusion of imports of stabilized AN from Kirovo in the request and 
therefore that the EU failed to objectively examine positive evidence on the record, 
contrary to Article  11.3.211 
2.222.   We agree that paragraph  7.341 of the Interim Report was inserted by error. We have decided 
to grant the European  Union's request and we have modified this paragraph  accordingly.  
2.7.14   Paragraph  7.352 of the Int erim Report  
2.223.   The European  Union asks the Panel to insert the following, after the second sentence: "[t]he 
European  Union argues that it is factually incorrect that the expiry review request was only supported 
 
207 Russia's comments on the European Union's comments  on the Interim Report , paras. 72-73. 
208 Russia's comments on the Interim Report, paras. 262 -265. 
209 We note that Russia repeats at para. 374 of its comments on the Interim Report the same 
arguments made at  paras. 264 -265. For the reasons stated in this section, we reject Russia's request to modify 
our conclusion in paragraph 7.340 of the Interim Report.  
210 European Union's comments on the Interim Report, p ara. 21 . 
211 Russia's comments on European Union's com ments on the Interim Report, para. 75.  WT/DS494/R/Add.1  
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  by producers of FGAN, and that neither the data on the produ ct under consideration nor the data on 
the domestic like product were, or needed to be, assessed or reported separately for the three 
sub-categories (FGAN, IGAN, Stabilised AN)".212 
2.224.   We consider that the European  Union's arguments are sufficiently reflected at 
paragraphs  7.351 and 7.352 of the Interim Report.  
2.225.   We therefore decline to grant the European  Union's request.  
2.7.15   Paragraphs  7.353 and 7.354 of the Interim Report  
2.226.   Russia argues that the Panel's analysis of the record insufficiently took into account evidence 
that the review request was based on FGAN data only.213 Russia re -states the arguments and 
evidence presented to the Panel on this issue at paragraph  267 of its comments on the 
Interim  Report and asks us to "include them into the 'evidence on the record' referred to in 
[paragraph] 7.353 of the Report and analyze [them] accordingly.214  
2.227.   We have decided to grant Russia's request partially and to include in a footnote to 
paragraph  7.348 some of the references requested by Russia, which we found relevant for the 
analysis of this claim. The relevant footnote now reads:  
Russia's first written submission, paras. 606 and 608. See also Russia's second written 
submission, paras. 757 -761 and 860; response to Panel question No. 103, para. 165; 
question N o. 95, paras. 126 -133. See also Russia's  second written submission, 
para. 840; response to Panel question No. 95, paras.  135-137. 
2.228.   We recall however that the descriptions of the parties' arguments in our Report are not 
intended to reflect the entirety of th e parties'  arguments. Rather, they focus on the principal points 
we considered relevant to the resolution of this dispute. In this respect, we recall that "a panel ha[s] 
the discretion to address only those arguments it deems necessary to resolve a particu lar claim".215 
2.229.   Our analysis of Russia's claim #2 considered all the relevant arguments made by the parties 
and all the relevant evidence on the record of these proceedings. We thus decline to modify our 
analysis of Russia's claim #2 and our conclusion that the European  Union did not violate Article  11.3 
of the Anti -Dumping Agreement by initiating the third expiry review based on a request that analysed 
indicators of the domestic industry manufacturing FGAN on the one hand and imports of FGAN, 
stabilized AN a nd IGAN on the other hand.   
2.230.   In addition, Russia asks the Panel to revise paragraphs 7.353 and 7.354 by deleting the 
Panel's "suggestion that the letter from the Russian AN producers dated 4 March 2014 confirms that 
the request for the expiry review in fac t included FGAN and Stabilized AN".216  
2.231.   We disagree that this is what paragraphs 7.353 and 7.354 suggest. In fact, the actual 
wording of paragraph  7.354 of the Interim Report is that the content of the 4 March 2014 letter 
"seems to indicate that the applica nt did not distinguish between different types of AN in its 
questionnaire response". The Panel did not reach a conclusion on whether the review request 
included data on IGAN and stabilized AN: it concluded that Russia had failed to demonstrate that 
the thi rd expiry review had been initiated on the basis of a review request which reported only FGAN 
data.  
2.232.   We thus decline to grant Russia's request.  
 
212 European Union's comments on the Interim Report, para. 23.  
213 Russia's comments on the Interim Report, para. 266.  
214 Russia's comments on the Interim Report, paras. 267 -268. 
215 Appellate Body Reports, EC – Poultry , para. 135; US – COOL , para. 414 . 
216 Russia's comments on the Interim Report, para. 272.  WT/DS494/R/Add.1  
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  2.7.16   Paragraph  7.375 of the Interim Report  
2.233.   Russia asks the Panel to remove the reference to Article  4.1 of the Anti -Dumping Agreement 
arguing that section  7.7.3.3 of the Interim Report "is solely concerned with the application of 
Article  3 of the Anti -Dumping Agreement to expiry reviews".217 
2.234.   This section  of the Interim Report is entitled "The relevant legal standard for the 
Panel's  examination of Russia's claims relating to the likelihood of recurrence of injury 
determination". Since claim #6 concerns the likelihood of recurrence of injury determination made 
by the European Commission and since it includes claims under Ar ticles 3, 4.1, and 11.3 of the 
Anti-Dumping  Agreement, we fail to see why a reference to Article  4.1 should not appear in this 
paragraph.  
2.235.   We thus decline to grant Russia's request.  
2.7.17   Paragraph  7.381 of the Interim Report  
2.236.   Russia asks the Panel to modify this paragraph  to indicate that requirements such as 
"positive evidence" and "objective examination" are (rather than may be ) relevant to an examination 
under Article  11.3 of the Anti -Dumping Agreement.  
2.237.   We agree with Russia that these principles are relevant to an examination under Article  11.3 
of the Anti -Dumping Agreement and we have modified paragraph  7.381 accordingly. In the 
Final Report, this paragraph now reads, in relevant part:  
Therefore, while the fundamenta l requirement of Article  3.1 that an injury 
determination be based on "positive evidence" and an "objective examination" are 
equally relevant to likelihood determinations under Article  11.3, we take the view that 
an investigating authority is not obliged t o comply with the provisions of Article  3 in 
making a likelihood -of-injury determination, unless that determination is based on a 
finding of material injury.  
2.7.18   Paragraph  7.383 of the Interim Report  
2.238.   Russia requests the Panel to revise paragraph  7.383 to "refl ect the link established by Russia 
between the undercutting calculations referred in [paragraph] 7.382 and the conclusions drawn by 
the [European] Commission, as referred in [paragraph] 7.383".218 In particular, Russia asks us to 
refer to the following find ing of the European Commission: "it is likely that the price levels at which 
Russian exports will enter the Union in the absence of measures would be below the Union cost of 
manufacturing plus a reasonable profit margin and therefore be injurious".219 
2.239.   We no te that this quote, which is actually taken from recital 162 of Regulation 999/2014 
already appears in the consideration of Russia's arguments at paragraph  7.390 of the 
Interim  Report. Therefore, we do not consider it necessary to include an additional ref erence to this 
finding in paragraph  7.383 of the Interim Report.  
2.240.   We thus decline to grant Russia's request.  
2.7.19   Paragraphs 7.384, 7.385, and 7.390 of the Interim Report  
2.241.   Russia asks the Panel to revise paragraphs 7.384 and 7.385 because they "mischaracterize 
Russia's claims"220 by suggesting that Russia challenges deficiencies in the European Commission's 
undercutting calculations as such. Russia recalls that what it actually argues is the 
European  Commission's failure "to satisfy the requirement that the likel ihood -of-injury 
determination rests on a 'sufficient factual basis', resulting from an objective examination based on 
 
217 Russia's comments on the Interim Report, para. 273.  
218 Russia's comments on the Interim Report, para. 279.  
219 Russia's comments on the Interim Report, para. 280.  
220 Russia's comments on the Interim Report, para. 283.  WT/DS494/R/Add.1  
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  positive evidence, because it disregarded the evidence on Russian import prices into the 
[European  Union], which evidenced an absence of u ndercutting".221  
2.242.   We disagree with Russia that the Panel mischaracterized its claim #5 by failing to consider 
whether the likelihood -of-injury determination reached by the European Commission rests on a 
"sufficient factual basis", resulting from an objective examination based on positive evidence. In 
fact, we note that, after examining whether the European Commission had carried out undercutting 
calculations (paragraphs 7.397 to 7.403), we examined "Russia's claim that 'the EU failed to satisfy 
the requirement that the likelihood -of-injury determination rests on a 'sufficient factual basis' that 
allows the investigating authority to arrive at a reasoned conclusion under Article  11.3 of the 
Anti-Dumping Agreement".222 
2.243.   In addition, we note that the footn otes to the paragraphs mentioned by Russia 
(paragraphs  7.384(d), 7.385 and 7.390) do quote accurately the arguments Russia made in its 
submissions to the Panel in support of its claim #5.  
2.244.   We thus decline to grant Russia's request.  
2.7.20   Russia's request concer ning the Panel's analysis of Russia's claim #5  
2.245.   Russia asks the Panel to modify its analysis of claim #5 and to conclude that the European 
Commission calculated the price effect of future dumped imports through undercutting calculations 
and, in so doing, sh ould have complied with Articles  3.1, 3.2 and 11.3 of the 
Anti-Dumping  Agreement.223 In particular, Russia argues that the Panel failed to review the evidence 
provided and did not explain how and to what extent the calculations made by the European  Union 
differ from an undercutting calculation.  
2.246.   We recall that the Interim Review is not an appropriate stage for the parties to re -argue 
their case on the basis of the arguments already put before a panel.224 We consider that, by asking 
us to reverse our finding th at the European Commission did not undertake undercutting calculations 
as part of its likelihood of recurrence of injury determination, Russia attempts to re -argue its case 
on the basis of the arguments already analysed by the Panel.  
2.247.   We thus decline to gr ant Russia's request.  
2.7.21   Paragraphs 7.416 and 7.417 of the Interim Report  
2.248.   Russia asks the Panel to modify paragraphs 7.416 and 7.417 in order to acknowledge the 
fact that "[Kirovo's Stabilized AN] imports are within the product scope of the measures", as def ined 
by the European Commission.225  
2.249.   In support of this request, Russia quotes paragraph  1141 of its second written submission, 
which contradicts what Russia asks the Panel to acknowledge: this paragraph  states in particular 
that " imports from Kirovo correspond to imports of Stabilized AN from Russia that are not subject 
to anti -dumping measures" and that "Stabilized AN is not subject to anti -dumping measures for 
Kirovo".  
2.250.   We also note that paragraph  1141 of Russia's second written submission does not c ontain 
any reference to recital 149 of Regulation 2018/722. We thus consider that Russia is making a new 
argument in support of its claim, which we cannot accept at this stage of the proceedings.  
 
221 Russia's comments on the Interim Report, para. 284.  
222 Interim Report, para. 7.404.  
223 Russia's comments on the Interim Report, paras. 378 -393. 
224 Appellate Body Reports, EC – Sardines , para. 301; and EC – Selected Customs Matters, para. 259.  
See also Panel Reports, Japan – DRAMs (Korea) , para. 6.2; US – Poultry (China) , para. 6.32; India – 
Agricultural Products , para. 6.5; India – Solar Cells , para. 6.24; Russia – Pigs, paras. 6.6-6.7; US – Zeroing 
(EC) ( Article  21.5 – EC), para. 7.26; and Brazil – Taxation , para. 6.7.  
225 Russia's comments on the Interim Report, para. 292. Russia reiterates its arguments at 
paragraph  395 of its comments on the Interim  Report.  WT/DS494/R/Add.1  
BCI deleted, as indicated [[***]]  
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  2.251.   We thus decline to grant Russia's request.  
2.7.22   Paragraph  7.419  of the Interim Report  
2.252.   The European  Union asks the Panel to reflect the argument made at paragraph  155 of its 
second written submission that "the Commission was unable to carry out any of the level of trade 
adjustments claimed by RFPA during the investigat ion. Indeed, … the Commission could not make 
such adjustments, given that the sampled companies, except for Acron, only partially cooperated 
and did not provide sufficiently detailed data, in particular transaction by transaction (including by 
product type ) listings."226 
2.253.   Russia considers this reference "unnecessary and unwarranted" because "[t]he question to 
be addressed relates to whether – in the first place – the [European Commission]  should have made 
such adjustments and whether sufficient evidence was presented to jus tify these adjustments".227 
2.254.   We agree with the European  Union that the proposed change – which concerns whether 
sufficient evidence was presented to justify the adjustments allegedly requested – is useful to 
understand the European  Union's position.  
2.255.   We have  thus decided to grant the European  Union's request and we have amended 
paragraph  7.419 accordingly.  
2.7.23   Paragraphs 7.422 and 7.423 of the Interim Report  
2.256.   Russia asks the Panel to reconsider its finding in paragraph  7.422 that "the comments made 
by RFPA on the  definitive disclosure refer to a request for adjustments for Russian export prices to 
the European  Union, rather than to Russian export prices to third countries" and in paragraph  7.423 
that "the record does not show 'where, in the investigation, the inte rested parties would have made 
a request for adjustments' to the price of Russian exports to third countries".228  
2.257.   Russia explains that paragraph  1150 of its second written submission points to evidence 
which actually refers to "the findings in the Disclosu re relating to the comparison of Russian export 
prices to third countries with the price of the sampled Union producers".229 Russia also argues that 
the contested finding at paragraph  7.422 is "contradicted by the reference to Recital 161 of 
Regulation 999/ 2014 in paragraph  7.420 of the [Interim]  Report"230, which refers to the RFPA having 
requested adjustments to the "Russian export prices to third countries".  
2.258.   We disagree with Russia that section  V.E.1 of Comments by the RFPA on the Definitive 
Disclosure dat ed 8 July 2014, cited at paragraph  1150 of Russia's second written submission 
demonstrates that the RFPA requested adjustments to Russian export prices to third countries . We 
have, once again, reviewed page 33 of Exhibit RUS -79 (BCI) and we are not convinc ed that the 
adjustments requested by the RFPA in this exhibit concern the export price of Russian exports to 
third countries: in fact, the first sentence of section  V.E.1 states "[t]o ensure comparability between 
the Russian and EU prices, as in the past r eviews, adjustments should be implemented to price 
undercutting and underselling calculations" and refers to adjustments reflected in 
Regulations  658/2002 and 661/2008. We note that the three recitals from these regulations cited in 
footnote 67 of Exhibit RUS-79 (BCI) actually refer to adjustments to export prices to the 
European  Union .  
2.259.   We also disagree with Russia that our findings in paragraphs 7.422 and 7.423 of the 
Interim  Report are contradicted by our reference to recital 161 of Regulation 999/2014 in 
paragraph  7.420 of the Interim Report. In this paragraph, we found that "there is evidence on the 
record that representatives of Russian producers/exporters requested certain  adjustments ".231 This 
is based on recital 161 of Regulation 999/2014, which states that:  
 
226 European Union's comments on the Interim Report, para. 24.  
227 Russia's comments on the European Union's comments on the Interim Report, para. 80.  
228 Russia's comments on the Interim Report, paras. 293 and 298.  
229 Russia's comments on the Interim R eport, para. 295.  
230 Russia's comments on the Interim Report, para. 296.  
231 Emphasis added.  WT/DS494/R/Add.1  
BCI deleted, as indicated [[***]]  
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  Following disclosure, RPFA claimed that the comparison between Russian export prices 
to third countries and the Union prices is meaningless, since a comparison should  be 
made between sales to the same markets and with proper adjustments for duties, level 
of trade, etc.  
2.260.   However, neither our finding nor recital 161 indicates which adjustments were asked and 
whether they were justified.  
2.261.   We thus decline to grant Russia's  request.  
2.7.24   Paragraphs 7.439 -7.443 of the Interim Report  
2.262.   Russia asks the Panel to complete its findings in relation to Russia's claim #6, by including 
findings on Russia's argument that the likelihood of recurrence of injury determination reached by 
the European Commission in the context of the third expiry review was based on micro -economic 
data provided by the domestic industry which did not cover stabilized AN.232  
2.263.   The Panel disagrees with Russia that its findings on claim #6 are limited to the alleged lack 
of data concerning IGAN. In fact, a t paragraph  7.442, we explain that: "we are not convinced by 
Russia's evidence that domestic producers systematically failed to report economic indicators related 
to IGAN and stabilized AN ".233 At paragraph  7.438, we also note that, in its comments on the 
initiation of an expiry review234, "RFPA criticized the methodology chosen to establish the sample … 
and the inclusion  of stabilized AN in the product concerned". We reviewed carefully 
Russia's  arguments with respect t o the alleged lack of micro -economic data concerning stabilized AN 
and IGAN in the data sets which served as a basis for the European Commission's analysis.235 We 
note that these arguments focus on IGAN236 or concern the alleged discrepancy between data related 
to all product types (IGAN, FGAN, and stabilized AN) and the indicators set out in 
Regulation  999/2014.237 We have responded to these arguments in paragraphs 7.439 to 7.443 of 
the Interim Report.  
2.264.   In its comments on the Interim Report, Russia references its second written submission and 
its response to Panel question No. 95(a) as containing " extensive evidence to the effect that the 
Union industry's micro -data and resulting EU's likelihood of injury an alysis failed to cover Stabilized 
AN".238 We disagree. Russia's second written submission merely refers to the European  Union's 
alleged "admission" that " Stabilized AN is not produced in the EU" (although the European  Union has 
denied having made such an ad mission), while Russia's response to Panel question 95(b) indicates 
that " had the EU included data of the domestic industry manufacturing IGAN and Stabilized AN  in 
its likelihood -of-injury determination it would have found a much higher profitability of th e EU 
domestic industry".239  
2.265.   Finally, concerning Russia's argument that the European  Union  "does not deny that micro -
indicators of the domestic industry do not cover production and sales of Stabilized AN"240, we note 
that this is, in fact, incorrect.241  
2.266.   We thus decline to grant Russia's request.  
 
232 Russia's comments on the Interim Report, paras. 300 -302.  
233 Emphasis added.  
234 Interim Report, para. 7.438 (referring to Comments by RFPA on the initiation of an expiry review, 
(Exhibit  RUS-85 (BCI)), pp. 41 -45).  
235 Russia's first written submission, paras. 974 -980; second written submission paras. 1163 -1168.  
236 See, for example, Russia's second written submission, paras 1165 -1168.  
237 See, for exam ple, Russia's first written submission, paras. 976 -977.  
238 Russia's comments on the Interim Report, para. 301 (referring to Russia's second written 
submission , paras. 1156 and 1164;  Russia's response to  Panel q uestion No. 95a, paras. 132 -133). 
239 Emphasis a dded.  
240 Russia's second written submission, para. 1164.  
241 See, for example, European Union's second written submission, para. 89.  WT/DS494/R/Add.1  
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  2.267.   Russia further argues that our analysis only addresses Russia's claims and arguments 
regarding the alleged incompleteness of micro -indicators, while failing to respond to Russia's claims 
and arguments regarding macro -economic indicators.242  
2.268.   We disagree. Russia's arguments concerning macro -indicators focus on the allegation that 
macro -indicators in Regulation 999/2014 were not based on data representing the entire domestic 
industry producing all three types of AN.243 We described in detail the data collection of the European 
Commission and the alleged content of the April and May 2014 datasets (including macro -economic 
indicators in paragraphs 7.431 to 7.437 and 7.444 of the Interim Report). In paragraphs 7.442 and 
7.443 , we explained why we disagreed with Russia that the European  Commission "excluded a whole 
category of producers of the like product". We have reviewed carefully Russia's arguments regarding 
the alleged content of the April and May datasets but we see no r eason to change our conclusion, 
reflected in paragraph  7.448, that Russia's claim  #6 is not sufficiently supported by the evidence on 
the record, for the Panel to find a violation of Article  11.3 of the Anti -Dumping Agreement.  
2.269.   We thus decline to grant Russ ia's request. Nevertheless, we modified paragraph  7.435 of 
the Interim Report to reflect the fact that the reference to " all relevant macro and micro indicators 
covering all known Union producers of the like product" in this paragraph, is a quotation from a 
communication by Fertilizers Europe (Exhibit RUS -83 (BCI)).  
2.270.   In addition, Russia asks the Panel to modify footnote 684 of the Interim Report and to find 
that Exhibit RUS -154, in its Annex B -4, evidences that GrowHow provided information on FGAN only 
(a product called Nitram and described as a "fertilizer" in the exhibit). As we explained in 
footnote  684 of the Interim Report, we are unable to resolve the technical question whether a 
particular product should be classified as FGAN or IGAN. This is especial ly true in view of the 
statement, by a representative of GrowHow, which appears on the record of these proceedings, that 
its sales data included data on "all … AN sales, whether straight fertilizer or industrial".244 
2.271.   We thus decline to grant Russia's request.  
2.272.   Finally, Russia asks the Panel to modify paragraph  7.443 of the Interim Report to reflect that 
Russia did provide evidence that Yara France did not provide data for its Pardies plant solely 
manufacturing IGAN.245 We modified paragraph  7.443 of the Interim Report and we reflected in a 
footnote to paragraph  7.443, Russia's response to Panel question No. 46, which shows that Yara's 
response to the European Commission's questionnaire covered only its plants in Montoir and Ambes, 
but did not cover its plant in Pardies. This paragraph  now reads:  
In relation to Yara France, we note Russia's statement that "Yara did not provide a 
response for its Pardies plant solely manufacturing IGAN."708 This statement is 
supported by e vidence that Yara's response to the injury questionnaire contained data 
related to two of its plants (in Montoir and Ambes).709 
  
708 Russia's first written submission, para. 966; RFPA submission (4 March 2014), (Exhibit RUS -82 
(BCI)). See also Russia's response to Panel question No. 46.  
709 RFPA submission (4 March 2014), (Exhibit  RUS-82 (BCI)), p. 3.  
2.273.   Nevertheless, having considered th e totality of the evidence on the record we decline to 
modify our conclusion with regard to Russia's claim #6.  
 
242 Russia's comments on the Interim Report, para. 303.  
243 Russia's first written submission, para. 967.  
244 Interim Report,  para. 7.442.  
245 Russia's comments on the Interim Report, para. 311.  WT/DS494/R/Add.1  
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  2.7.25   Paragraph  7.448 of the Interim Report  
2.274.   Russia asks the Panel to consider certain arguments made in support of claim #6 which, 
Russia argues, were not considered by the Panel, and to revise its conclusion with respect to 
claim  #6 accordingly.246  
2.275.   We consider that Russia's request with regard to paragraph  7.448 is essentially the same as 
the request made at paragraphs 300 to 311 of its com ments on the Interim Report, which we 
analysed above. We thus decline to examine them separately and we decline to grant Russia's 
request to modify our findings in relation to claim #6.  
2.7.26   Section  7.7.3.6.1 of the Interim Report  
2.276.   Russia asks us to acknowledge that Regulation 999/2014 expressly states that the Union 
industry was in a healthy situation.247 We note that paragraphs 7.449 and 7.450 of the Interim 
Report describe in detail the arguments made by Russia in its written submissions, including the fact 
that Regulation 999/2014 found the EU industry to be in a non -injurious situation.  
2.277.   We thus decline to grant Russia's request.  
2.278.   Russia also asks us to consider its arguments in section  9.3.4.3.3 of its first written 
submission that the European Commission "do wnplayed the current state of the Union industry in 
relation to the likelihood of recurrence of injury and erroneously attributed the non -injurious 
situation of domestic industry to the anti -dumping measures".248 
2.279.   We disagree that the Panel failed to address  Russia's arguments in section  9.3.4.3.3. of its 
first written submission. This section  presents a series of arguments demonstrating the non -injurious 
state of the domestic industry during the period of investigation.249 In fact, paragraph  7.474 of the 
Interim Report contains a reference to paragraph  1018 of Russia's first written submission and 
introduces the analysis of Russia's claim. We went on to find that, while recognizing the healthy 
state of the domestic industry during the period of investigation ( as reflected in the indicators cited 
by Russia in paragraph  1019 of its first written submission), the European Commission actually 
based its determination on the following elements:  
i. the price level on the Union market compared to third country markets250;  
ii. existing limits to Russian exports to third countries251; and  
iii. the geographical proximity of the Union market to Russia and the existence of 
well-established distribution channels.252  
2.280.   We therefore see no reason to modify our reasoning and our conclusion w ith regard to 
Russia's claim #7.  
2.281.   We thus decline to grant Russia's request.  
2.282.   In addition, Russia asks the Panel to find that the determinations reached in 
Regulation  999/2014 were factually rebutted by Russia, based on the evidence in the record of the 
investigation. Russia's request concerns the following factual aspects:  
a. evidence on the evolution of consumption253;  
 
246 Russia's comments on the Interim Report, paras. 396 -397. 
247 Russia's comments on the Interim Report, para. 312.  
248 Russia's comments on the Interim Report, para. 313.  
249 Russia's first written submission, paras. 1018 -1019.  
250 Regulation  999/2014, (Exhibit  RUS-66), recital  153. 
251 Regulation  999/2014, (Exhibit  RUS-66), recital  154. 
252 Regulation  999/2014, (Exhibit  RUS-66), recital  155. 
253 Russia's comments on the Interim Report, paras. 315 -320.  WT/DS494/R/Add.1  
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  b. the evolution of AN prices in the European Union254;  
c. the evolution of gas prices in the European Union255; 
d. the performance of the EU domestic industry on export markets evidenced its ability to 
compete with Russian producers256; and  
e. the impact of future Russian imports on the profitability of the EU domestic industry.257 
2.283.   We note that the five issues listed above were addressed by the Pane l in section  7.7.3.6.2 
of its Interim Report. On each one of these issues, the Panel carefully reviewed the evidence on the 
record and the arguments of the parties. We wish to stress once again that our task is not to 
undertake a de novo  review of the evid ence or substitute our judgement for that of the investigating 
authority. Our task is to assess whether, in view of the evidence on the record, the investigating 
authority conducted an objective examination based on positive evidence and therefore whether its 
likelihood -of-injury determination was reasoned and adequate.  
2.284.   Our examination of the evidence on the record led us to the conclusion that the 
European  Union did not breach Article  11.3 of the Anti -Dumping Agreement by concluding that there 
were no ind ications on the record that the non -injurious situation of the EU domestic industry would 
be sustainable. Having considered Russia's interim comments, we see no reason to change our 
conclusion regarding Russia's claim #7.  
2.7.27   Paragraph  7.474 of the Interim Re port 
2.285.   The European  Union asks the Panel to reflect the argument made at paragraph  188 of its 
second written submission that:  
The European  Union explained that WTO jurisprudence confirmed that during the 
investigated period in the review, the domestic industry would not be suffering injury 
cannot be a reason for concluding that there could be not likelihood of recurrence of 
injury. (FN to Panel Report, US – Oil Country Tubular Goods Sunset Reviews , 
para. 7.143.) Indeed, the desired effect of an anti -dumping duty is improvement in the 
condition of the domestic industry. If a finding that imports would likely have an adverse 
impact an industry whose condition is generally good were precluded, there would be 
no basis for continuation of an anti -dumping measure based on likely "recurrence" of 
injury, which is specifically provided for in Article  11.3.258 
2.286.   Russia objects because "the wording proposed by the European  Union is general; however, 
paragraph  7.474 of the Report is very specific as it describes the European  Union's response to 
Russia's argument regarding Regulation 999/2014".259  
2.287.   We agree with Russia in this respect. Section  7.7.3.6.2.4 specifically focuses on the list of 
evidence that the RFPA had brought to demonstrate the non -injurious situation of the EU domestic 
industry. The text that the European  Union suggests pertains to the general legal standards and is 
unnecessary i n this section  as we have already established in section  7.7.3.3 that a likelihood -of-
injury determination in an expiry review is different from a determination of injury in an original 
investigation. We also recall that  our findings do not aim to fully re produce the parties' arguments 
as presented in their submissions but summarize such arguments to the extent necessary to 
facilitate our own analysis and assessment.  
2.288.   We therefore do not consider it necessary to insert the text requested by the 
European  Union. 
 
254 Russia's comments on the Interim Report, paras. 321 -326. 
255 Russia's comments on the Interim Report, paras. 327 -333. 
256 Russia's comments on th e Interim Report, para. 335.  
257 Russia's comments on the Interim Report, para. 336.  
258 European Union's comments on the Interim Report, para. 25.  
259 Russia's comments on the European Union's comments on the Interim Report, para. 89.  WT/DS494/R/Add.1  
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  2.7.28   Paragraphs 7.483 -7.486 of the Interim Report  
2.289.   Russia asks us260 to delete or revise the phrase in paragraph  7.484 which states: "the 
European Commission's evaluation of the production capacity of Russian producers [was] to 
determine the volume of AN whic h could be exported to the Union market should the measures 
lapse". Russia argues that there is no factual basis for the Panel's finding. We disagree and refer to 
recitals 84 and 94 of Regulation 999/2014 which state respectively:  
The Commission considers that, if the current measures were to be removed, at least 
part of this spare capacity is likely to be used and directed to the Union markets for the 
following reasons.  
The Commission therefore concludes that the Russian producers dispose of significant 
spare capacity which is very likely to be used for substantial additional exports to the 
Union, should the measures lapse.  
2.290.   We have decided to add a footnote to paragraph  7.484 of the Interim Report referring to 
these two recitals.  
2.291.   In addition, Russia reques ts the Panel to consider certain arguments provided in support of 
claim #8 regarding the methodology for evaluating the spare capacity of Russian producers: (a) the 
lack of a single and coherent methodology that would apply in case of each producer in Russ ia, which 
according to Russia means that the European  Union did not objectively examine the positive 
evidence on the level of spare production capacities261; (b) the European Union's alleged inflation of 
production capacities at Berezniki, which does not am ount to an objective examination of the positive 
evidence262; and (c) the "result -oriented exercise" aimed at establishing "maximum spare capacities" 
rather than objectively establishing the level of spare capacities.263  
2.292.   We disagree that Russia's arguments on these issues were not considered by the Panel.  
2.293.   For instance, with regard to the alleged lack of a single and coherent methodology, the 
Interim Report states at paragraph  7.481 that "Russia criticizes the fact that, for some Russian 
producers, the Europ ean Commission used nameplate capacities, while for others, it referred to 
actual production figures". We considered this argument by stating at paragraph  7.484 of the Interim 
Report that "[w]hile nameplate capacity is in principle an important piece of ev idence of any 
investigation, we find it reasonable for an investigating authority that notes a gap between the 
theoretical capacity and the actual capacity to use the figure which is the most relevant to its 
analysis."  
2.294.   With regard to the European Union's alleged inflation of production capacities at Berezniki, 
we note that Russia's second written submission states at paragraphs 1246 and 1247, that the 
"EU's determination of the level of production capacities at Berezniki is a perfect example  of the 
result -oriented and biased approach that the EU incorrectly followed"264 because the European  Union 
"calculated Berezniki production capacity by multiplying average theoretical production in winter and 
in summer by 355 days". While we do not think that the Panel needs to address every example used 
by the parties in support of their arguments, we note that we responded to Russia's argument 
regarding the alleged "result -oriented approach" taken by the European Commission in the analysis 
of spare capacities. After carefully considering all arguments and evidence on the record, we 
disagreed with Russia's argument that the European  Union's findings on the actual production 
capacity of Russian exporting producers and on the spare capacity in the Russian Federation were 
not based on an objective examination of positive evidence on the record.265  
 
260 Russia's comments on the  Interim Report, para. 343.  
261 Russia's comments on the Interim Report, para. 339.  
262 Russia's comments on the Interim Report, para. 340.  
263 Russia's comments on the Interim Report, para. 341.  
264 Emphasis added.  
265 Interim Report,  para. 7.489.  WT/DS494/R/Add.1  
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  2.295.   We thus decline to modify our conclusion on Russia's claim #8.266  
2.7.29   Paragraph  7.488 of the Interim Report  
2.296.   Russia asks us to revise paragraph  7.488 of the Interim Report which states that "[the Panel] 
is unable to understand how the investigating authority could have concluded from the 
documentation obtained that the capacity expansion was [[ ***]] ktpa instead of [[ ***]] ktpa". For 
Russia, "the only fact that clearly follows from Exhibit EU -9 is that the production capacity of AN 
subject to the anti -dumping measures at NAK is [[ ***]] ktpa".267 Russia refers us to paragraph  1255 
of its second written submission, which states:  
In the course of the review the EU alleged that the production at NAK plant in Russia 
was set to increase by [[ ***]] tons. This allegation is incorrect since from the underlying 
documentation it explicitly follows that the new installation had a capacity to produce 
[[***]] tons of prilled AN. Net of the production capacity of the old installation of [[ ***]] 
tons - that the new installation replaced – the expansion amounted solely to the 
75 thousand tons of additional capacity, and not to [[ ***]] tons, as erroneously found 
by the EU.268 
2.297.   The European  Union disagrees and refers us to paragraphs 111 and 112 of its opening 
statement at the second meeting with the Panel. We reproduce paragraph  111 of the 
European  Union's opening statement below:  
Finally, with regard to the calculation of NAK' s production capacity before expansion, 
Russia's arguments are of no avail. We have explained that the RFPA indeed submitted 
a report for EuroChem NAK after the disclosure (Annex VI -D-7-1) that contradicts the 
documents collected by the Commission on the s pot. The documents that the 
Commission collected do not in any way distinguish between AN and Calcium 
Ammonium Nitrate ("CAN"). The Commission had every reason to question the report 
submitted by the RFPA after disclosure since it was almost identical to t he original 
submitted at the verification visit. It came from the RFPA rather than from the company 
actually concerned, EuroChem NAK.269  
2.298.   While we agree that Russia's explanations in its comments are useful to understand page 41 
of Exhibit EU -9 (BCI) (the d ocument obtained during the verification visit by the 
European  Commission), we note that this explanation does not appear in paragraph  1255 of its 
second written submission. In particular, the distinction between what is the product concerned and 
what is n ot does not appear in that paragraph.  
2.299.   We thus decline to grant Russia's request and we decline to modify paragraph  7.488 of the 
Interim Report.  
2.7.30   Paragraphs 7.499 and 7.500 of the Interim Report  
2.300.   Russia asks the Panel to modify paragraph  7.499(a) of the Int erim Report because it 
allegedly incorrectly describes Russia's claims under Articles  2.1 and 2.3 of the Anti -Dumping 
Agreement by stating that the European  Union " carried out dumping calculations on the sole basis 
of a comparison between domestic prices a nd export prices to third countries, while rejecting the 
data provided by Russian exporters".270  
2.301.   In its first written submission Russia argues that "the [European Union] failed to comply with 
Article  2.1 of the Anti -Dumping Agreement because it found alleg edly dumped prices based on a 
comparison between the domestic prices and the export prices to third countries, rather than the 
 
266 Russia reite rates the same arguments and requests that the Panel modify its finding with regard to 
claim #8. (Russia's comments on the Interim Report, para. 398 ). We decline to examine this request 
separately.  
267 Russia's comments on the Interim Report, paras. 344-345. The relevant document is Exhibit EU -9 
(BCI).  
268 Russia's second written submission, para. 1255.  
269 Fns omitted.   
270 Russia's comments on the Interim Report, para. 346.  WT/DS494/R/Add.1  
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  export prices to the [European Union]" and that "Article  2.3 does not allow an investigating authority 
to disregard export prices  for the purpose of a dumping margin calculation for the reason that such 
export prices are being charged at the time of a price undertaking".271  
2.302.   We have decided to modify paragraph  7.499(a) to reflect more accurately Russia's claims. 
This paragraph  now re ads as follows:  
Article  2.1 of the Anti -Dumping Agreement, because the investigating authority carried 
out dumping calculations on the sole basis of a comparison between domestic prices 
and export prices to third countries, while rejecting the data on expo rt prices to the EU 
provided by Russian exporters; and Article  2.3 of the Anti -Dumping Agreement, 
because investigating authorities disregarded export prices for the purpose of a 
dumping margin calculation for the reason that such export prices are being c harged at 
the time of a price undertaking.  
2.303.   We have also modified the footnotes in paragraph  7.499 of the Interim Report.  
2.304.   Regarding paragraph  7.500, Russia argues that the Panel did not reflect all its arguments in 
relation to claim #11 and requests the Pa nel to revise paragraph  7.500 of the Interim Report.272 
2.305.   We disagree. While paragraph  7.500 summarizes the arguments presented by Russia in 
support of claim #11, all violations claimed by Russia are explained in detail at paragraph  7.547 of 
the Interim Repor t, including a reference, in the footnote, to paragraph  991 of Russia's second 
written submission.  
2.306.   We thus decline to grant Russia's request regarding para. 7.500.  
2.7.31   Paragraph  7.518 of the Interim Report  
2.307.   The European  Union asks273 the Panel to add a new final sentence quoting paragraph  97 of 
its second written submission:  
The European  Union adds that it is undisputed that the Commission conducted a 
"price -to-price comparison", i.e. a comparison of weighted average domestic prices and 
weighted average export prices to third countries at the same level of trade, which 
shows, as per the findings of the panel in US – Oil Country Tubular Goods Sunset 
Reviews (Article  21.5 – Argentina) , that the Commission's findings had a "sufficient 
factual basis".  
2.308.   Russia objects to this request and argues that the proposed change is factually flawed, as it 
is not undisputed that the European Commission's finding had a "sufficient factual basis". Instead, 
this finding was challenged in Russia's claims # 9 and #11.274 
2.309.   We agree with Russia on this point and we have decided to reject the European  Union's 
request.  
2.7.32   Paragraph  7.535 of the Interim Report  
2.310.   Russia asks the Panel to remove the final sentence of paragraph 7.535, which describes the 
pricing behaviour of Acron and EuroChem under the price undertaking, because "[t]he Panel provides 
no reference for this finding which in any case is incorrect and irrelevant".275 
 
271 Russia's first written submission, paras . 695-696. 
272 Russia's comments on the Interim Report, para. 349.  
273 European Union's comments on the Interim Report, para. 26.  
274 Russia's comments on the European Union's comments on the Interim Report, p ara. 95  
275 Russia's comments on the Interim Report, para. 352.  WT/DS494/R/Add.1  
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  2.311.   We refer to recital  159 of Regulation 999/2014, which states:  
The Commission notes that one of the two Russian exporting producers subject to a 
price undertaking during the RIP sold the product concerned at a price above the 
minimum import price under the undertaking. On the other hand, the second exporting 
producer – who was subject to the under taking only for a limited period of time during 
the RIP – sold below the minimum import price. In these circumstances, it is unclear 
how they would set their prices if the undertakings lapse together with the anti -dumping 
duties.  
2.312.   We disagree with Russia th at this finding is irrelevant. Nevertheless, we have modified the 
corresponding footnote and added a reference to recital 159 of Regulation 999/2014.  
2.313.   Russia also requests that this information should be treated as BCI, as stated in section  2.1 
above, and the Panel has agreed with this request.  
2.7.33   Paragraph  7.539 of the Interim Report  
2.314.   Russia asks the Panel to correct the description of Russia's claim under Article  6.10 of the 
Anti-Dumping Agreement, arguing that Russia "never alleged that a likelihood -of-dumpi ng 
determination must be established for each individual exporting producers".276 
2.315.   We recall that paragraph  7.539 states:  
Russia claims  that since the European  Union based its likelihood of recurrence of 
dumping determination on a finding of "dumped" prices  and since the European  Union 
relied on a sample of Russian exporting producers, it should have determined individual 
dumping margins for the Russian sampled producers in line with Article  6.10. 
2.316.   We disagree that the content of paragraph  7.539 does not refl ect accurately the arguments 
presented by Russia in its first written submission. We note in particular that Russia argued:  
[S]ince the [European Union] based its likelihood of recurrence of dumping 
determination on a finding of "dumped" prices and since t he [European Union] formally 
constituted for the purpose of determining dumping a sample of Russian exporting 
producers – which it never dissolved – the [European Union] should have determined 
individual dumping margins  for the Russian sampled producers in  line with Article  6.10 
of the Anti -Dumping Agreement. 277 
2.317.   We thus decline to grant Russia's request.  
2.7.34   Section  7.7.5.1 of the Interim Report  
2.318.   Russia asks the Panel to modify paragraphs 7.582 and 7.583 of the Interim Report, to reflect 
the fact that Russia's claims #12 to #15 concern the continuous imposition and levy of anti -dumping 
duties on Russian AN imports, rather than the calculation of an ti-dumping duties.278  
2.319.   We have decided to grant Russia's request and we have modified paragraphs 7.582 and 
7.583 accordingly.  
 
276 Russia's comments on the Interim Report, para. 353.  
277 Russia's first written submission, para. 702. (emphasis added)   
278 Russia's comments  on the Interim Report, paras. 355 -359. WT/DS494/R/Add.1  
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  2.7.35   Paragraph  7.571 of the Interim Report  
2.320.   The European  Union requests the Panel to add, at the end of the last sentence of 
paragraph  7.571 the words "as well as stabilized AN ("AN28"), with reference to paragraph 89 of 
the European  Union's second written submission.279 Russia asks the Panel to reje ct this request.280  
2.321.   We consider that the last sentence of paragraph  7.571 correctly describes the content of 
paragraphs 272 and 273 of the European  Union's first written submission, which we have referenced 
in the footnote to this paragraph.  
2.322.   We have thus decided to reject the request of the European  Union.  
2.7.36   Paragraph  7.582(a) of the Interim Report  
2.323.   Russia asks the Panel to clarify that the duties currently applied on imports of AN from 
EuroChem were set in 2008, extended in 2014 and are currently applied by  virtue of 
Regulation  1722/2018.281  
2.324.   We have decided to grant Russia's request and we have modified paragraph  7.582(a) 
accordingly.  
2.7.37   Russia's request concerning claims #9 and #11 and #12 to #15 and Article  6.8 of 
the Anti -Dumping Agreement  
2.325.   Russia asks the P anel to review the factual record and its analysis of claims #9 and #11 
and #12 to #15.282  
2.326.   We recall that the interim review is not an appropriate stage for the parties to re -argue their 
case on the basis of the arguments already put before a panel.283 We consider that this is precisely 
what Russia attempts to do in this section  of its comments, by asking us to reconsider the factual 
record, its arguments and our findings with regard to claims #9 and #11 and #12 to #15.  
2.327.   We thus decline to grant Russia' s request to modify our findings and conclusions in relation 
to these claims.  
2.7.38   Paragraph  7.627 of the Interim Report  
2.328.   The European  Union asks the Panel to add, at the end of paragraph  7.627, with reference to 
Russia's response to Panel question No. 55, the following sentence: "[i]n the same response, Russia 
refers to several additional instances in which good cause was allegedly not shown."284 
2.329.   We consider that paragraph  7.627 of the Interim Report, in particular its citation of 
Russia's  response to Panel ques tion No. 55, correctly summarizes the argument made by Russia.  
2.330.   We therefore decline to grant the change requested by the European  Union.  
2.7.39   Paragraphs 7.629, 7.642 and paragraph  8.1(g)(xiv) of the Interim Report  
2.331.   The European  Union asks285 the Panel to add at the end of the first sentence of 
paragraph  7.629 the following phrase: ", at least where the additional instances of alleged 
 
279 European Union's comments on the Interim Report, p ara. 28.  
280 Russia's comments on the European Union's comments on the Interim Report, para. 98.  
281 Russia's comments on the Interim Report, paras . 360-361. 
282 Russia's comments on the I nterim Report, paras. 418 and 426.  
283 Appellate Body Reports, EC – Sardines , para. 301; and EC – Selected Customs Matters, para. 259.  
See also Panel Reports, Japan – DRAMs (Korea) , para. 6.2; US – Poultry (China) , para. 6.32; India – 
Agricultural Products , para. 6.5; India – Solar Cells , para. 6.24; Russia – Pigs, paras. 6.6-6.7; US – Zeroing 
(EC) ( Article  21.5 – EC), para. 7.26; and Brazil – Taxation , para. 6.7.   
284 European Union's comments on the Interim Report, para. 30.  
285 European Union's comments on the Interim Report, para. 31.  WT/DS494/R/Add.1  
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  WTO-inconsistency could have been identified already in Russia's first written submission" and to 
insert a ref erence to paragraphs 207 to 212 of its second written submission in the footnote.  
2.332.   We agree that the required change would better reflect the argument made by the 
European  Union and we have added a reference to paragraph  211 of its second written submissio n 
in the footnote.  
2.333.   The footnote now reads:  
European  Union's second written submission, para. 207. The European  Union adds that: 
"there is no reason why Russia could not have identified all of the additional instances 
of alleged WTO -inconsistency already in its first written submission (or even in its panel 
request): they all refer to documents that were provided to Russian interested parties 
during the expiry review, as Russia concedes". (See ibid. para. 211).  
2.334.   The European  Union also asks us to clarify in  paragraph  7.642 of the Interim Report that our 
finding of violation is limited to "the identity of the author of the export report in Annex I", rather 
than to the Annex I in its entirety.  
2.335.   We consider that the requested addition helps to clarify our findi ng and we have decided to 
grant the European  Union's request by amending paragraphs 7.642 and 8.1(g)(xiv) of the Interim 
Report.  
2.7.40   Paragraph  7.653 of the Interim Report  
2.336.   The European  Union asks the Panel to insert a reference to the panel report in EU – Footwear 
(China) , paragraph 7.458 (finding, as the European  Union explained in paragraph  644 of its first 
written submission, that an assessment of injury " must be made with respect to the domestic 
industry as a whole ", and that investigating authorities are "not required to assess the situation of 
individual companies in the domestic industry… to determine whether they, individually, show signs 
of injury.").286  
2.337.   Russia notes that the argument has already been reflected by the Panel in paragraph s 7.646 
to 7.647. Russia also notes that, in paragraph  7.652, the Panel includes a quote from the Panel 
Report, EU – Footwear (China) .287  
2.338.   We agree with Russia that the argument made by the European  Union that "the analysis of 
likelihood of injury is only m eant to assess the domestic industry as a whole" already appears at 
paragraph  7.646 of the Interim Report.  
2.339.   We thus reject the European  Union's request.  
2.7.41   Paragraph  7.671 of the Interim Report  
2.340.   The European  Union asks288 the Panel to insert, in paragraph  7.671 , a reference to 
paragraph  1367 of Russia's  second written submission, where Russia provides the list of information 
the Panel refers to.  
2.341.   Russia requests that the Panel insert references to both: Russia's first written submission, 
paragraph  1246, and Russ ia's second written submission, paragraph 1367.289  
2.342.   We agree with Russia and we have added this reference in a footnote. The footnote now 
reads: "Russia's first written submission, para. 1246; second written submission, para. 1367".  
 
