WT/DS513/AB/R/Add.1  
 
10 December 2019  
(19-8498) Page: 1/23 
    
 
MOROCCO  – ANTI -DUMPING MEASURES ON CERTAIN HOT-ROLLED STEEL FRO M TURKEY  
 
AB-2018-11 
Report of the Appellate Body  
Addendum  
This Addendum  contains Annexes A to C to the Report of the Appellate Body  circulated as  document  
WT/DS513/AB/R . 
 
The Notice of Appeal and the executive summaries of written submissions contained in this 
Addendum are attached as they were received from the participants and third participants. The 
content has not been revised or edited by the Appellate Body, except that paragraph and footnote 
numbers that did not start at 1 in the original may have been renumbered to do so, and the text 
may have been formatted in order to adhere to WTO style. The executive summaries do not serve 
as substitutes for the su bmissions of the participants and third participants in the Appellate Body's 
examination of the appeal.  
 
 
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 WT/DS513/AB/R/Add.1  
 
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  LIST OF ANNEXES  
ANNEX  A 
NOTICE OF APPEAL   
Contents  Page  
Annex  A-1 Morocco's  Notice of Appeal  4 
ANNEX  B 
ARGUMENTS OF THE PARTICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Morocco 's appellant's submission  9 
Annex  B-2 Executive summary of Turkey 's appellee's  submission  13 
ANNEX  C 
ARGUMENTS OF THE THI RD PA RTICIPANTS   
Contents  Page  
Annex  C-1 Executive summary of the European Union's third participant's  submission  21 
Annex  C-2 Executive summary of Japan's third participant's  submission  22 
Annex  C-3 Executive summary of the United States' third participant's  submission  23 
  WT/DS513/AB/R/Add.1  
 
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ANNEX  A 
NOTICE OF APPEAL  
Contents  Page  
Annex  A-1 Morocco's  Notice of Appeal  4 
 
 
  WT/DS513/AB/R/Add.1  
 
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ANNEX A -1 
MOROCCO'S NOTICE OF APPEAL  
1. Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review 
(WT/AB/WP/6, 16 August 2010) ("Working Procedures"), Morocco hereby notifies the Dispute 
Settlement Body ("DSB") of its decision to appeal certain issues of law and legal interpretations in 
the Panel Report i n Morocco — Anti-Dumping Measures on Certain Hot -Rolled Steel from Turkey  
(WT/DS513/R) ("Panel Report").  
2. Pursuant to Rules 21 of the Working Procedures, Morocco files this Notice of Appeal together 
with its Appellant Submission with the Appellate Body Sec retariat.  
3. Pursuant to Rule 20(2)( d)(iii) of the Working Procedures, this Notice of Appeal includes an 
indicative list of the paragraphs of the Panel Report containing the alleged errors, without prejudice 
to Morocco's ability to rely on other paragraphs of  the Panel Report in its appeal.  
4. Morocco seeks review by the Appellate Body of the Panel's findings regarding its terms of 
reference. In particular, the Panel erred in finding that Turkey's claims under Articles 3.1 and 3.4 of 
the Anti -Dumping Agreement fe ll within its terms of reference.1 Accordingly, Morocco requests that 
the Appellate Body reverse the Panel's findings in, inter alia , paragraphs 7.27 -7.29 and 7.66, and 
find that Turkey's claims under Articles 3.1 and 3.4 were not within the Panel's terms of reference. 
Morocco additionally requests the Appellate Body to reverse all of the Panel's substantive findings 
under Articles 3.1 and 3.4 of the Anti -Dumping Agreement, including, inter alia , the findings in 
paragraphs 7.166, 7.175, 7.191, 7.198, 7.207,  7.218, 7.219, 7.222, 7.235, 7.245, 7.250, 7.254, 
7.262, 7.274, 7.277, 7.278, 7.283, 7.285, 7.287, 7.288, 7.289, and 8.3  d-f. 
5. Morocco seeks review by the Appellate Body of the Panel's findings under Article 6.8 of the 
Anti-Dumping Agreement. The Panel erre d in the interpretation and application of Article 6.8, and 
also failed to make an objective assessment of the matter, including an objective assessment of the 
facts of the case, under Article 11 of the DSU. The Panel's errors include, inter alia : 
• finding that the MDCCE had not made an affirmative determination of non -cooperation in 
the final determination.2 The Panel also acted inconsistently with Article 11 of the DSU in 
reaching its finding;  
• finding that the MDCCE was required to "engage meaningfully" wi th the producers and 
that the MDCCE failed to do so;3  
• finding that the MDCCE could not have reasonably applied facts available as a result of the 
MDCCE 's inability to verify export sales information at third -party traders;4 
• finding that the MDCCE did not have a proper basis to determine that the two producers 
had themselves failed to report the export sales;5 and, 
• finding that MDCCE could not reject and replace all the sales information that the 
producers had reported.6 
 
  This document, dated 23 November 2018 , was circulated to Members as document WT/DS 513/5.  
 