286 European Union's comments on the Interim Report, para. 33.  (emphasis original)  
287 Russia's comments on the European Union's comments on the Interim Report, para. 104.  
288 European Union's comments on the Interim Report, para. 35.  
289 Russia's comments on the European Union's comments on the Interim Report, para. 112.  WT/DS494/R/Add.1  
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  2.7.42   Paragraph  7.680 of the I nterim Report  
2.343.   Russia argues that, in paragraph 7.680, the Panel "incorrectly analyzed" claim #21 because 
Russia was not challenging that the "source" of certain information was not provided, but that the 
aforementioned information was not provided altogeth er.290 
2.344.   We disagree with Russia. In fact, our description of Russia's claim makes clear that:  
We understand that, according to Russia, the European Commission did not disclose the 
data which served as a basis for the determination of the apparent Union consumption, 
nor the data which served for the establishment of the volume of imports from third 
countries. In addition, the European Commission did not provide the basis for its 
dumping margin and underselling/undercutting calculations.291  
2.345.   We then conclud ed that "[t]he information contained in sections  E(1) to E(3) of the 
disclosure does set out the figures on which the European Commission relied to reach its 
determination of likelihood of recurrence of dumping, and indicates the source of this information ".292 
2.346.   We thus decline to grant Russia's request.  
2.7.43   Paragraph  7.685 of the Interim Report  
2.347.   The European  Union asks293 the Panel to add the words "in detail" at the end of the first 
sentence of paragraph  7.685, and to insert the words "has failed to properly explain its arguments 
and" before the words "meet its burden of proof" in the second sentence of paragraph  7.685. R ussia 
objects to this change.294  
2.348.   We consider that paragraph  7.685 of the Interim Report sufficiently sets out the content of 
the parties' arguments and we have decided to reject the European  Union's request.  
2.8  Russia's request concerning certain exhibits at tached to its submissions  
2.349.   Russia argues that 39 exhibits attached to its submissions to the Panel, including in relation 
to the dictionary meaning proposed by Russia in support of some of its claims, "have not been 
included" in the Interim Report or ident ified in the table of exhibits of the Interim Report. Thus, 
Russia asks the Panel "to consider [these exhibits] , make findings and include them" in the Final 
Report "in order to correctly reflect Russia's argumentation and substantiating evidence".295 
2.350.   We re call that a panel is not required to refer explicitly to every argument made, or each 
piece of evidence adduced, by the parties.296 In this connection, the list of exhibits included at the 
beginning of the Panel Report describes the exhibits submitted by th e parties that are explicitly 
referred to in the Report, and assigns to each of them a short name to facilitate their reference. 
Moreover, as a result of the parties' comments and our revision of the Interim Report, we have 
added to the list of exhibits so me of the exhibits identified by Russia in its request.297 For these 
reasons, we have decided not to grant Russia's request to explicitly list in the Final Report the 
remaining exhibits identified by Russia.  
_______________  
 
 
290 Russia's comments on  the Interim Report, paras. 362 -363. 
291 Interim Report, para. 7.672.  
292 Interim Report , para. 7 .680. ( emphasis added )  
293 European Union's comments on the Interim Report, para. 36.  
294 Russia's comments on the European Union's comments on the Interim Report, p aras. 114-115.  
295 Russia 's comments on the Interim Report, para s. 2-3. 
296 Panel Report, EU – Fatty Alcohols (Indonesia) , para. 6.6.   
297 Council Resolution of 8 June 1993 , (Exhibit RUS-10); GATT, CONTRACTING PARTIES – Ninth Session 
– Review Working Party II o n Tariffs, Schedules and Customs Administration – Article VI – Proposal by the 
Czechoslovak Delegation – Revision, W.9/86/Rev.1 (21 December 1954) , (Exhibit RUS-26); and GATT, 
CONTRACTING PARTIES – Ninth Session – Report of Review Working Party III on Barriers to Trade Other Than 
Restrictions or Tariffs, L/334 (1  March 1955) , (Exhibit RUS-27). WT/DS494/R/Add.1  
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  ANNEX  B 
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 First integrated executive summary of the arguments of the Russian  Federation  64 
Annex  B-2 First integrated executive summary of the arguments of the European Union  76 
Annex  B-3 Second integrated executive summary of the arguments of the 
Russian  Federation  87 
Annex  B-4 Second integrated executive summary of the arguments of the European Union  99 
 
 WT/DS494/R/Add.1  
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  ANNEX  B-1 
FIRST INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF  THE RUSSIAN FEDERATION  
1  INTRODUCTION  
1. In this dispute, the Russian Federation challenges the cost adjustment methodology and 
several provisions of the EU's anti -dumping legislation. The Russian Federation submits that these 
measures are inconsistent with the EU's obligations under the Agreement on Implementation of 
Article  VI of the General Agreement on Tariffs and Trade 1994 ("AD Agreement").  
2. The Russian Feder ation is also challenging certain anti -dumping measures imposed by the EU 
on imports of ammonium nitrate and imports of certain welded tubes and pipes of iron or non -alloy 
steel originating in the Russian Federation. These measures are inconsistent with th e EU's obligations 
under the  AD Agreement and the General Agreement on Tariffs and Trade 1994 ("GATT").  
2  THE FIRST SUBPARAGRAPH OF ARTICLE  2(3) OF THE BASIC REGULATION IS 
INCONSISTENT WITH ARTICLE  2.2 OF THE  AD AGREEMENT  
3. The Russian Federation challen ges the following part of the first subparagraph of Article  2(3) 
of the Basic Regulation: "provided that those prices are representative". The first subparagraph of 
Article  2(3) of the Basic Regulation  requires to use only "representative prices" for both alternative 
methods of determination of normal value, including for the construction of normal value.  
4. This flows from the use of the pronoun "those" that is wider than pronoun "these" and the 
change of the wording: from the term "these prices"  in the p hrase "provided that these prices 
are representative " in Regulation (EC) No 3283/94 of 22 December 1994 to the term "those 
prices " in the same phrase in Council Regulation (EC) No 384/96 of 22 December 1995.  It also 
flows from the meaning of the term "repr esentative prices" used in the last phrase of the first 
subparagraph of Article  2(3) of the Basic Regulation. The examination of the whole phrase "provided 
that those prices are representative", including its position in the sentence and its context, is 
necessary in order to understand its correct meaning.  
5. As illustrated by severa l provisions of the Basic Regulation, recitals 3 and 4 of Council 
Regulation No 1972/2002, recitals 5 and 6 of Regulation (EU) 2017/2321, application of the relevant 
norms by the EU authorities and judgments by the General Court of the EU, the EU authoriti es 
interpret the term "representative" prices as prices that are unaffected by so called "distortions" or 
"market impediments" under which the EU authorities consider government regulation. Accordingly, 
the prices that are viewed by the EU authorities as b eing not "in line with world -market prices or 
prices in other representative markets" and "distorted" due to government regulation are treated as 
non-representative.  
6. The Russian Federation submits that a condition that requires that in the construction of 
normal value of the like product only so called "representative" prices (as interpreted by the 
EU authorities) shall be used is inconsistent "as such" with Article  2.2 of the  AD Agreement. The text 
of Article  2.2 of the  AD Agreement does no t permit the extension of price "representativeness" 
requirement to normal value construction. Article  2.2 of the  AD Agreement unequivocally states that 
the basis for construction of normal value is "the cost of production in the country of origin plus a 
reasonable amount for administrative, selling and general costs and for profits". There is no textual 
basis to conclude that the cost of production on which  the normal value is constructed should meet 
an additional requirement – be "representative", i.e. free of government regulation.  
7. As a result of the examination of whether prices are "representative", i.e. undistorted, to 
satisfy the requirement in the first subparagraph of Article  2(3) of the Basic Regulation, the 
EU authorities disregard those prices  in "the cost of production in the country of origin" that they 
consider as non -representative. Thus, the first subparagraph of Article  2(3) prevents the 
EU authorities from constructing normal value on the basis of "the cost of production [of the product]  WT/DS494/R/Add.1  
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  in the country of origin" plus a reasonable amount for administrative, selling and general costs and 
for profits in accordance with Article  2.2 of the  AD Agreement.  
3  THE SECOND SUBPARAGRAPH OF ARTICLE  2(3) OF THE BASIC REGULATION IS 
INCONSISTENT WITH ARTICLE  2.2 OF THE  AD AGREEMENT  
8. The Russian Federation challenges the second subparagraph of Article  2(3) of the Basic 
Regulation to the extent it provides that "a particular market situation for the product concerned" 
exists "when prices are artificially low" and thus introduces an additional circumstance for 
determining normal value via alternative meth ods under the first subparagraph of Article  2(3). 
9. The circumstance described as " a particular market situation for the product concerned " is 
different from " the particular market situation" for the country as a whole . The term "the product 
concerned" ap plies, in particular, to an input used to produce the product under consideration in a 
specific anti -dumping proceeding. Furthermore, the list of circumstances which fall into the category 
of "a particular market situation for the product concerned" is ope n and includes the situation "when 
prices are [viewed by the EU authorities as ] artificially low" due to government regulation. According 
to recital 3 of the Council Regulation No 1972/2002, the criteria for determining the existence of "a 
particular marke t situation for the product concerned" include a presence of alleged "distortions" 
that impact on relevant costs and prices, in particular input prices, and also result in domestic prices 
"being out of line with world -market prices or prices in other repre sentative markets".  
10. In contrast, the wording "the particular market situation" in Article  2.2 of the  AD Agreement 
is applied only with respect to a country which meets the description of the second Supplementary 
Provision to Article  VI:1 of the GATT. I t follows that "the particular market situation" is a reference 
to the specific condition in a country as a whole.  
11. First, the second subparagraph of Article  2(3) of the Basic Regulation provides that the 
EU authorities have to resort to alternative met hods of determination of normal value on the ground 
of the existence of "a particular market situation for the product concerned". However, Article  2.2 
of the  AD Agreement does not contain the phrase "a particular market situation for the product 
concerned ". Instead, it mentions "the particular market situation" that is the particular situation in 
a country' as a whole.  
12. Second, the use of an indefinite article  "a" in the phrase "a particular market situation for the 
product concerned" and words "inter a lia" in the second subparagraph of Article  2(3) of the Basic 
Regulation indicates a potential multitude of such "situations". Since Article  2.2 of the  AD Agreement 
provides for only one situation described as "the particular market situation", the second 
subparagraph of Article  2(3) of the Basic Regulation is inconsistent with Article  2.2 of the  
AD Agreement.  
13. Third, the reference to "artificially low prices" in the second subparagraph of Article  2(3) of 
the Basic Regulation as one of the circumstances o f "a particular market situation for the product 
concerned" does not meet the requirements of the term "the particular market situation" used in 
Article  2.2 of the  AD Agreement and described in the second Supplementary Provision to 
paragraph  1 of Article  VI in Annex 1 to GATT.  
14. In addition, to determine whether prices are "artificially low", the EU authorities need to 
examine whether "market signals" properly reflect supply and demand, whether distortions impact 
"the relevant costs and prices" and to compare the recorded costs for the product concerned, 
including its inputs, "with world -market prices or prices in other representative markets". However, 
Article  2.2 of the  AD Agreement does not provide a legal basis for such an analysis and compar ison.  
4  THE SECOND SUBPARAGRAPH OF ARTICLE  2(5) OF THE BASIC REGULATION IS 
INCONSISTENT WITH ARTICLES 2.2 AND 2.2.1.1 OF THE  AD AGREEMENT   
15. The Russian Federation challenges the following part of the second subparagraph of 
Article  2(5) of the Basic Re gulation: "or, where such information cannot be used, on any other 
reasonable basis, including information from other representative markets". The second 
subparagraph of Article  2(5) of the Basic Regulation:  WT/DS494/R/Add.1  
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  (i) concerns, in particular, calculation of the  cost of production of the product under 
consideration. The EU authorities accept those manufacturing input prices that are "the result 
of market forces";  
(ii) requires the EU authorities to adjust or establish the cost of production on the bases 
provided  in this provision "if costs associated with the production and sale of the product 
under investigation are not reasonably reflected in the records of the party concerned". 
The recorded manufacturing input price can be disregarded as not "reasonably reflec ted" if 
it is considered as allegedly "distorted" due to government regulation. The term "adjust" 
covers situations when the recorded input price is disregarded and replaced with the 
surrogate input price;  
(iii) provides two bases that the EU authorities can use for the adjustment or the 
establishment of costs, and requires to use the second basis only when the costs of other 
producers or exporters in the same country are "not available or cannot be used". The input 
price in the country of origin of the pr oduct under consideration "cannot be used" when it is 
allegedly "distorted" due to government regulation;  
(iv) provides that the second basis is "any other reasonable basis, including information from 
other representative markets". Under the term "represe ntative markets" the EU authorities 
understand third countries and markets that are unaffected by "distortions". The input price 
adjusted on this basis needs to be without "distortion";  
(v) does not require to adapt the surrogate input price or cost of pr oduction which resulted 
from the adjustment or establishment on "any other reasonable basis, including information 
from other representative markets" to ensure that such price or cost represents the cost of 
production, including the cost of input, for prod ucers or exporters of the product under 
consideration in the country of its origin.  
16. When the cost of production in the country of origin of the product under consideration "cannot 
be used" due to the alleged "distortions", the challenged part of the s econd subparagraph of 
Article  2(5) of the Basic Regulation prevents the EU authorities from: (i) calculation of the cost of 
production on the basis of the cost "associated with the production" of the product under 
consideration as required by Article  2.2.1.1 of the  AD Agreement; and  (ii) construction of normal 
value on the basis of "the cost of production [of the product ] in the country of origin" as required by 
Article  2.2 of the  AD Agreement. Thus, the challenged measure is inconsistent with Article  2.2.1.1 
and Article  2.2 of the  AD Agreement.  
17. The panel's and the Appellate Body's examination of the text of the second subparagraph of 
Article  2(5) of the Basic Regulation in EU – Biodiesel (Argentina)  was made in light of the measure 
at issue as ide ntified by Argentina and arguments advanced by Argentina. The Russian Federation's 
participation in the EU – Biodiesel (Argentina)  dispute  was limited to the role of the third party. In 
any way, contrary to the EU's assertions,1 the DSU does not permit a panel to blindly rely on the 
previous reasoning or findings made by another panel or the Appellate Body in another dispute.  
Thus, the reasoning and findings made in EU – Biodiesel (Argentina)  as well in any other dispute in 
no way can restrict Russia's own  right to protect its benefits accruing from the WTO Agreement by 
means of its participation as a complainant in dispute settlement procedures.  
18. The principle position of the Russian Federation is that every dispute submitted by a 
WTO Member to the DSB  should be resolved on its own merits. This is a fundamental right 
guaranteed to WTO Members by the DSU. It means that in each case a panel is required to properly 
discharge its functions as prescribed by the DSU. The Panel in this dispute should: (i) make  factual 
and legal findings based on its own objective examination of the totality of the arguments and 
evidence submitted by parties in this dispute, and (ii) interpret and apply the relevant provisions of 
the covered agreements in accordance with customa ry rules of interpretation of public international 
law.  
 
1 EU's FWS, paras. 76 -82. WT/DS494/R/Add.1  
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  5  THE COST ADJUSTMENT METHODOLOGY IS INCONSISTENT WITH ARTICLES 2.2.1.1 
AND 2.2 OF THE  AD AGREEMENT   
19. The Russian Federation challenges the EU cost adjustment methodology2 that the 
EU authorities apply in anti -dumping proceedings to calculate the cost of production in determination 
of normal value. The EU considers government regulation of raw materials (for example, price 
regulation and export duties) as "distortions" and "market impediments", and uses the cost 
adjustment methodology to remove the alleged "distortion" in input prices incurred by the 
investigated producer or exporter in the domestic market of the country of origin of the product 
under consideration.  
20. When examining the records, kept by the exporter or producer under investigation, under the 
second condition of the first subparagraph Article  2(5) of the Basic Regulation and calculating the 
cost of production of the product under consideration, the EU re jects the raw material cost, which 
has been actually incurred by the investigated producer in manufacturing the product under 
consideration and which has been reasonably reflected in its records in accordance with the GAAP of 
the exporting country. The rej ected input cost is replaced by the EU with an input price in a selected 
other country or market, i.e. a surrogate price, with reference to the second subparagraph of 
Article  2(5) of the Basic Regulation. Such other country or market as well as surrogate p rices are 
viewed by the EU as unaffected by government regulation and, therefore, "representative", 
i.e. "undistorted". The EU authorities use such surrogate prices precisely  because they do not  
represent the cost of production in the country of origin of products under consideration in specific 
anti-dumping proceedings.  
21. The cost of production of the product under consideration calculated with the surrogate input 
price is subsequently used by the EU to conduct the ordinary course of trade test by reaso n of price 
pursuant to Article  2(4) of the Basic Regulation and to determine normal value, including via its 
construction under Article  2(3) of the Basic Regulation. By using the cost adjustment methodology, 
the EU significantly increases the cost of produ ction in its calculation, hence normal value, dumping 
margin and consequently anti -dumping duties. This negative material effect of the cost adjustment 
methodology is clearly demonstrated in panel's and Appellate Body's reports in EU – Biodiesel 
(Argentina ). 
22. The Russian  Federation  provided  extensive  evidence  that demonstrates  the existence  of the 
challenged  measure,  including  its precise  content,  attribution  to the EU and specific  characteristics.  
The Russian  Federation  referred  to: (i) multiple  Regulat ions (EU) in which  the EU authorities  applied  
or considered  the application  of the cost adjustment  methodology  and which  demonstrate  specific  
determinations  and actions  taken  by the EU authorities  in the application  of this methodology;  
(ii) judgments  of the General Court of the EU  which  confirm  the existence  of the EU cost adjustment  
methodology,  describe  its elements,  and show how the General  Court  understands  the methodology;  
(iii) relevant  provisions  and recitals  of the EU anti-dumping  legislation  which  inform, confirm and 
clarify the cost adjustment methodology; (iv) the European Commission's Communication and 
Explanatory Memorandum for the Proposed Regulation ; (v) statements by the European 
Commissioner for Trade; (vi) statements about dumping calculat ion methodology on the web -site 
of the European Commission; (vii) several  WTO cases  in which  the panels  and the Appellate  Body 
have considered  the measures  that are examples  of the application  of the cost adjustment  
methodology ; (viii) opinions of legal ex perts;  (ix) Notices of initiation that demonstrates that 
Fertilizers Europe has used the cost adjustment methodology to substantiate its requests for reviews 
of the anti -dumping measures; (x) Fertilizers Europe's publication of 2012 overview which also 
mentions the methodology.  
23. The EU cost adjustment methodology is part of the EU's deliberate defensive trade policy, in 
particular its effort to strengthen anti -dumping instruments. This conclusion is based, inter alia , on 
the legal framework created by provisions of Articles 2(3) and 2(5) of the Basic Regulation, recitals  3 
and 4 of Council Regulation (EC) No 1972/2002, interpretation and guidance provided by the General 
Court in several cases, and by several recitals and provisions of Regulat ions (EU) No  2017/2321 and 
2018/825 which added, inter alia , Articles 2(6a) and 7(2a) to the Basic Regulation. The EU uses this 
methodology to eliminate price differences between inputs used for production of the product under 
consideration in other Member s and inputs in the EU market.  
 
2 Described in Section D of the Panel Request (WT/DS494/4) and in para. 299 of Russia's FWS.  WT/DS494/R/Add.1  
BCI deleted, as indicated [[***]]  
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  24. With reference to Article  17.3 of the  AD Agreement, the Russian Federation submits that the 
EU cost adjustment methodology nullifies or impairs benefits accruing to Russia under the  
AD Agreement. As a result of the cost a djustment methodology, the EU authorities deny certain 
legitimate commercial benefits that Russian exporters and producers would otherwise have under 
the AD Agreement. The Russian Federation challenges the EU cost adjustment methodology in 
WTO dispute sett lement as a measure that has certain characteristics and will be applied or is likely 
to be applied in the future until and unless this methodology is repealed.  
25. The legal test described  by the Appellate  Body in US – Zeroing  (EC) for challenging  the US 
zeroing  methodology  is irrelevant  for the examination  of the EU cost adjustment  methodology.  The 
legal test in US – Zeroing  (EC) "cannot  be considered  as setting  forth a general  legal standard  for 
proving  the existence  of any unwritten  measure  that is challenged  in WTO dispute  settlement".3 
Moreover,  the application  of this test in the current  dispute  will not provide  an objective  assessment  
of the matter  which  is required  by Article  11 of the DSU. 
26. The cost adjustment methodology has normative value w hich has been strengthened over 
time. The Council of the EU  explained  that "the General  Court  established  in the Acron  case the 
principle  of law that if the costs associated  with the production  of the product  under  investigation  
are not reasonably  reflecte d in the records  of the companies,  they do not serve  as a basis for 
calculating  normal  value  and that such  costs  could  be replaced  with costs  reflecting  a price  
set by market  forces  pursuant  to Article  2(5) of the basic Regulation".4 The recorded costs ar e 
considered as not reasonably reflected in the records because the input price is "regulated by the 
State" or because of "other forms of State intervention that distorts, directly or indirectly, a particular 
market by depressing prices to an artificially low level".5 
27. The EU's deliberate  efforts  to strengthen  its anti-dumping  instruments  resulted  in adoption  of 
new legislation  – Regulation  (EU) No 2017/2321  and 2018/825  – which  amended  the Basic 
Regulation.  The substance  and effect  of Articles  2(6a)  and 7(2a)  of the Basic Regulation  as well as 
recitals  3, 5, 7 of Regulation  (EU) No 2017/2321  and recital  8 of Regulation  (EU) No 2018/825  
strongly  indicate  that the EU has confirmed  the existence  of the cost adjustment  methodology  and 
clarified  some  of its aspects.  Thus,  the normative  value  of the cost adjustment  methodology  has 
been further  strengthened.  
28. The cost adjustment  methodology  is designed  by the EU to have general  and prospective  
application  as it has been applied  in various  anti-dumpin g proceedings  (as demonstrated  in Table  1 
of Russia's  FWS)  and it will be applied  or is likely to be applied  in a specific  set of circumstances  to 
eliminate  the alleged  distortions  in WTO Members,  in particular  the Russian  Federation,  in the future.  
The Russian Federation  considers  that the EU cost adjustment  methodology  is inconsistent  with 
Articles 2.2.1.1 and 2.2 of the  AD Agreement and therefore  its application  in anti-dumping  
proceedings  on imports  of Russian  products  in the future  anti-dumping  proceed ings will be 
WTO-inconsistent  as well.  
29. As it is clear from the explanation  by the Council  of the EU in Council  Implementing  Regulation  
(EU) No 1194/2013  and also from other  evidence  on the record,  the cost adjustment  methodology  
will be applied  or is likely to be applied  by the EU authorities  in future  anti-dumping  proceedings  on 
imports  of various  products,  specifically  energy -intensive  ones,  manufactured  in WTO Members  in 
which  governments  regulate  energy  prices,  apply  export  duties  or use other  meas ures considered  
by the EU as "distortions  on raw materials",  and "significant  distortions".  For example, on its web -site 
the European Commission explained that, "if state interference significantly distorts the economy of 
the exporting country", Commission  will ... use undistorted  benchmarks  to determine  the 'normal 
value' of the product" and that "[t] his can apply  to all WTO Members  where  significant  market  
distortions  are found".6 
30. EU companies, producing energy -intensive goods in the EU, know about t he cost adjustment 
methodology and use it in their calculations of alleged dumping to advance their competitive 
 
3 Appellate Body Report, Argentina – Import  Measures , para. 5.107.  
4 Council Implementing Regulation (EU) No 1194/2013, Exhibit RUS -23, recitals 72 and 42 
(emphasis  added)  
5 Ibid. 
6 See "Recent changes to dumping calculation methodologies" in web page of the European Commission 
on anti -dumping, Exhibit RUS -156, p. 1.  WT/DS494/R/Add.1  
BCI deleted, as indicated [[***]]  
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  interests. Russian companies, producing energy -intensive goods in Russia and exporting them to 
the EU, are also aware that the EU authorities have applied and intend to apply the cost adjustment 
methodology in the future until and unless this methodology is repealed. The Russian Federation 
provided sufficient evidence confirming that the EU authorities apply the cost adjustment 
metho dology irrespective of trade behavior of the investigated exporters and producers.  
31. The Russian Federation submits that the EU cost adjustment methodology is inconsistent with 
Articles 2.2.1.1 and 2.2 of the  AD Agreement.  
32. The EU cost adjustment met hodology is inconsistent with the first sentence of Article  2.2.1.1 
of the Anti -Dumping Agreement because: ( i) the EU rejects some of the costs reflected in the records 
that are kept by the exporter or producer under investigation in accordance with the ge nerally 
accepted accounting principles of the exporting country and that reasonably reflect the costs 
associated with the production and sale of the product under consideration; and ( ii) the EU uses 
costs other than "costs associated with the production an d sale of the product under consideration" 
reasonably reflected in the records kept by the exporter or producer under investigation in 
accordance with the generally accepted accounting principles of the exporting country. The 
Russian  Federation respectfull y requests the Panel to examine each of these claims and find for each 
of them that the EU cost adjustment methodology is inconsistent with Article  2.2.1.1 of the  
AD Agreement.  
33. In rejecting the recorded input costs incurred by the investigated producer s or exporters, the 
EU authorities rely on the second condition of Article  2.2.1.1 of the  AD Agreement. Through 
comparison of the recorded input costs with input prices in the EU, other WTO Members or with 
international prices, the EU authorities examine " reasonableness" of the reported costs themselves. 
However, "there is no additional or abstract standard of 'reasonableness' that governs the meaning 
of 'costs' in the second condition in the first sentence of Article  2.2.1.1".7 Investigating authorities 
are not permitted to reject the recorded costs because the costs do not pertain to the production 
and sale of the product under consideration in what the authorities consider to be "normal 
circumstances".8 As a result, the EU cost adjustment methodology vi olates Article  2.2.1.1 of the  
AD Agreement.  
34. The EU cost adjustment methodology is also inconsistent with Article  2.2 of the  AD Agreement 
because in applying this methodology for construction of normal value the EU uses surrogate input 
price which is ot her than "the cost of production in the country of origin". As a result, the constructed 
normal value is not based on "the cost of production in the country of origin".  
35. Claiming that input prices in a WTO Member, like Argentina, Indonesia or the 
Russi an Federation, are "artificially lower" than international prices or prices in "undistorted" and 
thus more "representative" countries/markets, the EU authorities, under the cost adjustment 
methodology, replace the input costs actually incurred by the inves tigated companies with input 
prices at which they "would have purchased" these inputs in the absence of alleged distortions. The 
EU authorities deliberately select and use surrogate prices to remove perceived "distortions"  in 
domestic prices of inputs. In other words, the cost adjustment methodology reflects the EU's 
intention and deliberate policy objective to use surrogate input price because it is not the cost of 
input in the country of origin of the product under consideration. It is clear that the EU c osts 
adjustment methodology violates Article  2.2 of the  AD Agreement.  
 
7 Appellate Body Report, Ukraine – Ammonium Nitrate (Russia) , para. 6.102 (referring to. Appellate 
Body Report, EU – Biodiesel (Argentina),  para. 6.37 and 6.56).  
8 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.3 0. In that case, the European Union had 
argued that the EU authorities were permitted to consider whether costs in the records pertained to the 
product and sale of biodiesel in normal circumstances, i.e. in the absence of the alleged distortion caused by 
Argentina 's export tax system. The Appellate Body disagreed and explained that "such interpretation would add 
words to the condition at issue that are not present in Article 2.2.1.1, namely, the costs that " would  pertain " 
and " in normal circumstances ". WT/DS494/R/Add.1  
BCI deleted, as indicated [[***]]  
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  6  ANTI -DUMPING MEASURES IMPOSED BY THE EU ON IMPORTS OF RUSSIAN WELDED 
TUBES AND PIPES ARE INCONSISTENT WITH ARTICLES 2.2.1.1, 2.2.1 AND 11.3 OF 
THE AD AGREEMENT  
36. The Russian Federation also challenges the EU's decision to extend the anti -dumping measures 
on imports of certain welded tubes and pipes of iron or non -alloy steel originating in the 
Russian  Federation ("Russian tubes and pipes") as a result of the expiry review.  
37. When conducting the ordinary course of trade test in the expiry review for anti -dumping 
measures on imports of Russian tubes and pipes, the EU failed to calculate the cost of production of 
tubes and pipes on the basis of the records kept by the investi gated producer. Accordingly, the EU 
rejected the prices of natural gas paid by the investigated Russian producer because: ( i) they 
reflected only 30% of the Russian export gas price and are  far below market prices paid in 
unregulated export markets , and ( ii) the domestic gas prices in Russia are regulated. For these 
reasons, the EU concluded that "gas costs were not reasonably reflected in the exporting producer's 
records", and then disregarded the recorded gas costs with reference to the second condition o f the 
first sentence of Article  2.2.1.1 of the  AD Agreement.  
38. The assertions made by the EU regarding gas prices in Russia in comparison with " market 
prices paid in unregulated export markets  for Russian natural gas " are not in itself a sufficient basis  
to conclude that "gas costs were not reasonably reflected in the exporting producer 's records". This 
rejection of Russian producer's recorded gas cost on such grounds is in violation of Article  2.2.1.1 of 
the AD Agreement. This understanding is supported by findings of the Appellate Body in 
EU – Biodiesel (Argentina) and Ukraine – Ammonium Nitrate (Russia) that are relevant for the 
present dispute.  
39. The EU also acted inconsistently with Article  2.2.1.1 of the  AD Agreement, when it replaced 
the actual gas prices paid by the investigated producer by the surrogate gas price from outside the 
country of origin. It replaced the cost actually incurred by the investigated Russian producer precisely 
because the Waidhaus pr ice, adjusted for local distribution costs, was not the cost associated with 
the production and sale of the product under consideration. Regardless of the reasons underlying 
this decision, the fact is that the surrogate gas price taken outside Russia has n o genuine relationship 
with the production and sale of the specific product, i.e. production of tubes and pipes in the 
Russian  Federation, produced by the specific investigated Russian producer. Thus, the EU used the 
surrogate gas price which is other than  "costs associated with the production and sale of the product 
under consideration" reasonably reflected in the records kept by the producer under investigation in 
accordance with the generally accepted accounting principles of the exporting country.  
40. Since the adjusted costs were used for the purpose of conducting the ordinary course of trade 
test by reason of price, the EU also violated Article  2.2.1 of the  AD Agreement. The provisions of 
Article  2 of the  AD Agreement should be adhered to in the expiry  reviews. Thus, by determining the 
likelihood of recurrence of dumping based on costs calculated in violation of Articles 2.2.1.1 and 
2.2.1 of the  AD Agreement, the EU also acted inconsistently with Article  11.3 of the  AD Agreement.  
7  ANTI -DUMPING MEASURE S IMPOSED BY THE EU ON IMPORTS OF AN IS 
INCONSISTENT WITH  AD AGREEMENT AND GATT  
7.1  ARTICLE  18.3  OF THE AD AGREEMENT DOES NOT APPLY IN THIS DISPUTE  
41. Article  18.3 of the  AD Agreement is not relevant to this dispute. First, Article  18.3 is only a 
transit ional provision that regulates transition from the Tokyo Round  AD Code to the Uruguay Round  
AD Agreement. This provision does not concern accession to the WTO Agreement. Second , 
Article  18.3 applies to the importing Member, and therefore imposes obligations on the EU, as an 
original WTO Member conducting an anti -dumping investigation. Accordingly, Article  18.3 does not 
apply to Russia. Third , without prejudice to the position that Article  18.3 is not applicable in this 
dispute, Russia also notes t hat it challenges the continuous levy of anti -dumping duties on Russian 
AN. Article  VI of the GATT and the  AD Agreement, including Article  18.3, do not set any temporal 
scope of applicability of the GATT and the  AD Agreement respectively to a "levy" of ant i-dumping 
duties.  WT/DS494/R/Add.1  
BCI deleted, as indicated [[***]]  
- 71 - 
 
  7.2  CLAIMS WITH RESPECT TO THE SCOPE OF THE APPLICABLE MEASURES  
42. Under Claim 1 , Russia argues that the EU never conducted an original anti -dumping 
investigation on Stabilized AN and on IGAN. FGAN, Stabilized AN and IGAN are different  products 
which are not like each other. Yet, the EU never established dumping, injury and a causal link in 
relation to imports of Stabilized AN and IGAN. Therefore, by making likelihood of dumping and injury 
determinations, by extending the anti -dumping m easures and by levying anti -dumping duties on 
imports of Stabilized AN, as well as IGAN, the EU violated Articles 1, 2.1, 2.2, 2.4, 2.6, 3.1, 3.2, 3.4, 
3.5, 4.1, 9.1, 9.3 and 18.1 of the  AD Agreement and Articles I:1, II:1 (a) and (b), VI:1 and VI:2 of 
the GATT.  
43. Under Claim 2 , the EU first, wrongfully accepted a request for review that was aimed at 
extending anti -dumping measures on Stabilized AN and IGAN for another five years, while the 
EU never conducted an original investigation or made dumping and injury determinations for these 
two products.  
44. Second, the request to extend anti -dumping measures on imports of AN manufactured by 
Kirovo is incompatible with Article  11.3 of the  AD Agreement since the request asks for extension of 
such measures on Ki rovo for another five years based on allegations that cover imports of AN from 
Russia, including imports of Stabilized AN, while Stabilized AN was excluded from the product scope 
for Kirovo.  
45. Third, the EU acted contrary to Article  11.3 of the  AD Agree ment by accepting evidence of 
alleged dumping in the expiry review request that was based on illegal energy cost adjustment.  
46. Fourth, the EU initiated an expiry review based on an unduly justified request, which, on the 
one hand, contained allegations o n the likelihood of recurrence of dumping with regard to Russian 
imports of FGAN, IGAN and Stabilized AN, while, on the other hand, assessed the likelihood of 
recurrence of injury based on the Union industry's performance with regard to FGAN only. In so 
doing, the EU did not initiate the expiry based on a "duly substantiated" request, in breach of 
Article  11.3 of the  AD Agreement.  
47. Under Claim 3 , Russia argues that the EU extended antidumping measure on AN manufactured 
by Kirovo, excluding Stabilized AN , whereas the likelihood of dumping and injury determinations 
were made for AN, including Stabilized AN. This violates Articles 11.3, 3.1, 11.1, 1 and 18.1 of the  
AD Agreement.  
48. Under Claim 4 , Russia argues that the EU extended the antidumping measure on Russian 
FGAN, IGAN and Stabilized AN based on a likelihood of injury determination for the 
EU's FGAN  industry only. This follows from the comparison of the figures used in 
Regulation  999/2014 and the domestic industry's dataset that covered FGAN only. This violates 
Articles 11.3, 2.6, 3.1, 3.2, 3.4 and 4.1 of the  AD Agreement to the extent that antidumping duties 
are levied on imports of FGAN, IGAN and Stabilized AN.  
7.3  CLAIMS WITH RESPECT TO THE DETERMINATION OF LIKELIHOOD OF DUMPING 
49. Russia argues that the EU relied on a determination of dumping in its likelihood -of-dumping 
determination. Indeed, Regulation 999/2014 makes several findings that Russian imports were 
"dumped".9 In fact, the EU does not dispute that it performed a price-to-price comparison of 
domestic and export prices,10 which is "the core principle of dumping".11 The EU does not dispute 
either that it relied on such "price -to-price comparison", i.e., on this dumping determination, in its 
likelihood -of-dumping dete rmination.12 
50. The phrase "[f]or the purpose of this Agreement" in Article  2.1 indicates that this provision 
describes the circumstances in which a product is to be considered as being dumped for purposes of 
 
9 Commission Implementing Regulation 999/2014, Exhibit RUS -66, recitals 57, 58 and 63.  
10 EU's FWS, para. 299.  
11 Panel Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , para.  7.77. 
12 EU's FWS, para. 304. This was also acknowled ged in Commission Implementing Regulation 999/2014, 
Exhibit RUS -66, recital 66.  WT/DS494/R/Add.1  
BCI deleted, as indicated [[***]]  
- 72 - 
 
  the entire  AD Agreement, including expiry review under Article  11.3.13 Thus, the terms "dumping", 
as well as "dumped import s", "margin of dumping" have the same meaning throughout the  
AD Agreement.14 In its likelihood -of-dumping determination the EU relied on its "dumping" 
determination, but failed to ensure the consistency of its determination with provisions of Article  2 
of the  AD Agreement and Article  VI:1 of the GATT. From context of Article  11.3 and 
WTO jurisprudence,  it is clear that the prospective likelihood determination shall inevitably rest on 
a factual foundation relating to the past and present  and the investigating authority must evaluate 
this factual foundation  and come to a reasoned conclusion about likely f uture developments. 15  
51. Moreover, findings in an expiry review must comply with Article  11.3 of the  AD Agreement. 
This means that any likelihood -of-dumping determination must consist in "reasoned and adequate 
conclusions", based on "positive evidence" and a "sufficient factual basis".16 
52. Under Claim #9 , Russia challenged the EU's failure to examine the impact of the absence of 
dumping by the largest Russian exporters, notably by disregarding their actual export prices to the 
EU. First, the EU failed to establish dumping on the basis of a comparison of normal value with 
export price in accordance with Articles 2.1 and 2.3 of the  AD Agreement. Second , the EU ignored 
information provided by Russian producers on exports to the EU and instead relied on alt ernative 
information outside the conditions set forth in Article  6.8 of the  AD Agreement. Third , the EU did 
not determine individual margins of dumping for Russian sampled producers, as required under 
Article  6.10 of the  AD Agreement. Finally , the EU: (i) relied on dumping determinations inconsistent 
with Article  2 of the  AD Agreement and (ii) did not consider the evidence on absence of dumping 
provided by Russian producers, in breach of Article  11.3 of the  AD Agreement. It is clear that in its 
determinatio ns the EU failed to reach "reasoned and adequate conclusions", based on "positive 
evidence" and a "sufficient factual basis". Thus, the EU breached the aforementioned provisions.  
53. Under Claim 11 , Russia challenged the EU's likelihood -of-dumping determination that was 
based on its findings of the alleged "dumping" as a result of the comparison of average domestic 
ex-works price with weighted average ex -works export price to third countries markets. First, the 
EU made determination on the alleged " dumping" by Russian exporting producers to third countries 
and thus violated Articles 2.1 and 11.3 of the  AD Agreement and Article  VI:1 of the GATT. Second , 
while implying the continuation of dumping to the EU, the EU failed to properly determine the 
dumpi ng margins and thus violated Articles 11.3, 2.1 and 2.2 of the  AD Agreement and Article  VI:1 
of the GATT. Third , the EU also failed to perform a fair comparison between normal value and the 
export price to the EU and thus violated Articles 11.3 and 2.4 of the AD Agreement. It is clear that 
in its determinations the EU failed to reach "reasoned and adequate conclusions", based on "positive 
evidence" and a "sufficient factual basis". Thus, the EU breached the aforementioned provisions.  
7.4  CLAIMS WITH RESPEC T TO THE CONTINUOUS LEVYING OF THE ANTI-DUMPING DUTIES 
54. The anti -dumping duties currently levied pursuant to Regulation 999/2014, as amended by 
Regulation 2018/1722, are based on dumping margins determinations reflected in Regulation 
661/2008 and Regula tion 658/2002. These dumping determinations are not in line with the 
EU's WTO obligations, in particular with several provisions of the  AD Agreement and GATT 1994. 
Regulation 2018/1722 does not change this situation.  
55. In fact, Regulation 2018/1722 shows  that the EU compared the revised injury margin with the 
previously established dumping margins in determining whether the lesser duty rule should apply 
and, correspondingly, at what level to impose the anti -dumping duties.17 The current rates of the 
anti-dumping duties are therefore still based on these WTO -inconsistent dumping margins.  
 
13 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para. 109.  
14 Appellate Body Report, US – Stainless Steel (Mexico) , para. 96.  
15 Panel Report, US – Corrosi on-Resistant Steel Sunset Review , para. 7.279. (referring to Panel Report, 
US – Carbon Steel , para. 8.94; Panel Report, US – Hot-Rolled Steel , para. 7.55). See also Appellate Body 
Report, US – Corrosion -Resistant Steel Sunset Review , para. 105.  
16 Appellate  Body Report, US – Zeroing (Japan) , para. 182. See also Appellate Body Report, US – 
Corrosion -Resistant Steel , para. 127, which confirms that relying on WTO -inconsistent dumping margins in the 
context of an expiry review violates Article 11.3 of the  AD Agreement.  
17 Commission Implementing Regulation (EU) 2018/1722, Exhibit RUS -96, recitals 173 and 185.  WT/DS494/R/Add.1  
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  56. Under Claim 12 , the Russian Federation challenges the levying of anti -dumping duties on AN  of 
EuroChem, which were set with the use of the WTO -inconsistent cost adjustm ent for natural gas in 
Regulation 661/2008, and maintained under Regulation 999/2014, and currently applied in the 
amended amounts.  
57. The EU's calculation of the cost of production of EuroChem with the use of gas cost adjustment 
results in the EU's viola tion of several provisions of the  AD Agreement and Article  VI of the GATT. 
The EU: (i) rejected EuroChem's natural gas cost and used the surrogate gas price in breach of 
Article  2.2.1.1 of the  AD Agreement,18 (ii) conducted its ordinary -course -of trade test on the basis 
of costs calculated inconsistently with Article  2.2.1.1. of the  AD Agreement, in breach of Article  2.2.1 
of the  AD Agreement,19 and (iii) failed to construct normal value on the basis of "the c ost of 
production in the country of origin" in breach of Article  2.2 of the  AD Agreement and 
Article  VI:1:(b)(ii) of the GATT. The EU specifically selected the surrogate price for natural gas to 
remove alleged "distortion" in the cost of natural gas in the  Russian Federation. Thus, the EU used 
the surrogate gas price precisely because it does not represent the cost of production in the 
Russian  Federation.20  
58. The EU breaches Article  9.3 of the  AD Agreement and Article  VI:2 of the GATT because the 
amount of the anti -dumping duties, that continues to be levied to this date, exceeds the dumping 
margin that would have been established under Article  2 of the  AD Agreement. The EU breaches 
Article  11.1 of the  AD Agreement, because the continuous levying of an an ti-dumping duty in excess 
of the dumping margin that would have been established consistently with Article  2 results in the 
application of anti -dumping duties to an extent higher than necessary to counteract dumping which 
is causing injury. The EU breaches  Article  1 of the  AD Agreement because the EU continuous to apply 
in its determination of the dumping margin, imposition, extension and application of anti -dumping 
duties on imports of AN of EuroChem, the EU violated provisions of the  AD Agreement.  
59. Under Claim 13 , Russia challenges the levying of the anti -dumping duties on Russian AN the 
duration of which was extended on the basis of calculations in the 2008 expiry review in which the 
EU used the surrogate gas prices and which were then maintained by R egulation 999/2014. The EU 
relied on dumping margins calculated inconsistently with Articles 2.2.1.1, 2.2.1, and 2.2 
(as described above in Claim 12) to make their determination of the likelihood of dumping and 
extended the anti -dumping in the second and t hird expiry reviews. These violations in turn infected 
conclusions made under Article  11.3 of the  AD Agreement, resulting in breach of all these provisions.  
60. Under Claim 14 , Russia challenges the levying of country -wide anti -dumping duties on AN of 
Russian producers other than EuroChem, which were set with the use of the methodology applied 
by the EU to non -market economy countries in Regulation 658/2002, extended in the 2002, 2008, 
2014 expiry reviews and currently applied in the amended amounts. Since  the EU imposed, 
maintained and levies the anti -dumping duties calculated through the use of the methodology for a 
non-market economy, which shall not be applied with respect to imports of Russian products, the 
EU violates Articles 2.1, 2.2, 9.3, 11.3 of the AD Agreement and Articles VI:1, the second 
Supplementary provision to Article  VI:1 of the GATT, Articles I and VI:2 of the GATT. Furthermore, 
the EU fails to extend to imports of Russian products an advantage of dumping calculation 
methodology which is  granted by the EU to WTO Members considered as market economies, and 
thus the EU violates Article  I:1 of the GATT.  
61. Under claim 15 , Russia submits that the methodology for non -market economy countries and 
the surrogate gas price used by the EU in prev ious reviews infected currently applied anti -dumping 
measures. In addition, in its third expiry review, in its determination with respect to the 
likelihood -of-dumping the EU relied on unlawfully determined alleged "dumping" to third countries 
and, thus, fa iled to ensure compliance of its analysis related to "dumping" with Article  VI:1 of the 
GATT 1994, as interpreted by the  AD Agreement, including Articles 2.1, and 11.3 of the  
AD Agreement.  
 
18 Appellate Body Report, EU – Biodiesel (Argentina) , paras. 6.26 and 6.56.  
19 Panel Report, Ukraine – Ammonium Nitrate (Russia) , para. 7.118, 8.2c.  
20 See Appellate Body Report, EU – Biodiesel (Argentina) , paras. 6.81 -6.82. WT/DS494/R/Add.1  
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  62. Therefore, the EU breached Articles 1 and 18.1 of the  AD Agreem ent, because its anti -dumping 
measures in respect of AN from Russia are not in conformity with the provisions of Articles VI:1 
and VI:2 of the GATT, as interpreted by the  AD Agreement.  
7.5  CLAIMS WITH RESPECT TO THE ESTABLISHMENT OF THE LIKELIHOOD OF RECURRENCE OF INJURY 
63. The focus of these claims is on the likelihood -of-injury determination conducted by the EU in 
the expiry review and reflected in Regulation 999/2014. The fact is that on the basis of this 
determination, and not Regulation 2018/1722, the EU extended the duration of the anti -dumping 
measures on Russian AN for the following five years. This determination is WTO -inconsistent.  
64. Under claim 5 , Russia challenges the undercutting calculations performed by the EU. 
Regulation 999 /2014 compared the prices of Russian exports to third -countries with the prices of 
EU producers and found that Russian imports were made at "undercutting" prices or at " injurious 
price level".21 Russia argues that if an investigating authority attempts to calculate the price effect 
of future dumped imports, such calculations must comply with Article  3 of the  AD Agreement.22 The 
EU does acknowledge that it compared the export prices from Russia to  the EU and, in parallel, the 
evolution of prices in the EU market.23 In other words, the EU analyzed "whether subject imports 
have explanatory force for the occurrence of significant depression or suppression of domestic 
prices", which is the core feature  of an undercutting calculation.24 First, the EU violated Articles 3.1 
and 3.2 of the  AD Agreement by failing to consider the prices of Russian imports into the EU and by 
failing to make necessary adjustments to such prices to ensure comparability with dom estic prices. 
Second , the EU violated Article  11.3 of the  AD Agreement, because: (i) it relied on inconsistent 
undercutting calculations in its likelihood -of-injury determination and (ii) it relied on unadjusted 
Russian export prices, which cannot result i n an "objective examination", based on "positive 
evidence".  
65. Under Claim 6 , Russia argues25 that the EU based its likelihood -of-injury determination on: 
(i) data relating to a non -representative sample of the domestic industry; (ii) the incomplete, 
non-representative and erroneous data provided by the sampled EU companies, and failed to 
examine and explain the significantly divergent economic performance between the sampled and 
non-sampled EU domestic producers. First, the EU failed to base its likeliho od-of-injury 
determination on an "objective examination" of the "positive evidence" on the record, in violation of 
Article  3.1 of the  AD Agreement. Second , the EU failed to evaluate all relevant economic factors 
and indices having a bearing on the state of  the industry that includes not only FGAN, but also IGAN 
and Stabilized AN producers, in breach of Article  3.4 of the  AD Agreement. Third , the EU failed to 
interpret the term "domestic industry" as including producers not only of FGAN, but also of IGAN 
and Stabilized AN, in violation of Article  4.1 of the  AD Agreement. Finally , and as a result, the 
EU failed to base its likelihood -of-injury  determination on "reasoned and adequate conclusions", in 
violation of Article  11.3 of the  AD Agreement.  
66. Under Claims 7 and 8 , Russia submits that certain conclusions of the EU fail to take into 
account the evidence on the record. Thus, the EU did not carry out an "objective examination" based 
on "positive evidence", as required under Article  3.1 and equally relevant under Article  11.3 of the  
AD Agreement.26 First, under Claim 7, Russia targets the EU's conclusion that the non -injurious 
situation of the  EU industry was not sustainable did not rest on a sufficient factual basis. Second , 
under Claim 8, Russia targets the EU's assessment of the level of production capacities available in 
Russia and the ability of third country markets to absorb Russian expo rts. 
7.6  CLAIMS WITH RESPECT TO THE CONDUCT OF THE EXPIRY REVIEW 
67. Under Claim 16 , Russia argues that, on four occasions, access to the file was significantly 
delayed. First, as information submitted in writing by interested parties was not "made availa ble 
promptly", this violates Articles 6.1.2 and 11.4 of the  AD Agreement. Second , such delays 
prevented Russian producers from having "timely opportunities" to: (i) see information they 
 
21 Commission Implementing Regulation 999/2014, Exhibit RUS -66, recitals 112, 160 and 169.  
22 Panel Report, US – Oil Country Tubular Goods Sunset Reviews , para. 7.274.  
23 EU's FWS, paras . 460-461. 
24 Appellate Body Report, China – X-Ray Equipment , para. 138.  
25 Without prejudice to claims on product coverage.  
26 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 284.  WT/DS494/R/Add.1  
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  considered relevant and (ii) prepare presentations on that basis, in v iolation of Articles 6.4 and 11.4 
of the  AD Agreement. Such delays cannot be justified by confidentiality or other concerns, as 
submissions made by Russian producers were immediately added to the non -confidential file.  
68. Under Claim 17 , Russia challenges the EU's failure to provide the original expiry review 
request, as lodged on 28 March 2013. First, this violates Articles 6.1.3 and 11.4 of the  
AD Agreement, which require the disclosure of the full text of the "duly substantiated reque st made 
by or on behalf of the domestic industry" on the basis of which the investigating authority decided 
to initiate the expiry review investigation. Second , this violates Articles 6.4 and 11.4 of the  
AD Agreement because, despite numerous requests, the  EU failed to disclose a document which 
Russian producers considered relevant, used by the investigated authority and could be disclosed in 
a non -confidential way. Third , this violates Article  6.4 and 11.4 of the  AD Agreement because, as a 
result, Russian producers did not have a "full opportunity for the defence of their interests".  
69. Under Claim 18 , Russia challenges the EU's confidential treatment of information for which no 
"good cause" was shown, and in particular two expert reports submitted by Fert ilizers Europe on 
24 March and 14 May 2014. Either "good cause" was simply not shown, or the alleged "good cause" 
did not constitute a reason sufficient to justify withholding the information for which confidential 
treatment was sought. This violates Artic les 6.5 and 11.4 of the  AD Agreement.  
70. Under Claim 19 , Russia challenges the EU's failure to require the domestic industry to furnish 
sufficiently detailed non -confidential summaries. Submissions on injury indicators made by 
Fertilizers Europe on 10 Ma rch, 5 May, 12 May and 3 June 2014 only provided aggregated injury 
indicators. Despite the importance of these issues in the investigation, these non -confidential 
summaries notably omitted important information on: (i) the product scope, and (ii) the compa ny 
scope of aggregated injury indicators. The provision of aggregated figures as a non -confidential 
summary did not permit a "reasonable understanding of the substance of the information submitted 
in confidence". This violates Articles 6.5.1 and 11.4 of th e AD Agreement.  
71. Under Claim 20 , Russia challenges the EU's refusal to rely on information provided by Russian 
exporters with a view to establish spare capacity in Russia. First, the EU disregarded the primary 
source information provided by Russian exp orters in response to specific inquiries from the 
investigating authority, and instead relied on alternative information, without any demonstration 
that the primary source information was not verifiable, could not be used without undue difficulties 
or was not provided in a timely manner. This breaches Article  6.8 and paragraphs 3 and 5 of Annex  II 
of the  AD Agreement. Second , the EU never informed Russian producers of its intention to apply 
facts available, nor provided them with an opportunity to comment o n such application. This 
breaches paragraph 6 of Annex II of the  AD Agreement. Finally , the EU picked and chose the 
information that fit best a finding that Russian producers had spare capacities, thereby failing to 
consider the "best facts available". Thi s breaches paragraph 7 of Annex II of the  AD Agreement.  
72. Under Claim 21 , Russia challenges the EU's failure to disclose certain information and 
calculations on which it relied in its likelihood -of-dumping and likelihood -of-injury determinations. 
Such i nformation was part of the "essential facts under consideration which form the basis for the 
decision whether to [extend the anti -dumping measures ]". Failure to disclose this information 
violates Articles 6.9 and 11.4 of the  AD Agreement.  
73. Under Claim 22 , Russia explains that Regulation 999/2014 does not sufficiently detail its 
findings and conclusions on: (i) dumping, (ii) undercutting and underselling and (iii) product scope 
and does not address certain requests made by  Russian producers. This v iolates Articles 12.2 and 
12.2.2 of the  AD Agreement because: (i) Regulation 999/2014 does not include the relevant 
information on matters of fact and law that were essential to the determinations of 
likelihood -of-dumping and likelihood -of-injury and (ii) fails to contain "the reasons for the 
acceptance or rejection of relevant arguments or claims made by the exporters".  WT/DS494/R/Add.1  
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  ANNEX B -2 
FIRST INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION  
1 INTRODUCTION  
1. Pursuant to paragraph 23 of the Panel 's Working Procedures, the European Union now 
provides an integrated executive summary of the facts and arguments presented in the 
European Union 's (i) first written submission, (ii) first opening oral statement, (iii) first closing 
oral statement, and (iv) responses to questions following the first substantive meeting.  
2  REQUEST FOR A PRELIMINARY RULING  
2. The European Union requested the Panel to rule that several of the claims in Russia 's panel 
request and first written submission are not properly before the Panel. Russia 's claims #1 as 
well as all claims relating to product scope (to the extent that they refer to "industria l-grade 
ammonium nitrate"), #9 (to the extent it refers to  Articles  2.3, 6.8 and 6.10 of the 
AD Agreement), #16 -#21 (to the extent that they refer to  Article  11.4 of the AD Agreement) 
and #17 (to the extent it refers to  Article  6.2 of the AD Agreement) are  outside the scope of 
the Consultations Request and impermissibly expand the scope of the dispute, in violation of  
Articles  4 and 6 of the DSU, and in particular of  Articles  4.4 and 6.2 of the DSU. Claims #2, 
#18, #19 and #21 are not properly before the Pa nel because Russia 's Panel Request fails to 
identify the specific measures at issue and provide a brief summary of the legal basis of the 
complaint sufficient to present the problem clearly, in violation of  Article  6.2 of the DSU. 
Claim  #11, to the extent that it relates to the likelihood of recurrence of dumping, goes beyond 
the scope of Russia 's Panel Request, in violation of  Articles  6.2 and 7.1 of the DSU. Because 
Russia failed to "identify" precisely Regulation 1722/2018 as a measure at issue, claims # 12, 
#13, #14 and #15 on the continuous levying of AD duties on AN from Russia that Russia 
bases on this Regulation fail to meet  Article  6.2 of the DSU. Claim #14 fails to meet the 
requirements under  Article  6.2 of the DSU.  
3  "AS SUCH" CLAIMS ON CERTAIN P ARTS OF ARTICLE  2(3) AND ARTICLE  2(5) OF THE 
BASIC REGULATION AND AN ALLEGED "COST ADJUSTMENT METHODOLOGY " 
3.1  FIRST SUBPARAGRAPH OF ARTICLE  2(3)  OF THE BASIC REGULATION  
3. With regard to the "as such" claims, the EU disagrees with Russia 's argument that the first 
subparagraph of  Article  2(3) of the Basic Regulation would be inconsistent with  Article  2.2 of 
the AD Agreement. Russia is unable to demonstrate that the phrase "provided that those 
prices are representative" in  Article  2(3) refers to anything other than the "export prices". 
This is the only instance in the first subparagraph of  Article  2(3) where the term "prices" is 
used. Contrary to what Russia suggests, the phrase does not refer to the "cost of production". 
Russia 's references to  the term "representative" in other provisions of the Basic Regulation do 
not alter this. Indeed, neither  Article  2(2) nor the second subparagraph of  Article  2(5) support 
Russia 's affirmations with regard to the final phrase of the first subparagraph of  Article 2(3). 
The EU also explained that the change of the words "those prices" into "these prices" – on 
which Russia also seeks to rely – was the result of a linguistic review in 1995 without any legal 
consequences whatsoever. Russia 's arguments are thus grounded on an erroneous 
understanding of this final phrase.  
3.2  SECOND SUBPARAGRAPH OF ARTICLE  2(3)  OF THE BASIC REGULATION  
4. Russia next argues that the second subparagraph of  Article  2(3) of the Basic Regulation would 
be inconsistent with  Article  2.2 of the AD Agreement because it would extend the concept of 
"a particular market situation for the product concerned" beyond the situation described in 
the second Supplementary Provision to paragraph 1 of  Article  VI of the GATT 1994. 
The EU notes that the second subparagraph in  Article  2(3) does not oblige  the Commission to 
find that a particular market situation exists when prices are artificially low. Such WT/DS494/R/Add.1  
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  determinations are case -specific, as is demonstrated by the use of the words " may be deemed 
to exist" in  Article  2(3). When a measure is not mandatory, but rather discretionary, a panel 
should conclude that it is not "as such" inconsistent with the covered agreements.1 
5. The phrase "particular market situation" in  Article  2.2 of the AD Agreement mu st not be 
interpreted as solely referring the market of the exporting Member as a whole. Indeed, under  
Article  2.2, it is clear that an investigating authority makes a dumping determination based 
on an investigation with respect to the price of a particula r exported product and a normal 
value established in respect of a particular like product. Hence, the investigation need not 
necessarily focus on the market as a whole, but may pertain to a particular product.  
6. Furthermore, Russia errs when asserting th at the phrase "the particular market situation" in  
Article  2.2 refers solely to a situation covered by the Second Ad Note to  Article  VI:1 of the 
GATT 1994. The alternative approach to determining normal value provided for under the 
Ad Note exists in additi on to the situations covered by  Article  2.2. That these situations exist 
in parallel is clear from  Article  2.7, which provides that  Article  2 "is without prejudice to the 
second Supplementary Provision to paragraph 1 of  Article  VI in Annex I to GATT 1994".  
It simply makes it clear that, in the event of a conflict (and it does not necessarily mean or 
suggest that there is a conflict), the Second Ad Note would prevail to the extent of the conflict. 
This simply means that nothing in  Article  2 of the AD Agreeme nt could ever be construed in 
such a way so as to negate the proper operation of the Second Ad Note.  
3.3  SECOND SUBPARAGRAPH OF ARTICLE  2(5)  OF THE BASIC REGULATION  
7. Russia 's third "as such" claim concerns the second subparagraph of  Article  2(5). Here, Russia 
makes a claim that the Appellate Body already rejected in EU – Biodiesel (Argentina) . Russia 
argues that, because this second subparagraph permits the Commission to use costs other 
than cost of production in the country of origin as evidence for con structing the normal value, 
it would be "as such" inconsistent with  Articles  2.2.1.1 and 2.2 of the AD Agreement.  
8. The Appellate Body has examined the meaning of the phrase "cost of production in the country 
of origin" in  Article  2.2. The Appellate Body  noted that the definition of "cost" refers to the 
expenses paid or to be paid for something. Given that the word "cost" in that provision is 
followed by "of production" and then by "in the country of origin", it concerns a "price paid or 
to be paid to pro duce something within the country of origin".2  
9. The Appellate Body stressed that this definition "does not include a reference to information 
or evidence".3 It indeed does not contain additional words or qualifying language specifying 
the type of evid ence that must be used, or limiting the sources of information or evidence only 
to those sources inside the country of origin. Investigating authorities are thus permitted to 
look for such information on cost of production from sources outside the country,  provided it 
is apt to or capable of yielding a cost of production in the country of origin.4 Information or 
evidence from outside the country of origin may need to be adapted in order to ensure that it 
is suitable to determine a "cost of production" "in the country of origin".5  
10. The Appellate Body also examined  Article  2.2.1.1 of the AD Agre ement. It noted that even if 
that provision identifies the "records kept by the exporter or producer under investigation" as 
the preferred source for cost of production data to be used, it did not " preclude[] information 
or evidence from other sources from  being used in certain circumstances", such as evidence 
from outside the country of origin.6 The Appellate Body clarified that the fact that the second 
sentence of  Article  2.2.1.1 provides that the authorities "shall consider all available evidence 
on the  proper allocation of costs" demonstrates that the "'evidence'" used to establish a "cost" 
can be different from that cost itself".7  
 
1 Appellate Body Report, US – Carbon Steel , paras. 4.477, 4.478 and 4.483.  
2 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.69.  
3 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.69.  
4 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.70.  
5 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.70.  
6 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.71.  
7 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.72.  WT/DS494/R/Add.1  
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  11. Indeed, in circumstances where the obligation in the first sentence of  Article  2.2.1.1 to 
normally calculate the cost s on the basis of records kept by the exporter or producer under 
investigation does not apply, or where relevant information from the exporter or producer 
under investigation is not available, an investigating authority may have recourse to 
alternative bas es to calculate some or all such costs . Article  2.2 does not specify to what 
evidence an authority may resort. Hence, it is "not prohibited from relying on information 
other than that contained in the records kept by the exporter or producer, including in -country 
and out -of-country evidence".8 However, because  Article  2.2 of the AD Agreement and  
Article  VI:1(b)(ii) of the GATT 1994 make clear that the determination is of the "cost of 
production […] in the country of origin", the authority has to ensure tha t such information is 
used to arrive at the "cost of production in the country of origin". This may require it to adapt 
the information.9  
12. Therefore, nothing in the second subparagraph of  Article  2(5) of the Basic Regulation prevents 
the investigating  authority from ensuring that adjusted or established costs represent the cost 
of production in the country of origin. Russia thus errs in claiming that this second 
subparagraph is "as such" inconsistent with the AD Agreement.  
3.4  ALLEGED "COST ADJUSTMENT  METHODOLOGY " 
13. Russia further challenges what it calls "the cost adjustment methodology", allegedly used by 
the European Union in anti -dumping proceedings. However, such a "cost adjustment 
methodology" simply does not exist, and Russia is unable to demo nstrate otherwise.  
14. The Appellate Body has clarified the standard of evidence for an "unwritten norm of general 
and prospective application" in US – Zeroing (EC)10: Russia must clearly establish, through 
arguments and supporting evidence, at least that  the alleged "rule or norm" is attributable to 
the responding Member; its precise content; and its general and prospective application, which 
must go beyond simply showing a string of cases.  
15. Russia relies on a number of provisions in the Basic Regulation that it has not challenged or 
cannot challenge successfully separately. Further, the application of each of these provisions 
is highly fact -dependent and one cannot make generalizations about their prospective 
application. First, the circumstanc es in which data or information in the records of the firm 
may be rejected are highly fact -dependent. This may arise from the failure to respect either 
of the two express conditions set out in  Article  2.2.1.1, but also in other circumstances, 
notably those  captured by the terms "For the purpose of paragraph 2" and "normally" that 
appear in the first sentence of  Article  2.2.1.1. Second, the process of having recourse to 
information from other representative markets is also highly fact dependent. An investiga ting 
authority will consider and weigh all available relevant evidence to establish the normal value. 
Third, and related, whether or not an adjustment to the data relied upon is necessary and has 
been substantiated depends also the substantive facts and th e procedural context at hand. 
Such determinations, which are case -specific, cannot be simply mixed together to claim the 
existence of a "methodology". Russia is thus unable to demonstrate the precise content; or 
the general and prospective application of t he alleged methodology.  
4  CLAIMS CONCERNING THE EXPIRY REVIEW AND THE DECISION ON EXTENSION OF 
ANTI -DUMPING MEASURES IMPOSED BY THE EUROPEAN UNION ON IMPORTS OF 
WELDED TUBES AND PIPES ORIGINATING IN THE RUSSIAN FEDERATION  
16. With regard to Russia 's "as applied" claims in respect of welded tubes and pipes, the 
European  Union disagrees that it acted inconsistently with the AD Agreement in finding that 
the available data on gas prices in Russia could not be used for determining the cost of 
production.  
17. The Appellate Body in EU – Biodiesel (Argentina) did not exclude that there are circumstances 
where data on the cost of production reported by the exporter or producer could not be used. 
It also did not disagree that there are circumstances – beyond th e two instances expressly 
 
8 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.73 
9 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.73.  
10 Appellate Body Report,  US – Zeroing (EC) , paras. 198-204. WT/DS494/R/Add.1  
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  mentioned in  Article  2.2.1.1 – where an investigating authority needs to rely on other evidence 
that the data reported in the exporter or producer 's records to establish normal value.11 The 
Appellate Body in Ukraine – Ammonium Nit rate confirmed this.12 In Regulation 2015/110 – 
the expiry review for welded tubes and pipes – the Commission found that, due to the fact 
that "domestic gas prices in Russia are regulated prices", these prices were "far below market 
prices paid in unregula ted export market for Russian natural gas".13 The Commission thus 
went to look for other reliable data to establish the gas costs in Russia, since the government 's 
direct interference in the domestic gas prices – much more direct than in case of the export  
taxes for soybeans in Argentina – did not allow the forces of supply and demand to play at all. 
Such a process of evidence -gathering and use is perfectly reasonable, since an investigating 
authority cannot be expected to make use of "unrepresentative" inf ormation. It is also 
perfectly consistent with  Article  2 of the AD Agreement, which requires the establishment of 
a normal value based on price or cost data that permits the establishment of a value that is 
"normal", as opposed to price or cost data that i s distorted and unreliable.  
18. Given that the Commission found that the domestic gas price in Russia was distorted, it based 
its normal value determination on "information from other representative markets", namely 
the "average price of Russian gas when sold for export at the German/Czech border 
(Waidhaus).14 Again, this is consistent with the AD Agreement, as the Appellate Body found 
in EU – Biodiesel (Argentina) that investigating authorities are permitted to look for cost of 
production information from  sources outside the country, provided it is apt to or capable of 
yielding a cost of production in the country of origin.15 The Commission also adapted the 
Waidhaus price in order to ensure that it is suitable to determine a "cost of production" "in the 
country of origin"16 and adjusted it for local distribution costs.17 This is entirely consistent with 
WTO law.  
5  CLAIMS CONCERNING THE ANTI -DUMPING MEASURES IMPOSED BY THE EUROPEAN 
UNION ON IMPORTS OF AMMONIUM NITRATE FROM THE RUSSIAN FEDERATION AND 
THE UN DERLYING INVESTIGATIONS  
5.1  CLAIMS WITH RESPECT TO THE PRODUCT SCOPE OF THE APPLICABLE MEASURES  
19. Russia 's product scope claims fail because all relevant product scope determinations were 
made before Russia was a WTO Member, and were not re -examined, mo dified or affected by 
any post -WTO reviews; because all products to which the measure applies were in fact subject 
to the findings of an anti -dumping investigation; and for several reasons of a legal nature.  
20. The anti -dumping duties on AN from Russia we re put in place by Regulation 2022/95, long 
before Russia 's WTO accession. All of the subsequent interim reviews, expiry reviews and 
amendments preceding Regulation 999/2014 were completed before Russia 's accession. In 
Regulation 999/2014, there is no re -examination, new determination, or modification of 
product scope. It simply takes over the product scope that was defined by earlier 
determinations, to which WTO law does not apply.  
21. The WTO agreements govern only trade relations between  Members.  Article  18.3, which sets 
the temporal scope of the AD Agreement (including its application to measures in existence 
when Russia acceded to the WTO), determines when the obligations  on the imposing member 
kick in, but also when the rights  of the exporting member kick in. It is not just because a 
measure continues after WTO accession that WTO law will apply.18 It only applies to post -WTO 
investigations and reviews. Unless a post -WTO r eview re -does or modifies them, to subject 
pre-WTO assessments or determinations to the ADA would mean to violate  Article  18.3 and 
to apply WTO law retroactively. The issue of product scope in this case is "an aspect governed 
solely by a pre -WTO determinat ion,"19 which is outside the scope of the post -WTO review, and 
 
11 Appellate Body Report, EU – Biodiesel (Argentina),  para. 6.18 (footnote 120).  
12 Appellate Body Report, Ukraine – Ammonium Ni trate, para. 6.87.  
13 Commission Implementing Regulation (EU) 2015/110, recital 69.  
14 Commission Implementing Regulation (EU) 2015/110, recital 69.  
15 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.70.  
16 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.70.  
17 Commission Implementing Regulation (EU) 2015/110, recital 69.  
18 Panel Report, US – DRAMs , para. 6.14.  
19 Panel Report, US – DRAMs , para. 6.16.  WT/DS494/R/Add.1  
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  therefore, under  Article  18.3 of the AD Agreement, not subject to any of the disciplines of the 
AD Agreement.20 By analogy with the Appellate Body 's findings in Brazil – Desiccated Coconut , 
the same is true for all provisions of the covered agreements, in particular  Articles  I, II and  VI 
of the GATT 1994.  
22. Even if the provisions cited by Russia applied, quod non , Russia 's claims would fail because 
they are premised on the incorrect assertion  that the European Union 's investigations, 
dumping and injury determinations on imports of AN were not conducted with respect to 
"IGAN" and "stabilised AN". Neither the review leading up to Regulation 999/2014 nor any 
other review "extended" the measure to  AN used for industrial purposes. IGAN was always 
equally covered by the definition of the product scope. The end -use was never a defining 
criterion for product scope. Indeed, "IGAN" can be used for agricultural purposes. Regarding 
stabilised AN, Regulatio n 999/2014 applies only to that part of its content which corresponds 
to the product concerned (i.e. AN content together with marginal substances and nutrients). 
The original investigation, all subsequent reviews, and all relevant dumping and injury 
determ inations, covered the product concerned (ammonium nitrate), and hence also the part 
of the content of the "new product types" referred to in Regulation 945/2005 which 
corresponds to that product concerned.  
5.2  FIRST CLAIM: APPLICATION OF MEASURES ON IGAN  AND STABILISED AN 
23. First, even if certain WTO disciplines apply to the original product scope determination, they 
are not directly relevant to an expiry review. Second, even with respect to original 
investigations, the AD Agreement contains limited obligations with respect to the definition of 
the product concerned.21 Russia 's claims under  Articles  1 and 18 of the AD Agreement, and 
under  Article  VI of the GATT, are, in essence, consequential, and the Panel should either 
dismiss them. With res pect to  Article  2 of the AD Agreement, Russia fails to explain any 
inconsistency with the specific subparagraphs of that provision. With respect to injury, Russia 
similarly lists a number of subparagraphs of  Articles  3 and 4 without specifically explaining  
where it sees inconsistencies. Russia 's claims under  Articles  9.1 and 9.3 follow a similar 
pattern.  Article  9.1 does not concern product scope, nor any obligation to conduct an 
investigation or make dumping or injury determinations. Finally, Russia 's clai ms under  
Articles  I and II of the GATT 1994 are entirely consequential, and based on the assumption 
that there is a violation of  Article  VI of the GATT 1994, which is in turn allegedly also a 
consequence of inconsistencies with certain provisions of the AD  Agreement, which have not 
been shown.  
5.3  SECOND CLAIM : INITIATION OF THE EXPIRY REVIEW THAT LED TO REGULATION 999/2014  
24. Russia 's reading of  Articles  11.3, 12.3, 12.3, 12.1.1 and 5.3 of the AD Agreement incorrectly 
conflates the requirements for original investigations with the requirements for expiry reviews, 
and the requirements for expiry review determinations with the requirements for initiation 
requests by the interested parties. As the Appellate Body explained, the nature of  the 
determination to be made in a sunset review differs from the nature of the determination to 
be made in an original investigation. Those determinations are prospective in nature.22 In 
addition, a clear distinction must be drawn between merely initiatin g an expiry review and 
concluding  it with a positive determination. It is only through the expiry review itself, and 
certainly not prior to initiation , that the authority can properly assess the relevant information 
and evidence to the standard expected fo r concluding a determination.  
25. Article 5, including  Article  5.3, does not apply to requests for an expiry review.23 Expiry 
reviews and original determinations are distinct processes with distinct purposes.24 The 
Article  11.3 requirement that review req uests must be "duly substantiated" entails a less 
demanding standard than the "sufficient evidence" standard in  Article  5.6. It requires merely 
the provision of evidence in support of a finding of likelihood of recurrence or continuation of 
 
20 Panel Report, US – DRAMs , para. 6.17.  
21 Panel Report, EC – Salmon (Norway) , para. 7.48. See also Panel Reports, US – Softwood Lumber V , 
para. 7.157.; Korea – Certain Paper , para. 7.219.  
22 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 341.  
23 Panel Report, US – Corrosion -Resistant Steel Sunset Review , para. 7.27. 
24 See Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para. 105.  WT/DS494/R/Add.1  
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  dumping and inj ury, in accordance with proper procedural requirements. This interpretation 
also finds support in the text of  Article  11.2 of the AD Agreement, referring to requests by 
interested parties which merely "submit positive information substantiating the need fo r a 
review". Moreover, unlike  Articles  11.2 and 5.3,  Article  11.3 only requires requests to be "duly 
substantiated" with respect to the issue dealt with in an expiry review: whether the expiry of 
the duty would be likely to lead to continuation or recurren ce of dumping and injury.  
26. Article 12 does not concern evidentiary standards, but merely the public notice of various 
measures taken by the investigating authority.25 Neither  Article  12, nor  Article  5, nor  
Article  11.3 impose any obligation that the ev idence contained in a request to initiate an expiry 
review must be sufficient to support the allegation that the expiry of the duty would be likely 
to result in continuation or recurrence of dumping and injury.  
27. The assertion that the EU accepted an ex piry review request of Fertilizers Europe in which the 
industry requested to extend the anti -dumping measures on imports of Stabilised AN and 
IGAN is factually incorrect. The expiry review request that it simply refers to the same "product 
concerned" as de fined in existing anti -dumping measures. Russia has not shown that the 
expiry review request relied on "Stabilised AN data" related to Kirovo, but even if Russia was 
correct, the fact that certain additional data were included in the expiry review request does 
not show any WTO -inconsistency.  
28. Regarding the claim that the EU acted inconsistently with  Article  11.3 by initiating an expiry 
review, because the expiry review request included data on the state of the domestic industry 
manufacturing FGAN and da ta on Russian imports of FGAN, IGAN and Stabilized AN, first,  
Article  11.3 imposes no requirement that expiry review requests must be "even -handed" or 
"sufficient" to justify the initiation. The alleged limitation of the data on the domestic industry 
to "F GAN" is factually incorrect and unsupported by the evidence. Even if there were 
differences in the product ranges of the domestic and exporting industries, this would not 
mean that the expiry review request or the mere decision to initiate an expiry review  are 
WTO-inconsistent. Neither  Article  11.3, nor any other provision of the AD Agreement, require 
the make -up of the product concerned and the like product to be identical.26  
5.4 THIRD CLAIM : THE EUROPEAN UNION DID NOT ERR BY FAILING TO CONDUCT A SEPARATE  EXPIRY REVIEW FOR THE 
IMPORTS OF KIROVO 
29. Regulation 999/2014 assesses the likelihood that the dumping and injury will recur, with the 
same product scope as defined previously. There was no reason to conduct separate likelihood 
determinations for Kirovo  and for other producers. The Appellate Body has found that there is 
no such requirement.27 Article  11.1 "does not impose independent obligations upon 
Members"28 and is disconnected from the specific concern for "single" or "separate" expiry 
reviews. Russi a has failed to show that the European Union somehow flouted the evidentiary 
requirements of  Article  11.3. Regarding  Article  3, the Appellate Body found that "the 
obligations set out in  Article  3 do not apply to likelihood -of injury determinations in sunse t 
review."29 The claims under  Articles  1 and 18.1 of the AD Agreement appear to be purely 
consequential.  
5.5  FOURTH CLAIM : THE EUROPEAN UNION DID NOT ERR BY FAILING TO CORRECTLY DEFINE THE DOMESTIC INDUSTRY 
AND DID NOT RELY ON ERRONEOUS OR INCOMPLETE DATA  
30. From the very beginning, the Union industry was defined as all known producers of AN in the 
Union during the period considered.30 It is incorrect that the Commission defined the domestic 
industry as consisting solely of producers of FGA N. Even the request to initiate the expiry 
review was supported by Union producers of ammonium nitrate both for agricultural and 
 
25 Panel Report, US – Corrosion -Resistant Steel Sunset Review , para. 7.33. 
26 Panel Reports, EU – Footwear (China) , para. 7.314; EC – Bed Linen (Article 21.5 – India) , 
para. 6.176.  
27 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para. 155.  
28 Panel Report, US - Shrimp II (Viet Nam) , para. 7.363.  
29 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 285.  
30 Regulation 999/2014 (Exhibit RUS -66), recital 98.  WT/DS494/R/Add.1  
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  industrial uses, and a number of the producers that did form part of the EU domestic industry 
produced "IGAN".  
31. The Commiss ion used the evidence contained both in the April 2014 and in the May 2014 
submissions, depending on how reliable, complete and relevant it was. In any event, both sets 
of data included all product types produced by the Union industry. Finally,  Article  2.6 does not 
require the make -up of the product concerned and the like product to be identical in every 
respect and in every sub -category. Russia 's consequential claim that the Commission 's 
analysis was not based on an objective examination of the positive ev idence on the record, 
contrary to  Articles  3.1, 3.2, 3.4 and 11.3 should thus also be rejected. As to sampling, the 
EU domestic industry was defined as all known producers of the like product in the EU during 
the period under consideration. All companies i n the sample were part of the domestic industry 
so defined prior to the selection of the sample, and were supporters of the expiry review 
request. Russia 's Article  4.1 claim must be rejected because the definition of the domestic 
industry took into account  all known EU producers of the like product, including in particular 
a number of EU producers of "IGAN". Russia has not shown why any of the alleged errors gave 
rise to any risk of distortion of the Commission 's assessment of the likelihood of recurrence o f 
injury. Russia fails to explain why the May 2014 dataset is "internally incoherent and 
erroneous", or what data it omits.  
5.6  CLAIMS WITH RESPECT TO THE DETERMINATION OF THE LIKELIHOOD OF RECURRENCE OF DUMPING  
32. There is no obligation to calculate or rely on dumping margins in making a determination of 
likelihood of continuation or recurrence of dumping, and  Articles  2 and 3 of the AD Agreement 
are not directly applicable to a determination under  Article  11.3.31 In the context of a 
determi nation of the likelihood of recurrence of dumping in expiry review, it would not make 
sense to require investigating authorities to find that dumping existed or continued since the 
imposition of the measure. In an expiry review, the disciplines of  Articles  2 are relevant only 
when the authority actually " relied  upon [a WTO -inconsistent dumping margin calculation 
methodology ] to support its likelihood -of-dumping or likelihood -of-injury determination."32 
Otherwise, in expiry reviews, authorities can rely on e vidence relating to dumping since the 
imposition of the order drawn from a variety of sources, including "evidence of the existence 
of dumping in another jurisdiction." 33 In a recurrence determination, a finding of present 
dumping may be relevant but is b y no means required. It is possible to find the absence of 
present dumping in the importing Member 's market, for example when imports take place 
under a price undertaking, as in this case.  
33. The Commission was not required, when engaging in a likelihood  determination, to engage in 
any dumping margin calculations, and it did not purport to do so, as clearly and repeatedly 
explained in Regulation 999/2014. The Commission compared the weighted average ex -works 
price of Russian producers ' exports to certain third countries with the actual average domestic 
ex-works prices.34 It is clear that this is not meant to be a determination of dumping as 
foreseen by  Article  2 of the AD Agreement. It is, however, pertinent evidence related to 
dumping in the context of a likelihood analysis.  
5.7  NINTH CLAIM : THE EUROPEAN UNION DID NOT ERR BY FAILING TO EXAMINE THE IMPACT OF THE ALLEGED ABSENCE 
OF DUMPING BY THE LARGEST RUSSIAN EXPORTERS  
34. Regulation 999/2014 clearly explains why the analysis of the likelihood of recurrence of 
dumping was not based on the export prices of the Russian producers to the European Union 
market, or on any determination of dumping with respect to those prices. In the period under 
review, they either did not make any sales to the EU, or we re subject to a price undertaking 
which set a minimum price. In this case, sales made under the price undertaking were not a 
reliable element in assessing whether dumping would be likely to continue or recur. The price 
undertakings are part of the very mea sures whose possible expiry is examined in the review. 
Acron 's sales were considered unreliable also because, for a part of the period under review, 
 
31 Panel  Report, EU – Footwear (China) , para. 7.157; Appellate Body Report, US – Corrosion -Resistant 
Steel Sunset Review , para. 127. 
32 Appellate Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods , para. 181.  
33 Panel Report, US – Corrosion -Resistant Steel Sunset Review , para. 7.180.  
34 Regulation 999/2014 (Exhibit RUS -66), r ecitals 57 -58. WT/DS494/R/Add.1  
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  it was the sole Russian supplier to the EU market. Moreover, out of the sampled producers, 
only Acron was f ound to have fully cooperated. This was another reason why the Commission 
was not in a position to rely on their export prices.35 Russia 's claim #9, as well as all the 
specific arguments it raises in support thereof, must be rejected.  
5.8  ELEVENTH CLAIM : THE EUROPEAN UNION DID NOT ERR BY FAILING TO CONDUCT DUMPING MARGIN CALCULATIONS 
ACCORDING TO ARTICLE  2 OF THE AD AGREEMENT  
35. The eleventh claim seems to be limited to whether the EU acted inconsistently with the AD 
Agreement when allegedly determining the existence of dumping of Russian AN imports into 
third countries. The EU was not required to conduct any dumping margin calculations, and it 
did not engage in any affirmative determination of dumping. Despite the references to sales 
at "dumped prices", there was no attempt to make an affirmative determination of (present) 
dumping in third country markets, but merely a reliance on evidence related to dumping: the 
difference between average ex -works domestic prices and average ex -works export prices.  
36. Even assuming that  Articles  2.1, 2.2 and 2.4 applied ( quod non ), Russia does not spell out 
what exactly the specific inconsistency with those provisions consists in. Russia 's claim under  
Article  VI:1 of the GATT 1994 is, in essence, consequential.36 
5.9  CLAIMS WITH RESPECT TO THE CONTINUOUS LEVYING OF THE ANTI-DUMPING DUTIES 
37. Russia makes three claims with regard to the levying of antidumping duties on AN from Russia. 
It first claims that the levying of anti -dumping duties for EuroChem is inconsistent w ith 
WTO law. Yet, the level of anti -dumping duties is based on Regulation 2018/1722, which based 
the duty level on the injury margin calculated in the 2018 interim review and not on a dumping 
margin. Since the duty levied on the imports of AN of EuroChem i s not based on the dumping 
margin, it is not affected by an alleged inconsistency in the manner in which such dumping 
margin would be calculated.  
38. The preceding regulations on which Russia seeks to rely do not support Russia 's claim. 
Regulation 999/2014  did not involve a dumping margin determination. At no point in that 
Regulation did the Commission make a "cost adjustment" that Russia now seeks to challenge. 
Further, the 2008 partial interim review in Regulation 661/2008 was made before Russia was 
a WTO  Member, and thus before the WTO obligations applied in the relations between the EU 
and Russia.37 What is more, even if the WTO obligations would apply to this determination, it 
was entirely reasonable and WTO -consistent for an investigating authority to reject unreliable 
gas cost information and make use of the adjusted Waidhaus price to construct the normal 
value of AN. The Commission relied on the average price of Russian gas when sold for export 
at the German/Czech border, adjusted for transport costs as the source of information to 
determine what the undistorted gas prices would be if the forces of offer and demand were 
able to play in Russia.38 
39. Second, Russia claims that the "extension" of the duration of the anti -dumping duties on 
imports of AN f rom Russia, done by the third expiry review of 2014, is inconsistent with  
Article  11.3 of the AD Agreement. Yet, the level of duties imposed on AN from Russia is not 
based on the 2014 expiry review, but rather the 2018 interim review in Regulation 
2018/172 2.39 Russia has not claimed any WTO inconsistency with regard to this Regulation. 
Moreover, the third expiry review in Regulation 999/2014 did not contain any dumping 
determination. Given the distinct nature of an expiry review, the obligations in the 
AD Agreement that apply in respect of original investigations do not simply transpose.40 There 
is no obligation to calculate or rely on dumping margins in an expiry review.41 It can thus not 
 