1 See, for example, Panel Report, para. 7.29.  
2 See, for example, Panel Report, para. 7.91.  
3 See, for example, Panel Report, paras. 7.92, 7.93, 7.99, and 7.101.  
4 See, For example, Panel Report, paras. 7.94 -7.95. 
5 See, for example, Panel Report, paras. 7.95, 7.97, 7.99, 7.100, 7.101, and 7.102 . 
6 See, for example, Panel Report, para. 7.103.  WT/DS513/AB/R/Add.1  
 
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  6. Morocco also seeks review by the App ellate Body of the Panel 's treatment of Exhibit MAR -11 
(BCI) in the context of the Panel 's assessment of Turkey 's claim under Article 6.8 o f the 
Anti-Dumping Agreement. The Panel 's treatment of MAR -11 is not consistent with the obligation 
under Article 11 of the DSU to make an objective assessment of the matter, including an objective 
assessment of the facts of the case.7 
7. As a result of the errors indicated in paragraphs 5 and 6 above, Morocco requests that the 
Appellate Body reverse the Panel 's findings, inter alia , in paragraphs 7.92, 7.93, 7.94, 7.95, 7.97, 
7.99, 7.100, 7.101, 7.102, 7.103, 7.104, 7.107, and 8.3 b., that the MDCCE 's recourse to facts 
available in respect of the producers' alleged failure to report the entirety of their export sales was 
inconsistent with Article 6.8.  
8. Morocco seeks review by the Appellate Body of the Panel 's findings under Article 3.1 of the 
Anti-Dumping Agreement. The Panel erred in the interpretation and application of Article 3.1, and 
also failed to make an objective asse ssment of the matter under Article 11 of the DSU. The Panel 's 
errors include:  
• finding that Article 3.1 can be violated independently when an erroneous act or omission, 
such as an erroneous finding that the domestic industry in question is unestablished, ta ints 
the overall injury analysis;8 
• finding that it need not rule on whether the Anti -Dumping Agreement requires an 
investigating authority to determine that the domestic industry is unestablished in the 
context of making a determination that the establishm ent of that industry is materially 
retarded;9 
• undertaking an assessment and making findings under Article 3.1 in the abstract without 
regard to whether an obligation to determine "unestablishment" exists or the contours of 
that obligation;10 
• finding that th e MDCCE did not assess, based on positive evidence and an objective 
examination, whether the domestic industry was established;11 
• finding that the MDCCE did not properly examine the question of the domestic industry's 
establishment;12 
• finding that the MDCCE acted inconsistently with Article 3.1 of the Anti -Dumping 
Agreement in determining that the domestic industry was unestablished;13 and 
• additionally, the Panel acted inconsistently with Article 11 of the DSU in finding that the 
MDCCE 's analysis of "est ablishment" violated the Anti -Dumping Agreement without finding 
that the Anti -Dumping Agreement requires an investigating authority to determine that 
the domestic industry is "unestablished".14 In reaching this finding, the Panel failed to 
make an objective  assessment of the matter, including an objective assessment of the 
applicability of and conformity with the relevant covered agreements.  
9. Based on the above, Morocco requests that the Appellate Body reverse the Panel 's findings in, 
inter alia , footnote 213  to paragraph 7.148 and paragraphs 7.148, 7.151, 7.166, 7.175, 7.191, 
7.198, 7.207, 7.218, 7.219, and 8.3 d. of the Panel Report. Morocco also requests that the Appellate 
Body find that the Panel acted inconsistently with its duty to conduct an objective a ssessment of the 
matter under Article 11 of the DSU.  
 
7 See, for example, Panel Report, para. 7.101.  
8 See, for example, Panel Report, paras. 7.148 and 7.151.  
9 See, for example, Panel Report, fn 213 to para. 7.148.  
10 See, for example, Panel Report, paras. 7.151, 7.16 6, 7.175, 7.191, 7.198, 7.207, 7.218, 7.219, 
and 8.3 d.  
11 See, for example, Panel Report, para. 7.219.  
12 See, for example, Panel Report, para. 7.219.  
13 See, for example, Panel Report, paras. 7.166, 7.175, 7.191, 7.198, 7.207, 7.218, 7.219, and 8.3 d.  
14 See, for example, Panel Report, fn. 213 to para. 7.148.  WT/DS513/AB/R/Add.1  
 