35 Regulation 999/2014 (Exhibit RU S-66), recital 53.  
36 See, for example, Panel Reports, US – Zeroing (Japan) , paras. 7.171 -7.175; US – Zeroing (EC) , 
paras. 7.34 and 7.109.  
37 Panel Report, US – DRAMs , para. 6.14.  
38 Council Regulation (EC) No 661/2008, recital 35.  
39 See Articles  1 and 2 of Commission Implementing Regulation (EU) 2018/1722.  
40 Panel Report, US – Corrosion -Resistant Steel Sunset Review , para. 7.8.  
41 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para. 123. See also Panel 
Report, US – Oil Country Tubular Go ods Sunset Reviews (Article 21.5 – Argentina) , para. 7.34.  WT/DS494/R/Add.1  
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  be affected by an alleged inconsistency in the manner in which such d umping margin would 
be calculated. The only measure in which a dumping margin was calculated was the 2008 
second expiry review in Regulation 661/2008. This measure could not be WTO inconsistent 
because it pre -dates the time when the WTO obligations apply b etween the EU and Russia, 
and, in any event, contains a WTO -consistent use of reliable evidence by the Commission to 
determine normal value.  
40. Third, Russia also makes a claim with respect to the levying of the country -wide anti -dumping 
duties, challeng ing (i) the no longer applicable AD duties calculated in the 2002 
Regulation  658/2002 on the basis of the non -market -economy ("NME") provisions that existed 
at the time in the Basic Regulation, as well as (ii) the AD duties currently applied pursuant to 
Regulation 1722/2018. Yet, when the Commission made the dumping margin determination 
in 2002, Russia was not a WTO Member. The AD Agreement thus did not apply between the 
EU and Russia. Therefore, the approach for determining the normal value in 2002 cannot be 
WTO-inconsistent. Since this determination was not inconsistent with WTO law in 2002, no 
WTO-inconsistency could be "prolonged" or "exist" in 2018. In any event, since 
Russia 's WTO accession, the EU did not apply the NME provisions in the Basic Regulati on to it 
at any given point of time.  
41. The Commission only assessed injury in the 2018 interim review, and made no determination 
of dumping. The Commission was indeed not obliged to do so.42 In Regulation 1722/2018, the 
Commission calculated the injury margin and set the level of the duties on that basis, at 
32,71  EUR for normal AN.43 Hence, it did not involve the use of the NME provisions that applied 
to Russia in 2002. Even if it would be p ermissible to subject an aspect of a pre -WTO measure 
that is not covered by the scope of post -WTO review to scrutiny under WTO law, Russia has 
not demonstrated that the 2018 duties are imposed at a rate that is higher than the dumping 
margin that would hav e been established had the authority acted – in Russia 's view – 
consistently with  Article  2 of the AD Agreement.  
5.10  LIKELIHOOD OF RECURRENCE OF INJURY  
42. With respect to injury, the EU explained that the likelihood of recurrence of injury analysis 
that supports the levying of AD today is contained in the partial interim review made in 
Regulation 2018/1722. Therefore, to the extent Russia has misgivings about the likelihood of 
injury determination in the 2014 Regulation, these concern a past likelihood of injury 
determination that is no longer in existence or relevant. The Panel must not make any 
recommendations with regard to that determination.44 The likelihood of recurrence of injury 
determination was updated in the 2018 Regulation. Given that Russia has not made any claims 
or arguments with regard to the conduct of the likelihood of recurrence of injury determination 
in Regulation 2018, the Panel cannot make findings or recommendations with regard to that 
determination either.  
43. In any event, the EU  has shown that no price undercutting calculations were made, or were 
even obliged to be made under WTO law45, as part of the likelihood of recurrence of injury 
determination in Regulation 999/2014. Russia 's claims based on alleged price undercutting 
calculations are thus baseless in fact and law.  
44. The likelihood of recurrence of injury analysis made in the 2014 Regulation is different from 
an undercutting analysis under  Article  3 of the AD Agreement. In the 2014 expiry review, the 
Commission determined what would likely happen if the measures would lapse. This is a 
"forward -looking" analysis46 based on reliable evidence about pricing, together with data on 
consumption, spare capacity, trade flows and attractiveness of the Union market. Given that 
the ana lysis is about what "likely" will happen in the future, it cannot have the same degree 
of precision as an injury analysis in an original determination. Moreover, given that the 
 
42 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para. 123.  
43 Commission Implementing Regulation (EU) 2018/1722, recital 173.  
44 See Appellate Body Report, US – Certain EC Products , paras. 81 and 129.  
45 See Panel Report US – Oil Country Tubular Goods Sunset Review , para. 7.273, referring to Appellate 
Body Report, US – Corrosion -resistant Steel Sunset Review , para. 123. See also Appe llate Body Report, US – 
Oil Country Tubular Goods Sunset Review , paras. 281, 284.  
46 Appellate Body Report, US – Oil Country Tubular Gods Sunset Reviews , para. 341. WT/DS494/R/Add.1  
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  Commission found that the domestic industry was, during the investigated period , not in an 
injurious position (thanks to the measures in place), it could not make a price undercutting 
determination. The Commission did not examine – and was not required to examine – whether 
price undercutting was taking place or what its exact degree would be.  
45. Furthermore, the Commission 's conduct in the likelihood of recurrence of injury determination 
shows no inconsistencies with WTO law. Its determination was based on a representative 
sample composed of producers representing around 42% of the U nion production and 41% of 
Union sales, producing FGAN as well as other AN products, including IGAN and ensuring a 
differentiated geographic location. This determination rested on reliable data, verified by 
means of on -the-spot investigations and by cross -checking. There was also no significantly 
divergent economic performance between sampled and non -sampled producers.  
46. The Commission also correctly found that the non -injurious state of the EU domestic industry 
was not sustainable. Indeed, on the basis o f positive evidence, the Commission found 
decreasing EU consumption; a business circle that was projected to decline and stable or 
further increasing production costs. The EU demonstrated that none of the alleged "evidence" 
that Russia purports to rely on undermines this.  
47. The EU demonstrated that there was positive evidence supporting the Commission 's 
conclusions regarding spare capacities, the ability of third country markets to absorb additional 
Russian exports and the incentives for redirecting Russi an exports to the EU in case the 
measures would be removed. The Commission did establish the required nexus between the 
expiry of the duty and the likelihood of recurrence of injury based on an objective analysis of 
the positive evidence before it.  
5.11  CLAIMS WITH RESPECT TO THE CONDUCT OF THE EXPIRY REVIEW INVESTIGATION   
48. In claim #16, Russia refers to certain occasions on which the Commission allegedly failed to 
make available non -confidential written evidence to Russian exporters in a timely manner . 
Some time was needed to process and prepare documents, as well as to assess whether to 
accord confidential treatment. Russia either overinflates the alleged delays, misattributes 
them to the Commission, or challenges reasonable delays of several days. In  some instances, 
Russia does not even refer to any particular piece of evidence or information. In any event, 
Russia does not explain why RFPA 's ability to defend its interests or prepare presentations 
was circumscribed. For all these reasons, Russia 's claims under  Articles  6.1.2 and 6.4 must 
be rejected.  
49. As to claim 17 (essentially based on  Articles  6.4 and 6.1.3), all of the information contained 
in the expiry review request, together with additional information, was available to the 
interested partie s as of the date of initiation.  Articles  6.1.3 and 6.4 refer to "information" and 
"text", and not to particular submissions or documents. Moreover, even if there were any 
material changes between the original request and consolidated request, such that cer tain 
information was omitted ( quod non ), this would simply mean that the omitted information 
was not used. The consolidated request was compiled in response to the Commission 's request 
for clarifications, and it was the consolidated version of the request which was used for the 
purposes of the expiry review.  
50. In claim #18, Russia identifies two instances of alleged improper confidential treatment of the 
source, or authors, of certain reports. However, the record shows that the Commission 
required and ass essed good cause, both in general and with respect to the specific information 
at issue. Claim #19, under  Article  6.5.1, is largely unrelated to confidentiality, but rather to 
whether or not the document contains certain information that Russia, or RFPA, w ould like it 
to contain. Other information is either clearly available to RFPA, or is treated as confidential 
to avoid harming the companies ' competitive position and appropriately summarised into 
groups of companies to which the information relates. For i njury indicators, Russia fails to 
specify which data the claim relates to; in any event, the cited submissions provide information WT/DS494/R/Add.1  
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  in a summarized form (aggregate figures) that is meaningful, especially since the injury 
assessment is made with respect to t he industry as a whole.47 
51. Claim #20 concerns the use of facts available. However, neither  Article  6.8 nor Annex II of 
the AD Agreement apply, because the Commission did not base itself on "facts available". 
All the determinations Russia cites are based  on facts and evidence received from the Russian 
interested parties.  
52. Claim #21 under  Article  6.9 should be rejected, first, because Russia does not specify which 
specific information is at issue. Regarding the source of some (unspecified), information  Russia 
has not even attempted to show why the source is an essential fact.48 In any event, the 
Definitive Disclosure explains all relevant sources.49  
53. Claim #22 should be rejected because, first, the majority of Russia 's complaints do not 
concern the Commission 's public notice, but disclosure of information during  the review 
proceedings; second, because Russia fails to make a single specific reference to any 
"calculation", "figure", or finding related to product scope contained in Regulatio n 999/2014, 
or explain why interested parties or the public were "unable to understand" something; third, 
because Russia appears to be simply recycling its substantive claims.50 
 
47 Panel Reports, Argentina – Ceramic Tiles , para. 6.48; EU – Footwear (China) , paras. 7.730 
and 7.779; 7.458.  
48 Appellate Body Report, Russia – Commercial Vehicles , para. 5.220.  
49 Exhibit RUS -78 (BCI), recital 66 and fn 25; Tables 1 -3. 
50 Panel Reports, EC - Salmon (Norway) , para. 7.831; EC – Bed Linen , para. 6.259.  WT/DS494/R/Add.1  
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  ANNEX B -3 
SECOND INTEGRATED EXECUTIVE SUMMARY OF THE ARGUME NTS OF THE RUSSIAN FEDERATION  
1 INTRODUCTION  
1. In this second integrated executive summary Russia summarizes arguments presented to the 
Panel in its second written submission, its opening and closing oral statements at the second 
substantive meeting and i ts responses to the Panel's questions after the second substantive meeting.  
2 THE FIRST SUBPARAGRAPH OF ARTICLE  2(3) OF THE BASIC REGULATION  IS 
INCONSISTENT WITH ARTICLE  2.2 OF THE ANTI -DUMPING AGREEMENT 
(AD AGREEMENT ) 
2. First, contrary to the EU's assertions, Russia has provided arguments and supporting evidence 
which clearly demonstrate that the phrase "provided that those prices are representative" in the first 
subparagraph of  Article  2(3) of the Basic Regulation applies to both alternative method s of normal 
value determination, including its construction on the basis of "the cost of production in the country 
of origin". This has been confirmed by the text of the challenged measure, its structure and 
architecture, as well as its context and evidenc e, including multiple examples of the  EU anti-dumping 
investigations.  
3. The evidence provided by Russia clearly demonstrates that, when the  EU authorities are 
tasked to determine normal value, they, initially, calculate costs. When the  EU authorities ref er to 
the construction of normal value and calculate the cost of production, they assess costs and prices 
for inputs as to whether these costs or prices are "distorted". The  EU authorities accept only those 
prices and costs which are considered as not "dis torted", i.e. "representative". The terminology used 
by the  EU in specific anti -dumping investigations provides a clear indication regarding the applied 
provisions of the Basic Regulation, including the first subparagraph of  Article  2(3). In this regard, 
contrary to the EU's allegations, all evidence provided by Russia is relevant  for the Panel's 
examination of the challenged measure and determination on its inconsistency with  Article  2.2 of 
the AD Agreement.  
4. Second, the EU's assertions regarding irrele vance of the 2002 European Commission's 
statement (Statement) are manifestly wrong. It is relevant for interpretation of the Basic Regulation 
and the  EU cannot rely on its municipal law to degrade the relevance of this Statement in this 
proceeding. In any event, references provided by the  EU to its Court decisions do not support its 
position as they do not even address the circumstances, where the European Commission, being an 
initiator of a proposal to the Council, provided comments on its proposal with re spect to draft 
provisions of the EU's legislation that it would subsequently apply once they enter into force. Also, 
the Statement should not be read in isolation from the first subparagraph of  Article  2(3). 
The Statement clarifies that the requirement of "not being distorted" covers both "prices and costs". 
It refers to  Article  2(3), second subparagraph where "a particular market situation" is determined 
through "artificially low prices" and also refers to  Article  2(5), second subparagraph, where the term 
"costs" is used in the phrase "costs associated with the production and sale of the product under 
investigation".  
5. Accordingly, to make its determination of whether the challenged measure is 
WTO-inconsistent, the Panel is required under  Article  11 of th e DSU to conduct an objective 
assessment of all arguments and evidence, including the detailed examination of the first 
subparagraph of  Article  2(3) of the Basic Regulation.  
6. Third, to establish the scope of application of the phrase "provided that those  prices are 
representative" in the first subparagraph of  Article  2(3), it is necessary, first, to analyze the whole 
text of the challenged measure and all words in it, including terms "representative". Only after that 
exercise conclusions on the scope of a pplication of the first subparagraph of  Article  2(3) can be 
made.  WT/DS494/R/Add.1  
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  7. Fourth, the change of the pronoun "these" to pronoun "those" in  Article  2(3) in Council 
Regulation (EC) No 384/96 of 22 December 1995 was not purely a linguistic change or purely a 
linguistic improvement. It was substantive legal amendment  to the text of the first subparagraph 
of Article  2(3) of the Basic Regulation. Further, the placement of the words "provided that those 
prices are representative" both after the words "the export prices" and "the cost of production" 
indicates that this phrase applies to both methods of determination of normal value.  
8. Fifth, the term "repre sentative" in the first subparagraph of  Article  2(3) of the Basic Regulation 
is different from the term "representative" in  Article  2.2 of the  AD Agreement. The same terms used 
both in the municipal law and WTO Agreements do not necessarily have the same m eaning.1 
The meaning of the term "representative" in the Basic Regulation includes "undistorted". However, 
in Article  2.2 of the  AD Agreement the term "representative" means as typical export price that is 
charged by the exporter under investigation for t he like product exported to an appropriate country.  
3 THE SECOND SUBPARAGRAPH OF ARTICLE  2(3) OF THE BASIC REGULATION IS 
INCONSISTENT WITH ARTICLE  2.2 OF THE AD  AGREEMENT  
9. Russia strongly objects to the EU's request for the application of the concept of the 
mandatory/discretionary distinction in this dispute. Russia disagrees with the use of this analytical 
tool by the Panel. The DSU does not require panels and the Appellate Body to use the 
mandatory/discretionary distinction in their examination of the c hallenged legislation. Despite the 
fact that the concept of the mandatory/discretionary distinction was developed prior to the adoption 
of the WTO Agreement, drafters did not include in  Article  6 or Article  7 of the DSU a provision that 
would confirm their  intention to use this distinction as a preliminary jurisdictional matter or as an 
analytical tool in determining whether the challenged legislation is WTO -inconsistent.  
10. Irrespective of whether the measure is mandatory or discretionary, its existence means that 
it was adopted in order to be applied and it will be applied in the future. The existence of the 
WTO-inconsistent measure has an impact on the market participants engaging in international trade 
because such a measure reduces security and predic tability of the business environment and, thus, 
affects market participants' plans for future trade. In addition, drafting a legislative provision by 
using language that creates the appearance of a "discretionary" provision could be used as a 
strategic app roach to circumvent WTO obligations and to avoid scrutiny of such legislation by panels 
and the Appellate Body in WTO dispute settlement system. The Panel should not allow the  EU to 
avoid scrutiny of its measures. Without prejudice to this principal positi on, Russia has substantiated 
that the second subparagraph of  Article  2(3) of the Basic Regulation is not discretionary in spite of 
its appearance, but of mandatory nature.  
11. The EU again disregards the evidence provided by Russia. This evidence confirms that the 
second subparagraph of  Article  2(3) of the Basic Regulation directly addresses a situation in which 
the price of "inputs" which is deemed by the  EU investigating authorities "artificially low" results in 
the construction of normal value. Russia explained in details that  Article  2 of the  AD Agreement 
concerns only "the product under consideration" or "the like product", not its input. All circumstances 
entitling an investigating authority to resort to the construction of normal value under  Article  2.2 of 
the AD Agreement are directly related to the like product , and not its input. Russia recalls that 
conditions under  Article  2.2 of the  AD Agreement permit neither an analysis of whether market 
signals properly reflect supply and demand, nor a comparison of the price of the product concerned, 
including its inputs, with prices in other countries or with world -market prices. If drafters intended 
to describe a condition requiring such an analysis or a comparison, they would have explicitly 
reflec ted that in the text of the provision. Thus, there is no legal basis for such an analysis or 
comparison under  Article  2.2 of the  AD Agreement. Russia has substantiated with reference to the 
Vienna Convention that the word "distorted" does not exist in the legal text of the  AD Agreement. 
Neither  Article  2.2, nor  Article  2.2.1.1 of the  AD Agreement contain a test that permit an 
investigating authority to examine conditions on the market of the exporting country and determine 
whether "distortions" exist. This provision concerns only the calculation of costs of the investigated 
producers or exporters and examination of their records. The  EU fails to rebut Russia's arguments 
and substantiating evidence in this regard. Therefore, the EU's position that "Article 2. 2 of the 
Anti-Dumping Agreement permits the rejection of domestic prices on the grounds that a cost 
 
1 Panel Report, US – Section 301 Trade Act , para. 7.20.  WT/DS494/R/Add.1  
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  underpinning such domestic price is not consistent with a relevant provision of  Article  2.2" must be 
rejected in its totality.  
12. Russia provided its inte rpretation of the term "the particular market situation" in accordance 
with Article  31 of the Vienna Convention and demonstrated that this term refers to the special 
situation in a market of a WTO Member as a whole. The text of  Article  2.2 of the  AD Agreem ent 
strongly indicates that there is only one "particular market situation", it is not "concept", and that 
drafters of the  AD Agreement knew exactly to what particular situation this term refers. This is the 
only interpretation which results from the prope r application of the customary rules of interpretation 
of public international law in accordance with the first sentence of  Article  17.6(ii) of the  
AD Agreement, and thus the second sentence of  Article  17.6(ii) of the  AD Agreement does not apply. 
The EU's failure to interpret the term "the particular market situation" in accordance with  Articles  31 
and 32 of the Vienna Convention results in its failure to rely on a "permissible interpretation" under 
the second sentence of  Article  17.6(ii) of the  AD Agreemen t. It follows that the EU's arguments must 
fail.  
4  THE SECOND SUBPARAGRAPH OF ARTICLE  2(5) OF THE BASIC REGULATION IS 
INCONSISTENT WITH ARTICLES  2.2 AND 2.2.1.1 OF THE AD  AGREEMENT  
13. Russia reiterates its principal position  that according to the legal text of the DSU every 
dispute before a panel must be resolved on its own merits. Each and every dispute submitted to the 
DSB is unique . The fact that a Member has previously tried to prove nullification or impairment of 
its ben efits accruing from the  AD Agreement and did not succeed in no way can predetermine the 
outcome of a dispute initiated by another WTO Member. This is a fundamental right guaranteed to 
WTO Members by the DSU. The  EU fails to rebut Russia's position.  
14. Without prejudice to this principal position and for the sake of completeness Russia submits 
that contrary to the EU's allegation that "Russia has not identified any difference or any relevant 
difference between the two cases"2, Russia provided extensive ar guments and evidence 
substantiating that there are differences between the dispute before this Panel and  EU – Biodiesel 
(Argentina) .  
15. Russia has substantiated that (1) the challenged provision of the second subparagraph of  
Article  2(5) of the Basic Reg ulation requires the specific order  of "bases" for the "adjustment" or 
"establishment" of the costs; (2) alleged "distortions" due to government regulation in the country 
of origin of the product under consideration are disqualifications  for the use of bot h (i) recorded 
input prices of the investigated producers and (ii) available cost data of other producers or exporters 
in the same country; (3) when the correctly recorded input cost data is "adjusted" or "established" 
by the  EU authorities to eliminate th e alleged "distortion" due to government regulation in the 
country of origin of the product under consideration, the second requirement to "adjust" the input 
cost data of the third representative country or market downward to reflect the cost of production  
in the country of origin would have made the first "adjustment" or "establishment" meaningless  
since the very reason  of rejecting of domestic prices and costs are the alleged "distortions"; (4)  the 
measure at issue prevents the EU authorities from complia nce with  Articles  2.2.1.1 and 2.2 of the  
AD Agreement; (5)  the measure at issue does not require to adapt  the surrogate input price or 
the cost of production which resulted from the adjustment or establishment on "any other reasonable 
basis, including info rmation from other representative markets" to ensure  that such price or cost 
represents the cost of production for producers or exporters of the product under consideration in 
the country of its origin; (6) the  EU authorities recognize the lack of authorit y to adapt the adjusted 
or established input prices and costs of production to the level of the cost of production of the product 
in the country of origin; (7) the  EU authorities resort to information from "other representative 
markets" because it is not t he cost of production in the country of origin ; (8) even where an 
investigating authority is justified in not calculating production costs on the basis of the exporter's 
or producer's records under the first sentence of  Article  2.2.1.1, it remains subject to the 
disciplines set out in  Article  2.2 irrespective  of the reason for which normal value cannot be 
determined on the basis of domestic sales under  Article  2.2 of the  AD Agreement. These are just 
some  of the multiple differences between the two disputes which have been already explained by 
Russia in its submissions.  
 
2 EU's SWS, para. 28.  WT/DS494/R/Add.1  
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  16. In sum, Russia has provided detailed arguments and sufficient evidence substantiating that 
the challenged provision of the second subparagraph of  Article  2(5) of the Basic Regulation is 
inconsistent with  Articles  2.2.1.1 and 2.2 of the  AD Agreement.  
5  THE COST ADJUSTMENT METHODOLOGY IS INCONSISTENT WITH ARTICLES  2.2.1.1 
AND 2.2 OF THE AD  AGREEMENT  
17. In the course of this panel proceeding, Russia demonstrated the existence of the  EU cost 
adjustment methodology3, including its precise content, attribution and specific characteristics, and 
its inconsistencies with  Articles  2.2.1.1 and 2.2 of the  AD Agreement.  
18. Instead of considering and rebutting each Russia's argument and presente d piece of evidence, 
the EU simply denied the existence of this measure.  
19. Russia disagrees with the  EU that, in order to be challenged in WTO dispute settlement, the  
EU cost adjustment methodology needs to reach the "as such" level in the sense that it  should be 
the rule or norm of general and prospective application which apply "in an entirely mechanistic and 
mathematical manner" in all future cases.4 Similarly, Russia disagrees with the EU's position that 
only two types of complaints are admissible t o WTO dispute settlement: the described "as such" 
claims and "as applied" claims with respect to a particular instance that has occurred. The  EU is 
wrong.  
20. With reference to the DSU,  Articles  17.3 and 18.4 of the  AD Agreement, and 
WTO jurisprudence, Rus sia explained that a broad range of measures can be challenged in the WTO .5 
According to the Appellate Body, "[a] complainant seeking to prove the existence of an unwritten 
measure will invariably be required to prove the attribution of that measure to a Member and its 
precise content. Depending on the specific measure challenged and how it is described or 
characterised by a complainan t, however, other elements may need to be proven".6  
21. However, the  EU disregards how Russia framed the challenged measu re, described its 
elements, attribution and specific characteristics. As a result, the  EU fails to rebut 
Russia's  arguments and evidence.  
22. Russia disagrees with EU's suggestion to use the test in US – Zeroing (EC)  for the examination 
of the  EU cost adjustment methodology. Contrary to the  EU allegation, there is no one  general legal 
standard that fits all varieties of unwritten measures challenged in WTO dispute settlement.7 The 
Panel is not required to examine Russia's arguments and evidence against  the legal test employed 
in US – Zeroing (EC) .8  
23. The SCM Agreement and the Appellate Body's interpretation of  Article  3(4) and footnote 4 of 
the SCM Agreement in Canada – Aircraft  and Canada – Aircraft (Article 21.5 – Brazil)  are irrelevant  
for this d ispute. The SCM Agreement and the  AD Agreement regulate different subject matters, and 
a sharp line between these Agreements must not be blurred.  
24. Russia disagrees with the EU's suggestion to examine  Article  2(5) of the Basic Regulation 
instead of the  EU cost adjustment methodology. Part of the Panel's mandate is to examine whether 
the EU cost adjustment methodology  is consistent with  Articles  2.2.1.1 and 2.2 of the  
AD Agreement.  
 
3 The term "the cost adjustment methodology" is based on the terminology that the  EU authorities use 
in its determinations: for example, "an energy cost adjustment" (Council Regulation (EC) No 172/20 08, 
Exhibit  RUS-37, recital 35); "methodology applied for the gas adjustment" (Council Implementing Regulation 
(EU) No  1251/2009, Exhibit RUS -33, subheading to Section 2.1.1.2).  
4 EU's FWS, paras. 86, 87, 88, 96, 101, 102, 103.  
5 Appellate Body Report, US – Anti-Dumping Methodologies (China) , para. 5.125; Appellate Body 
Report, Argentina – Import Measures , para. 5.109  
6 Appellate Body Report, Argentina – Import Measures , para. 5.110. (emphasis added)  
7 Appellate Body Report, Argentina – Import Measures , para. 5.107.  
8 Russia's FWS, para. 297 and ft 263 thereto (referring to the Appellate Body Report, Argentina – 
Import Measures , para. 5.118). Russia's SWS, para. 546.  WT/DS494/R/Add.1  
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  25. Russia disagrees with the EU's argument on a "highly fact dependent" a pplication of  
Article  2(5) of the Basic Regulation and the EU's suggestion to examine various circumstances for 
various adjustments instead of the  EU cost adjustment methodology. Contrary to the 
EU's suggestion, the Panel does not need to examine the unive rse of "circumstances" and 
adjustments in order to resolve the dispute on the  EU cost adjustment methodology.  
26. The EU's arguments on the Provisions of Annex No. 8 to the Treaty on the Eurasian Economic 
Union and the EU's suggestion to assess plausibili ty and reasonableness of Russia's claims should 
be rejected. First, this dispute is not an appropriate forum for raising any questions on the Annex as 
the present dispute is not about this Treaty.9 Second, the  EU is wrong in its suggestion to assess 
whether complainant's claims are "plausible" and "reasonable". There is no legal basis for such an 
assessment in the DSU or the  AD Agreement.  
27. Russia disagrees with the EU's alternative line of argument in which the EU requests  the Panel  
to conduct  the two-step analysis:  (i) to examine  whether  the EU cost adjustment  methodology  
"corresponds"  to two provisions  of the Basic Regulation;  and (ii) to examine  whether  these  provisions  
of the Basic Regulation  "correspond"  to particular  provisions  of the AD Agreement.  However, to fulfill 
its mandate under  Articles  7.1 and 11 of the DSU, the Panel needs to compare the  EU cost 
adjustment methodology directly  with Article  2.2.1.1 and with  Article  2.2 of the  AD Agreement. Only 
such an  examination will provide the most accurate and objective result.  
28. Russia also disagrees with the EU's request to the Panel not to consider recitals 3, 5, 7 of 
Regulation (EU) 2017/2321, recital 8 of Regulation (EU) 2018/825 and  Articles  2(6a) and 7(2a)  of 
the Basic Regulation which were introduced by Regulations (EU) 2017/2321 and 2018/825 and 
entered in force in 2017 and 2018 respectively. The broad coverage of the Panel Request (see 
Section IV) allows the Panel to examine these recitals of Regulations  (EU) 2017/2321 and 2018/825 
and new provisions of the Basic Regulation. To the extent these recitals and provisions have similar 
substance and effects as the  EU cost adjustment methodology, they have close relationship and thus 
relevant for the Panel's ex amination.  
29. Russia highlighted the similarities between the  EU cost adjustment methodology and so -called 
"new methodology" (which is actually a clarified and strengthened version of the challenged 
measure) introduced by Regulations (EU) 2017/2321 to the  Basic Regulation. These methodologies 
are part of the EU's deliberate defensive trade policy to strengthen anti -dumping instruments.10 In 
particular, both of them: (i) concern calculations of the cost of production and determination of 
normal value; (ii) target the alleged "significant distortions" and "raw material distortions" in input 
prices in connection with government regulation; (iii) call for replacement of allegedly "distorted" 
recorded input prices with surrogate input prices. Russia demonstrated  that the  EU cost adjustment 
methodology significantly increases dumping margins and consequently anti -dumping duties. Due 
to close relationship and similarities with the  EU cost adjustment methodology, so -called "new 
methodology" also increases dumping ma rgins and anti -dumping duties. T he EU authorities use such 
"undistorted" surrogate prices precisely because they do not  represent the cost of production in the 
country of origin of products under consideration in specific anti -dumping proceedings.11 Both 
methodologies are WTO -inconsistent.  
30. Furthermore, Russia disagrees with the EU's interpretation of several terms and provisions in  
Articles  2.1, 2.2 and 2.2.1.1 of the  AD Agreement. First, the  EU is wrong in its interpretation of the 
term "normal value" as "a value that is normal, or a normal value ".12 However,  Articles  2.1 and 2.2 
do not include any test to examine the "operation of the market forces of supply and demand", or 
"normal commercial circumstances", or determination of "value that is normal". The term "normal 
value" in the  AD Agreement refers to typical, usual value of the product in the exporting country.  
Articles  2.1 and 2.2 set forth how normal value shall be determined. Russia also stresses that the  
AD Agreement does not regulate d omestic prices of inputs as this Agreement provides the legal basis 
and procedure to address only international price discrimination concerning the product under 
consideration . 
 
9 The EU recognized that "the measures at issue in this case are  EU measures". EU's FWS, par a. 105.  
10 See Russia's FWS, paras. 363 -378. 
11 See Section 7 of Russia's FWS.  
12 See Russia's SWS, paras. 87 -88, 166, 199, 388 -389, 678.  WT/DS494/R/Add.1  
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  31. Second, the  EU fails to recognize the Appellate Body's interpretation of  Article 2.2.1.1.13 
The determination of whether the records "reasonably reflect the costs…" within the meaning of  
Article  2.2.1.1 does not involve an examination of the "reasonableness" of the reported costs 
themselves.14 However, the essence of the EU's the  assessment of "reliability" of recorded costs is 
the examination of the recorded costs themselves and their comparison with prices in other 
countries, markets or international benchmark prices viewed as "undistorted".15 The EU's attempts 
to disguise and r elabel the standard of "reasonableness" to the standard of "reliability" must be 
rejected.  
32. Third, the Russian Federation disagrees with the EU's characterization of the regulated input 
prices as "distortion", "unreliable" or "distorted prices", consid eration of the allegedly "distorted" 
costs as "unreliable" and their rejection in the calculation of costs.  Article  2.2.1.1  does not permit to 
reject  the recorded input costs on the grounds that domestic input prices are regulated and lower in 
comparison w ith "undistorted" input prices in other countries or markets or an international 
benchmark price.16 Similarly, this provision does not permit investigating authorities "to establish" 
what costs would have been incurred by the investigated producers or expo rters in "normal 
commercial circumstances" and "undistorted" market conditions  and to use surrogate prices in the 
calculation of costs. Furthermore, a mere explanation of actions and determinations by an 
investigating authority, as the  EU suggest, would not justify a derogation from a WTO obligation.  
33. The fact is that the  AD Agreement does not contain such words as "distortion", "government 
regulation", "forces of supply and demand" and "normal commercial consideration", "non -arms-
length transactions" an d "other practices"17. Only words that are actually used in the legal provision 
provide the basis for an interpretation that must give meaning and effect to all its terms.18 Thus, 
there is no legal basis for the EU's interpretation of  Articles  2.2.1.1 and 2.2 of the  AD Agreement.  
34. Fourth, contrary to the EU's allegation, the phrase "[f]or the purpose of paragraph 2" in the 
first sentence of  Article  2.2.1.1 does not provide a legal basis for the derogation from the obligation 
in this provision. This phra se only indicates that calculated costs are to be used in the ordinary 
course of trade test under  Article  2.2.1 and in the determination of normal value.  
35. Fifth, the term "normally" in the first sentence of  Article  2.2.1.1 also does not provide a legal 
basis for the derogation from the obligation. This term indicates  that the rule in the first sentence of  
Article  2.2.1.1 admits derogation under certain circumstances. The Appellate Body explained that 
"provisions of t he Anti -Dumping Agreement are explicit  regarding the permissibility of disregarding 
certain matters."19 The term "normally" is not an explicit provision containing the permissibility of 
disregarding the correctly recorded costs incurred by the investigated  companies. Thus, an 
investigating authority cannot simply "rely on" the term "normally" to disregard the recorded costs.  
36. The panel in  EU – Biodiesel (Argentina)  made it clear that the list of provisions with the explicit 
permission to use prices or co sts other than those in the country of origin of the product under 
consideration is very limited: the Second  AD Note to  Article  VI:1 of the GATT 1994 incorporated by  
Article  2.7 and the specific commitments on price comparability in anti -dumping proceeding s which 
are reflected in the protocols of accession of certain Members.20 Neither of these provisions apply to 
Russia. In particular, Russia did not take a specific commitment on price comparability in 
anti-dumping proceedings, and thus the EU's reference to the Working Party Report on Russia's 
accession to the WTO must be rejected.  
37. Sixth, the  EU fails to recognize that  Article  2.2 of the  AD Agreement requires to construct 
normal value on the basis of "the cost of production in the country of origin" a nd that the burden is 
 
13 See Appellate Body Report,  EU – Biodiesel (Argentina) , para. 6.56.  
14 Appellate Body Report,  EU – Biodiesel (Argentina) , paras. 6.37, 6.56; Appellate Body Report, 
Ukraine  – Ammonium Nitrate (Russia) , para. 6.102.  
15 See Russia's  SWS,  para.635.  
16 See Appellate Body Report,  EU – Biodiesel (Argentina) , para. 6.30; Panel Report, Ukraine – 
Ammonium Nitrate (Russia) , para. 7.69.  
17 The Appellate Body has already recognized that the terms "non -arms-length transactions" and "other 
practices" are not found in  Article  2.2.1.1 or elsewhere in the  AD Agreement. (Appellate Body Report, 
Ukraine  – Ammonium Nitrate (Rus sia), para. 6.94)  
18 Appellate Body Report, Japan – Alcoholic Beverages II , para. 37.  
19 Appellate Body Report, US – Continued Zeroing , para. 286. 
20 Panel Report, EU  – Biodiesel (Argentina) , para. 7.241.  WT/DS494/R/Add.1  
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  on investigating authorities to ensure compliance with this obligation. In this panel proceeding, the  
EU stated, in essence, that it does not see any sense in adjusting the surrogate price back to the 
price in the country of origin wh ich it rejected as "distorted". Thus, it is clear that t he EU does not 
intend  to ensure  the construction  of normal  value  on the basis of "the cost of production  in the 
country  of origin".   
38. Seventh, in its argument on "a proper comparison", the  EU attem pts to conflate  Article  2.2 
and Article  2.4 of the  AD Agreement which are two different provisions with different obligations. 
The Appellate Body explained that the obligation in  Article  2.4 "presupposes that the component 
elements of the comparison – i.e. the normal value and the export price – have already been 
established".21 Thus, EU's attempt should be rejected. In addition, the EU's references to the 
Appellate Body's statements in EC – Fasteners (China) (Article 21.5)  and China – HP-SSST  are 
misplaced and should be rejected as well.  
39. In sum, Russia has made a prima facie  case that the  EU cost adjustment methodology is 
inconsistent with  Articles  2.2.1.1 and 2.2 of the  AD Agreement.  
6  THE EU  HAS FAILED TO REBUT RUSSIA'S ARGUMENTS AND EVIDENCE.  
ANTI -DUMPING MEASURES IMPOSED BY THE EU  ON IMPORTS OF RUSSIAN WELDED 
TUBES AND PIPES ARE INCONSISTENT WITH ARTICLES  2.2.1.1, 2.2.1 AND 11.3 OF 
THE AD  AGREEMENT   
40. The EU's response to Russia's claims with respect to the anti -dumping measures on import of 
welded tubes and pipes from Russia confirms in very clear terms  the operat ion of the challenged 
provisions of the Basic Regulation as well as the existence of the cost -adjustment methodology. The  
EU confirms  that if recorded input prices used in the production of the product under consideration 
are regulated by government, the  EU authorities consider these prices as "distorted", "not 
reasonably reflected in the exporting producer's records as provided for in  Article  2(5) of the basic 
Regulation"22, "unreliable", and rejects them, despite the fact that the records kept by the 
investigated Russian producer met the both conditions of the first sentence of  Article  2.2.1.1 of the  
AD Agreement. The  EU also confirms  that the  EU investigating authorities have to  "consider cost of 
production information from sources outside the country [of origin ] instead of  domestic cost 
information".  The EU confirms  that it assesses the reasonableness  of the recorded costs 
themselves. All elements of the EU's approach strongly contradict to its obligations under the  
AD Agreement  
41. Russia has substantiated that all EU's arguments based on erroneous interpretations of  
Articles  2.2.1.1, 2.2, 2.4 of the  AD Agreement are legally flawed and shall be rejected.23 The 
construction of the cost of production is not allowed  under the  AD Agreement.  
42. Without prejudice to Russia's position that the rejection of costs, incurred by the Russian 
investigated produce r and exporter and correctly recorded in its records, is WTO -inconsistent, Russia 
would like to comment on the EU's statements with respect to the adaptation of the surrogate cost 
data. The  EU did not adjust the surrogate gas price to gas price paid by the  Russian producer of 
tubes and pipes in Russia, i.e. to "the cost of production in the country of origin". The adjustment 
for local distribution costs made by the  EU does not ensure that the adjusted or established costs 
represent the cost of production in  the country of origin. It clearly follows from the recital 69 of 
Commission Implementing Regulation (EU) No 2015/110 that the  EU authorities specifically  
selected the surrogate gas price precisely because it was not the cost of production in the country 
of origin and substituted gas prices actually paid by the investigated Russian producer and correctly 
recorded in its records by this surrogate data. Accordingly, it was not the EU's intention to adapt 
this surrogate data to the cost of gas in the country o f origin and the  EU did not do that. The lack of 
such intention was also confirmed in the course of this proceeding.  
43. Also, contrary to the EU's assertions, Russia makes independent claims  under  Articles  2.2.1 
and 11.3 of the  AD Agreement: (i) in conduc ting its ordinary -course -of-trade test under  Article  2.2.1 
 
21 Appellate Body Report, Ukraine – Ammonium Nitrate (Russia) , ft 419 to para. 6.122 (referring to the 
Appellate Body Report,  EU – Fatty Alcohols  (Indonesia) , para. 5.21). (emphasis added) See also Appellate 
Body Report,  EU – Biodiesel (Argentina) , para. 6.48.  
22 Regulation 2015/110, Exhibit RUS -21, recital 69.  
23 See paras. 27 -35 of this summary.  WT/DS494/R/Add.1  
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  of the  AD Agreement, the European Commission used a cost of production that was calculated 
inconsistently with  Article  2.2.1.1 of the  AD Agreement; (ii) the European Commission relied on 
dumping ma rgin calculated inconsistently with  Articles  2.2.1.1 and 2.2.1 to make its likelihood -of-
dumping determination in the course of the expiry review. Thus, for the settlement of the matter 
with respect to the anti -dumping measure on imports of tubes and pipes , the Panel should examine 
all Russia's claims, including those under  Articles  2.2.1 and 11.3 of the  AD Agreement.  
7  ANTI -DUMPING MEASURES IMPOSED BY THE EU  ON IMPORTS OF AN IS 
INCONSISTENT WITH AD  AGREEMENT AND GATT 1994  
7.1  CLAIMS WITH RESPECT TO THE SCOPE OF THE APPLICABLE MEASURES  
44. Russia maintains that the imposition of anti -dumping measures and a levy of anti -dumping 
duties on imports  of IGAN and Stabilized AN from Russia is contrary to the EU's obligations under 
the GATT 1994 and the  AD Agreement since the  EU never conducted an original anti -dumping 
investigation, nor made injury and dumping determinations for these two products.  
45. Russia maintains that  Article  18.3 of the  AD Agreement does not apply in this dispute. 
Contrary to the EU,  Article 28 of the Vienna Convention indicates that the  AD Agreement applies to 
this situation. A situation that have arisen before Russia's accession continues to exist: the  
EU continuously applies the anti -dumping measures and levies the anti -dumping duties  on Russian 
AN. In addition, there is an obligation under GATT  Article  VI to ensure that a levy of anti -dumping 
duties should be underpinned by a WTO -consistent dumping and injury determination throughout 
the life of the anti -dumping measure.  
46. Russia h as demonstrated that the Russian exporting producers requested a modification of 
the product scope prior to and in the course of the 2014 expiry review and that the  EU made a 
product scope determination in Regulation 999/2014. The  EU for the first time req uested the 
domestic industry to provide IGAN data towards the end of the 2014 expiry review, i.e. almost 20 
years after the anti -dumping duties were in place. And even so, the  EU producers failed to submit 
such data so that the EU's likelihood determinatio ns in any case do not cover IGAN. With respect to 
Stabilized AN, it is undisputed that the  EU did not conduct an original investigation for this product 
and did not make dumping and injury determinations as confirmed by the  EU Court's decision.24 The 
EU failed to point to a single instance in the record where Stabilized AN was part of the original 
investigation and respective injury and dumping determinations.  
47. Russia also stresses that the proportional application of the anti -dumping duties on imp orts 
of Stabilized AN, which was not the product under consideration in the original investigation, is 
inconsistent with  Articles  1, 2.1, 2.2, 2.4, 2.6, 3.1, 3.2, 3.4, 3.5, 4.1, 9.1, 9.3 and 18.1 of the  
AD Agreement and  Articles  VI:1 and VI:2 of the GATT 1 994, irrespective of whether AN is a 
component of the Stabilized AN. In addition, and without prejudice to this principle position, Russia 
notes that the EU's arguments amount to ex post facto  rationalization. On that basis, Russia made 
a prima facie  case with respect to Claim #1  
48. With regard to Claim #2 , Russia disagrees that an expiry review could be initiated based on a 
mere standard of "plausibility", with no requirement as to the "accuracy and adequacy" of evidence. 
Russia considers that not only th e "accuracy and adequacy", but also the "sufficiency" and "quality" 
of evidence are equally relevant for an investigating authority to consider that a request is "duly 
substantiated". Further, taking into account that "future facts do not exist"25 and Article 11.1 of the  
AD Agreement which states that an anti -dumping duty shall remain in force only as long as and to 
the extent necessary to counteract dumping which is causing injury , the request for the initiation of 
an expiry review shall provide sufficient  evidence. When the request is based on WTO -inconsistent 
calculation of dumping margins in support of a likelihood of continuation of dumping, such request 
cannot be considered "duly substantiated".  
 
24 Judgment in T -348/05 of 10 September 2008, Exhibit RUS -73, paras. 61 -64. 
25 See Panel Report, US – Corrosion -Resistant Steel Sunset Review , para. 7.279.  WT/DS494/R/Add.1  
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  7.2   CLAIMS WITH RESPECT TO THE DETERMINATION OF LIKELIH OOD OF DUMPING  
49. With respect to Claims #9 and #11  the EU itself acknowledges that it "compared average 
ex-works domestic prices with ex -works export prices based on data reported by sampled 
companies ". On the basis of this comparison, the  EU concluded that Russian exports were 
"dumped".26 This means that the  EU made a dumping determination. Such determination should 
have complied with  Article  2 of the  AD Agreement.  
50. In addition, with respect to Claim #9 , Russia has substantiated that the  EU illegally 
disregarded Russian export prices to the  EU under price undertakings. There is no basis under the 
legal text of the  AD Agreement to disregard in anti -dumping investigations, including expiry reviews, 
prices under price undertakings.   
7.3 CLAIMS WITH RESPECT TO THE CONTINUOUS LEVYING OF THE ANTI-DUMPING DUTIES 
51. Russia has substantiated that  Article  18.3 of the  AD Agreement does not apply in this dispute. 
This is because (i)  Article  18.3 is a transitional provision which does not apply to Russia  in the case 
at hand and (ii) there is no temporal scope for the application of WTO discipline to the "levy" of 
anti-dumping duties, which has not ceased to exist following Russia's WTO accession. Furthermore, 
under  Article  28 of the Vienna Convention the applicability of a treaty does not arise in respect of 
"any situation which ceased to exist before the date of the entry into force of the treaty". Thus, a 
treaty, i.e. AD Agreement, does apply  to a situation which did not cease to exist before the date of 
entry into force of that treaty. Furthermore, the dumping determinations at issue were considered 
in the scope of the reviews that led to the adoption of Regulation 999/2014 and 
Regulation  2018/1722.  
52. Russia also submits that in order to set the level of the anti -dumping duty, the injury margin 
established in the 2018 review was compared with the 2002 and 2008 dumping margins. Thus, the 
anti-dumping duty is still based on the dumping margins  calculated in a WTO -inconsistent manner.  
53. Contrary to the EU's allegations, Russia has satisfied its burden of proof by establishing that 
a WTO -consistent dumping margin for EuroChem in 2008 was lower than the most recent injury 
margin established in the 2018 partial interim review. Russia has also provided evidence 
demonstrating that a dumping margin in 2002 if calculated consistently with  Article  2 of the  
AD Agreement would be below the injury margin on the basis of which the anti -dump ing duties are 
currently being applied.  
54. With respect to Claim #12 , Russia challenges the levying of anti -dumping duties on AN of 
EuroChem, which were set with the use of the WTO -inconsistent cost adjustment for natural gas in 
Regulation 661/2008, maint ained under Regulation 999/2014, and currently applied in the amended 
amounts. Russia has substantiated that the dumping determination in Council Regulation 661/2008 
was WTO -inconsistent, as it breached  Articles  2.2.1.1, 2.2.1 and 2.2 of the  AD Agreement a nd 
Article  VI:I (b)(ii) the GATT 1994. Russia's claims under  Articles  1, 9.3 and 11.1 of the  
AD Agreement and  Article  VI:2 of the GATT 1994 are not consequential. Findings on violation of 
each of them are important for the resolution of this dispute.  
55. With respect to Claim #13 , Russia submits that the continuous levying of the anti -dumping 
duties through Regulation 999/2014 and Regulation 1722/2018 is based on dumping margin 
calculated  in Regulation 661/2008 for EuroChem in a WTO -inconsistent manner. Co mmission 
Implementing Regulation 999/2014 extended the anti -dumping measures for EuroChem that were 
based on WTO -inconsistent dumping determinations. This is true regardless of whether the duty was 
levied based on a dumping or injury margin: absent a dumpi ng determination, even if there was an 
injury margin, no duty could be levied. The logical consequence of the extension of WTO -inconsistent 
measures is that the extended measures remain WTO -inconsistent. Indeed, under  Article  11.3 of 
the AD Agreement, an i nvestigating authority must establish that "the expiry of the duty would be 
likely to lead to continuation or recurrence of dumping and injury". Such a determination must be 
based on "reasoned and adequate conclusions" supported by "positive evidence" and a "sufficient 
factual basis". The factual basis and evidence on which the EU's determination that a likelihood -of-
dumping existed in the expiry review that led to the adoption of Commission Implementing 
 
26 Commission Implementing Regulation 999/2014, Exhibit RUS-66, recitals 57, 58.  WT/DS494/R/Add.1  
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  Regulation 999/2014 is tainted by the WTO -inconsisten t dumping determinations in Council 
Regulation 661/2008.  
56. With respect to claim #14 Russia notes that the  EU is not challenging the fact that the 
application of the non -market methodology against Russian exporting producers would be 
inconsistent with  Articles 2.1 and 2.2 of the  AD Agreement,  Article  VI:1 and the second 
Supplementary Provision to  Article  VI:1 of the GATT 1994. Russia has provided arguments and 
substantiating evidence that the anti -dumping duties on AN are based on the country -wide dumping  
margin for all Russian exporting producers, except EuroChem, this dumping margin was maintained, 
extended and relied on in Commission Implementing Regulations 999/2014 and 2018/1722, and 
thus its consistency with the  AD Agreement and GATT 1994 is subject to WTO review. 
Correspondingly, the  EU violates  Article  11.3 of the  AD Agreement through the continued application 
of country -wide anti -dumping duties for all Russian exporting producers, except EuroChem, that are 
determined based on dumping determinations inconsistent with the mentioned Articles.  
57. In its position and allegations, the  EU attempts to "navigate" through the WTO jurisprudence 
to avoid the Panel's finding on a violation of  Article  I:1 of the GATT 1994. Contrary to the EU's 
allegation,  Article  I:1 of the GATT 1994 does not differentiate between market and non -market 
economies. The GATT does not contain a definition of "non -market economy". The  EU erroneously 
disregards the fact that  Article  I:1 sets out a fundamental non -discrimi nation obligation under the 
GATT and covers both  de jure  and de facto  discriminations. If conditions for access to the 
"advantage" are formulated in a way that only certain Members can qualify, then even if this 
"advantage" is "unconditionally" extended to  other Members, certain Members will still be excluded 
from access to this "advantage".  
7.4  CLAIMS WITH RESPECT TO THE ESTABLISHMENT OF THE LIKELIHOOD OF RECURRENCE OF INJURY 
58. Claims #5 to #8  relate to the likelihood -of-injury determination made in Reg ulation 999/2014. 
This is the only likelihood -of-injury determination within the meaning of  Article  11.3 of the  
AD Agreement. In contrast, Regulation 2018/1722 followed an interim review pursuant to  
Article  11.2 of the  AD Agreement. Therefore, the only det ermination that measures should be 
extended as the injury would likely continue or recur absent the anti -dumping measure is contained 
in Regulation 999/2014, This Regulation is still the legal basis for the application of the anti -dumping 
duties on Russian  AN.  
59. With respect to Claim #5 , Russia has substantiated that on the basis of the undercutting 
calculation, the  EU concluded that import prices from Russia were likely, absent the anti -dumping 
measures, to be injurious.27 Russia has substantiated that the EU violated  Articles  3.1 and 3.2 of the  
AD Agreement by performing the undercutting calculation  without conforming with the required 
standard for such analysis. The  EU failed to use the export prices of Russian producers to the  EU and 
failed to make th e necessary adjustments to ensure that the prices of Russian imports and sales of 
the domestic industry were comparable. As a result, the likelihood -of-injury determination which is 
based on these flawed undercutting calculations is equally biased and inco nsistent with  Article  11.3 
of the  AD Agreement. Moreover, the  EU also committed a stand -alone violation of  Article  11.3 of the  
AD Agreement by selectively using the lowest Russian prices available on the file, thus failing to 
make an "objective examination" based on "positive evidence".  
60. With respect to Claim #6 , Russia has demonstrated that macro and micro data of the domestic 
industry that the  EU used in its likelihood analysis did not cover IGAN and Stabilized AN. 
In particular,  the complai nants did not include IGAN and Stabilized AN producers and their data 
when preparing a request for the expiry review; the  EU did not include IGAN and Stabilized 
AN producers in the domestic industry and in the sample and otherwise failed to collect data on  
IGAN and Stabilized AN and to use such data for the likelihood of injury determination.  
61. The EU in its defense ventures in self -serving allegations to the effect that it did not treat as 
the domestic industry only  EU producers of FGAN or that the  EU did in fact consider  EU industry data 
on all FGAN, IGAN and Stabilized AN. These allegations are not supported by evidence and should 
be rejected. In addition, on two crucial factual issues the  EU has completely reversed its position in 
the course of this d ispute settlement proceeding. While initially the  EU made a surprising allegation 
that Stabilized AN is not produced in the  EU at all, it later alleges that Stabilized AN is produced and 
 
27 Commission Implementing Regulation 999/2014, Exhibit RUS -66, recital 160.  WT/DS494/R/Add.1  
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  sold in the  EU and that data Stabilized AN was reflected in column of  the April 2014 dataset. On the 
issue of the product coverage of the April 2014 dataset that appears to be the basis for 
macro -indicators in the Regulation 999/2014, the  EU went from alleging that the respective column 
in that dataset covered IGAN to now a lleging that it covers Stabilized AN. The  EU however fails to 
provide any evidence in support of its allegations.  
62. Concerning the sample of  EU producers whose data was used to set the micro -indicators, the  
EU again fails to provide any evidence that su ch data covered IGAN and Stabilized AN. For example, 
the EU alleges that the  EU industry provided data on Stabilized AN in respective column of April 2014 
dataset. However, it clearly follows from the Panel record that data in that column was submitted 
by three companies, two of which were not sampled. It is not contested by the  EU that the third 
company only filed data for FGAN and not Stabilized AN. Thus, micro -indicators do not cover 
Stabilized AN either.  
63. Russia submits that omission of IGAN and Stab ilized AN from the analysis of macro and micro 
indicators of the domestic industry entirely taints the EU's likelihood of injury determination which 
was made for FGAN only. The  EU does not contest that by failing to consider data relating to IGAN 
and Stabi lized AN the  EU failed to account for the data of close to 50% of the  EU production and 
consumption of AN under the antidumping duties. On that basis Russia maintains that the  EU acted 
in breach of  Articles  11.3, 3.1, 3.4 and 4.1 of the  AD Agreement.  
64. With respect to Claim #7 , Russia has substantiated that the likelihood -of-injury analysis must 
rest on a "sufficient factual basis" allowing to draw "reasoned and adequate conclusions", pursuant 
to Article  11.3 of the  AD Agreement. In that context, the requ irements of "positive evidence", 
"objective examination" and "firm evidentiary foundation" enshrined in  Article  3.1 of the  
AD Agreement are equally relevant in the context of an expiry review. 28  
65. Russia has provided detailed arguments that the EU's conclusion that the non -injurious 
situation of the  EU domestic industry was not sustainable is inconsistent with  Articles  3.1 and 11.3 
of the  AD Agreement. The  EU cherry -picked the information that best suited a finding of likelihood -
of-injury, withou t having due regard to the "positive evidence" submitted by interested parties and 
thereby failing to conduct an "objective examination" that rests on a sufficiently "firm evidentiary 
foundation". Thus, the likelihood -of-injury determination made by the  EU is inconsistent with  
Articles  11.3 and 3.1 of the  AD Agreement.  
66. With respect to Claim #8 , Russia has demonstrated that the EU's calculation of spare 
production capacities is not objective and does not rest on positive evidence in violation of  
Article s 11.3 and 3.1 of the  AD Agreement. Russia has provided detailed arguments and supporting 
evidence that the determination of Russia's AN spare production capacities is not objective and does 
not rest on positive evidence due to: (a) the lack of a single, c oherent methodology to set the level 
of spare production capacities in Russia; (b) rejection of nameplate production capacity; (c) rejection 
of production capacity in Russia as reported by reputed industry sources; (d) manifestly erroneous 
determination of  the level of the production capacity and (e) erroneous exaggeration of the level of 
capacity expansion plans.  
7.5  CLAIMS WITH RESPECT TO THE CONDUCT OF THE EXPIRY REVIEW 
67. With respect to Claim #16 , Russia argues that delay in accessing non -confidentia l information 
submitted by interested parties can violate  Articles  6.1.2 or 6.4 of the  AD Agreement, even if 
interested parties were eventually able to make some form of presentations. This is irrelevant under  
Article  6.1.2 of the  AD Agreement and does not  demonstrate that Russian producers had "timely 
opportunities" within the meaning of  Article  6.4. Russia maintains that on four occasions, the  
EU delayed access to non -confidential information for Russian producers in breach of  Articles  6.1.2, 
6.4 and 11.4  of the  AD Agreement. The  EU justifies these delays by the need to process documents 
and ensure that no confidentiality concern arises under  Articles  6.5 and 6.5.1 of the  AD Agreement. 
Such an ex post  justification fails however to the extent, by contrast, submissions made by Russian 
producers were immediately added to the non -confidential file.  
 
28 See Appellate Body Reports, US – Oil Country Tubular Goods Sunset Reviews , para. 284 and US – 
Corrosion -Resistant Steel Sunset Review , para. 178.  WT/DS494/R/Add.1  
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  68. With respect to Claim #17 , Russia argues that whether or not the subsequent consolidated 
request contain s all the information contained in the original request is irrelevant. Pursuant to  
Article  6.1.3 of the  AD Agreement, the investigation was not initiated based on the consolidated 
request, but based on the 28 March 2013 original request, as made clear in t he notice of initiation.  
69. With respect to Claim #18 , Russia challenges the EU's confidential treatment of information 
for which no "good cause" was shown, and in particular two expert reports submitted by Fertilizers 
Europe on 24 March and 14 May 2014.  Russia considers that "good cause" was simply presumed in 
relation to the 14 May 2014 report and insufficiently substantiated in relation to the 24 March 2014 
report.  
70. With respect to Claim #20 , the EU's defense rests on the mere allegation that, inso far as it 
considers that it did not apply "facts available", it did not have to abide by the WTO discipline. The  
EU however cannot rely on its own qualifications of its actions to determine whether or not such 
actions should comply with the provisions of t he AD Agreement. Russia has demonstrated that the 
EU's refusal to rely on information provided by Russian exporters with regard to capacities did not 
conform with  Articles  6.8 and 11.4 and paragraphs 3, 5, 6 and 7 of Annex II of the  AD Agreement.  
71. With respect to  Claim 21 , Russia challenges the EU's failure to disclose (i) the so -called 
"article  14(6) database", which it used to determine import statistics, (ii) its dumping calculations 
and (iii) its undercutting and underselling calculations. This infor mation, and not just the source of 
that information, has never been disclosed and yet the  EU relied on it in its likelihood -of-dumping 
and likelihood -of-injury determinations. Such information was part of the "essential facts under 
consideration which form  the basis for the decision whether to [extend the anti -dumping measures ]". 
Failure to disclose this information violates  Articles  6.9 and 11.4 of the  AD Agreement.  WT/DS494/R/Add.1  
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  ANNEX B -4 
SECOND INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION  
1  INTRODUCTION  
1. Pursuant to paragraph 23 of the Panel 's Working Procedures, the European Union now provides 
a second integrated executive summary of the facts and arguments presented in the 
European  Union 's (i) second written submission, (ii) second opening oral statement, 
(iii) second closing oral statement, (iv) responses to questions following the second 
substantive meeting and (v) comments on the responses to the question s following the second 
meeting.  
2  "AS SUCH" CLAIMS ON CERTAIN PARTS OF ARTICLE 2(3) AND ARTICLE 2(5) OF THE 
BASIC REGULATION AND AN ALLEGED "COST ADJUSTMENT METHODOLOGY"  
2.1  FIRST SUBPARAGRAPH OF ARTICLE 2(3)  OF THE BASIC REGULATION  
2. With regard to th e "as such" claims, the EU disagrees with Russia 's argument that the first 
subparagraph of Article 2(3) of the Basic Regulation would be inconsistent with Article 2.2 of 
the AD Agreement. Russia is unable to demonstrate that the phrase "provided that those  
prices are representative" in Article 2(3) refers to anything other than the "export prices". This 
is the only instance in the first subparagraph of Article 2(3) where the term "prices" is used. 
Contrary to what Russia suggests, the phrase does not refer to the "cost of production". Russia 
has produced no EU court judgement containing such a statement, no EU administrative act 
containing such a statement and no other document of any kind containing such a statement.  
3. Russia 's references to the term "repr esentative" in other provisions of the Basic Regulation do 
not alter this. Indeed, neither Article 2(2) nor the second subparagraph of Article 2(5) support 
Russia 's affirmations with regard to the final phrase of the first subparagraph of Article 2(3). 
The EU also explained that the change of the words "those prices" into "these prices" was the 
result of a linguistic review in 1995 without any legal consequences whatsoever. Russia 's 
arguments are thus grounded on an erroneous understanding of this final phr ase. Therefore, 
its claim must fail.  
2.2  SECOND SUBPARAGRAPH OF ARTICLE 2(3)  OF THE BASIC REGULATION  
4. Russia next argues that the second subparagraph of Article 2(3) of the Basic Regulation would 
be inconsistent with Article 2.2 of the AD Agreement beca use it would extend the concept of 
"a particular market situation for the product concerned" beyond the situation described in 
the second Supplementary Provision to paragraph 1 of Article VI of the GATT 1994. The EU 
notes that the second subparagraph in Ar ticle 2(3) does not oblige  the Commission to find 
that a particular market situation exists when prices are artificially low. Such determinations 
are case -specific, as is demonstrated by the use of the words "may be deemed to exist" in 
Article 2(3). When a  measure is not mandatory, but rather discretionary, a panel should 
conclude that it is not "as such" inconsistent with the covered agreements.  
5. Russia explained that its argument in respect of Article 2(3) of the basic AD Regulation is not 
only that "a particular market situation" can – in Russia 's view – only relate to the exporting 
Member 's market as a whole, but also that no "particular market situation" can ever arise 
from a situation where prices are "artificially low". With regard this argument, th e 
European  Union has explained that nothing in the terms of Article 2.2 limits its meaning in 
that way. On the contrary, the whole sense of Article 2.2 is that an investigation is underway 
with respect to a particular exported product, and that normal valu e will in principle be 
established with respect to a particular like product. Therefore, all the indications are that the 
market in question does not necessarily have to be country -wide, but that it may pertain to a 
particular product, including the produc t under investigation. This is also confirmed by the WT/DS494/R/Add.1  
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  panel in paragraph  7.32 of the recent panel report in Australia – Anti-dumping measures on 
A4 Copy Paper . 
6. In this context, Russia claims that it is possible that authorities find that prices are "arti ficially 
low" because of government regulation. Russia suggest that such would be inappropriate 
because there is no use of the words "government regulation" in Article 2.2 of the 
AD Agreement. Yet, the absence of these words does not mean that the term "pa rticular 
market situation" could not arise from a situation where prices are "artificially low", which is 
the question that the Panel asked. Moreover, Article 2.2 does not impose, nor prohibit, any 
test for determining whether a "particular market situatio n" exists.  
7. More generally, Russia 's argument shows that its approach to interpretation of WTO law is 
essentially that what is not explicitly allowed, is prohibited. This approach is incompatible with 
Article 17.6 (ii) of the AD Agreement, which states that when different permissible 
interpretations  are available, "the panel shall find the authorities ' measure to be in conformity 
with the Agreement if it rests upon one of those permissible interpretations". In fact, in 
paragraph 7.32 of the panel report in Australia – Anti-Dumping Measures on A4 Copy Paper , 
the panel agreed that a situation of a low -priced input is not necessarily disqualified from 
constituting a "particular market situation" within the meaning of Article 2.2 of the 
Anti-Dumping Agreement.  
2.3  SECOND SUBPARAGRAPH OF ARTICLE 2(5)  OF THE BASIC REGULATION  
8. Russia 's third "as such" claim  concerns the second subparagraph of Article 2(5). Russia argues 
that, because this second subparagraph permits the Commission to use costs other than cost 
of production in the country of origin as evidence for constructing the normal value, it would 
be "as such" inconsistent with Articles 2.2.1.1 and 2.2 of the AD Agreement.  
9. Russia claims that the EU Commission would have relied on the phrase "cannot be used" in 
the second subparagraph of Article 2(5) of the basic AD Regulation to reject input costs of  
other producers or exporters in the country of origin. Russia cites a number of paragraphs 
from certain Council Regulations. However, none of the cited paragraphs concern the 
application of the second subparagraph  of Article 2(5) of the AD Agreement.  
10. The European Union recalls that, contrary to Russia's assertion, the second sub -paragraph of 
Article 2(5) of the Basic Regulation (the measure at issue) does not address the question of 
whether or not the costs of other producers or exporters in the same c ountry could or could 
not be used. As the Appellate Body has already found1, it neither mandates such a possibility 
nor precludes it: it simply does not address it.  
2.4  ALLEGED "COST ADJUSTMENT METHODOLOGY " 
11. Russia further challenges what it calls "the cost adjustment methodology", allegedly used by 
the European Union in anti -dumping proceedings. However, such a "cost adjustment 
methodology" simply does not exist, and Russia is unable to demonstrate otherwise.   
12. Russia lists a number of determinations in antidumping investigations. The determinations 
listed are fact -specific and one cannot derive a general rule from them. They concern individual 
applications of the relevant provisions of the EU 's basic AD Re gulation. These determinations 
concern different countries (Russia, Ukraine, Algeria, Croatia, Libya, Croatia, Argentina, 
Indonesia…); different products (tubes, pipes, urea, ammonium nitrate, potassium chloride, 
ferro-silicon, biodiesel…); and different r easons for rejection (regulated prices, abnormally low 
prices, export taxes…).  
13. There is no indication that the competent authorities could not reach a different conclusion in 
the future depending on the facts of the case before them. Russia also has b een unable to 
identify any law, regulation, administrative guidance, or anything of the like that would require 
the European Commission to make a particular assessment in the future. Such assessment on 
the reliability of cost data (or any other data that i s used to determine whether there is 
 
1 Appellate Body Report, EU – Biodiesel (Argentina) , paras. 6.242 -6.244.  WT/DS494/R/Add.1  
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  dumping, i.e. exporting at a price below the normal value) will crucially depend on the facts 
of the case.  
14. When Russia brings an "as such" challenge against a measure, that means that it makes such 
a serious challen ge in order to seek "to prevent [the European Union ] ex ante  from engaging 
in certain conduct". That is only possible if the measure has "general and prospective 
application". In case of a written measure, this means that Russia would seek to remove this 
rule or norm from the EU 's rulebook. In case of a challenge against an unwritten measure, 
Russia seeks to prevent the European Union from applying the alleged unwritten measure in 
the future. However, in the latter case, Russia should not only demonstrate t hat this alleged 
unwritten measure actually exists , but also that it is attributable  to the European Union and 
the precise content  of that measure – something that Russia has failed to do. Russia requests 
the Panel to simply "divine[] the existence of a me asure in the abstract".2 Russia must also 
demonstrate its "general and prospective application" in the future. This is something that 
Russia has not even started to do.  
3  CLAIMS CONCERNING THE EXPIRY REVIEW AND THE DECISION ON EXTENSION OF 
ANTI -DUMPING MEASURES IMPOSED BY THE EUROPEAN UNION ON IMPORTS OF 
WELDED TUBES AND PIPES ORIGINATING IN THE RUSSIAN FEDERATION   
15. With regard to Russia 's "as applied" claims in respect of welded tubes and pipes, the 
EU disagrees that it acted inconsisten tly with the AD Agreement in finding that the available 
data on gas prices in Russia could not be used for determining the cost of production.  
16. The European Commission rejected the gas costs in Russia because they are regulated prices 
far below the mar ket prices paid in unregulated export markets for Russian natural gas. 
The European Commission rejected these costs in accordance with Article 2(5) of the Basic 
Regulation.  
17. This provision is entirely consistent with Article 2.2.1.1 of the AD Agreement . Indeed, the 
circumstances in which data or information in the records of the firm may be rejected are 
highly fact dependent. This may arise from the failure to respect either of the two express 
conditions set out in Article 2.2.1.1 of the AD Agreement. I t may also arise in other 
circumstances, notably those captured by the terms "For the purpose of paragraph 2" and 
"normally" that appear in the first sentence of Article 2.2.1.1. That includes, for example, the 
existence of a "particular market situation" within the meaning of Article 2.2 of the 
AD Agreement. It also includes, the existence of an association or compensatory arrangement 
rendering the relevant data unreliable.  
18. Russia claims that the "adjustment for local distribution costs made by the EU  does not ensure 
that the adjusted or established costs represent the cost of production in the country of origin". 
Rather than explaining with facts and evidence why this would not be the case, Russia refers 
to an explanation that the European Union made in its second written submission. The 
European Union explained, with reference to WTO case -law, that the "adjustment" required 
when an investigating authority relies on a proxy to establish the cost of production in the 
country of origin when it has reject ed the recorded costs not suitable for its normal value 
determination, cannot be such that the investigating authority arrives again at the distorted 
price.  
19. Yet, that does not mean that the EU does not make adjustments, when necessary and 
substantiate d, to ensure that the appropriate proxy data used represents the "cost of 
production in the country of origin". The Commission does make the appropriate adjustments 
to ensure that the costs used correspond to those of the producer in the country of origin 
(but necessarily unaffected by the distortion that was identified). Whether or not an 
adjustment to such data is necessary and has been substantiated depends on substantive 
facts, such as the existence or absence of taxation in the other representative mar ket. But it 
will also depend on the procedural context, such as whether or not the justification for and 
 
2 Appellate Body Report, US – Zeroing (EC) , para. 204.  WT/DS494/R/Add.1  
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  amount of any adjustment claimed has been duly substantiated by the interested party making 
the claim.  
20. In the welded pipes and tubes determination , the Commission made an adjustment for local 
distribution costs, ensuring that the costs represent the cost of production in the country of 
origin.  
4 CLAIMS CONCERNING THE ANTI -DUMPING MEASURES IMPOSED BY THE EUROPEAN 
UNION ON IMPORTS OF AMMONIUM NITRATE FROM THE RUSSIAN FEDERATION AND 
THE UNDERLYING INVESTIGATIONS  
4.1  CLAIMS WITH RESPECT TO THE PRODUCT SCOPE OF THE APPLICABLE MEASURES  
4.1.1   First Claim: application of measures on IGAN and stabilised AN  
21. Claim #1 should be rejected, first, because und er Article 18.3 of the AD Agreement, WTO law 
does not apply to the product scope determinations at issue. Article 18.3 does not just govern 
the transition from the Tokyo Round Code to the current AD Agreement, as Russia claims. 
In Brazil - Desiccated Cocon ut,3 the Appellate Body did not state that Article 18.3 of the 
AD Agreement does not govern newly acceding WTO Members.  
22. Article 18.3 of the AD Agreement determines the temporal application not just of the 
obligations  of the Members imposing measures,  but also of the rights  of other Members. 
Russia 's argument that the temporal scope of the AD Agreement is irrelevant because it is 
challenging the "continuous levy of anti -dumping duties", should be rejected because it would 
read Article 18.3 out of the A D Agreement and improperly allow Russia to retroactively rely 
on the AD Agreement. As for Article VI.6(a) of the GATT 1994, it explicitly assumes that there 
is a WTO Member, or contracting party to the GATT 1994, on both sides. Its reference to 
"levying" c annot change the fact that WTO law does not apply to a pre -WTO product scope 
determination just because there was a post -WTO expiry review.  
23. Russia has not shown that any impermissible "extension" or change of the product scope took 
place in the expiry review. Also, there was an original investigation into all relevant imports. 
The product concerned was defined, ever since the original measure, as simply "ammonium 
nitrate", regardless of use. Hence, data for IGAN was not collected separately from data fo r 
other sub -types. As for Stabilised AN, the measures only ever applied proportionally to the 
content of Stabilised AN which corresponds to the product concerned, with respect to which 
dumping margin calculations were performed, starting from the original determination in 1995 
and most recently in Regulation (EC) No 661/2008.  
24. Russia refers to the alleged failure of certain submissions by EU interested parties to include 
certain data regarding IGAN and Stabilised AN. This is irrelevant. In any anti-dumping 
investigation or review, certain domestic producers will not be known, and there may be issues 
with the completeness of the data. This does not bear out the sweeping claims made by 
Russia. In any event, the EU has shown that data concerning pr oducers of both IGAN and 
Stabilised AN was taken into account in the expiry review. The 2014 Regulation defined the 
domestic industry as all domestic producers of the like product, and not in terms of three 
distinct sub -categories of products that would ne ed to be assessed separately. It is not legally 
required that all sub -categories of the product under consideration or of the like product must 
be "like" each other, and Russia 's arguments on the alleged absence of likeness are anyway 
ex post . The EU has a lso shown that AD duties were levied on IGAN before 2014. Moreover, 
during the review, RFPA understood and argued IGAN should always have been considered as 
falling under the products described internationally, in the HS System, as "fertilizers".  
4.1.2   Second claim: initiation of the expiry review that led to 
Regulation  999/2014  
25. A mere decision to initiate, or an expiry review request on which it is based, are not required 
to follow a particular "methodology", examine specific "factors", or co ntain a specific "type or 
 
3 Russia 's SWS, para. 737. WT/DS494/R/Add.1  
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  quality" of evidence, in all cases. The Panel in Guatemala – Cement II  explained that, even 
with respect to original investigations to which Articles 2 and 3 of the AD Agreement fully 
apply, the decision to initiate cannot be subj ect to the same evidentiary standards as a final 
determination.4  
26. In an expiry review, the standard for the final likelihood determination is that of probability.5 
The standard for initiation must be lower. In order to "duly substantiate" an expiry r eview 
request, the applicant must put forward facts and evidence, not limited to any particular "type 
or quality", that make it plausible  that dumping and injury will continue or recur in the future, 
should measures lapse. It is then for the authority, aft er a contradictory process of 
"reconsideration and examination", to assess if all the facts and evidence make it probable  
that dumping and injury will recur in the future, should measures lapse. The standard 
proposed by Russia is incorrect, because it woul d require an expiry review request to 
demonstrate, with certainty, present dumping and injury in the importing country 's market.  
27. Russia now seems to accept that the petitioner did not request any extension of the product 
scope. The petitioners simply claimed that the measure, as in force at the time, should be 
extended in time . Indeed, there is no reason to require either the petitioner or the authority, 
at the stage of initiating an expiry review, to revisit the product scope of the existing measure. 
It is therefore unclear if claim #2 has any independent content left. In any case, the EU has 
shown that request was supported by producers of IGAN, some of which were included in the 
sample as well. Neither the data on the product under consideration nor the data on the 
domestic like product needed to be assessed separately for FGAN, IGAN and Stabilised AN, 
whether in the expiry review request or in subsequent submissions and evidence.  
28. In an expiry review, an anti -dumping measure is already in place, a nd what must be "duly 
substantiated" is, at best, whether dumping and injury are likely to continue or recur. Thus, 
an expiry review request may still contain certain deficiencies or gaps, which can be 
subsequently corrected or completed on the basis of ev idence collected during the 
proceedings. Learning of such deficiencies later on and correcting them is precisely the 
purpose of the expiry review, and it does not make the expiry review request retroactively, 
even if the expiry review request did not inclu de certain domestic production unlawful.  
Therefore data on IGAN and Stabilised AN, this would not in and of itself show that the request 
was not "duly substantiated."  
29. Similarly, any inconsistency of the dumping margin calculation presented in the expi ry review 
request with Article 2 could not make the decision to initiate (and hence the determination as 
a whole) WTO -inconsistent. The EU disagrees with Russia that any request for expiry review 
must calculate a dumping margin and demonstrate present dump ing in accordance with the 
requirements of Article 2 of the AD Agreement.  
30. Just as the expiry review request is not required to conclusively demonstrate probable 
continuation or recurrence of dumping, so are authorities not bound by the type of evidence  
relied upon, the methodology used, or the specific allegations presented in the expiry review 
request. The differences between the request and the final determination do not show that 
the expiry review request was not duly substantiated. The petitioners p resented a plausible 
case of likelihood or continuation of dumping. Then, upon conducting contradictory review 
proceedings and assessing all the facts and evidence before it, the authority came to the 
conclusion that there was a likelihood of recurrence, b ut not of continuation. It did not follow 
the same methodology as the petitioners, as it was not required to do.  
4.1.3   Third claim: the European Union did not err by failing to conduct a 
separate expiry review for the imports of Kirovo  
31. Russia 's claim is that a separate company -specific likelihood determination should have been 
made for Kirovo. The EU disagrees that such a determination should, or could, have been 
made. Fertilizers Europe was unable to separate Kirovo 's confidential import data out of  the 
customs statistics. The Commission could do so during the proceedings. Indeed, the measure 
was not actually based on Kirovo 's data, as is clear from Regulation 999/2014. The quantity 
 
4 Panel Report, Guatemala – Cement II , para. 8.35.  
5 Appellate Body Report, US – Corrosion -Resistant S teel Sunset Review , para. 111.  WT/DS494/R/Add.1  
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  of Russian exports to the EU during or preceding the RIP was in any event not the basis for 
the Commission 's finding of the likelihood of recurrence of dumping and injury. Kirovo 's 
Stabilised AN exports were  not within the product concerned. Nevertheless, it is conceivable 
that such exports could be indirectly relevant evi dence that could be taken into account for 
other purposes, such as assessing Kirovo 's production capacity that could be redirected.  
32. The EU also recalls that the applicant is not required to show probable  recurrence of dumping 
and injury, and it is not  required that every piece of evidence contained in its request is 
relevant to the authority 's ultimate likelihood determination. The inclusion of a piece of 
superfluous evidence cannot, in itself, mean that the request is not "duly substantiated".  
4.1.4   Fourth claim: the European Union did not err by failing to correctly 
define the domestic industry and did not rely on erroneous or 
incomplete data  
33. From the very beginning, the Union industry was defined as all known producers of AN in the 
Union during  the period considered.6 The alleged incompleteness of certain datasets provided 
by the interested parties cannot in itself show an error in the definition of the like product or 
the domestic industry. Indeed, when receiving data from EU interested partie s, the 
Commission considered that this covered all relevant injury indicators (including production) 
for the like product as originally defined,7 including IGAN. When the opposite was suggested, 
the Commission went back to the industry, requested correcti ons, and reflected them in its 
determination.  
34. The evidence (such as the April and May 2014 datasets) irrefutably shows that data concerning 
IGAN and Stabilised AN producers was considered when assessing the state of the domestic 
industry, including in  the sample. Moreover, the alleged discrepancies between the April and 
May datasets would have made no difference whatsoever. Both sets of figures suggest the 
same thing: injury indicators during the RIP were stable, and there was a non -injurious 
situation . 
35. Even if this was relevant or necessary, it would be Russia 's burden to show that none of the 
producers in the domestic industry or in the injury sample were producers of Stabilized AN. 
Russia cannot make that showing by attempting to shift the burden  on the EU, or by alleging 
that an individual producer 's data was not fully provided in a particular submission.  
4.2  CLAIMS WITH RESPECT TO THE DETERMINATION OF THE LIKELIHOOD OF RECURRENCE OF DUMPING  
36. The requirement for an investigating authority to arrive at a "reasoned conclusion" as to the 
likelihood of continuation or recurrence does not have to be satisfied through a specific 
methodology or the consideration of particular factors in every case. What is important is that 
the factors p rovide a sufficient factual basis for a conclusion of likely future recurrence of 
dumping. In the 2014 Regulation, the Commission relied upon three such factors: prices of 
exports from Russia to other destinations; spare capacities of Russian producers; an d 
incentives to redirect sales volumes to the EU.  
37. Russia bends the 2014 Regulation out of shape to make it look like something it is not 
(a dumping margin determination) in order to then subject it to disciplines that do not apply 
(Article 2). The Comm ission was not required to, and did not in fact, engage in a dumping 
margin calculation. It compared certain Russian prices with certain export prices to third 
countries, as only one part of the evidence relevant to whether or not dumping is likely to 
recur. There are several reasons why the Commission did not calculate a dumping margin on 
the basis of Russian exports to the EU, and one of them is the fact that all Russian exports 
during the period under review were made under a price undertaking. The EU do es not claim 
that prices recorded under price undertakings can never be used to establish an export price. 
However, in this particular case, such prices were not probative for several reasons. As the 
Commission found, for example, Acron 's export prices wer e, in fact, "determined by that price 
undertaking". To show otherwise, Russia would have to explain that the price undertaking had 
 
6 Regulation 999/2014 (Exhibit RUS -66), recital 98.  
7 Of note, Russia 's SWS, para. 820, points out that already "the Request itself covered IGAN and 
Stabilized AN ". WT/DS494/R/Add.1  
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  no impact on the exporters ' prices. This showing has not been made, and could not have been 
made.  
38. Russia is incorrect that, whenever an investigating authority assesses the likelihood of 
recurrence of dumping, Article 2 applies.8 An investigating authority engaged in a 
determination of likely future dumping may rely on methodologies that do not involve the 
calculation of dumping margins, other types of evidence related to dumping, or to the "general 
concept of dumping." This can also involve a "price -to-price" comparison of Russian domestic 
prices and export prices to third countries. This is not a determination  of dumping. As the 
Appellate Body explained in US – Corrosion Resistant Steel Sunset Review , dumping is the 
introduction of product at less than normal value "into the commerce of the importing 
country,"9 and not an analysis of sales that are not to the importing country but to a third 
country.  
39. The panel in US - Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) 
similarly distinguished "determination[s] of dumping subject to the full requirements set out 
in Article 2" and mere "analys [es] relating to the concept of dumping". For the latter, the 
requirement is merely that they must have a "sufficient factual basis", which means that they 
may not be contrary to the "core principle of dumping as a price -to-price comparison".10 In this 
case, it is undisputed that the Commission conducted a "price -to-price comparison", which 
means there is a "sufficient factual basis". Because "future "facts" do not exist,"11 a likelihood 
determination can be based on evidence from the past and the present, even though it is 
prospective. Authorities are allowed to rely on evidence that is indirect or to some extent 
removed from the actual future dumping at issue. The evidence can, for example, be removed 
in time (because it refers to an earlier or current tim e period), or geographically (because it 
refers to another jurisdiction).  
40. Finally, concerning domestic production capacity, the evidence shows that Commission 
verified and adjusted the reported capacities, notably on the basis of actual production data . 
Thus, the same approach was used for calculating the production capacity of Russian and EU 
producers.  
4.3  CLAIMS WITH RESPECT TO THE CONTINUOUS LEVYING OF THE ANTI-DUMPING DUTIES 
41. In making its claims with respect to the continuous levying of AD duti es on AN from Russia, 
Russia seeks to apply WTO law retroactively  to determinations made by the Commission 
before  Russia was a Member of the WTO. Yet, there does not exist in the AD Agreement an 
obligation to revisit each and every aspect of AD determinati ons made before the 
WTO obligations applied  between two WTO Members.  
42. In line with Article 18.3 of the AD Agreement, the AD Agreement applies to Regulation 
2018/1722 as well as Regulation 999/2014. These are reviews of existing measures,  initiated 
pursu ant to applications, which have been made after the date of entry into force between 
Russia and the European Union of the WTO Agreement.  
43. Conversely, the AD Agreement does not apply to pre -WTO determinations, such as 
Regulation  661/2008 or Regulation 658/2002. Any other approach would mean the WTO -law 
is applied retroactively to determinations made at a time when the investigating authorities 
were not faced with goods coming from a WTO Member.  
44. In this particular case, the as pects of the pre -WTO Regulations 661/2008 and 658/2002 that 
Russia claims  are WTO -inconsistent are not covered by the scope of the post -WTO review in 
Regulations 2018/1722 and 999/2014.  
 