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  10. Morocco seeks review by the Appellate Body of the Panel 's findings under Articles 3.1 and 3.4 
of the Anti -Dumping Agreement with respect to "material retardation of the establishment of the 
domestic industry". The Panel 's finding regarding the MDCCE 's decision to conduct the injury analysis 
in the form of "material retardation of the establishment of the domestic industry" is entirely 
premised on its finding under Article 3.1 regarding "unest ablishment" .15 Accordingly, as a 
consequence of reversing the Panel 's finding under 3.1 regarding the finding of "unestablishment"16, 
Morocco requests that the Appellate Body also reverse the Panel 's findings in, inter alia , 
paragraphs  7.222 and 8.3 e., that  the MDCCE acted inconsistently with Articles 3.1 and 3.4 of the 
Anti-Dumping Agreement by conducting the injury analysis in the form of "material retardation of 
the establishment of the domestic industry ". 
11. Morocco seeks review by the Appellate Body of the  Panel 's findings under Articles 3.1 and 3.4 
of the Anti -Dumping Agreement with regard to its assessment of the captive market. The Panel erred 
in the interpretation and application of Articles 3.1 and 3.4. The Panel 's errors include, inter alia : 
• finding t hat, in failing to evaluate each of the two parts that made up the hot -rolled steel 
domestic industry in Morocco, the MDCCE failed to even -handedly evaluate the domestic 
industry as a whole, and therefore failed to meet the requirement of objectivity set o ut in 
Article 3.1 of the Anti -Dumping Agreement;17 
• finding that the requirement of objectivity in Article 3.1 applies to the MDCCE 's evaluation 
of each injury factor that formed part of its injury analysis, and therefore required the 
MDCCE to evaluate data pertaining to the captive market in its evaluation of each of those 
injury factors;18 
• finding that MDCCE 's conclusion that captive sales do not compete directly with imports 
did not serve as a satisfactory explanation based on which the MDCCE could exclude the 
captive market from its injury analysis;19 and, 
• finding that the MDCCE acted inconsistently with Articles 3.1 and 3.4 of the Anti -Dumping 
Agreement in disregarding the captive market in its injury analysis.20 
12. Accordingly, Morocco requests that the Appell ate Body reverse the Panel 's findings in, 
inter alia, paragraphs 7.273, 7.274, 7.277, 7.278, 7.289 b., and 8.3 f(ii) of the Panel Report.  
13. Morocco also seeks review by the Appellate Body of the Panel 's interpretation and application 
of Articles 3.1 and 3.4 of the Anti -Dumping Agreement with regard to its assessment of the 
McLellan  Report. The Panel erred in its interpretation and application of Articles 3.1 and 3.4. The 
Panel 's errors include, inter alia :  
• faulting the MDCCE for relying on the McLellan repor t because some of the projections in 
the report did not turn out to be entirely accurate;21 
• finding that the MDCCE did not base its injury determination on an objective examination22 
because it dismissed the significance of the inaccuracies in the Business P lan without 
further investigating the impact of those inaccuracies on Maghreb Steel 's actual and 
projected performance levels based on explanations that were not reasoned and 
adequate;23 and,  
 
15 See, for example, Panel Report, para. 7.222 and 8.3 e. 
16 See, for example, Panel Report, paras. 7 .166, 7.175, 7.191, 7.198, 7.207, 7.218, 7.219, and 8.3 d . 
17 See, for example, Panel Report, para. 7.274.  
18 See, for example, Panel Report, para. 7.274.  
19 See, for example, Panel Report, para. 7.277.  
20 See, for example, Panel Report, paras. 7.278, 7.289 b., and 8.3 f(ii).  
21 See, for example, Panel Report, paras. 7. 283, 7.285, 7.287, and 7.288.  
22 See, for example, Panel Report, para. 7.289 c.  
23 See, for example, Panel Report, paras. 7.283, 7.285, 7.287, 7.288, 7.289 c., 8.3 f.(iii).  WT/DS513/AB/R/Add.1  
 
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  • finding that that the MDCCE 's reliance on the McLellan Report wa s improper, and that the 
MDCCE 's overall injury analysis, which was based on that report, was inconsistent with 
Articles 3.1 and 3.4 of the Anti -Dumping Agreement.24 
14. Accordingly, Morocco requests that the Appellate Body reverse the Panel 's findings in, 
inter alia, paragraphs 7.283, 7.285, 7.287, 7.288, 7.289 c., and 8.3 f(iii) of the Panel Report.  
 