8 Appellate Body Report, US — Corrosion -Resistant Steel Suns et Review , para. 127; Panel Report, EU – 
Footwear (China) , para. 7.157.  
9 Appellate Body Report, US – Corrosion Resistant Steel Sunset Review , para. 109.  
10 Panel Report, US - Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , paras. 7.75 
and 7.77.  
11 Panel Report, US – Corrosion -Resistant Steel Sunset Review , para. 7.279.  WT/DS494/R/Add.1  
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  45. Russia claims that "the rate of the anti -dumping duty [set in Reg ulation 2018/1722 ] is based 
on dumping margins that were established either in 2008 or 2002 with the use of the gas cost 
adjustment  and the methodology for non -market economy". Russia errs. The EU has 
demonstrated that the AD duties are not "based on dumpi ng margins" but on the injury 
margin . In fact, Russia acknowledges this explicitly, stating that "[t]hese dumping margins 
[calculated in 2008 and 2002 ] resulted in the imposition of currently applied anti -dumping 
duties based on injury margin ". 
46. More sp ecifically, with regard to EuroChem, the duties levied on imports of AN of EuroChem 
are based on Regulation 2018/1722. This Regulation does not contain a dumping 
determination. It only contains a likelihood of recurrence of injury determination and sets an  
injury margin as part of the interim review. It provides that the level of the duty imposed on 
imports of AN of EuroChem is not based on the dumping margin, but rather on the injury 
margin  calculated in the third partial interim review of 2018. Hence, the  duty levied on the 
imports of AN of EuroChem is not based on the dumping margin, and thus not affected by an 
alleged inconsistency in the manner in which such dumping margin would have been calculated 
for AN.  
47. Next, with regard to the country -wide AD duties on AN from Russia, there is no aspect of the 
pre-WTO Regulation 658/2002 that Russia claims is WTO -inconsistent that is covered by the 
post-WTO Regulation 2018/1722.  
48. The AD duties that are currently levied on AN products from Russia are based o n 
Regulation  2018/1722. In this 2018 Regulation, the Commission did not rely on a dumping 
margin to set the level of the duties. Rather, it set the duty based on the injury margin 
determined in the 2018 interim review.  
49. The 2002 interim and expiry revi ew did not base the duty level on the dumping margin either. 
Indeed, the 2002 interim and expiry review applied the lesser duty rule in Articles 7(2) and 
9(4) of the Basic Regulation and based the duty on the injury margin.  
4.4  LIKELIHOOD OF RECURRENCE O F INJURY  
4.4.1 .  Claim #5: The EU did not make price undercutting calculations and 
was not obliged to make such calculations  
50. With respect to injury, the EU recalls that no price undercutting calculations were made, or 
were even obliged to be made under WTO law, as part of the likelihood of recurrence of injury 
determination in Regulation 999/2014. Russia 's claims based on alleged price undercutting 
calculations are thus baseless in fact and law. In Russia 's view, the likelihood -of-injury 
determinat ion can rest on a sufficient factual basis and can be regarded as a reasoned 
conclusion only after undertaking all the analyses detailed in the paragraphs of Article 3. The 
Appellate Body has explicitly rejected such an approach to likelihood of recurrence  of injury 
determinations in reviews.  
51. Contrary to what Russia argues, the Commission could not consider prices of Russian imports 
in its likelihood of recurrence of injury analysis. In fact, Russia thereby claims that the 
Commission should have based i ts analysis on unreliable information. However, the 
Commission needed to arrive at reasoned conclusions on the basis of positive evidence of the 
likelihood of recurrence of injury in its analysis under Article 11.3. The Russian import prices 
to the EU duri ng the investigated period could not serve as positive evidence to reach such 
reasoned conclusions.  
52. The export prices of the relevant Russian producers to the EU were subject to a price 
undertaking, which involves a minimum price and a cap on quantity . Such prices are typically 
not reliable indicators of future price movements in the absence of a price undertaking. A price 
undertaking is, of course, a part of the very same measures that are under expiry review. To 
use such export prices, therefore, is to assume that the export prices without  the measure 
would be exactly the same as the export prices with the measure, i.e. that the price 
undertaking has no impact on the price. The underlying record does not support any such 
assumption.  WT/DS494/R/Add.1  
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  53. Moreover, the Commission also considered, and explained, the fact that Acron was the sole 
supplier to the EU for a significant part of the review investigation period, making its prices 
even less reliable. Further, EuroChem 's prices could not be taken into  account because of a 
failure to cooperate in the expiry review.  
54. Therefore, given the specific circumstances of this case, the Commission reached the adequate 
and well -reasoned conclusion that export prices to the EU were not a reliable indicator on 
which to base its likelihood of recurrence of injury analysis.  
55. Export prices to third countries were the most reliable basis available for determining whether 
the likely prices of additional Russian exports to the Union would be at such level that it wo uld 
be attractive for the Russian producers to redirect their exports from third countries to the 
Union in case the AD measures would lapse and whether injury to the domestic industry would 
likely reoccur.  
4.4.2 .  Claim #6: The EU made use of a representat ive sample of the 
domestic industry and used representative and correct data  
56. Russia also argues that that the European Commission would have based its likelihood of 
recurrence of injury determination on data relating to a non -representative sample of t he 
domestic industry. Russia is mistaken.  
57. The EU recalls that the Commission defined the Union industry as "the known producers of 
AN in the Union during the period considered". The Union industry was composed of more 
than 25 companies. Russia argues t hat none of these producers "is a major producer of IGAN". 
Nonetheless, the EU has explained that the product concerned was AN, be it used for industrial 
or agricultural purposes. Regulation 999/2014 explicitly confirms that AN used for agricultural 
and in dustrial purposes "have the same technical and chemical characteristics, can easily be 
interchangeable and are considered as the product concerned". Therefore, the Commission 
correctly defined the domestic industry as the "known producers of AN in the Unio n during the 
period concerned". In any event, the known producers included producers of IGAN, for 
instance Yara France and GrowHow. The European Union thus did not act inconsistently with 
Article 4.1 of the AD Agreement since it did not treat as the domest ic industry "only 
EU producers of FGAN", contrary to what Russia suggest.  
58. Russia claims that no IGAN data was examined by the Commission. However, the category 
"AN" in the April and May submissions refers simply to AN, regardless of use. This means tha t 
the EU domestic industry would have reported its production of both FGAN and IGAN under 
that heading (which is in line with the understanding, confirmed by Russia, that IGAN was 
always included as part of the product concerned and the like product, under  the same CN 
codes). The category "AN28", on the other hand, comprises what the EU industry describes 
as "dirty AN", which appears to be what Russia describes as "stabilised AN". Hence, the 
Commission did consider EU data on all three of the sub -categories  identified by Russia during 
the expiry review. This concerns both macro and micro indicators, which were used for the 
total product, i.e. AN, not for each product type. So far as IGAN data was provided by the 
sampled companies, that data was integrated in to the aggregate micro indicators. Russia is 
wrong to claim that IGAN data was only included in the macro data.  
4.4.3.  Claim #7: The EU correctly concluded that there were no indications 
that the non -injurious situation of the EU domestic industry would 
be sustainable  
59. Russia further argues that the European Union 's conclusion that the non -injurious state of the 
EU domestic industry was not sustainable does not rest on a sufficient factual basis.  
60. However, the Commission found that consumption of the  product concerned had decreased 
by 11% in the investigation period compared to previous years. The Commission examined 
all available verified evidence and based its reasoned conclusions on positive evidence, making 
an objective assessment. The consumption  was established on the volume of sales of the 
Union industry in the Union market based on data provided by the applicant as well as on WT/DS494/R/Add.1  
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  imports from third countries based on actual data from the customs authorities of the Member 
States.  
61. Russia continu es challenging the Commission 's finding, which was based on market analysis, 
that the "business cycle, as well as prices … [were] projected to decline". Russia can only refer 
to another study with a 2013 outlook that in fact showed that prices were set to decline 
compared to 2008 or 2011 and were projected to decrease from 2013 to 2015. Russia 's study 
is not able to rebut the Commission 's conclusions, and Russia does not dispute the validity of 
the data that the Commission relied upon.  
62. Further, with reg ard to the Commission 's rejection of the argument that gas costs would be 
declining in the Union, Russia suggest that the Commission overlooked findings in the 
economic study of the farmers ' associations. Yet, that study precisely demonstrated that the 
gas prices in the Union were higher than in other regions and were expected to rise. 
The Commission took the farmers ' opinions further into account as part of the Union interest 
assessment.  
63. Russia recalls its "most important point" being that the quotas under the price undertaking 
were not filled. In Russia 's view, this would qualify the Commission 's findings regarding the 
attractiveness of the EU market. The EU has explained that the market share of imports was 
of course influenced by the presence of AD duties and the price undertaking. The 
attractiveness must be considered in a forward -looking mann er, if the measures were allowed 
to lapse. Russia takes a backwards -looking perspective, focusing on elements (in particular 
the price undertaking) that would precisely not be there anymore if the AD measures would 
be removed. The presence of a price under taking, setting minimum import prices of AN into 
the EU, means that the normal functioning of supply and demand is annulled. The prices and 
volumes in the presence of such undertaking and AD measures can thus not be the basis for 
a conclusion whether Russi an producers would redirect exports to the EU market.  
64. The Commission also pointed to existing limits to additional Russian exports to third countries, 
which would remain in place, as well as the geographical proximity and established distribution 
chains in the Union. This further explains why Russian producers would prefer exporting to 
the EU market.  
4.4.4.  Claim #8: The EU's conclusion that there was a likelihood of 
recurrence of dumping and injury was based on positive evidence, 
including the level of production capacities available  
65. Russia takes  issue with the manner in which the Commission established the spare production 
capacities  that were available in Russia.  
66. Russia argues that "the EU 's calculation of spare production capacities is not  objective and 
does not rest on positive evidence". Russia argues that the methodology that the Commission 
used was to "inflate the level of Russia 's AN production capacities".  
67. However, rather than "inflat[ing]" the level of production capacities, the  EU merely 
established, in an objective manner, what the AN production capacity of the Russian industry 
was and that could be used to address the EU market in case the AD measures would be 
removed. The Commission did this on an entirely objective basis: lo oking at the positive 
evidence on nameplate capacities and maximum production levels that was before it. There is 
nothing "biased" in such an approach.  
68. Russia suggests that the fact that chemical plants can operate at more than 100% capacity 
utilizatio n would show that the Commission was wrong to rely on evidence of higher than 
reported nameplate capacity. The EU fails to understand why that is the case. How can it not 
be permissible to adjust the declared capacity if evidence shows that the plant opera ted at a 
higher capacity? The EU also recalls that the Commission had evidence that companies had 
upgraded their capacities. Why should an investigating authority be obliged to ignore such 
evidence?   WT/DS494/R/Add.1  
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  4.5  CLAIMS WITH RESPECT TO THE CONDUCT OF THE EXPIRY REVIEW INVESTIGATION  
69. Russia 's claims #18, #19, #21 and #22 should be rejected outright as insufficiently specified. 
At the very least, they should be rejected to the extent that Russia seeks to add new 
"instances" of alleged WTO -inconsistent conduct onl y in its responses to Panel Questions.  
70. Regarding claim #16, the fact that interested parties actually made presentations shortly after 
receiving the evidence at issue is relevant both under Article 6.1.2 and 6.4. It sheds light on 
whether such evidence  was "made available promptly". The fact that the information was 
provided "in sufficient time to allow the interested parties seeing the information to prepare 
presentations based on it" also shows that the authority acted in line with Article 6.4. At the  
very least, it would be Russia 's burden to show why, even despite the fact that the alleged 
delays did not impede the interested parties from making presentations, the opportunities for 
access to information granted by the Commission were not timely. More over, Article 6.1.2 and 
Article 6.4 only apply to specific "information" and "evidence" identified by the complainant, 
and not to "access to the file" in the abstract.  
71. Russia tries to stretch the duration of the alleged delays. It disregards the time necessary for 
processing documents, including for confidentiality reasons, and seeks to attribute to the EU 
delays that depended on the interested party (e.g. the period between the insertion into the 
non-confidential file and the company 's actual access t o the document). Many of the 
submissions referred to by Russia did not yet exist, or were not yet received by the 
Commission when the relevant access requests were made. Certain delays of several days are 
due to holiday periods during which the Commission was closed. Finally, Russia fails to 
substantiate its claim that, due to some alleged delays, there was no time for the Commission 
to take RFPA 's presentations into account.  
72. Regarding claim #17, the "request" which needs to be disclosed under Article 6.1.3 (read in 
light of Article 5.1 and Article 11.4), and which constitutes the "relevant" information that was 
actually "used" by the authority within the meaning of Article 6.4, is the request on the basis 
of which the expiry review was initiate d. In this case, that is the consolidated request of 8  May. 
In any event, the extent to which the consolidated request contains the same information as 
the 28 March submission would clearly be relevant. The single difference between the 
documents of 28 Mar ch and 8 May identified by Russia (the omission of Yara GmbH) is 
marginal and unavailing.  
73. Regarding claim #18, for all of the new instances of alleged failure to show good cause, good 
cause was provided by several explanations and specifications on the  record. Especially for 
information that is confidential by nature, describing the nature of the information at issue 
and noting that the supplier would suffer adverse consequences if it was freely disclosed is 
sufficient. With respect to the claims made i n Russia 's first written submission, they are limited 
to the confidential treatment of the source  of the expert reports. It was sufficient for the expert 
to show good cause for confidential treatment of their identity once, with respect to both 
reports. G ood cause may be shown in respect of general categories of information.  
74. Regarding claim #19, Russia has not demonstrated why the summaries would be inadequate. 
Injury indicators were summarised in aggregate form, which corresponds to the fact that the 
assessment of injury is performed with respect to the domestic industry as a whole. Given 
that the domestic industry was always defined as all EU producers of the like product, neither 
the Commission nor any interested parties were required to separately as sess or report 
information with respect to sub -categories of the like product, individual producers or 
individual plants. Article 6.5.1 is not concerned with requests for additional explanations or 
for a different presentation of information, or, for examp le, with documents prepared by the 
investigating authority.  
75. Regarding claim #20, the Commission did not use facts available, as it did not disregard any 
information provided by the interested parties. Indeed, had the Commission decided to base 
its conc lusions solely on the nameplate capacity, it could be accused of improperly 
disregarding the production  information provided by the interested parties. As the 
Appellate  Body explained in US – Steel Plate , an investigating authority is required to do no WT/DS494/R/Add.1  
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  more than "consider" information submitted by a party, and is not bound by the submitting 
party's conclusions.  
76. Regarding claim #21 (Article 6.9), Russia 's SWS attempts to improperly expand the scope of 
its claim. In any case, Russia 's allegations are not specific enough for the Panel to make any 
findings. Russia fails to specify a single fact , much less explain why  it is essential.  
77. Regarding claim #22, Russia 's allegations are not specific enough for the Panel to make any 
findings . They amount to highly abstract assertions about the quality of analysis in the 2014 
Regulation (e.g. alleging that the Commission did not "appropriately address" product scope), 
or to re -statements of Russia 's substantive claims.  
_______________  
 
 
 WT/DS494/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 Argentina  112 
Annex  C-2 Integrated executive summary of the arguments of Australia  117 
Annex  C-3 Integrated executive summary of the arguments of Japan  121 
Annex  C-4 Integrated executive summary of the arguments of the Republic of Korea  124 
Annex  C-5 Integrated executive summary of the arguments of Norway  127 
Annex  C-6 Integrated executive summary of the arguments of Ukraine  129 
Annex  C-7 Integrated executive summary of the arguments of the United States  131 
 
 
 WT/DS494/R/Add.1  
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  ANNEX C -1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF ARGENTINA  
I. INTRODUCTION  
 
1. Argentina welcomes the opportunity to present its views to the Panel in the current 
proceedings.  
2. As a third party, we have a systemic interest in the proper interpretation of certain provisions 
of the Agreement on Implement ation of Article VI of the General Agreement on Tariffs and 
Trade  1994 (hereinafter "Anti -Dumping Agreement") and of the General Agreement on Tariffs and 
Trade 1994 (hereinafter "GATT  1994"), which we consider fundamental for ensuring that 
anti-dumping dut ies are imposed in conformity with the Agreements of the World Trade Organization 
(WTO).  
3. The current dispute addresses issues of paramount importance regarding the interpretation 
of Article 2.2 and 2.2.1.1 of the Anti -Dumping Agreement. In particular, i t addresses whether, when 
normal value is being determined, the said provisions of the Anti -Dumping Agreement allow 
WTO Members to:  
(1) disregard actual costs incurred by exporters simply because the investigating authority finds that 
they are allegedly af fected by government intervention;  
(2) replace those costs with the costs of a third country that is unaffected by the alleged distortion;  
(3) determine the existence of dumping and impose consequent duties on a basis other than the 
pricing conduct of the exporter under investigation.  
4. In Argentina's opinion, the answers to these questions should be negative. Any claims to the 
contrary in this regard should not prevail, not only because there is no basis for them in any existing 
provision of the WTO Agree ments but also because they have already been rejected by previous 
jurisprudence, as described below.  
II. LEGAL STANDARD APPLICABLE TO THE DETERMINATION OF NORMAL VALUE  
5. In its first written submission, Russia challenges the cost adjustment methodology u sed by 
the European Union (EU) in anti -dumping proceedings, since it considers that the said methodology 
violates Article  2.2.1.1 and 2.2 of the Anti -Dumping Agreement, inasmuch as the EU investigating 
authorities1: 
(a) reject the costs reflected in the r ecords kept by the exporter under investigation, when they 
view input costs and/or prices as "artificially or abnormally low" owing to alleged "distortions" or 
"market impediments" like government price regulation or the application of export duties in the  
country of origin; and  
 
(b) replace and/or adjust such recorded cost data using the cost data obtained from other sources, 
including so -called "representative markets", which the EU authorities consider as being unaffected 
by such "distortions" or "market  impediments", without ensuring that such adjusted or established 
costs represent the cost of production in the country of origin.  
 
6. The EU, for its part, argues that the alleged cost adjustment methodology does not exist as a 
norm of general and prospec tive application and that Russia has been unable to demonstrate the 
existence or the precise content of the said methodology.2 
 
1 Russia's first written submission, paras. 85 and 299.  
2 European Union's first written submission, para. 86. WT/DS494/R/Add.1  
BCI deleted, as indicated [[***]]  
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  7. As a third party, Argentina takes no position on the facts of this dispute. However, should the 
Panel find it necessary to as sess the merits of the Russian complaint, Argentina puts forward the 
following considerations regarding the correct interpretation of Article 2.2 and 2.2.1.1 of the 
Anti-Dumping Agreement.  
II.1. Claim relating to the inconsistency of the adjustment methodology and the use of 
information from a third country in accordance with Article 2.2 of the 
Anti-Dumping  Agreement.  
8. Firstly , Argentina recalls that the relevant part of Article 2.2 of the Anti -Dumping Agreement 
provides that: "When ther e are no sales of the like product in the ordinary course of trade in the 
domestic market of the exporting country or when, because of the particular market situation (…) 
such sales do not permit a proper comparison, the margin of dumping shall be determin ed by 
comparison with a comparable price of the like product when exported to an appropriate third 
country, (…) or with the cost of production in the country of origin (…)".  
9. In interpreting this provision in EU – Biodiesel (Argentina) , the Appellate Bod y concluded 
that, in accordance with Article 2.2 of the Anti -Dumping Agreement, in calculating the cost of 
production, the investigating authority may not substitute the costs of a third country unaffected by 
the alleged distortion for the costs in the cou ntry of origin.  
10. Specifically, in the above -mentioned dispute, the Appellate Body found and concluded that 
although "Article 2.2 does not specify precisely to what evidence an authority may resort", "[t]his 
(…) does not mean that an investigating author ity may simply substitute the costs from outside the 
country of origin for the 'cost of production in the country of origin '", and that "[i]ndeed, Article 2.2 
of the Anti -Dumping Agreement and Article VI:1(b)(ii) of the GATT  1994 make clear that the 
determ ination is of the 'cost of production […] in the country of origin '. Thus, whatever the 
information that it uses, an investigating authority has to ensure that such information is used to 
arrive at the 'cost of production in the country of origin '".3 
11. Argentina recalls that the Appellate Body's conclusions in EU – Biodiesel  (Argentina)  were 
recently reaffirmed by the Panel in Ukraine – Ammonium Nitrate (Russia)4, and that the Panel 
in EU – Biodiesel (Indonesia)  also found no grounds for deviating f rom the said conclusions and 
findings of case DS473.5 
12. Hence Argentina disagrees with the interpretation proposed by other third parties that appear 
to suggest that the reference to a "comparable price in the ordinary course of trade" or the need to 
use a suitable "proxy" in the absence of such operations empowers the authority: (a) to evaluate 
how government interference affects a "proper comparison"; and (b) to disregard even the costs of 
all the origin investigated, after the said authority has concl uded that it would not be appropriate to 
establish a normal value based on those costs under such circumstances.6 
13. In Argentina's view, a reading of Article 2.2 of the Anti -Dumping Agreement as put forward 
by these third parties – and which implicitly could be equivalent to disregarding the costs and prices 
of all the origin investigated, even in the case of market economies – should not prevail.  
14. In this regard, in Argentina's view, Article 2.2 of the Anti -Dumping Agreement already takes 
account of the situation described by the above -mentioned third parties. Specifically, Article 2.2 
provides that if the absence or insufficient level of sales in the ordinary course of trade does not 
permit a "proper comparison", the investigating authority must use one of the alternative methods 
established therein to remedy the situation.  
15. Hence, Argentina disagrees with any interpretation that results in validating an additional 
method for calculating the margin of dumping, beyond the two methods already provide d for in 
Article 2.2 of the Anti -Dumping Agreement for addressing such situations.  
 
3 Appellate Body Report, EU – Biodiesel (Argentina) , paras. 6.73, 6.81 and 6.82.  
4 Panel Report, Ukraine – Ammonium Nitrate (Russia) , para. 7.99.  
5 Panel Report, EU – Biodiesel (Argentina) , paras. 6.73, 6.81 and 6.82.  
6 United States' third -party submission, paras. 6 -12 and footnote 9.  WT/DS494/R/Add.1  
BCI deleted, as indicated [[***]]  
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  16. Argentina understands that this conclusion is backed by the jurisprudence in 
US – Anti-Dumping and Countervailing Duties (China) , where the Appellate Body established 
once again that the second Ad Note to Article VI:1 of the GATT  1994 constitutes the sole legal basis 
for the use of surrogate values for all the origin investigated in the context of anti -dumping 
investigations .7 
17. This was upheld by the Panel in EU – Biodiesel (Argentina) , which, in referring to "(...) the 
explicit provisions allowing investigating authorities to disregard domestic prices and costs when 
determining the normal value that are provided for under the second Ad Note to Article VI:1 of the 
GATT  1994 (which is incorporated by reference into the Anti -Dumping Agreement through Article 
2.7 thereof) (…)", concluded that "[a]t the very least, these provisions suggest to us that their 
drafters considered explicit derogations to be needed in order to al low investigating authorities to 
use prices or costs other than those prevailing in the country of origin".8 
18. Lastly, Argentina recalls that, in EU – Biodiesel (Argentina) , after concluding that when 
calculating the cost of production the investigating  authority was not authorized to substitute the 
costs of a third country unaffected by an alleged distortion for the costs in the country of origin9, the 
Appellate Body concluded that the EU had acted inconsistently with Article 2.2 of the 
Anti-Dumping  Agreement precisely for basing the cost of the main raw material used by producers 
of biodiesel on international prices instead of Argentine market pric es.10 
19. In this last regard , Argentina would like to draw the Panel's attention to the fact that, in line 
with the jurisprudence of India – Patents (US) , the principles of interpretation of treaties 
established in Article 31 of the Vienna Convention "nei ther require nor condone the imputation into 
a treaty of words that are not there (…) ".11 
20. In light of the foregoing, and given the existing wording of Article 2.2 and 2.7 of the 
Anti-Dumping Agreement, in Argentina's opinion, any interpretation of thes e provisions that results 
in authorizing the use of a dumping calculation method that entails the rejection of domestic costs 
and the replacement thereof with the costs of a third country unaffected by an alleged government 
"distortion" should be rejected,  since market economies are involved, for supposing an undue 
expansion of the Anti -Dumping Agreement and the GATT  1994.  
II.2. Claim relating to the phrase "particular market situation" in accordance with 
Article  2.2. 
21. In its submission, Russia contends that "the particular market situation" in Article 2.2 of the 
Anti-Dumping Agreement is restricted to "only one circumstance (…) which concerns a country's 
market as a whole", rather than "a particular market situation for the product concerned"12, and is 
restricted to the situation of a country that corresponds to the description of the second Ad Note to 
Article VI:1 of the GATT  1994.13 
22. In this regard , Argentina disagrees with Russia regarding such a restrictive interpretation and, 
accordingly, concurs with other third parties that other situations may exist that could be defined as 
a "particular market situation" under the terms of Article 2.2 of the Anti -Dumping Agreement.14 
23. However, at the same time, Argentina strongly disagre es with the position of certain third 
parties that appear to argue that establishing the existence of a "particular market situation" could, 
in the calculation of the margin of dumping, entail the use, in relation to market economies, of an 
exceptional met hod such as that provided for in the second Ad Note to Article VI:1 of the GATT  1994 
for non -market economies.15 
 
7 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 569.  
8 Panel Report, EU – Biodiesel (Argentina) , para. 7.241.  
9 Appellate Body Report, EU – Biodiesel (Argentina) , paras. 6.73, 6.81 and 6.82.  
10 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.81.  
11 Appellate Body Report, India – Patents (US) , para. 45.  
12 Russia's first written submission, paras. 138 and 147.  
13 Russia's first written submission, para. 144.  
14 Brazil's third -party submission, para. 15; United States' third-party submission, para. 22.  
15 United States' third -party submission, para. 22.  WT/DS494/R/Add.1  
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  24. In this regard, Argentina reiterates that, according to the explicit text of Article 2.2 of the 
Anti-Dumping Agreement, if because of a "particular market situation" sales do not allow an 
adequate comparison, with regard to market economies, the dumping margin must be determined 
by the authorities, by means of one of the two alternative methods already established in this 
provision.  
25. In Argentina's view, this interpretation is supported by the jurisprudence of the Appellate Body 
in EC – Fasteners (China) (Article 21.5 – China) , where the latter concluded that Article 2.7 of 
the Anti -Dumping Agreement and the second Ad Note to Article VI: 1 of the GATT  1994 constitute 
the only legal provisions in the agreements on the basis of which investigating authorities can validly 
replace all domestic costs and prices with those of a third country.16 
26. Furthermore, bearing in mind the lack of a defi nition of the phrase "particular market situation" 
in Article 2.2 of the Anti -Dumping Agreement, Argentina would point out that it concurs with Brazil 
that the Panel Report in EEC – Cotton Yarn  can constitute a suitable benchmark for interpretation 
in the present dispute inasmuch as the said Report states that "[a] 'particular market situation ' [is] 
only relevant insofar as it [has] the effect of rendering the sales themselves unfit to permit a proper 
comparison (…) it would be necessary, in the Panel's vie w, to establish that it affects the domestic 
sales themselves in such a way that they would not permit a proper comparison ."17 
27. Lastly, and still bearing in mind the lack of a definition in the Anti -Dumping Agreement, 
Argentina would also emphasize that  it concurs with Brazil that, for the purpose of determination of 
a "particular market situation" in accordance with Article 2.2, "(…) the mere fact of government 
participation or presence in a given market – short of the situation described in the first AD Note to 
Article VI of the GATT  1994 – does not in itself indicate price distortions that should warrant a 
deviation from the use of in -country prices by the investigating authority".18 
II. 3. Claim relating to the inconsistency of the adjustment methodol ogy with the second 
condition in the first sentence of Article 2.2.1.1 of the Anti -Dumping Agreement  
28. First of all, with regard to the fact that Russia challenges the rejection of costs when those 
costs are considered "artificially or abnormally low" ow ing to alleged "distortions" or "market 
impediments", Argentina considers the jurisprudence in EU – Biodiesel (Argentina)  to be 
illustrative.  
29. Firstly, we recall that, in the said dispute, the Appellate Body, when interpreting the scope of 
the second condition in the first sentence of Article 2.2.1.1 of the Anti -Dumping Agreement, found 
that the said provision "(…) relates to whether the records kept by the exporter or producer under 
investigation suitably and sufficiently correspond to or repro duce those costs incurred by the 
investigated exporter or producer that have a genuine relationship with the production and sale of 
the specific product under consideration".19 
30. The Appellate Body also agreed with the Panel that the said provision does not contain a 
standard of "reasonableness" pertaining to the costs themselves.20 
31. In the same case, the Appellate Body rejected the argument that the existence of input costs 
and/or prices that are "artificially or abnormally low" in comparison with int ernational prices on 
account of alleged "distortions" resulting from government regulations can constitute a sufficient 
legal basis in themselves for rejecting the records kept by exporters under investigation, and for 
replacing them with costs that are un affected by such distortions.21 
 
16 Appellate Body Report, EC – Fasteners (China) (Article 21.5 – China) , para. 5.205.  
17 Brazil's third -party submission, para. 16.  
18 Brazil's third -party submission, para. 17. 
19 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.56.  
20 Appellate Body Report, EU – Biodiesel (Argentina) , paras. 6.37, 6.39 and 6.56; Brazil's third -party 
submission, para. 10.  
21 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.56.  WT/DS494/R/Add.1  
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  32. In Argentina's view, the findings and conclusions referred to above in EU – Biodiesel 
(Argentina)  are consistent with the fact that:  
(1) Article  1 of the Anti -Dumping Agreement, as a relevant context for the interpretati on of the 
second condition in the first sentence of Article 2.2.1.1 of the Anti -Dumping Agreement, provides 
that an anti -dumping measure can be applied consistently only under the circumstances provided 
for in Article VI of the GATT  1994 and in accordance with the object and purpose of this Agreement22; 
and 
(2) As the Appellate Body found in US – Stainless  Steel (Mexico) : "Dumping arises from the 
pricing practices of exporters (…)".23 
33. In this last regard , Argentina would also draw the Panel's attention to the fact that the 
proposition that the practice of dumping is not restricted to the pricing conduct of exporters was 
already rejected previously by the Panel in EU – Biodiesel (Argentina)  when it concluded 
categorically that "(…) We therefore see no rea son to extrapolate from this provision that the concept 
of 'dumping ' is generally intended to cover any distortion arising out of government action or 
circumstances such as those surrounding Argentina's export tax system and its impact on soybean 
prices as an input material for biodiesel".24 
34. Hence  Argentina does not co ncur with other third parties whose interpretation is that in 
EU – Biodiesel (Argentina)  the Appellate Body left open the possibility of not taking account of 
exporters' or producers' costs in "specific circumstances " when such costs are allegedly affected  by 
"government price controls" .25 
35. Moreover, Argentina recalls that recently the Panel in EU – Biodiesel (Indonesia)  validated 
the findings and conclusions of case DS473 relating to the second condition in the second sentence 
of Article 2.2.1.1.  
36. Therefore , in this third party's opinion, Article 2.2.1.1 of the Anti -Dumping Agreement clearly 
excludes any interpretatio n that validates the use of a dumping calculation method that rejects the 
actual costs incurred by exporters (and duly reflected in accounting records), on the basis of the 
alleged existence of a "distortion" or "market impediments", and replaces them with  hypothetical 
costs that the exporter under investigation would have incurred in the absence of alleged 
government intervention or regulation.26 
III. CONCLUSION  
37. Argentina thanks the Panel for this opportunity to present its views on the issues raised i n this 
dispute.  
 
 
22 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.25 and footnote 130.  
23 Appellate Body Report, US – Stainless Steel (Mexico) , para. 94; Appellate Body Report, US – Zeroing 
(Japan) , para. 156; Appellate Body R eport, US – Zeroing (EC) , para. 129.  
24 Panel Report, EU – Biodiesel (Argentina) , para 7.240.  
25 Japan's third -party submission, para. 24. 
26 Appellate Body Report, EU – Biodiesel (Argentina) , paras. 6.19, 6.20, 6.22, 6.30, 6.81 and 6.82.  WT/DS494/R/Add.1  
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  ANNEX C -2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS  OF AUSTRALIA  
I. INTRODUCTION  
1. Australia 's submission addresses two important interpretative issues regarding Articles 2.2 
and 2.2.1.1 of the Anti -Dumping Agreement: (i) the meaning of "particular market situation" 
and "proper comparison" in Article 2.2; and (ii) the guiding principle for cost co nstruction  in 
Article 2.2.1.1.  
II. ARTICLE 2.2 OF THE ANTI -DUMPING AGREEMENT  
2. Together, Article VI:1 of the GATT 1994 and Article 2.1 of the Anti -Dumping Agreement 
provide that a product is considered "dumped" – that is, introduced into the commerce of a n 
importing country at less than its normal value – if the price of the product exported from one 
country to another is: (i) less than the comparable price, (ii) in the  ordinary course of trade , 
(iii) for the like product, (iv) when destined for consumptio n in the exporting country.  
3. The ordinary meaning of these critical qualifying terms, "c omparable " and " in the ordinary 
course of trade ", together with " proper comparison" in Article 2.2 of the 
Anti-Dumping  Agreement, indicates that: (i) dumping must be determined by comparing a 
product's export price with an appropriate or suitable domestic price of the like product; and 
(ii) a domestic price will only be appropriate or suitable for this purpose where it is determined 
by "'normal' commercial practice".1 
4. This interpretation is confirmed by the Ad Note to Article VI:1 of the GATT 1994, which 
reinforces that prices not determined by normal commercial practice – such as prices distorted 
by the State's intervention – are not a suitable or  appropriate basis  for determining the 
existence or margin of dumping.2 
5. The Appellate Body in EU – Biodiesel (Argentina)  also confirmed that Article 2.2 of the 
Anti-Dumping Agreement concerns the establishment of "normal value" through an 
"appropriate proxy for the like product in the ordinary course of trade  in the domestic market 
of the exporting country when the normal value cannot be determined on the basis of domestic 
sales"3 – an endeavour described by the Panel in that dispute as the "basic purpo se" of 
constructing normal value.4 
6. Article 2.2 of the Anti -Dumping Agreement provides three circumstances in which 
WTO Members must disregard domestic sales to determine the "normal value" of a product 
for the purpose of calculating the margin of dumpi ng. This submission focuses on the second 
circumstance; that is, where sales in the exporting country's market do not "permit a proper 
comparison" with the export price because of the "particular market situation".5 
7. The term "particular market situatio n" is not defined in Article 2.2. Therefore, panels must 
interpret this term (as directed by the Vienna Convention on the Law of Treaties6) in 
accordance with its ordinary meaning, in context, and in light of the object and purpose of the 
Anti-Dumping Agr eement.  
8. The ordinary meaning of the word "particular" is "pertaining or relating to a single definite 
thing or person, or set of things or persons, as distinguished from others; of or belonging to 
 
1 Appellate Body Rep ort, US – Hot Rolled Steel , para. 140.  
2 See, Appellate Body Reports, EC – Fasteners (China) , para. 285 and EC – Fasteners (China) 
(Article  21.5 – China) , para. 5.207.  
3 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.24.  
4 Panel Report, EU – Biodiesel (Argentina) , para.7.233.  
5 Appellate Body Report, EC — Tube or Pipe Fittings , para. 94.  
6 Vienna Convention on the Law of Treaties, Article 31.  WT/DS494/R/Add.1  
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  some one thing (etc.) and not to any other, or to some a nd not to all; … special; not general".7 
The ordinary meaning of the word "market" is "the action or business of buying and selling"8 
and "sale as controlled by supply and demand"9. The ordinary meaning of the word "situation" 
is a "condition or state ( of anything)" and "position of affairs; combination of 
circumstances".10,11 
9. In terms of context, the term "particular market situation" is one of the three conditions under 
which an investigating authority must derive the "normal value". The other two conditions 
address circumstances in respect of sales of the like product in the market of the exporting 
country (that is, where there are "no sales in the exporting country of the like product in the 
ordinary course of trade" and where "sales in the exporting country's market do not "permit 
a proper comparison" because of their low vo lume").12 None address the specific condition in 
a country as a whole.  
10. Consequently, in Australia 's view, the ordinary meaning of the term "particular market 
situation", interpreted in its context and in light of the object and purpose of the Anti -Dumping 
Agreement, refers to any condition, state or combination of circumstances in respect of the 
buying and selling of the like product in the market of the exporting country that is 
distinguishable and not general.13 
11. Interpreting the phrase "such sale s do not permit a proper comparison" is also a contextual 
exercise. Australia recalls that the express purpose of constructing the normal value under 
Article 2.2 is to enable a " proper  comparison" with the export price. Thus, the inclusion of the 
qualifying term "proper" indicates that the construction of normal value under Article 2.2 must 
yield a price that is appropriate or suitable for comparison with the relevant export price for 
the purpose of determining the existence (and margin) of dumping.  
12. Accordingly, an investigating authority may find that a "particular market situation" exists 
when the evidence on record shows that a specific condition or set of circumstances renders 
domestic sales unfit for comparison with the export price. This interpretation is fully consistent 
with the findings of EC – Cotton Yarn , in which the GATT Panel found that a "particular market 
situation" was "relevant insofar as it had the effect of renderi ng the sales themselves unfit to 
permit a proper comparison" and that "[t]here must be something intrinsic to the nature of 
the sales themselves that dictates they cannot permit a proper comparison".  
13. Australia further notes that there is nothing in th e text of Article 2.2, 2.7 or the second Ad Note 
to Article  VI:1 of the GATT 1994 that suggests that the term "particular market situation" is 
limited in the way Russia describes. In particular, the second Ad Note does not purport to 
define  "particular mar ket situation"; it merely recognises that one instance  where domestic 
price may not be suitable for use as the basis for "normal value" is where imports are "from 
a country which has a complete or substantially complete monopoly of its trade and where all 
domestic prices are fixed by the State".  
14. For these reasons, Australia disagrees with Russia that "particular market situation" under 
Article 2.2 of the Anti -Dumping Agreement only applies with respect to a country that meets 
the description of the seco nd Ad Note to Article VI:1 of the GATT, and is a reference to the 
specific condition in a country as a whole.14 In Australia 's view, this interpretation is not 
consistent with a Vienna Convention analysis of the relevant terms, and does not accord with 
the reasoning in EC – Cotton Yarn . 
 
7 The Compact Oxford English Dictionary, 2nd edition, J. A. Simpson & E. S. C. Weiner (ed.) (Oxford 
University Press, 1994), p. 1279. (emphasis added)  
8 The Compact Oxford English Dictionary, p. 1038. (emphasis added)  
9 The Compact Oxford English Dictionary , p. 1038.  
10 The Compact Oxford English Dictionary, p. 1778.  
11 See also, US' third party submission, para. 16.  
12 Appellate Body Report, EC — Tube or Pipe Fittings , para. 94.  
13 See also, US' third party submission, para. 19.  
14 Russia 's First Written Submiss ion, para. 152.  WT/DS494/R/Add.1  
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  15. A "particular market situation" such that domestic sales do not "permit a proper comparison" 
is a separate and distinct set of circumstances from that provided in the second Ad Note to 
Article VI:1 of the  GATT 1994.  
III. ARTICLE 2.2.1.1 OF THE ANTI -DUMPING AGREEMENT  
16. Russia claims several violations of the provisions of the Anti -Dumping Agreement in relation 
to the EU 's Basic Regulation and the EU 's cost construction methodology. Australia does not 
comment on the part icular facts at issue, but rather focuses on the proper interpretation of 
Articles 2.2 and 2.2.1.1 of the Anti -Dumping Agreement.  
17. The plain text of Article 2.2.1.1 makes clear that this provision informs the manner in which 
costs should be calculated "for the purpose of" establishing normal value under Article 2.2.15 
The first sentence provides that "costs shall normally  be calculated on the basis of records 
kept by the exporter or producer under investigation ", provided two expressly stated 
conditions are met.  
18. The ordinary meaning of the term "normally" suggests "[u]nder normal or ordinary conditions; 
ordinarily; as a rule".16 The text of Article 2.2.1.1 thus provides that, under normal or ordinary 
conditions, an investigating authority should calculate costs for the purpose of Article 2.2 on 
the basis of the records kept by the relevant exporter or producer, where th ose records meet 
the conditions outlined.  
19. Where the circumstances in respect of the records are not normal and ordinary, the 
investigating authority is not required to calculate costs on the basis of records kept by the 
exporter or producer under inve stigation, even if the two conditions in Article 2.2.1.1 are 
satisfied.17 This interpretation is fully consistent with the findings of panels and the Appellate 
Body in relation to the meaning of "normally" in Article  2.2.1.1.18  
20. The text of Article 2.2 .1.1 therefore indicates that an investigating authority may depart "from 
the norm"19 of calculating costs on the basis of exporter or producer records where: (i) the 
relevant conditions or circumstances are not "normal" or "ordinary"; and (ii) the investi gating 
authority explains or justifies that departure.  
21. Australia notes that the guiding principle for an investigating authority pursuant to Articles  2.2 
and 2.2.1.1 of the Anti -Dumping Agreement is that the constructed normal value must 
establish an "appropriate proxy for the price of the like product in the ordinary course of trade 
in the domestic market of the exporting country when the normal value cannot be determined 
on the basis of domestic sales".20 The Appellate Body has confirmed that "costs calculated 
pursuant to Article 2.2.1.1 of the Anti -Dumping Agreement must be capable of generating 
such a proxy".21  
22. This is not a question of whether the recorded costs are "reasonable". Rather, it is a question 
of whether the records are capable of fulfilling the "basic purpose"22 of cost construction by 
generating an appropriate proxy for normal value. Where reliance on the cost s reflected in the 
records of the producer or exporter would not result in an appropriate proxy, even if the two 
conditions in Article 2.2.1.1 are satisfied, an investigating authority must adjust or disregard 
those costs and provide reasons for doing so.  
 
15 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.17.  
16 The New Shorter Oxford English Dictionary , 4th edition, L. Brown (ed.) (Oxford University Press, 
1993), Vol. 2, p. 1940.  
17 See, Appellate Body Report, US – Clove Cigarettes , para. 273.  
18 See, Appellate Body Reports, US – Clove Cigarettes , para. 273 and Ukraine – Ammonium Nitrate , 
para. 6.87 and footnote 315; Panel Reports, China – Broiler Products , para. 7.161 and EU – Biodie sel 
(Argentina) , para. 7.227.  
19 Panel Report, China – Broiler Products , para. 7.161.  
20 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.24; see also Panel Report, EU – Biodiesel 
(Argentina) , para. 7.233.  
21 Appellate Body Report, EU – Biodiesel (A rgentina) , para. 6.24.  
22 Panel Report, EU – Biodiesel (Argentina) , para. 7.233.  WT/DS494/R/Add.1  
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  23. In these situations, the  Appellate Body has made it clear that an "out -of-country" benchmark 
can be used for the purpose of determining the constructed normal value. However, it has 
cautioned that "whatever the information … it uses, an investigating a uthority has to ensure 
that such information is used to arrive at the "cost of production in the country of origin". 
Compliance with this obligation may require the investigating authority to adapt the 
information that it collects".23 
24. In adapting an ou t-of-country benchmark to reflect the cost of production in the country of 
origin, such adjustments should not reintroduce inaccuracies or unreliabilities that have been 
legitimately rejected under Article 2.2.1.1. To do so would hinder the ability of the benchmark 
to yield an appropriate proxy – that is, to fulfil the "basic purpose" of cost construction.  
25. As confirmed by the Appellate Body in EU – Biodiesel (Argentina) , the relevant costs in 
Article  2.2.1.1 "are those costs that, together with other elements, would otherwise form the 
basis for the price of the like product if it were sold  in the ordinary course of trade in the 
domestic market".24 
26. Interpreted in a manner that gives meaning to all of the crucial terms used, Articles 2.1, 2.2 
and 2.2.1.1 require a " proper  comparison" with a " comparable price" " in the ordinary course 
of trade " – that is, with prices and costs determined by normal commercial practice.  
 
23 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.73.  
24 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.24.  WT/DS494/R/Add.1  
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  ANNEX  C-3 
INTEGR ATED EXECUTIVE SUMMARY OF THE ARGUMENTS  OF JAPAN  
I. THE METHODS PRESCRIBED IN ARTICLE VI:1 OF THE GATT 1994 AND ARTICLE 2.1 
AND 2.2 OF THE ANTI -DUMPING AGREEMENT ARE NOT EXHAUSTIVE  
1. Contrary to Russia 's argument, Article 2.2 of the Anti-Dumping Agreement does not prescribe 
an exhaustive list of methods for determining normal value or the margin of dumping.1 In considering 
this question, the Panel should examine the first and second sentences of Article VI:1 of the 
GATT  1994, which p rovides relevant context for the interpretation of Article 2.2 of the 
Anti-Dumping  Agreement.2 The first sentence of Article VI:1 of the GATT 1994 defines "dumping " as 
imports of products "at less than the normal value ".3 The second sentence of Article V I:1 of the 
GATT 1994 sets out a price comparison methodology to determine whether subject imports are being 
"dumped ", i.e., whether they are introduced in the commerce of another country "at less than the 
normal value ". That methodology entails a compariso n between the export price and the domestic 
price of the subject imports. In the absence of a comparable domestic price, the second sentence of 
Article  VI:1 of the GATT 1994 sets out two subparagraphs listing two alternative methodologies.  
2. "Normal valu e" under both sentences of Article VI:1 of the GATT 1994 is a distinct concept 
from the "prices " or "cost" specifically referred to in the alternative methodologies listed in the 
second sentence of that provision. The second sentence does not specifically state that the "prices " 
or "cost" described therein constitute "normal value ", and that a comparison between those prices 
or costs and export prices constitutes the sole means of determining "dumping ". Instead, IT 
illustrates only the relationship of norma l value to three alternative domestic transaction prices and 
costs. The phrasing of the second sentence thus demonstrates that the methodologies described in 
Article VI:1 of the GATT 1994 are merely examples of ways to determine what is less than normal 
value; they do not exhaust the acceptable ways of doing so. This interpretation applies to Articles  2.1 
and 2.2 of the Anti -Dumping Agreement as well, because those provisions do not change the 
relationship between the first and second sentences of Article V I:1 of the GATT 1994.  
II. ARTICLE 2.2 OF THE ANTI -DUMPING AGREEMENT DOES NOT APPLY IN THE CONTEXT 
OF NON -MARKET ECONOMIES  
3. The term "particular market situation " in Article 2.2 of the Anti -Dumping Agreement only 
refers to "market " situations, as is the rest of Article 2.2 of the Anti -Dumping Agreement, including 
Article 2.2 of the Anti -Dumping Agreement. Thus, where the exporting country is not a market 
economy, t hese provisions do not apply. As support for this interpretation, Japan notes that a proper 
interpretation of the term "normal value " in Article 2.2 of the Anti -Dumping Agreement  is a value 
conforming to , or not deviating from , prices or costs generated  under market economy conditions. 
This interpretation of "normal value " reconciles the definition of dumping with the requirement under 
Article VI:1 of the GATT 1994 that it be determined by reference to "the comparable price ", and that 
the comparison achieve  "price comparability ". Prices or costs generated in a non -market economy 
cannot be considered as "comparable ". This is because a comparison between such prices and costs 
and the export price is incapable of producing a meaningful answer to the question of  whether there 
is dumping, as defined by Article VI:1 of the GATT 1994 and Article 2.1 of the 
Anti-Dumping  Agreement of the Anti -Dumping Agreement. Accordingly, Article 2.2 of the 
Anti-Dumping Agreement, including Article 2.2 of the Anti -Dumping Agreement. 1.1, does not apply 
in the context of non -market economies.  
 
1 Russia 's first written submission, para. 94.  
2 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 564 ("Article VI, 
entitled 'Anti-dumping and Countervailing Duties ', is the genesis of both the SCM Agreement and the 
Anti-Dumping Agreement").  
3 Article VI:1 of the GATT 1994 provides that: "The contracting parties recognize that dumping , by 
which products of one country are introduced into the commerce of another country at less than the normal 
value  of the products, is to be condemned if it caus es or threatens material injury to an established industry in 
the territory of a contracting party or materially retards the establishment of a domestic industry" (underlining 
added).  WT/DS494/R/Add.1  
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  4. For market economies, "a particular market situation " under Article 2.2 of the 
Anti-Dumping  Agreement may be deemed to exist depending on the facts and circumstances of a 
particular case. This  includes a situation where prices or costs in relation to a specific product or 
industry are found to be distorted by government intervention. In this regard, while Article VI:1 of 
the GATT 1994 and Article 2.1 of the Anti -Dumping Agreement of the Anti -Dumping Agreement 
define "dumping " as imports of the product at less than its "normal value ", they do not identify the 
underlying causes of dumping, much less exclude that government intervention may give rise to 
dumping.4 Indeed, Article  VI:5 of the GATT 1994 explicitly contemplates that dumping may result 
from subsidies or other government actions.  
III. ARTICLES 2.2 AND 2.2.1.1 OF THE ANTI -DUMPING AGREEMENT PERMIT THE USE OF 
OUT-OF-COUNTRY INFORMATION  
5. For "market economies ", Articles 2.2 and 2.2.1.1 of the Anti -Dumping Agreement permit the 
use of out -of-country information to construct normal value in circumstances where costs generated 
in the domestic market are distorted. This flows from the fact that Article 2.2 of the 
Anti-Dumping  Agreement "concerns the establishment of the normal value through an appropriate 
proxy for the price of the like product in the ordinary course of trade when the normal value cannot 
be determined on the basis of domestic sales ".5 Accordingly, "costs calculated pursuant to 
Article  2.2.1.1 … must be capable of generating such a proxy ".6 Where the cost of production in the 
country of origin is not capable of generating an appropriate proxy, cost -related information may 
thus be sourced from outside t he country of origin. If this were not the case, the purpose of 
Article  2.2 of the Anti -Dumping Agreement would be defeated. However, because Articles 2.2 
and 2.2.1.1 of the Anti -Dumping Agreement are concerned with generating an appropriate proxy  for 
home  market prices, it may be necessary to adapt any cost -related information sourced from outside 
the home market to ensure that the proxy arrived at is in fact an appropriate proxy for home market 
prices.7 The adaptation required would depend on the charact eristics of the country of origin and the 
specific circumstances of each case.  
IV. ARTICLE 11.3 OF THE ANTI -DUMPING AGREEMENT REQUIRES A CAUSAL LINK 
BETWEEN DUMPING AND INJURY TO MAINTAIN AN ANTI -DUMPING DUTY  
6. Sunset reviews conducted under Article 11.3 of the Anti -Dumping Agreement are different in 
nature from original investigations. Unlike original investigations, sunset reviews are not concerned 
with the imposition of anti -dumping duties. Instead, they are concerned with the question of whether 
anti-dumping duties should be maintained . Because of this difference, the Appellate Body has noted 
that investigating authorities are not explicitly mandated to follow the provisions of Article 3 of the 
Anti-Dumping Agreement in sunset reviews.8 This does not m ean, however, that investigating 
authorities can make determinations freehandedly in sunset reviews. In particular, although the 
causal link between dumping and injury need not be established anew in sunset reviews, this does 
not mean that such link is not  required to maintain an anti -dumping duty. On the contrary, 
Article  11.3 of the Anti -Dumping Agreement explicitly requires a nexus between "the expiry of the 
duty" and the likelihood of "continuation or recurrence of dumping and injury ". This nexus, if sh own, 
allows the existence of a causal link between dumping and injury to be reasonably assumed.9 That 
nexus cannot be assumed. Article 11.3 of the Anti -Dumping Agreement requires a nexus that must 
be "clearly demonstrated "10 between "the expiry of the duty", on the one hand, and the likelihood 
of "continuation or recurrence of dumping and injury ", on the other hand.  
 
4 Japan does not exclude the possibility that government intervention wi th a reasonable policy ground, 
for example, provision of universal services, may not be found to be distorting prices.  
5 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.24.  
6 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.24.  
7 Appel late Body Report, EU – Biodiesel (Argentina) , para. 6.73. 
8 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 280.  
9 Appellate Body Report,  US – Oil Country Tubular Goods Sunset Reviews , para. 121 ("[W]hen a 'review' 
takes place u nder Article 11.3, and it is determined that the 'expiry of the duty' would 'likely … lead to 
continuation or recurrence of dumping and injury', it is reasonable to assume that, where dumping and injury 
continues or recurs, the causal link between dumping and injury, established in the original investigation, 
would exist and need not be established anew").  
10 Appellate Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods , para. 108 (citing 
Appellate Body Report, US – Corrosion -Resistant Stee l Sunset Review , para. 111).  WT/DS494/R/Add.1  
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  7. The notion that a causal link is required to maintain an anti -dumping duty in the context of 
sunset reviews finds further support in Ar ticle VI of the GATT 1994. Article VI of the GATT 1994 
makes clear that the purpose of an anti -dumping duty is to counteract dumping that causes injury. 
This purpose is common to both original investigations and sunset reviews. As recognized by the 
Appella te Body, "[a] causal link between dumping and injury to the domestic industry is … 
fundamental to the imposition and maintenance  of an anti -dumping duty ".11  
8.  Finally, Japan also notes that the Appellate Body has also confirmed that "the fundamental 
requirement of Article 3.1 that an injury determination be based on 'positive evidence ' and an 
'objective examination ' would be equally relevant to likelihood determinations under Article 11.3 ".12 
Accordingly, it would be inconsistent with Article 11.3 of the  Anti-Dumping Agreement to maintain 
an anti -dumping duty without ensuring, based on positive evidence and an objective examination, 
that imports are injurious.  
 
 
11 Appellate Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods , para. 117.  
12 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 284.  WT/DS494/R/Add.1  
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  ANNEX C -4 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE REPUBLIC OF K OREA  
I. INTRODUCTION  
1. Korea welcomes the opportunity to present its views on the proper interpretation of the two  
provisions  that are main ly at issue in this dispute. First is the  meaning of a  "particular market 
situation ", or PMS,  within the meaning in Article 2.2 of the Anti-Dumping Agreement ("ADA") , and 
the second is the method of calculating cost of production pursuant to the first sentence of 
Article  2.2.1.1 of the ADA. Korea has systemic interests in the proper interpretation  and application 
of these provisions, which are  essential components of establishing normal value in anti -dumping 
proceedings.  
II. THE MEANING  OF "PARTICULAR MARKET SITUATION " UNDER ARTICLE 2.2 OF THE 
ANTI -DUMPING AGREEMENT  
2. The WTO agreements do not pr ovide a definition of PMS. As a result, Members have expressed 
divergent view s on its proper interpretation, as evinced in the different interpretations proposed  in 
this dispute . Korea offers the following observations on the proper interpretation of Artic le 2.2 of the 
ADA, in particular, the circumstances under which an investigating authority is permitted to 
disregard domestic sales based on its finding on the existence of a PMS.  
3. A proper interpretation of PMS must be made in accordance with the gener al rules of treaty 
interpretation as provided under the Vienna Convention, namely, that the treaty must be interpreted 
in good faith, in accordance with its ordinary meaning to be given to the terms of the treaty in their 
context and in light of its object  and purpose.1  
4. The plain text of Article 2.2 permits an investigating authority to reject domestic sales prices 
by finding the existence of a PMS when three conditions are met: (1) there must be a "particular " 
situation in the "market at issue "; (2) this situation must have an effect on the "sales of the like 
product in the domestic market of the exporting country "; and (3) the effect must be such that a 
"proper comparison " with the export price cannot be made . Korea is of the view that all thre e 
conditions must be met in order to invoke the PMS exception  in a proper manner . Korea examines 
each of the conditions in turn.  
5. First, Russia in its first written submission provided the dictionary definitions of the terms 
"particular," "market," and "situation."2 Based on the ordinary meaning of these terms, Korea agrees 
with Russia  that PMS refers to a "special and distinct" situation in a market.3 In this respect, Korea 
considers that the "special and distinct " situation would not include  circumst ances that arise normally 
in an economy that is operating principally on the basis of the market forces of supply and demand .  
6. Korea does not consider, however, that the situation has to relate to the exporting country as 
a whole as Russia appears to ar gue.4 Rather, a PMS should  be interpreted as one confined to a 
specific product market. A contextual reading in light of the object and purpose of the agreement 
supports this finding. As the EU points out, the focus of Article 2.2 is to establish the norm al value 
with respect to a particular like product.5 Therefore, it is reasonable that the "market" to which the 
PMS requirements apply would be the market of the particular product under investigation, and not 
the entire market as a whole.  
7. Korea recog nizes that, as Russia has pointed out, Article 2.7 of the ADA references the Ad Note 
to GATT Article VI:1.6 However, Korea considers that it would not be correct to place undue weight 
 
1 Vienna Convention on the Law of Treaties, Article 31(1).  
2 Russia 's first written submission, para. 140.  
3 Russia 's first written submission, para. 142.  
4 Russia 's first written submission, para. 142.  
5 EU's first written submission, paras. 67 -68. 
6 Russia's first written submission, para. 146.  WT/DS494/R/Add.1  
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  on the Ad Note to GATT Article VI:1  in interpreting the PMS within the meaning of Article 2.2 of the 
ADA. While the Ad Note may contextually offer guidance on the interpretation o f Article 2.2, it is a 
legally separate provision that concerns a specific situation different from the one developed in detail 
in the ADA. Korea considers that neither in the WTO agreements as a whole, nor in the negotiating 
history of the ADA, can one fi nd a meaningful link between the concept of PMS in Article  2.2 of ADA 
and the Ad Note to GATT Article VI . Moreover, the Ad Note applies in a very specific situation that 
might not even be present today. Korea notes that the Ad Note concerns a situation "wh ere all 
domestic prices are fixed by the State". Therefore, to interpret PMS as confined solely to the 
Ad Note's situation would effectively render inutile the concept of PMS.  
8. Second, it is clear that the PMS in question must affect domestic sales of th e like product in 
the exporting country, and not the export sales. This follows from the construction of Articles 2.1, 
2.2, and 2.3 of the ADA. Article 2.1 sets forth the default rule that the normal value shall be based 
on the sales price in the domestic market. Article 2.2 provides for circumstances where the 
investigating authority  must determine the normal value on an alternative basis. Thus, the PMS 
under Article 2.2 must be understood to refer to a situation that affects the normal value that would 
otherwise be determined pursuant to Article 2.1 – i.e., based on the sales of the like product when 
destined for consumption in the exporting country. In this respect, Article 2.2, which addresses the 
calculation of normal value, is  clearly contrasted with A rticle 2.3 , which applies to the determination 
of export price.  
9. Third, a relevant PMS is one that has the effect of preventing a "proper comparison" with the 
export price, as mandated in Article 2.2 of the ADA. It is only when the PMS prevents a "prope r 
comparison" that alternative methodologies  may be used to determine the normal value. Conversely, 
if a PMS is found to exist, but there is no impact on the comparison of the normal val ue and the 
export price, then there is no basis to resort to alternati ve methodologies. Only when there are 
factors that affect the calculation of the normal value and the export price differently , can there be 
a PMS finding justifying the use of alternative methodologies.  The Appellate Body confirmed this in 
EC – Tube or Pi pe Fittings  when it held that, to disregard domestic selling prices based on a PMS 
finding, it must be established that the "sales in the exporting country's market do not 'permit a 
proper comparison' because of 'the particular market situation'".7 
10. Korea considers that specific situations affecting the cost of production, such as input 
subsidies, will not usually prevent  a "proper comparison" because production costs are normally the 
same irrespective of whether the product is destined for domestic or export market. This is confirmed 
by the Appellate Body, which has observed that subsidies will, in principle, "affect the prices at which 
a producer sells its goods in the domestic market and in export markets in the same way and to the 
same extent", since  "any lowering of prices attributable to the subsidy will be reflected on both sides 
of the dumping margin calculation".8 Accordingly, the overall dumping margin would not be affected 
by such subsidization.  
11. For these reasons, the fact that the prices in the market of exporting country are "artificially 
low" cannot alone justify  provide a valid basis for finding that a  PMS exists . Instead, the Panel must 
examine: ( 1) whether  the situation which led to the "artificially low " prices is an exceptional set of 
circumstances ; (2) whether the "low prices " affect domestic selling prices of the like product; and 
(3) whether they c reate asymmetry with the export price so that a proper comparison cannot be 
achieved.  Only an affirmative answer to each of these three questions would justify resorting to an 
alternative methodology to establish the normal value because of PMS.  
III. THE METHOD OF CALCULATING COST OF PRODUCTION PURSUANT TO THE FIRST 
SENTENCE OF ARTICLE 2.2.1.1 OF THE ADA   
12. When domestic sales prices cannot be used, Article 2.2 provides two alternative methods for 
establishing the normal value: use of third -country sales  or the construction of normal value based 
on the "cost of production in the country of origin  plus a reasonable amount for administrative, 
selling and general costs and for profits".9 Specifically, at issue in this dispute are the conditions for 
justifyi ng the rejection of cost records  maintained  by the exporters  under Article 2.2.1.1 of the ADA, 
 
7 Appellate Body Report, EC – Tube or Pipe Fittings , para. 94.  
8 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 568.  
9 Emphasis added.  WT/DS494/R/Add.1  
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  and when cost records are properly rejected, whether  the proper interpretation of the Article permits 
the use of out-of-country costs to determine the cost of production .  
13. While not taking a position on the consistency of the EU law at issue, Korea would like to offer 
the following observations on  (1) the conditions for disregarding records maintained by the exporter 
or producer under investigation provided under Article 2.2.1.1 of the ADA and (2) the source of cost 
information that can be used under Article 2.2 and 2.2.1.1.  
14. First, Article 2.2.1.1 provides that the cost of production shall normally be calculated on the 
basis of the records kept by the inv estigated exporter  or producer. That rule is subject to two 
conditions: (1) that the records are "in accordance with the generally accepted accounting principles 
of the exporting country"; and (2) that they "reasonably reflect the cost s associated with the  
production and sale of the product under consideration."  
15. The EU has suggested that the reference to Article 2.2 and the use of the term "normally" in 
Article 2.2.1.1 , besides the two aforementioned conditions, also provides a basis for rejecting 
recorded costs  in the construction  of cost of production  upon a finding of PMS.10 However, i n Korea's 
view, the term "normally" does not  support the existence of situations ot her than the two prescribed 
in Article 2.2.1.1, which could justify the derogation from the obligation of an investigating authority 
to use the records kept by the exporter or producer under investigation. Rather, Korea understands 
the term "normally" to e stablish the presumption that, if the specific conditions prescribed in the 
first sentence of Article 2.2.1.1  are met , the source for calculating cost of production must be the 
records maintained by the exporter or producer under investigation. This view was upheld by the 
panel in China – Broiler Products (Article 21.5 – US).11  
16. Second, while Article 2.2.1.1 does not contain any explicit restrictions on the source  of 
information that can be used in situations when investigating authorities properly reje ct the record s 
kept by the exporter or producer under investigation, investigating authorities are still required to 
use information that reflects the relevant cost in the country of origin . This is clear from the text of 
the ADA. In particular, as noted a bove, Article 2.2 provides that investigating authorities shall, when 
constructing the normal value, base it on "the cost of production in the country of origin ."12 Further, 
Article 2.2.2 , which forms another pillar in the establishment of "constructed nor mal value" stipulates 
that the administrative, selling and general costs and for profits shall be based on data in "the 
country of origin".  
17. Thus, in the view of Korea, even in the situation where the recorded costs are properly 
rejected, these costs may not simply be  replaced with out -of-country data for the construction of 
the normal value. Rather, in situations where out -of-country data is used to calculate cost of 
production, there is an onus on the investigating authority to make necessary adjustments and 
provide sufficient explanation of how it ensured that the cost used is one that is reflective of the 
costs in the country of origin. Korea agrees with the Appellate Body in EU – Biodiesel (Argentina) 
when it explained that " whatever the information  that it uses, an investigating authority has to 
ensure  that such information is used to arrive at the 'cost of production in the country of origin' . 
Compliance with this ob ligation may require the investigating authority to adapt  the information that 
it collects".13  
18. For this reason, whenever information is used that does not come from the exporting country 
in question, but are derived from third countries or global benc hmarks, it is incumbent on the 
investigating authority to ensure that the cost data is fit for purpose, namely to establish the cost of 
production in the country of origin . Therefore, the data may have to be adjusted and tailored to the 
specific circumstan ces at hand, and be supported by an adequate and reasoned explanation so that 
interested parties can exercise their rights of defense in domestic proceedings or in dispute 
settlement proceedings at the WTO.  
 
10 EU's first written submission, para. 98.  
11 Panel Report, China – Broiler Products (Article 21.5 – US), para. 7.29.  
12 Emphasis added.  
13 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.73.  (Emphasis added)  WT/DS494/R/Add.1  
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  ANNEX  C-5 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGUMENTS OF NORWAY  
1. Norway welcomes this opportunity to present its views on the issues raised in these panel 
proceedings.  
2. Norway did not present a written third party submission to the Panel, and without taking a 
position on the facts of this dispute, Norway will briefly offer its observations on the 
interpretation of the first sentence of Article 2.2.1.1 of the Anti -Dumping Agreement.  
3.  The Russian Federation challenges the European Union 's "cost adjustment methodology ", 
whereb y the EU investigating authorities allegedly reject part of the costs reflected in the 
records when such costs and/or prices are viewed by the EU authorities as "artificially or 
abnormally low " due to alleged "distortions " or "market impediments " like gove rnment price 
regulation or the application of export duties in the country of origin.1  
4. The obligation on the investigating authorities according to Article 2.2.1.1, is subject to two 
cumulative conditions:  
i) that the records kept by the exporter or p roducer are in accordance with the generally 
accepted accounting principles (GAAP) of the exporting country; and  
ii) that such records reasonably reflect the costs associated with the production and sale 
of the product under consideration.  
5. If these two conditions are fulfilled, the investigating authorities "shall normally " calculate the 
costs on the basis of records kept by the exporter or producer under investigation.  
6. The ordinary meaning of the adverb "normally " suggests "[u]nder normal or ordinary  
conditions; ordinarily; as a rule ".2 The Appellate Body confirmed in US – Clove Cigarettes  that 
"the qualification of an obligation with the adverb 'normally ' does not, necessarily, alter the 
characterization of that obligation as constituting a 'rule'", but rather that the term "normally " 
indicates that the rule "admits derogation " under conditions that are not "normal " or 
"ordinary ".3 
7. Moreover, the panel in China – Broiler Products  also clarified that "the use of the term 
'normally ' in Article 2.2.1.1 means that an investigating authority is bound to explain why it 
departed from the norm and declined to use a respondent 's books and records ".4  
8. Hence, WTO jurisprudence indicates that an investigating authority may depart "from the  
norm " of calculating costs on the basis of exporter or producer records only where: (i) the 
relevant conditions or circumstances are not "normal " or "ordinary "; and (ii) the investigating 
authority explains or justifies that departure.  
9. Regarding the m eaning of the second condition in the first sentence of Article 2.2.1.1, Norway 
notes that the question regarding whether the test of reasonableness is related to the quality 
of the records as such was accurately clarified in the Appellate Body Report in EU – Biodiesel.  
It is the records  that must be in accordance with the GAAP, and the records  that must 
"reasonably reflect the costs associated with the production and sale of the product under 
consideration ". The Appellate Body held that "in accordance with  the ordinary meaning of the 
terms in their context and in the light of the object and purpose of the 
Anti-Dumping  Agreement, we understand this condition as referring to whether the records 
 
1 The Russian Federation 's First Written Submission, para. 299.  
2 The New Shorter Oxford English Dictionary, 4th edition, L. Brown (ed.) (Oxford University Press, 
1993), Vol. 2, p. 1940.  
3 Appellate Body Report, US – Clove Cigarettes , para. 273.  
4 Panel Report, China - Broiler Products , para. 7.161.  
 WT/DS494/R/Add.1  
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  kept by the exporter or producer sustainably and sufficiently cor respond to or reproduce those 
costs incurred by the investigated exporter or producer that have a genuine relationship with 
the production and sale of the specific product under consideration ".5 
10. In Norway 's view, the definition of dumping in the GATT 1994 Article VI underpins this 
interpretation of Article 2.2.1.1 . Government regulation or intervention in the home market will 
typically affect prices on domestically consumed products and exported products alike. Thus, the 
products are not "introduced in to the commerce of another country at less than the normal value of 
the products ", as required by the dumping definition.  
 
5 Appellate Body Re port, EU – Biodiesel , para. 6.26. WT/DS494/R/Add.1  
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  ANNEX  C-6 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF UKRAINE  
1. INTRODUCTION  
1. Ukraine welcomes the opportunity to participate as a third party in case DS494 
European  Union – Cost Adjustment Methodologies  and Certain Anti -Dumping Measures on 
Imports from Russia (Second Complaint)  and to present its views on certain issues raised by 
parties in this dispute. Ukraine will provide its comments on the interpretation and application 
of the provisions of the Agreement on the Implementation of Article VI of the 
General  Agreement on Tariffs and Trade ( "Anti-Dumping Agreement "). 
2. Ukraine is o f particular interest and concern of the positions presented by Russia with regard 
to the interpretation and application of Article 2.2.1.1 of the Anti -Dumping Agreement, 
because Russia 's position is not supported neither under the text of Article 2.2.1.1,  nor by the 
finding of the Appellate Body in EU – Biodiesel (Argentina) contrary to Russian allegations. 
Under the plain meaning of Article 2.2.1.1 of the Anti -Dumping Agreement, an investigating 
authority may examine whether recorded costs "reasonably reflect the costs associated with 
the production and sale of the product under consideration. " 
3. Ukraine reserves the right to raise other issues at the third party hearing with the Panel.  
2. CLAIMS REGARDING ARTICLE 2.2.1.1 OF THE ANTI -DUMPING AGREEMENT  
4. Ukraine will provide in this Section relevant understanding and interpretation of Article  2.2.1.1 
of the Anti -Dumping Agreement related to cost adjustment of price.  
2.1. Use of Adjusted Waidhaus Price as Source of Information to Establish the 
Undistorte d Production Costs in Russia  
5. In EU – Biodiesel (Argentina)  the Appellate Body did not exclude the possibility that an 
investigating authority may use information and evidence outside the country of origin to 
determine the prices in the country of origin  by stating that "the authority may also need to 
look for such information  from sources outside the country ".1 
6. The reference to "in the country of origin ", however, indicates that, whatever information or 
evidence is used to determine the "cost of production ", it must be apt to or capable of yielding 
a cost of production in the country of origin. "2 The Appellate Body further reasoned that 
compliance with t his obligation may require the investigating authority to adapt the 
information that it collects.3 
7. In EU – Biodiesel (Argentina) , the Appellate Body upheld Argentine 's claim that the 
European  Union acted inconsistently  with the provisions of Article 2.2.1.1 because "the EU 
authorities ' determination that domestic prices of soybeans in Argentina were lower than 
international prices due to the Argentine export tax system was not, in itself " a sufficient basis 
to conclude that the records did not reasonably reflect the costs, or for disregarding those 
costs when constructing the normal value of biodiesel.4  
8. However, Ukraine submits that in EU – Biodiesel (Argentina)  the situation was different in a 
way that the price is  regulated by the state and the state is a predominant supplier of the 
product in question as  Russia possesses the world 's largest resources and reserves of natural 
gas and gas fields and the major share of natural gas in Russia is produced by Gazprom, a 
 
1 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.70.  
2 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.70.  
3 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.70. 
4 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.55.  WT/DS494/R/Add.1  
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  majority state -owned company and, thus, the gas price for domestic consumption is not the 
result of market forces.  
9. Instead, such situation was at issue in US – Softwood Lumber IV . The Appellate Body in 
US – Softwood Lumber IV  confirmed that the obligatio ns of an investigating authority under 
the respective provisions of an applicable agreement should not be interpreted in a way which 
would undermine  or circumvent the right of Members to countervail subsidies, or as is the 
case at hand, to counter -act inju rious dumping.5  
10. Ukraine submits that the Appellate Body findings in US – Softwood Lumber IV are relevant to 
the case at issue as all WTO provisions regardless of the WTO agreement in which they are to 
be found, constitute context relevant to the inte rpretation of each other when the wording so 
allows.6 
11. The Appellate Body in US – Softwood Lumber IV  further stated that a government 's role in 
providing a financial contribution, in terms of provision of goods and services, may be so 
predominant that it effectively determines the price at which private suppliers sell the same 
or similar goods, thereby making the entire domestic market distorted.7 
12. Thus, Ukraine agrees with the EU rejection of Russian gas costs and reliance on an adjusted 
price at the German/Czech border (Waidhaus) ,8 because of the state regulation of prices on 
the domestic market , the resulting significant difference with market prices paid in 
unregulated export markets for Russia 's gas.  
13. In this vein, Ukraine shares the view of the EU that "there are circumstances in which an 
investigating authority can reject data in the records of the investigated firm;  and there are 
circumstances in which an investigating authority can have recourse to information from 
another representative market. "9  
14. Moreover, the Appellate Body in US – Softwood Lumber IV and as further developed in the 
anti-dumping context in EU – Biodiesel (Argentina), did not exclude the possibility that an 
investigating author ity may use information and evidence outside the country of origin to 
determine the prices in the country of origin.10  
15. The Appellate Body further stated that in using such information and evidence, an 
investigating authority has to ensure that such in formation is used to arrive at the "cost of 
production  in the country of origin ". The Appellate Body further reasoned that compliance with 
this obligation may require the investigating authority to adapt the information that it 
collects.11 
16. Ukraine is, thus, of the view that the EU acted precisely according to these guidelines by 
adjusting these prices  back so as to arrive to the price within Russia.  
3.  CONCLUSIONS  
17. Ukraine hopes that its contribution in the present dispute will be helpful to the Pa nel in 
objectively assessing the matter before it and in developing the respective legal interpretations 
of the relevant provisions of the Anti-Dumping Agreement . Ukraine thanks the Panel for the 
opportunity to share its views and would be happy to provide  further comments on the 
occasion of the third-party session or answer any questions the Panel may have.  
 
5 Appellate Body Report, US – Softwood  Lumber IV, para. 95.  
6 Appellate Body Report, Australia – Apples, para. 173, footnote 285.  
7 Appellate Body Report, US – Softwood Lumber IV , paras.  93 an d 101.  
8 Commission  Implementing  Regulation  (EU) 2015/110,  recital  69. 
9 First Written  Submission  by the EU, para. 103. 
10 Appellate Body Report, EU – Biodiesel (Argentina),  para. 6. 70. 
11 Appellate Body Report, EU – Biodiesel (Argentina),  para. 6. 73. WT/DS494/R/Add.1  
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  ANNEX  C-7 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES  
I. INTERPRETATION OF ARTICLE 2 OF THE ANTI -DUMPING AGREEMENT  
A. Russia 's Claim that the EU Basic Regulation Providing That Constructed Normal 
Value Use "Representative " Prices Is "As Such " Inconsistent With Article 2.2 
of the Anti -Dumping Agreement  
1. Russia argues that Article 2.2 of the Anti -Dumping Agreement does not permit investigating 
authorities to evaluate the "representativeness " of costs of production in the country of origin 
because requiring that costs be "representative " – i.e., unaffected by government -created 
distortions – impose s a requirement absent from the text of Article 2.2 of the 
Anti-Dumping  Agreement. To the extent the Panel finds it necessary to evaluate the merits of 
Russia 's claim, the United States comments on the proper interpretation of Article 2.2 of the 
Anti-Dumping Agreement.  
2. Article 2.2 of the Anti -Dumping Agreement specifies that alternatives to domestic market 
prices may be used to determine normal value when, because of a "particular market situation " or 
a "low volume of … sales in the domestic market of the exporting country, " the domestic prices "do 
not permit a proper comparison. " Article 2.2 prescribes two alternative data sources that may 
provide for a "proper comparison " whenever domestic market sales price data cannot be used to 
calculate normal value: (1) "a comparable price " for the like product when exported to an 
"appropriate " third country, provided the price is representative; or (2) the cost of production in the 
country of origin plus a reasonable amount for administrative, selling, and gen eral costs and for 
profits. A key phrase in Article 2.2 is "proper comparison, " and the placement of this phrase in 
Article  2.2 reinforces that normal value must be based on prices (or costs) that "permit a  proper 
comparison. " Article VI:1 of the GATT 1994  establishes that the dumping comparison requires 
comparable prices or costs. Article VI:1(a) establishes that dumping occurs when the price of an 
exported product "is less than the comparable  price, in the ordinary course of trade , for the like 
product " in the home market. This suggests that "determining price comparability " under Article  VI:1 
refers first to determining whether there is such a "comparable price, in the ordinary course of 
trade. " Without a "comparable price, in the ordinary course of tra de," or suitable proxy, no dumping 
comparison can be made. This applies to domestic prices, third -country export prices, and costs of 
production (which include prices between input suppliers and the exporter or producer under 
investigation).  
3. The Anti -Dumping Agreement is, as its title suggests, an agreement on the application of 
Article VI of the GATT 1994 and, through Article 2, implements the principle of comparability set 
forth in Article VI:1. For example, Article 2.1 of the Anti -Dumping Agreement e stablishes that "a 
product is to be considered as being dumped, i.e. introduced into the commerce of another country 
at less than its normal value, if the export price of the product being exported from one country to 
another is less than the comparable pr ice, in the ordinary course of trade, for the like product when 
destined for consumption in the exporting country. " This text is nearly identical to Article VI:1 
(specifically, the second sentence and subparagraph (a)). Article 2.1 thus retains the key ele ments 
from Article VI:1 for domestic prices or costs to be used to calculate normal value. Specifically, there 
must be a "comparable price, in the ordinary course of trade ". Therefore, the "proper comparison " 
text of Article 2.2 of the Anti -Dumping Agreeme nt reflects that establishing normal value requires a 
"comparable price, in the ordinary course of trade, " and cannot be interpreted as preventing an 
investigating authority from evaluating evidence that government interference affects the "proper 
comparis on" of prices or costs. Several examples demonstrate that domestic price, third -country 
export price, and cost of production may be considered not  "a comparable price, in the ordinary 
course of trade, " when the evidence of record indicates they do not refl ect normal commercial 
principles:  
• a price for a sale may not reflect the criteria of the marketplace;  WT/DS494/R/Add.1  
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  • a price for a sale might not reflect normal commercial practices, such as in relation 
to other terms and conditions of sale;  
• a price for a sale migh t be one established between related parties, rather than a 
transaction between economically independent entities at market prices, and thus 
not reflect normal commercial principles; or  
• a price for the sale of an input used in the production of the prod uct under 
consideration may not be consistent with an arm 's-length transaction price or reflect 
normal commercial principles.  
B.  Claims Regarding the Phrase "Particular Market Situation " in Article 2.2 of the 
Anti-Dumping Agreement  
4. Russia argues that "the particular market situation " in Article 2.2 of the Anti -Dumping 
Agreement is limited to "only one circumstance . . . which concerns the country 's market as a whole " 
rather than a "particular market situation for the product concerne d". "Artificially low prices " cannot 
provide a basis for a particular market situation finding, in Russia 's view, because Article 2.2 of the 
Anti-Dumping Agreement contains no language regarding "artificially low prices " or a comparison to 
"world -market pr ices or prices in other representative markets ". However, Article 2.2 of the 
Anti-Dumping Agreement, as noted above, establishes certain alternatives for determining normal 
value when, "because of the particular market situation … such sales do not permit a proper 
comparison. " Article 2.2, which includes the phrase "proper comparison ", links back to the dumping 
definition in Article 2.1. If a particular market situation affects price comparability, e.g., if a particular 
market situation indicates that sale prices of the like product do not reflect market -based conditions 
(such as those reflecting normal commercial principles), such sale prices need not be used as a basis 
for normal value because they would not "permit a proper comparison ". Although Article 2.2 of the 
Anti-Dumping Agreement does not define the term "the particular market situation, " the definitions 
of the individual words that form the phrase "particular market situation " elucidate its meaning – 
i.e., that it addresses a sp ecific condition or set of circumstances in the domestic market . For 
example, the word "market " is defined as a "place or group with a demand for a commodity or 
service ", and the word "situation " is defined broadly as the "condition or state of a thing. " These 
definitions indicate that what constitutes a "particular market situation " will depend on the particular 
facts at issue and thus should be evaluated on a case -by-case basis.  
5. Russia is incorrect that Article 2.2 of the Anti -Dumping Agreement prohibi ts an analysis of 
whether "the government regulation of the price concerned, including its inputs, nor the effect of 
such regulation " amount to a particular market situation. A n investigating authority may find that a 
"particular market situation " exists w hen the evidence of record demonstrates that a specific 
condition or set of circumstances renders the comparable price, in the ordinary course of trade, for 
the like product, unfit as a proper comparison. Nothing in the text of Article 2.2 suggests that th e 
meaning of the phrase "particular market situation " is limited by the second Ad Note , which identifies 
one situation in which "special difficulties may exist in determining price comparability. " The situation 
identified is "in the case of imports from a country which has a complete or substantially complete 
monopoly of its trade and where all domestic prices are fixed by the State. " That is, the text does 
not limit the determination that there is no "comparable price, in the ordinary course of trade " to 
this one situation. The recognition by Members of a "case" creating special difficulties ( "It is 
recognized that, in the case … ") does not logically imply that there could be no other "case". 
6. Moreover, the history of the second Supplementary Provision to  Article VI:1 does not support 
the extra -textual particular market situation conditions posited by Russia. As Russia notes, the 
Working Party Sub -Group in 1955 rejected Czechoslovakia 's proposal to amend subparagraph 1(b) 
of Article VI of the GATT 1947 "to deal with the special problem of finding comparable prices for the 
application of that subparagraph to the case of a country all, or substantially all, of whose trade is 
operated by a  state monopoly. " However, the Sub -Group did not consider an amendment to 
Article  VI:1 would be necessary to find that home market prices were not useable for purposes of 
the dumping comparison. Instead, the Sub -Group recommended adoption of an "interpreta tive note " 
nearly identical to what is now the Second Note. The Sub -Group 's 1955 activity thus also supports 
the U.S. interpretation of GATT 1994 Article VI.  WT/DS494/R/Add.1  
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  C. Claims that EU Basic Regulation Article 2(5) and the "Cost Adjustment 
Methodology " Are Inconsi stent with Articles 2.2.1.1, 2.2, and 2.2.1 of the 
Anti-Dumping Agreement  
7. Russia argues that the EU applies an unwritten measure – i.e., a "cost adjustment 
methodology " – as a "measure that has certain characteristics and will be applied or is likely to be 
applied in the future. " To evaluate Russia 's claim, the Panel should consider: whether the rule or 
norm embodied in that measure is attributable to the responding Member; the precise content of 
the measure; and whether the measure has general and prospective application. In examining an 
unwritten measure, the Appellate Body has noted that "[p]articular rigour is required . . . to support 
a conclusion as to the existence of a 'rule or norm ' that is not expressed in the form of a written 
document ." Accordingly, a panel "must not lightly assume the existence of a 'rule or norm '" because 
in doing so "would act inconsistently with its obligations " to "'make an objective assessment of the 
matter before it. '" 
8. Turning to the substance of Russia 's claims, the phrase "[f]or the purpose of paragraph 2 " 
indicates that Article 2.2.1.1 should be read together with Article 2.2. The costs calculated pursuant 
to Article 2.2 must be capable of generating "an appropriate proxy for the price of the like product 
in the ordinary course of trade in the domestic market of the exporting country when the normal 
value cannot be determined on the basis of domestic sales. " Given that the use of costs under 
Article  2.2.1.1 must be capable of generating an appropriate proxy to allow for a proper comparison, 
the term "cost" refers to costs that reflect normal commercial principles  associated with producing 
the product in the exporting country and not simply the "cost" reflected, for example, in an invoice 
price. That the costs are "associated with  the production and sale of the product under consideration " 
also supports a commercia l conception of costs, because the term "associated with " suggests a 
substantive connection between real economic costs and the production or sale of the product under 
consideration. The Anti -Dumping Agreement in other circumstances similarly indicates tha t an 
investigating authority should be concerned with real, economically meaningful data.  
9. The Appellate Body in EU – Biodiesel (Argentina) recognized that investigating authorities 
have leeway under Article 2.2.1.1 to reject or adjust recorded costs un der certain situations. It 
specifically rejected the argument that "'no matter how unreasonable the production (or sale) costs 
in the records kept by the investigated firm would be when compared to a proxy or benchmark 
consistent with a normal market situa tion, there is nothing an investigating authority can do. '" A 
non-arm's-length sale illustrates one type of transaction where an investigating authority may look 
beyond the four corners of a respondent 's records and determine whether the transaction does n ot 
"reasonably reflect " all costs incurred in respect of the production and sale of the product, because 
the reported price may fail to accurately and reliably reflect the interaction between independent 
buyers and sellers. When the normal value cannot be determined on the basis of domestic sales, 
the costs calculated pursuant to Article 2.2.1.1 must be capable of generating an appropriate proxy 
for the price of the like product in the ordinary course of trade in the domestic market of the 
exporting country . Therefore, like the situation in which parties to a transaction are related, where 
a State intervenes in the marketplace to interfere with the ability of buyers and sellers to enter into 
transactions according to their own commercial interests, "there is  reason to suppose that the sales 
price might  be fixed according to criteria which are not those of the marketplace ". The Working Party 
Report on Russia 's accession to the WTO highlights the understanding that if there is sufficient 
evidence of the possibl e absence of normal commercial conditions (e.g., because of State 
interference), an investigating authority should be able to examine under the second condition of 
Article 2.2.1.1 the records kept by an investigated firm.   
10. The United States recalls tha t nothing in the text of Article 2.2 proscribes the use of out -of-
country information to evaluate recorded costs, or to adjust or replace recorded costs when 
formulating the appropriate cost for an individual producer. Indeed, the Appellate Body in 
EU – Biodiesel (Argentina)  did not exclude the possibility that an investigating authority may use 
information and evidence outside the country of origin to determine the prices in the country of 
origin. As the Appellate Body explained, when an investigating authority rejects cost data under the 
second condition of Article 2.2.1.1, information from out -of-country sources could be used to arrive 
at the cost of production in the country of origin.  
11. Article 2.2.1 of the Anti -Dumping Agreement describes a methodology for determining 
whether below -cost sales may be treated as not being made in the ordinary course of trade. The 
"rules for calculating the costs used in the determination of whether below -cost s ales may be treated WT/DS494/R/Add.1  
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  as not being made in the ordinary course of trade by reason of price are found in Article 2.2.1.1. " 
If an unbiased and objective investigating authority found an appropriate evidentiary basis to reject 
or adjust a cost that does not ref lect normal commercial principles under Article 2.2.1.1, and 
provided a reasoned and adequate explanation for doing so, the investigating authority would not 
nonetheless be required to use the cost information it already rejected in performing the test und er 
Article 2.2.1.  
II. INTERPRETATION OF ARTICLE 18.3 OF THE ANTI -DUMPING AGREEMENT  
12. Article 18.3 of the Anti -Dumping Agreement may implicate Russia 's claims involving 
determinations issued before  Russia 's 2012 WTO accession. Under Article 18.3, the 
Anti-Dumping  Agreement applies to investigations and reviews of "existing measures " that were 
"initiated pursuant to applications which have been made on or after the date of entry into force for 
a Member of the WTO Agreement. " Accordingly, the Anti -Dumping Ag reement does not apply to 
investigations or reviews that predate "the date of entry into force for a Member of the 
WTO Agreement. " In US – DRAMS  the panel observed that Article 18.3 did not indicate that the 
Anti-Dumping Agreement applies to "all aspects " of a "pre-WTO measure simply because parts of 
that measure are under post -WTO review. " Furthermore, the Appellate Body has identified the 
parallel provision of the SCM  Agreement, Article 32.3, as a "transitional rule " with the implication 
that it expresses "an explicit intention to draw the line of application of the new WTO Agreement to 
[] investigations and reviews at a different point in time from that for other general measures " and 
applies where a proceeding "was underway at the time of entry into force of the WTO Agreement ." 
Moreover, "the situation of a prospective Member of the WTO, which accedes " to the WTO "is 
different from that of former contracting parties to the GATT 1947 or signatories to the Tokyo Round 
[] because those agreements did not apply previously to its trading relations with other states. "  
III. CLAIMS REGARDING PRICE UNDERCUTTING ANALYSIS  
13. The investigating authority 's obligations in a likelihood -of-injury determination stem not from 
Article  3 but from Article 11.3 of the Anti -Dumping Agreement. Article 11.3 obligates investigating 
authorities "to determine " whether the expiry of the duty would be likely to lead to a continuation 
or recurrence of injury in a "review ". In US - Corrosion Resist ant Steel Sunset Review , the Appellate 
Body stated that the ordinary meaning of "determine " is to decide or settle, and that the ordinary 
meaning of a "review " is an examination or a reconsideration of some subject. Based on this 
language, the Appellate Bo dy found that the investigating authority must reach a "reasoned 
conclusion on the basis of information gathered as part of a process of reconsideration and 
re-examination. " Further, the Appellate Body agreed with the panel that "[an] investigating authori ty 
must have a sufficient factual basis to allow it to draw reasoned and adequate conclusions concerning 
the likelihood of such continuation or recurrence " of injury. It emphasized, however, that the 
necessary reasoned conclusion as to the likelihood of in jury need not in every case be satisfied 
through a particular methodology or the consideration of particular factors. The necessity of 
conducting such an analysis in a given case arises from the Article 11.3 requirement that a likelihood -
of-injury determin ation rest on a "sufficient factual basis " permitting the agency to draw "reasoned 
and adequate conclusions ", and not on the requirements of Article 3.  
14. To the extent the Panel finds it necessary to evaluate the merits of Russia 's price undercutting 
analysis claims, the Panel should evaluate whether the investigating authority acted in accordance 
with Article 11.3 of the Anti -Dumping Agreement such that it had a sufficient factual basis, on the 
basis of information gathered as part of the process of rec onsideration and re -examination, to draw 
reasoned and adequate conclusions concerning the likelihood of injury.  
IV. CLAIMS REGARDING SAMPLING OF DOMESTIC INDUSTRY  
15. Russia argues that in its 2014 expiry review of Russian ammonium nitrate the EU authoriti es 
used a non -representative sample of domestic producers, contrary to Articles 3.1, 3.4, 4.1, and 11.3 
of the Anti -Dumping Agreement. To determine whether revocation of the ammonium nitrate ( "AN") 
order was likely to result in recurrence of injury to thos e producers, the EU sampled domestic 
producers, inviting those not included in the provisional sample to volunteer for inclusion.  
16. Article 11.3 of the Anti -Dumping Agreement provides for investigating authorities to review 
whether "expiry of the duty would be likely to lead to continuation or recurrence of dumping and WT/DS494/R/Add.1  
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  injury " to the "domestic industry ". In conducting the expiry review, including the likelihood -of-injury 
analysis, the overarching requirements reflected in Article 3.1 that an injury determination be based 
on positive evidence and an objective examination would also be relevant to likelihood -of-injury 
determinations under Article 11.3. Here, given the limited number of producers in the domestic 
industry, the Panel should  assess whether the sampling of the domestic industry introduced a 
material risk of distortion and resulted in a distorted definition of the domestic industry, thereby 
preventing an objective examination.  Such distortion, if any, could unreasonably favor a  petitioner 
in a manner inconsistent with the objectivity requirements of the Anti -Dumping Agreement.   
17. In EC – Fasteners , the Appellate body considered whether an investigating authority could, 
consistent with the objectivity requirement, define the do mestic industry by publishing a notice 
inviting domestic producers to volunteer for inclusion in the domestic industry definition. There, the 
EU had published a notice inviting domestic producers to identify themselves and volunteer for 
inclusion in a samp le of the domestic industry. The EU then defined the domestic industry to include 
only producers that responded to the notice and volunteered for inclusion in the sample. 
The Appellate Body found that "by defining the domestic industry on the basis of will ingness to be 
included in the sample, the {EU 's} approach imposed a self -selection process among the domestic 
producers that introduced a material risk of distortion ", in a manner inconsistent with Article 3.1 of 
the Anti -Dumping Agreement.  
18. The Panel should therefore examine whether the EU authorities (1) allowed companies to 
self-select and (2) in so doing introduced a material risk of distortion, contrary to Article 3.1 of the 
Anti-Dumping Agreement.  
 
_______________  
 
 
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  ANNEX D  
PRELIMINARY RULING OF THE PANEL  
Contents  Page  
Annex D-1 Preliminary ruling of the Panel  (2 September 2019)  137 
 
 
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  ANNEX  D-1 
PRELIMINARY RULING OF THE PANEL  
2 September 2019  
1  INTRODUCTION  
1.1.  Together with its first written submission filed on 10 May 2019, the European Union asked the 
Panel to rule that several claims made by the Russian Federation (Russia) in relation to the 
European  Union's anti -dumping measures on imports of ammonium nitrate originating in Russia 
were not properly before the Panel.1 
1.2.  The European Union requests the Panel to find that:  
a. Claim 1 and other product scope claims, and claims 9, 16 to 21 and 17 are not properly 
before the Panel because they are outside of the scope of the consultations request2 and 
impermissibly expand the scope of the dispute, in violation of Articles 4.4 and 6.2 of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU);  
b. Claim 11 is not properly before the Panel as it goes beyond the scope of the panel request, 
in violation of Article 6.2 of the DSU;  
c. Russia failed to identify precisely Regulation 2018/1722 as a measure at issue. As a 
consequence, claims 12 to 15 that Rus sia bases on Regulation 2018/1722 are outside the 
scope of the proceedings for failing to meet the requirements of Article 6.2 of the DSU;  
d. Claim 14 is outside the scope of the terms of reference of the Panel because, in respect of 
this claim, Russia's p anel request fails to meet the requirements of Article 6.2 of the DSU; 
and 
e. Claims 2, 18, 19 and 21 are not properly before the Panel because, in respect of these 
claims, Russia's panel request fails to meet the requirements of Article 6.2 of the DSU.3 
1.3.  Russia responded to the request of the European Union on 17 June 2019. Russia considers that 
these claims are properly before the Panel and asks the Panel to rule that:  
a. Claim 1 and other product scope claims, and claims 9, 16 to 21 and 17 are prop erly before 
the Panel, in accordance with Articles 4.4 and 6.2 of the DSU;  
b. Claim 11 is properly before the Panel, in accordance with Articles 6.2 and 7.1 of the DSU;  
c. Regulation 2018/1722 is covered by the panel request, and claims 12 to 15 are proper ly 
before the Panel, in accordance with Article 6.2 of the DSU; and  
d. Claims 2, 14, 18, 19 and 21 are properly before the Panel, in accordance with Article 6.2 
of the DSU.4 
 
1 European Union's first written submission, paras. 11 –44. 
2 On 7 May 2015, Russia requested consultations with the European Union with respect to, inter alia , the 
anti-dumping measures by the European Commission and the Council of the European Union on imp orts of 
ammonium nitrate originating in Russia (WT/DS494/1 of 19 May 2015). Consultations were held on 
26 June 2015. Russia requested further consultations with the European Union on 29 March 2016 
(WT/494/1/Add.1 of 6  April 2016). In this decision, we refe r to document WT/494/1/Add.1 as "Russia's 
consultations request".  
3 European Union's first written submission, para. 44.  
4 Russia's response to the European Union's request for a preliminary ruling, para. 169.  WT/DS494/R/Add.1  
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  2  RELEVANT PROVISIONS AND LEGAL STANDARD  
2.1  Consistency between the consultati ons request and the panel request  
2.1.  Articles 4 and 6 of the DSU set forth a process by which a complaining party must request 
consultations, and consultations must be held, before a matter may be referred to the 
Dispute  Settlement Body (DSB) for the es tablishment of a panel.5 
2.2.  Article 4.4 of the DSU provides in relevant part:  
Any request for consultations shall be submitted in writing and shall give the reasons 
for the request, including identification of the measures at issue and an indication of  the 
legal basis for the complaint.  
2.3.  Article 6.2 of the DSU provides in relevant part:  
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue an d provide a 
brief summary of the legal basis of the complaint sufficient to present the problem 
clearly.  
2.4.  It is well established, however, that "there does not have to be precise identity between 
[a Member's ] request for consultations and its panel request either with regard to the specific 
measures at issue or with regard to the legal basis of the compl aint".6  
2.5.  With respect to the measures at issue , Articles 4.4 and 6.2 of the DSU do not require " a precise 
and exact identity " between the request for consultations and the panel request, provided that the 
"essence" of the challenged measures does no t change.7  
2.6.  The same logic applies with respect to the legal basis of the complaint : the legal basis 
referenced in the request for consultations must not be identical to the legal basis set out in the 
panel request, as long as the latter "may reason ably be said to have evolved" from the consultations 
request and the consultations themselves.8 
2.2  Sufficiency of the panel request  
2.7.  Pursuant to Article 6.2 of the DSU, a panel request must comply with two distinct requirements, 
namely (i) the iden tification of the specific measures at issue, and (ii) the provision of a brief 
summary of the legal basis of the complaint sufficient to present the problem clearly.9  
2.8.  The identification of the specific measures at issue and of the legal basis of t he complaint serves 
a dual function. First, it forms the basis for a panel's terms of reference under Article 7.1 of the DSU. 
Second, it informs other WTO Members of the nature of the dispute, which in turn allows the 
respondent to prepare its defence and allows other Members to assess whether they have an interest 
in the matter.10 
2.9.  Compliance with the requirements of Article 6.2 of the DSU must be demonstrated on the face 
of the panel request. In order to determine whether a panel request identifies the specific measures 
at issue and provides a brief summary of the legal basis of the complaint sufficient to present the 
problem clearly, a panel must conduct an objective exam ination of the panel request as a whole,  as 
it existed at the time of filing, and on the basis of the language used therein.11 A summary of the 
legal basis of the complaint is considered to be "sufficient to present the problem clearly" when the 
 
5 Appellate Body Report, Brazil – Aircraft , para. 131.  
6 Panel Report, EU - Footwear (China) , para. 7.61.  
7 Appellate Body Report, Brazil – Aircraft , para. 132 . (emphasis original)  
8 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 138.  
9 Appellate Body Report, US – Carbon Steel , para. 125.  
10 Appellate Body Reports, Brazil – Desiccated Coconut , p. 22; EC – Bananas III , para. 142; 
US – Carbon Steel , para. 126; US – Continued Zeroing , para. 161; and US – Zeroing (Japan) 
(Article  21.5 – Japan) , para. 108.  
11 Appellate Body Report, EC an d certain member States – Large Civil Aircraft , para. 641.  WT/DS494/R/Add.1  
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  panel requ est plainly connects  the challenged measure with the provision claimed to have been 
violated. This ensures that a respondent can "know what case it has to answer, and … begin 
preparing its defence".12 
2.10.   Defects in a panel request cannot be cured in su bsequent submissions. Nevertheless, in 
considering the sufficiency of a panel request, submissions and statements made by the parties 
during the course of the proceedings -in particular the first written submission of the complaining 
party - may be consulte d in order to: (i) confirm the meaning of the words used in the panel request; 
and (ii) assess whether the ability of the respondent to defend itself was prejudiced.13 
3  EUROPEAN UNION'S OBJECTIONS CONCERNING THE SCOPE OF THE CONSULTATIONS 
REQUEST  
3.1  Claim 1 and other claims related to the product scope of the anti -dumping measures  
Main arguments of the parties  
3.1.  Claim 1 concerns the product scope of certain reviews conducted by the EU  authorities on 
imports of ammonium nitrate originating in Russia.  
3.2.  Russia alleges that, while the original investigation conducted by the European Commission 
covered only ammonium nitrate used as a fertilizer in agriculture (FGAN), subsequent reviews 
extended the anti -dumping measures to two additional produ cts: Stabilised Ammonium Nitrate 
(stabilised AN) and Industrial Grade Ammonium Nitrate (IGAN). According to Russia, the 
EU authorities thus impermissibly expanded the product scope of the measures over time, in 
contradiction with several provisions of the Anti-Dumping Agreement and the GATT 1994.14 
3.3.  In its request for a preliminary ruling, the European Union asks the Panel to find that Russia's 
claim 1 and other product scope claims in Russia's first written submission are outside the scope of 
these pr oceedings, insofar as they refer to IGAN. The European Union observes that, while 
Russia's  panel request refers to "stabilised ammonium nitrate" and "IGAN" as products which were 
not in the scope of the original investigations, Russia's consultations reque st refers only to "stabilised 
ammonium nitrate" and makes no mention of "IGAN". According to the European Union, 
Russia's  claim regarding IGAN could not have developed during consultations, given the interested 
parties' references to this product during th e underlying proceedings.15 
3.4.  Russia responds that, although the consultations request does not mention "IGAN", the addition 
of a reference to "IGAN" in the panel request evolved from claim n) in its consultations request, and 
from clarifications received during consultations.16 Russia also submits that this inclusion does not 
change the essence of the dispute because, under claim n) of its consultations request and under 
claim 1 of its panel request, Russia takes issue with the EU a uthorities' lack of evidence:  
… to initiate an expiry review, extend anti -dumping measures, levy and continue levying 
anti-dumping measures on part of the product scope currently covered by the 
anti-dumping measures.17 
Evaluation by the Panel  
3.5.  We recall that a precise identity is not required between the consultations request and the 
panel request provided that the "essence" of the challenged measures does not change.  
3.6.  Paragraph n) of Russia's consultations request states that:  
the European  Union initiated an expiry review, made likelihood of recurrence of injury 
and dumping determinations, extended the anti -dumping measures, levied and 
 
12 Appellate Body Report, Thailand – H-Beams , para. 88.  
13 Appellate Body Reports, US – Carbon Steel , para. 127; Australia – Apples , para. 418.  
14 Russia's first written submission, paras. 510 -571. 
15 European Union's first written submission, para. 19.  
16 Russia's response to the European Union's request for a preliminary ruling, paras. 50 -51. 
17 Russia's response to the European Union's request for a  preliminary ruling, para. 50.  WT/DS494/R/Add.1  
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  continues levying anti -dumping duties on imports of stabilized ammonium nitrate  for 
which no anti -dumping investigation was ever conducted, and no dumping and material 
injury determinations were ever made.18 
3.7.  The panel request, under claim 1, contains the same description of Russia's claim, except for 
the addition of a reference to industrial -grade ammoni um nitrate.19 We also note that the 
consultations request and the panel request both connect this claim with the same measures at 
issue, i.e. Council Regulation  2022/95 (which contains the results of the original investigation) and 
subsequent reviews, incl uding Commission Implementing Regulation 999/2014 
(Regulation  999/2014), which contains the results of the third expiry review.  
3.8.  Our understanding of Russia's product scope claims is that the European Union breached a 
series of provisions of the Anti -Dumping Agreement and the GATT 1994, by improperly expanding 
the scope of the anti -dumping measures. We consider that, adding a reference to IGAN in the panel 
request does not change the essence of this dispute because the underlying matter remains the 
alleged inconsistency between the product scope of the original investigation and the product scope 
of subsequent reviews.  
3.9.  We note the argument of the European Union that the question of the product scope had 
already been raised, in relation to IGAN, du ring the underlying proceedings, so that the inclusion of 
IGAN in the panel request cannot be said to have reasonably evolved from the consultations.20 
However, we also note Russia's  statement that it "obtained confirmation during consultations 
regarding t he scope of the application of the anti -dumping measure, in particular to IGAN".21 
3.10.   Accordingly, we conclude that the addition of "IGAN" in Russia's panel request reasonably 
evolves from the consultations request and does not change the essence of the dispute. Therefore, 
we reject the European Union's request to rule that Russia's claim 1 and other product scope claims 
are not properly before the Panel, insofar as they refer to IGAN.  
3.2  Claim 9  
Main arguments of the parties  
3.11.  Claim 9 concerns the alleged failure, by the EU authorities, to examine the impact of an 
absence of dumping by the largest Russian exporters during the review period of investigation of 
the third expiry review. The legal basis put forward by Russia are Articles 11.3, 2.1, 2.3, 6.8 and  6.10 
of the Anti -Dumping  Agreement.  
3.12.   The European Union asks the Panel to find that Russia's claim 9, to the extent it invokes 
Articles 2.3, 6.8 and 6.10 of the Anti -Dumping Agreement, is not properly before the Panel  because 
the corresponding claim in Russia's consultations request – claim e) – only mentions Articles 2.1 
and 11.3 of the Anti -Dumping Agreement.22 
3.13.   Russia asserts that claim 9 in relation to Articles 2.3, 6.8 and 6.10 of the 
Anti-Dumping  Agreement evolved from claims e) and h) in the consultations request, and from 
clarifications received during consultations and evidence collected before the consultations and 
thereafter.23 
Evaluation by the Panel  
3.2.2.1   Articles 2.3 and 6.8 of the Anti-Dumping Agreement  
3.14.   Paragraph e) of Russia's consultations request sets out a claim under Articles 11.3 and 2.1 of 
the Anti -Dumping Agreement concerning the alleged failure by the EU authorities to examine the 
 
18 Russia's consultations request, p. 4 (emphasis added).  
19 Request for the establishment of a panel by the Russian Federation, WT/DS494/4 (Russia's panel 
request), p. 5.  
20 European Union's first written submission, para. 19.  
21 Russia's response to the European Union's request for a preliminary ruling, para. 51.  
22 European Union's first written submission, para. 21.  
23 Russia's response to the European Union's request for a preliminary ruling, para. 58.  WT/DS494/R/Add.1  
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  impact of the absence of dumping by the largest Russian exporters during the review investigation 
period.24 This claim does not mention Articles 2.3 and 6.8 of the Anti -Dumping Agreement, as 
observed by the European Union.  
3.15.   However, like Russia, we note that a related claim in the cons ultations request concerning the 
use of the investigated producers' information and the application of facts available is based on 
Articles 2.3 and 6.8 of the Anti -Dumping Agreement. Specifically, paragraph h) of 
Russia's  consultations request alleges  that the measures at issue are inconsistent with:  
Articles 11.3, 2.1, 2.3, 6.8 and paragraphs 3, 5, 6 and 7 of Annex II of the 
[Anti-Dumping] Agreement and Article VI:1 of the GATT 1994 because the 
European  Union, when performing the dumping determination, imp roperly rejected data 
on export prices provided by the Russian exporters and based its findings on the 
existence of dumping on the facts available.25 
3.16.   In our view, the fact that the complainant has structured its panel request differently from its 
consultations request does not amount to a change in the essence of the dispute and does not 
prejudice the respondent's ability to prepare its defence. Therefore, we reject the 
European  Union's  request to exclude from the scope of the dispute Russia's claim 9, insofar as it 
invokes Articles 2.3 and 6.8 of the Anti -Dumping Agreement.  
3.2.2.2   Article 6.10 of the Anti -Dumping Agreement  
3.17.   Contrary to Articles 2.3 and 6.8, Article 6.10 of the Anti -Dumping Agreement is not mentioned 
in Russia's consultations request. This provision imposes an obligation on investigating authorities 
to calculate individual margins of dumping for each known exporter or producer, except where the 
large number of exporters, producers, importers or types of products involved makes individual 
margin determinations impracticable.26 
3.18.   We recall that in support of claim 9, Russia also invokes Articles 11.3, 2.1, 2.3 and 6.8 of the 
Anti-Dumping Agreement. These provisions deal respectively with expiry reviews, the determination 
of dumping and export prices, and the use of facts available. In this regard, Russia argues that:  
… the claim set forth in the panel request and those identified in the request for 
consultations relate to the same issue in dispute and are based on the same fac tual 
circumstances. Indeed, both claim e) of the 29 March Consultations Request and claim 
#9 of the Panel Request challenge the EU's failure to examine the appropriate evidence 
and to rely on it in reaching its conclusions as regards the existence of a lik elihood of 
continuation or recurrence of dumping in the course of the expiry review. Specifically, 
these claims concern the EU's failure to examine the impact of the absence of dumping 
by certain Russian exporters.27 
3.19.   Specifically, with respect to it s Article 6.10 claim, Russia argues that it:  
clearly evolved from claim h) of the 29 March Consultations Request and a better 
understanding of the operation of the challenged measure gained at the consultations.28 
3.20.   In support of its position that Art icle 6.10 can be said to have reasonably evolved from the 
consultations request, Russia cites the panel report in China - Broiler Products29 which states that:  
Although necessarily dependent upon the specific circumstances of each case, the 
application of this test in prior disputes reveals that at the very least, some connection 
must exist between the claims set forth in the panel request and those identified in the 
 
24 Russia's consultations request, p. 3.  
25 Russia's consultations request, p. 3.  
26 Article 6.10 of the Anti -Dumping Agreement.  
27 Russia's response to the European Union's request for a preliminary ruling, para. 67 . (fn omitted)  
28 Russia's response to the European Union's request for a preliminary ruling, para. 64.  
29 Russia's response to the European Union's request for a preliminary ruling, fn 72.  WT/DS494/R/Add.1  
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  request for consultations in terms of either the provisions cited, the obligation at issue 
or issue in dispute, or the factual circumstances leading to the alleged violation.30 
3.21.   We recall that a precise identity in the legal basis of the complaint is not required between 
the consultations request and the panel request, provided that the "essence" of the challenged 
measures does not change.  
3.22.   In this context, the Appellate Body has considered that a complaining party "may learn of 
additional information during consultations … that could warrant revising the list of treaty provisions 
with which the measure is alleged to be inconsistent". Such a revision may lead to a narrowing of 
the complaint or to "a reformulation of the complaint that takes into account new information such 
that additional provisions of the covered agreements become relevant".31 
3.23.   Claim h) is set out in the consultations request as follows:  
… the European Union, when performing the dumping determination, improperly 
rejected data on export prices provided by the Russian exporters and based its findings 
on the existence of dumping on the facts available.  
3.24.   Like the European Union, we note that the provisions of the Anti -Dumping Agreement cited 
in the consultations request and in the panel request in support of claim 9 are different and, in 
particular, that "at no point does Russia's Consultations Request even mention Article 6.10".32 
But we also agree with Russia that its claim under Article 6.10 is closely connected to the other 
claims made by Russia under claim h) of the consultations request. These claims  relate to the 
decision of the investigating authority not to rely on the export price data of the companies in the 
sample to calculate a dumping margin for these exporters. In that sense, the issue in dispute and 
the factual circumstances leading to the a lleged violation appear closely connected.  
3.25.   We therefore find that the inclusion of Article 6.10 in the panel request can be said to 
reasonably evolve from the consultations request and from the consultations and does not change 
"the essence" of the dispute. For these reasons, we reject the European Union's request to rule that 
claim 9, insofar as it invokes Article 6.10 of the Anti -Dumping Agreement, is not properly before the 
Panel.  
3.3  Claims 16 to 21  
Main arguments of the parties  
3.26.   Claims 16 to 21 concern certain procedural issues allegedly affecting the conduct of the third 
expiry review. They are based on various provisions of Article 6 and Annex II of the 
Anti-Dumping  Agreement, as well as Article 11.4 of the Anti -Dumping Agreement.33 Article 11.4 
provides that the provisions of Article 6 regarding evidence and procedure in the context of original 
investigations shall apply to reviews.  
3.27.   The European Union asks the Panel to find that Russia's claims 16 to 21, to the extent they 
refer to Article 11.4 of the Anti -Dumping Agreement, are not properly before the Panel. The 
European  Union observes that Article 11.4 was not mentioned in Russia's consultations request. For 
the European Union, this indicates that the claims related to pro cedural issues set out in 
Russia's  consultations request concerned only the original investigation but not the reviews. 
By adding a reference to Article 11.4 in its panel request, Russia thus expands the scope of the 
dispute to cover not only the original investigation, but also subsequent reviews.34 
3.28.   Russia submits that claims 16 to 21 evolved from claims o) to t) in the consultations request 
and from clarifications received during consultations and evidence collected before the consultations 
and the reafter. Russia also submits that claims o) to t) in the consultations request leave no doubt 
 
30 Panel Report, China – Broiler Products , para. 7.224 . (fn omitted)  
31 Appellate Body  Report, Mexico – Anti-Dumping Measures on Rice , para. 138.  
32 European Union's first written submission, para. 22.  
33 Russia's first written submission, para. 1085.  
34 European Union's first written submission, paras. 36 -37. WT/DS494/R/Add.1  
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  as to the fact that all these claims relate to the conduct of the expiry review that concluded with the 
adoption of Regulation 999/2014.35 
Evaluation by th e Panel  
3.29.   We note that Russia's consultations request explicitly lists, as the measures at issue, the 
original investigation on imports of ammonium nitrate originating in Russia and the subsequent 
reviews.36 In addition, we note that in most instances  Russia's procedural claims under the provisions 
of Article 6 of the Anti -Dumping make an implicit or explicit reference to reviews. Specifically, claims 
o), p), r) and t) allege that the measures at issue are inconsistent with:  
Articles 6.1.2 and 6.4 of t he [Anti-Dumping ] Agreement because on numerous 
occasions the European Union delayed granting the interested parties access to the non -
confidential file of the review ; 
Articles 6.1.3 and 6.4 of the [Anti-Dumping ] Agreement because the European Union 
failed  to provide to the interested parties the full text of the written application received 
on 28 March 2013, on the basis of which the European Union initiated the expiry review ; 
Article 6.5.1 of the [Anti-Dumping ] Agreement because the European Union failed to 
require the domestic industry to furnish a sufficiently detailed non -confidential summary 
of the data submitted in confidence, including the European Union domestic industry 
submission of 12 May 2014, which the European Union relied upon as the basis fo r 
determining that dumping and injury were likely to recur ; 
Article 6.9 of the [Anti-Dumping ] Agreement because the European Union failed to 
inform the interested parties of the essential facts under consideration which formed 
the basis for the decision to extend the anti -dumping measures;37 
3.30.   In the light of this, we are of the view that, by adding a reference to Article 11.4 of the 
Anti-Dumping Agreement in its panel request, Russia clarified  that claims 16 to 21 concern the way 
the challenged revi ew was conducted.  
3.31.   Therefore, we conclude that the inclusion of Article 11.4 in Russia's panel request reasonably 
evolves from the consultations request and does not change the essence of the dispute. Thus, we 
reject the European Union's request to exclude from the scope of the dispute claims 16 to 21, to the 
extent they refer to Article 11.4 of the Anti -Dumping Agreement.  
3.4  Claim 17  
Main arguments of the parties  
3.32.   Claim 17 concerns the EU authorities' alleged failure to pro vide to the interested parties "as 
soon as the investigation has been initiated" the full text of the written application filed by the 
domestic industry on 28 March 2013. Russia's claim 17 invokes as legal basis Articles 6.1.3, 6.2, 6.4 
and 11.4 of the Ant i-Dumping Agreement.38 
3.33.   The European Union asks the Panel to find that Russia's claim 17, to the extent it refers to 
Article 6.2 of the Anti -Dumping Agreement, is not properly before the Panel, on the grounds that 
Russia's consultations request does not mention Article 6.2.39 
 
35 Russia's response to the Europe an Union's request for a preliminary ruling, para. 71.  
36 Russia's consultations request, pp. 1 -2. 
37 Russia's consultations request, p. 4 (emphasis added).  
38 Russia's first written submission, paras. 1110 -1144.  
39 European Union's first written submission, p ara. 38.  WT/DS494/R/Add.1  
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  3.34.   Russia submits that the reference to Article 6.2 of the Anti -Dumping Agreement evolved from 
claim p) in the consultations request and from clarifications received during consultations and 
evidence collected before the cons ultations and thereafter.40 
Evaluation by the Panel  
3.35.   We note that claim p) in Russia's consultations request, concerns the alleged failure, by the 
EU authorities, to provide to the interested parties the full text of the written application in  the 
context of the expiry review. In this regard, the consultations request mentions only Articles 6.1.3 
and 6.4 of the Anti -Dumping Agreement.41 
3.36.   However, we do not consider that the addition of Article 6.2 of the Anti -Dumping Agreement 
in Russia's  panel request improperly expands the scope of the dispute.  
3.37.   We observe that Articles 6.1.3 and 6.4 Anti -Dumping Agreement focus respectively on the 
right of interested parties to have access to the text of the petition and on the authorities' obliga tion 
to provide timely opportunities for all interested parties to see all relevant information. Article 6.2 
of the Anti -Dumping Agreement sets out the closely related obligation that:  
"[t]hroughout the anti -dumping investigation all interested parties sha ll have a full 
opportunity for the defence of their interests".42 
3.38.   We also note that the Appellate Body recognized that a violation of Article 6.4 of the 
Anti-Dumping Agreement would necessarily entail a violation of Article 6.2 of the 
Anti-Dumping  Agreement.43 
3.39.   In view of these elements, we conclude that the inclusion of Article 6.2 in Russia's panel 
request reasonably evolves from the consultations request and does not change the essence of the 
dispute. Thus, we reject the European Union's req uest to exclude from the scope of the dispute 
Russia's claim 17, insofar it refers to Article 6.2 of the Anti -Dumping Agreement.  
4  EUROPEAN UNION'S OBJECTIONS CONCERNING THE CONSISTENCY OF THE PANEL 
REQUEST WITH ARTICLE 6.2 OF THE DSU  
4.1  Claim 11  
Main arguments of the parties  
4.1.  Claim 11 concerns the alleged failure by the EU authorities to conduct "proper dumping 
calculations" that comply with Articles 11.3, 2.1, 2.2 and 2.4 of the Anti -Dumping Agreement and 
Article VI:1 of the GATT 1994, in the context of the third expiry review.44 
4.2.  The European Union asks the Panel to find that claim 11, to the extent it relates to the 
determination of likelihood of "recurrence" of dumping, is not properly before the Panel on the 
grounds that this matte r goes beyond the scope of Russia's panel request. The European Union 
observes that Russia's panel request challenges the EU authorities' determination of the likelihood 
of "continuation" of dumping, without mentioning the EU authorities' determination on the likelihood 
of "recurrence" of dumping. The European Union submits that, consequently, references in 
Russia's  first written submission to the EU authorities' analysis on "recurrence" of dumping 
improperly expand the scope of the dispute.45 
 
40 Russia's response to the European Union's request for a preliminary ruling, para. 79.  
41 Russia's consultations request, p. 4.  
42 Article 6.2 of the Anti -Dumping Agreement.  
43 Appellate Body Report, EC - Tube or Pipe Fittings , para. 149.  
44 Russia's  first written submission, paras. 709 -739. 
45 European Union's first written submission, paras. 23 -25. WT/DS494/R/Add.1  
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  4.3.  Russia responds that the relevant sections of its panel request must be read together. It recalls 
that: 
… compliance with the requirements of Article 6.2 [of the DSU ] must be determined on 
the merits of each case, having considered the panel request as a whole, and in the 
light of attendant circumstances.46 
4.4.  In this connection, Russia asserts that the combined reading of the title of the section of the 
panel request to which claim 11 belongs and of claim 11 itself, confirms that Russia's claim on  the 
determination of likelihood of "continuation" of dumping is connected with the determination of 
likelihood of "recurrence" of dumping.47 
4.1.2   Evaluation by the Panel  
4.5.  Claim 11 in Russia's panel request reads as follows:  
The European Union faile d to comply with Article 11.3, 2.1, 2.2 and 2.4 of the 
[Anti-Dumping Agreement ], as well as Article VI:1 of the GATT 1994 by relying on 
a continuation of dumping without conducting proper dumping margin calculations that 
comply with Article 2 of the [Anti-Dumping Agreement ].48 
4.6.  We note that claim 11 is included in a section of Russia's panel request which is labelled "Claims 
with Respect to the Establishment of the Likelihood of Recurrence of Dumping".49 We read 
Russia's  panel request in this section a s including a claim that may encompass both the 
EU authorities' determination on likelihood of "continuation" and "recurrence" of dumping. Moreover, 
given the language used in the title of the section of the panel request to which claim 11 belongs, it 
is reasonable to expect that the European Union was on notice that claim 11 could also concern the 
determination of a "recurrence" of dumping.  
4.7.  For these reasons, we conclude that claim 11, to the extent it relates to the determination of 
the likelihood o f recurrence of dumping, is within our terms of reference. Thus, we reject the 
European Union's request to exclude from the scope of the dispute Russia's claim 11, to the extent 
it relates to the determination of the likelihood of recurrence of dumping.  
4.2  Claims  12 to 15  
Main arguments of the parties  
4.8.  Claims 12 to 15 concern the "continuous levying of the anti -dumping duties" on imports of 
ammonium nitrate from Russia.50 We note that the duty rates currently applied result from an 
amendment to Regulation 999/2014, implemented by Commission Implementing 
Regulation  2018/1722 (Regulation 2018/1722).51 
4.9.  The European Union asks the Panel to find that claims 12 to 15 that Russia bases on 
Regulation  2018/1722 are outside the scope of the dispute, for failing to meet the requirements of 
Article 6.2 of the DSU.52 In particular, the European Union submits that Regulation 2018/1722, 
 
46 Russia's response to the European Union's request for a preliminary ruling, para. 85 (citing 
Appellate  Body Report, US – Carbon Steel , para. 127).  
47 Russia's response to the European Union's request for a preliminary ruling, para. 87.  
48 Russia's panel request, p. 6.  
49 Russia's panel request, p. 6.  
50 The legal basis put forward by Russia in relation to these claims is: (a) in respect of claim 12, 
Articles 11.1, 9.3 and 1 of the Anti -Dumping Agreement, and Article VI:2 of the GATT 1994; (b) in respect of 
claim 13, Article 11.3; (c) in respect of claim 14, Articles 2.1, 2.2, 9.3 and 11.3 of the Anti -Dumping 
Agreement, and Articles I:1, VI:1 and VI:2 of th e GATT 1994, along with the Second Supplementary Provision 
to Article VI:1 of the GATT 1994; and, (d) in respect of claim 15, Articles 1 and 18.1 of the Anti -Dumping 
Agreement (Russia's first written submission, paras. 740 -920).  
51 Commission Implementing R egulation (EU) 2018/1722 of 14 November 2018 amending Implementing 
Regulation (EU) No 999/2014 imposing a definitive anti -dumping duty on imports of ammonium nitrate 
originating in Russia following an interim review pursuant to Article 11(3) of Regulation (EU) 2016/1036 of the 
European Parliament and of the Council, OJ L 287, 15.11.2018, p. 3 (Exhibit RUS -96). 
52 European Union's first written submission, paras. 26 -25. WT/DS494/R/Add.1  
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  adopted on 14 November 2018  (i.e. nearly two years after the request for the establishment of a 
panel), is not referenced as one  of the measures at issue in Russia's panel request.53 
4.10.   Russia observes that the panel request explicitly states that it covers the listed measures at 
issue as wel l as "any and all amendments, replacements, extensions, related  and implementing 
measures and any act of the European Union authorities that would affect the  measures at issue". 
Russia submits that Regulation 2018/1722 is not a measure independent from the  measures listed 
in the panel request but is an amendment of Regulation 999/2014 and, while the current anti -
dumping duties were imposed by Regulation 2018/1722, in fact they are "based" on the various 
prior measures listed in the panel request, including Regulation 999/2014. Therefore, Russia submits 
that, although it is not explicitly mentioned, the panel request covers Regulation  2018/1722.  
4.11.   Russia also considers that, should the Panel object to the inclusion of Regulation 2018/1722 
into its terms of reference, the objective of a prompt settlement of the dispute, stated in Article 3.3 
of the  DSU, would not be achieved. Finally, Russia argues that, including Regulation 2018/1722 in 
the terms of reference of th e Panel does not change the essence of th e dispute, since the violations 
claimed against this measure  are the same as those affecting the measures listed in the panel 
request.54 
Evaluation by the Panel  
4.12.   Regulation 2018/1722 came into force after the establishment of the Panel, but sh ortly before 
the composition of the Panel.55 By its terms, this Regulation amends  Regulation 999/2014, which 
imposed a definitive anti -dumping duty on imports of ammonium nitrate originating in Russia, 
following a partial interim review initiated on 17 Aug ust 2017 limited in scope to the examination of 
injury.56 Although the anti -dumping duties at issue in this dispute are currently levied on the basis 
of Regulation 2018/1722, this measure is clearly connected to the determinations made in the 
original inve stigation on imports of ammonium nitrate and in subsequent reviews.  
4.13.   In this connection, we note that the panel request states in relevant part:  
This request covers the measures set out above as well as any and all amendments, 
replacements, extension s, related and implementing measures and any act of the 
European Union authorities that would affect the measures at issue.57 
4.14.   We further note that claims 12 to 15 are not specifically directed at the determinations 
contained in Regulation 2018/1722  nor at the partial interim review limited to the examination of 
injury, but instead focus on determinations made in prior proceedings, specifically, in relation to the 
establishment of the dumping margins (claim 12)58, the extension of the anti -dumping dut ies in 
subsequent reviews (claim 13)59, the continuous levying of country -wide anti -dumping duties 
calculated on the basis of an allegedly WTO -inconsistent methodology (claim 14)60, and the general 
obligation to impose anti -dumping duties in accordance with the provisions of the 
Anti-Dumping  Agreement (claim  15).61 Accordingly, references to Regulation 2018/1722 in 
Russia's  first written submission do not amount to an expansion of the terms of reference, affecting 
the due process and adequate notice objectives pursued by Article 6.2 of the DSU.  
4.15.   For these reasons, we conclude that the lack of an explicit reference to Regulation 2018/1722 
in Russia's panel request does not amount to a breach of Article 6.2 of the DSU. Thus, we reject the 
European Union's request to exclude from the scope of the dispute claims 12 to 15 that Russia bases 
on Regulation  2018/1722.  
 
53 European Union's first written submission, paras. 27 -29. 
54 Russia's response to the Euro pean Union's request for a preliminary ruling, paras. 102 -119. 
55 The Panel was composed on 17 December 2018.  
56 Regulation (EU) 2018/1722, para. (13) (Exhibit RUS -96). 
57 Russia's panel request, p. 7.  
58 Russia's first written submission, paras. 741 -841. 
59 Russia's first written submission, paras. 842 -856. 
60 Russia's first written submission, paras. 857 -907. 
61 Russia's first written submission, paras. 908 -920. WT/DS494/R/Add.1  
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  4.3  Claim  14 
Main arguments of the parties  
4.16.   Claim 14 concerns Russia's allegation that the European Union imposed and  continues levying 
country -wide anti -dumping duties on imports of ammonium nitrate from Russia, for which the 
country -wide dumping margin was calculated pursuant to a methodology that does not conform with 
Articles 2.1, 2.2, 9.3 and 11.3 of the Anti -Dumpin g Agreement, and Articles I:1, VI:1 and VI:2 of 
the GATT 1994, along with the Second Supplementary Provision to Article VI:1 of the GATT 1994 .62  
4.17.   The European Union asks the Panel to rule that Russia failed to meet the standard of 
Article  6.2 of the DSU of "present[ing] the problem clearly" with respect to claim 14. The 
European  Union submits that Russia's panel request refers to a "methodology that does not conform" 
with the provisions invoked, without explaining what "methodology" Russia would b e referring to, 
what the methodology entails, where it can be found and how it would be inconsistent with the 
provisions alleged to have been violated.63 
4.18.   Russia submits that the narrative in its panel request makes clear that what Russia challenges 
is not any unspecified methodology, but the methodology used to calculate the dumping margin in 
prior reviews, which resulted in the application of a country -wide dumping margin on imports of 
ammonium nitrate from Russia. In relation to the nature of the c hallenged methodology, Russia 
submits that the reference to the Second Supplementary Provision to Article VI:1 of the GATT 1994 , 
indicates that Russia challenges the use of "the methodology applied by the EU [authorities] to 
non-market economy countries".64 
Evaluation by the Panel  
4.19.   We recall that Article 6.2 of the DSU requires the complainant to provide in its panel request 
an identification of the specific measure at issue and a brief summary of the legal basis of the 
complaint sufficient to present the problem clearly. We also recall that in considering the sufficiency 
of a panel request, a panel may consider submissions and statements made by the parties, in 
particular in the first written submission of the complaining party, in order to (a)  confirm the meaning 
of the words used in the panel request; and (b) assess whether the ability of the respondent to 
defend itself was prejudiced.  
4.20.   Russia's panel request sets out claim 14 in the following terms:  
The European Union imposed and contin ues levying anti -dumping duties on the product 
concerned from Russia based on a country -wide dumping margin pursuant to a 
methodology that does not conform to the provisions of Articles 1, 2.1, 2.2, 9.3 and 
11.3 of the [Anti-Dumping Agreement ], as well as Articles I:1, VI:1 and VI:2 of the 
GATT 1994 along with the second Supplementary Provision to Article VI:1 in Annex I to 
the GATT 1994 and thus acted in breach of said provisions, as well as Article 11.3 of 
the [Anti-Dumping Agreement ].65 
4.21.  Like the European Union, we note that Russia's panel request refers to "a methodology that 
does not conform to" certain provisions of the Anti -Dumping Agreement and the GATT 1994, without 
mentioning a specific methodology for determining normal value fo r non-market economy countries. 
However, we also observe that the legal provisions invoked by Russia in relation to this claim concern 
the determination of normal value and dumping margin, and that one of these provisions is the 
Second Supplementary Provis ion to Article VI:1 of the GATT 1994. This provision states that:  
It is recognized that, in the case of imports from a country which has a complete or 
substantially complete monopoly of its trade and where all domestic prices are fixed by 
the State, specia l difficulties may exist in determining price comparability for the 
purposes of paragraph 1, and in such cases importing contracting parties may find it 
 
62 Russia's first written submission, paras. 8 57-907. 
63 European Union's first written submission, paras. 31 and 33.  
64 Russia's response to the European Union's request for a preliminary ruling, paras. 128 -132. 
65 Russia's panel request, p. 7.  WT/DS494/R/Add.1  
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  necessary to take into account the possibility that a strict comparison with domestic 
prices in such a country may not always be appropriate.  
4.22.   In the light of this, we consider that the panel request can be read as including a challenge 
to the methodology used for determining the normal value in the case of non -market economies. 
We thus conclude that,  in respect of claim 14, the language in the panel request suffices to meet 
the standard under Article  6.2 of the DSU.  
4.23.   We further note that the challenged "methodology" has been confirmed by Russia in its first 
written submission. Russia explains in  its first written submission that:  
… the European Union authorities cannot apply the methodology for a non -market 
economy country in determination of normal value with respect to the products 
concerned originating in the Russian Federation for three reaso ns. 66  
4.24.   For these reasons, we reject the European Union's request to rule that the panel request fails 
to meet the requirements of Article 6.2 of the DSU in relation to claim 14.  
4.4  Claims 2, 18, 19 and 21  
Main arguments of the parties  
4.25.  The European Union asks the Panel to find that claims 2, 18, 19 and 21 are not properly 
before the Panel because Russia failed to identify the specific measures at issue and to provide a 
brief summary of the legal basis of the complaint sufficient to pr esent the problem clearly, in 
contradiction with Article 6.2 of the DSU.67 
4.26.   The European Union asserts that, with respect to claim 2, Russia's panel request lists 
Articles  5.3 and 11.3 of the Anti -Dumping Agreement but does not refer to any act or om ission by 
the EU authorities that could be considered as contrary to those provisions. For the European Union, 
the mere act of initiating an expiry review cannot, without more, be described as a violation of the 
Anti-Dumping Agreement.68 
4.27.   With respect to claims 18, 19 and 21, the European Union submits that Russia's panel request 
paraphrases the wording of Articles 6.5, 6.5.1 and 6.9 of the Anti -Dumping Agreement, but does 
not specify how, where or when the EU authorities allegedly a cted inconsistently with these 
provisions, thus affecting the European Union's rights of defence.69 
4.28.   Russia responds that claims 2, 18, 19 and 21 meet the requirements set out in Article 6.2 of 
the DSU. Russia asserts that, with respect to claim 2, b oth the measure at issue 
(Regulation  999/2014) and the legal basis of the complaint (Articles 5.3 and 11.3 of the 
Anti-Dumping Agreement) are clearly established on the face of the panel request and in the light 
of attendant circumstances. In particular, R ussia argues that the obligations contained in these 
provisions are clear and focus on the sufficiency of the evidence required to initiate an investigation 
or a review.70 
4.29.   With respect to claims 18, 19 and 21, Russia argues that the measure at issue  
(Regulation  999/2014) is clear, since the section of the panel request containing these claims is 
entitled "Claims with Respect to the Conduct of the Expiry Review Investigation". Russia also 
considers that the narrative under these three claims in the pa nel request is consistent with the 
requirement to provide a brief summary of the legal basis of the complaint, as it plainly connects 
the measure at issue with the provision allegedly breached. Russia submits that providing the 
additional details suggested  by the European Union – for instance, the specific instances of violation 
of Articles 6.5, 6.5.1 and 6.9 – would go beyond the obligation set forth in Article 6.2 of the DSU.71 
 
66 Russia's first written submission, paras. 869. See also p aras. 871 -875. 
67 European Union's first written submission, paras. 20 and 39 -43. 
68 European Union's first written submission, para. 20.  
69 European Union's first written submission, paras. 39 -43. 
70 Russia's response to the European Union's request for a pre liminary ruling, para. 148.  
71 Russia's response to the European Union's request for a preliminary ruling, paras. 152 -162. WT/DS494/R/Add.1  
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Evaluation by the Panel  
4.30.   In relation to the sufficiency of the pa nel request, the Appellate Body in Korea – Dairy  stated 
that: 
There may be situations where the simple listing of the articles of the agreement or 
agreements involved may, in the light of attendant circumstances, suffice to meet the 
standard of clarity  in the statement of the legal basis of the complaint. However, there 
may also be situations in which the circumstances are such that the mere listing of 
treaty articles would not satisfy the standard of Article 6.2. This may be the case, for 
instance, where t he articles listed establish not one single, distinct obligation, but rather 
multiple obligations. In such a situation, the listing of articles of an agreement, in and 
of itself, may fall short of the standard of Article 6.2.72 
4.31.   We read this as indic ating that while the simple listing of provisions of the WTO Agreements 
is normally not sufficient to "present the problem clearly", the obligation contained in a particular 
provision may nevertheless be sufficiently specific, to allow the defendant to und erstand what is at 
stake and to prepare its defence.  
4.32.   We now turn to the specific claims challenged by the European Union.  
4.4.2.1   Claim 2  
4.33.   Claim 2 is presented as follows in Russia's panel request:  
The European Union violated Articles 5.3 and  11.3 of the [Anti-Dumping Agreement ] by 
initiating the expiry review that led to the adoption of Regulation 999/2014.73 
4.34.   Article 5.3 of the Anti -Dumping Agreement sets forth an obligation on investigating authorities 
related to the sufficiency of th e evidence required to initiate an investigation:  
The authorities shall 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.  
4.35.   Article 11.3 of the Anti -Dumping Agreement deals with the initiation and conduct of expiry 
reviews.  
4.36.   In our view, the reference to Article 5.3 of the Anti -Dumping Agreement and to the initiation 
of the review in the narrative of claim 2, put the Europe an Union sufficiently on notice about the 
nature of claim 2, i.e. initiating a review in the absence of sufficient evidence to justify the initiation 
of an investigation.  
4.37.   In addition, we recall that in considering the sufficiency of a panel request,  a panel may 
consider the first written submission of the complaining party, in order to: (i) confirm the meaning 
of the words used in the panel request; and (ii) assess whether the ability of the respondent to 
defend itself was prejudiced. The first writt en submission of Russia confirms that claim 2 is limited 
to the sufficiency of the evidence required to initiate a review.74 Thus, we consider that the ability 
of the European Union to prepare its defence has not been negatively affected by the presentatio n 
of Russia's claim 2.  
4.38.   For these reasons, we conclude that, in respect of claim 2, the panel request meets the 
requirements of Article 6.2 of the DSU and we reject the European Union's request to rule that 
Russia's claim 2 is not properly before the  Panel.  
 
72 Appellate Body, Korea – Dairy , para. 124 . (emphasis original)  
73 Russia's panel request, p. 5.  
74 Russia's first written submission, p ara. 609.  WT/DS494/R/Add.1  
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  4.4.2.2   Claims 18, 19 and 21  
4.39.   In relation to claims 18, 19 and 21 respectively, the panel request states:  
The European Union failed to comply with Articles 6.5 and 11.4 of the 
[Anti-Dumping  Agreement ] by treating as confidential, without any good cause shown, 
information supplied by the domestic industry.  
The European Union acted contrary to Articles 6.5.1 and 11.4 of the 
[Anti-Dumping  Agreement ] by failing to require the domestic industry to furnish 
sufficiently detailed non -confidential summaries of the data submitted in confidence.  
The European Union breached Articles 6.9 and 11.4 of the [Anti-Dumping Agreement ] 
by not informing the interested parties of the essential facts under consideration which 
formed the basis for the decision to extend the anti -dumping measures.75 
4.40.   We note that the specific measure at issue in relation to claims 18, 19 and 21 – i.e. the expiry 
review investigation whose results are reflected in Regulation 9 99/2014 – is identified in the panel 
request.76 Indeed, in Section III.A, when presenting the "[m]easures at issue" in relation to 
Russia's  claims regarding the anti -dumping duties imposed by the EU authorities on imports of 
ammonium nitrate originating in Russia and the  underlying investigations, the panel request first 
identifies the expiry review that led to the adoption of Regulation 999/2014.77 In the next section 
(Section III.B), the panel request lists the various claims raised by Russia, including in relation to 
Regulation  999/2014. Claims 18, 19 and 21 are presented in the section of this list dealing with the 
"Conduct of the Expiry Review Investigation". We consider that this reference, together with the 
identification of Regulation 999/2014 as a measure at issue , put the European Union on notice that 
Russia's  claims  18, 19 and 21 concerned the treatment of confidential information and 
non-confidential summaries and the disclosure of essential facts in the context of the expiry review 
that led to Regulation  999/20 14. 
4.41.   Moreover, we disagree with the European Union's argument that Russia's panel request does 
"no more than paraphrase the wording of Articles 6.5, 6.5.1 and 6.9 of the 
Anti-Dumping  Agreement".78 In our view, the narrative in Russia's panel request in respect of 
claims  18, 19 and 21 complies with the requirement to provide a brief summary of the legal basis 
of the complaint sufficient to present the problem clearly. We agree with Russia that, requiring 
details such as the specific instances where the  EU authorities allegedly treated information as 
confidential without good cause and allegedly failed to request non -confidential summaries and to 
disclose the essential facts, would go beyond the requirements of Article 6.2 of the DSU.  
4.42.   For these re asons, we conclude that, in respect of claims 18, 19 and 21, the panel request 
meets the requirements of Article 6.2 of the DSU. Thus, we reject the European Union's request to 
find that Russia's claims 18, 19 and 21 are not properly before the Panel.  
5  CONCLUSION   
5.1.  In summary, after carefully considering the European Union's request for a preliminary ruling 
and Russia's response to this request, the Panel rules that:  
a. Claim 1 and other product scope claims (to the extent they refer to IGAN), and cl aims 9 
(to the extent it refers to Articles 2.3, 6.8 and 6.10 of the Anti -Dumping Agreement), 16 
to 21 (to the extent they refer to Article 11.4 of the Anti -Dumping Agreement), and 17 
(to the extent it refers to Article 6.2 of the Anti -Dumping Agreement) a re properly before 
the Panel;  
 
75 Russia's panel request, p. 7.  
76 Russia's panel request, pp. 4 -5.  
77 Russia's panel request, p. 4, fn 4.  
78 European Union's first written submission, para. 40.  WT/DS494/R/Add.1  
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  b. Claim 11 is properly before the Panel, including with regard to a determination of the 
likelihood of "recurrence" of dumping;  
c. Regulation 2018/1722 and claims 12 to 15 that Russia bases on Regulation 2018/1722 
are within the scope of the proceedings; and  
d. Claims 2, 14, 18, 19 and 21 are properly before the Panel.  
__________