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24 See, for example, Panel Report, paras. 7.288, 7.289 c., and 8.3 (f)(iii).  WT/DS513/AB/R/Add.1  
 
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  ANNEX  B 
ARGUMENTS OF THE PARTICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Morocco 's appellant's submission  9 
Annex  B-2 Executive summary of Turkey 's appellee's  submission  13 
 
 
 
  WT/DS513/AB/R/Add.1  
 
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ANNEX B -1 
EXECUTIVE SUMMARY OF  MOROCCO' S APPELLANT'S SUBMIS SION1 
1. Morocco appeals the Panel Report in Morocco – Anti-Dumping Measures on Certain Hot -Rolled 
Steel from Turkey .2 The Panel made serious errors of law and legal interpretation, and failed to make 
an objective assessment of the matter, in finding that Morocco 's anti-dumping determination is 
inconsistent with the Agreement on the Implementation of Article VI of the General Agreement on 
Tariffs and Trade 1994 ( "Anti-Dumping Agreement "). 
A. THE PANEL ERRED IN ITS INTERPRETATION AND APPLICATION OF ARTICLE 4.4 OF 
THE DSU 
2. The Panel erred in finding that Turkey 's claims under Articles 3.1 and 3.4 of the Anti -Dumping 
Agreement regarding "establishment " and "retardation " fell within its terms of reference. The Panel 
also erred in finding that Turkey 's argument regarding t he injury factors under Article 3.4 fell within 
its terms of reference. Turkey 's claims under Articles 3.1 and 3.4 regarding "establishment " and 
"retardation ", and the injury factors, were not subject to consultations and therefore were not 
properly before  the Panel.  
3. The fact that Turkey took issue with the MDCCE 's finding of unestablishment or determination 
of retardation, or the alleged failure to address the relevant injury factors, should have been 
mentioned in the consultations request in order for th e request to give an indication of the legal 
basis for the complaint. This is more so considering that none of the provisions expressly mentioned 
in Turkey 's consultations request refers to "establishment " or "material retardation ". Turkey 's 
consultations request also does not refer to the MDCCE 's alleged failure "to assess all the relevant 
injury factors ". However, Turkey only made a very generic reference to "Injury/Causation 
Determination " and to four different provisions under the Anti -Dumping Agreement that contain 
distinct obligations and do not refer to or provide a legal standard for establishment or retardation, 
and referred to a narrative that was unrelated to the provisions listed. The mere listing of the legal 
provisions, together w ith the reference to "Injury/Causation Determination " without more was 
insufficient to give an indication of the legal basis of Turkey 's claims. What is more, the Panel 
acknowledged that the narrative actually provided in Turkey 's consultations request was  unrelated 
to the claims under Articles 3.1 and 3.4. Such request does not sufficiently indicate the legal basis 
of the complaint Turkey pursued in its panel request.  
4. For these reasons, Morocco respectfully requests that the Appellate Body reverse the Pane l's 
finding, and find that Turkey 's claims under Articles 3.1 and 3.4 were not within the Panel 's terms 
of reference. Consequently, Morocco respectfully requests the Appellate Body to reverse all the 
Panel 's substantive findings under these provisions.  
B. THE PANEL ERRED UNDER ARTICLE 6.8 OF THE ANTI -DUMPING AGREEMENT AND 
ARTICLE 11 OF the DSU IN FINDING THAT THE MDCCE WAS NOT ENTITLED TO RELY 
ON FACTS AVAILABLE  
5. Article 6.8 of the Anti -Dumping Agreement allows the use of facts available in an anti -dumping 
investigation in certain circumstances. An investigating authority may resort to the facts available 
where a party: (i) refuses access to necessary information; (ii) otherwise fails to provide necessary 
information within a reasonable period; or (iii) signi ficantly impedes the investigation.3  
6. In the investigation at issue, the MDCCE had to rely on facts available in calculating the 
dumping margin because of a lack of cooperation by the Turkish producers, Erdemir Group and 
Colakoglu, in the investigation. Du ring the investigation, the MDCCE determined that the Turkish 
producers had failed to report a significant part of their export transaction to Morocco in their 
 
1 Total n umber of words, 2,442.  
2 Panel Report, Morocco – Hot-Rolled Steel (Turkey)  ("Panel Report ").  
3 Panel Report, Argentina – Ceramic Tiles , para. 6.20. WT/DS513/AB/R/Add.1  
 
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  questionnaire responses, which indicated a lack of cooperation.4 The two Turkish producers had t hus 
failed to provide necessary information within a reasonable period. On this basis, the MDCCE decided 
to resort to facts available.5 The producers ' explanations regarding these sales were not sufficient 
to demonstrate that they would have in fact report ed all their sales.6 Therefore, the MDCCE 's reliance 
on facts available was consistent with Article 6.8 of the Anti -Dumping Agreement.  
7. The Panel 's conclusion under Article 6.8 is based primarily on its finding that the MDCCE did 
not maintain its determinat ion in the final determination that the Turkish producers had failed to 
report the relevant export sales.7 The Panel 's finding is incorrect, as the MDCCE did make an 
affirmative determination of non -cooperation in the final determination.8 
8. The Panel also w ent on to criticize the MDCCE 's determination on the grounds that the MDCCE 
did not "engage meaningfully " with the Turkish producers.9 In doing so, the Panel applied an 
incorrect legal standard under Article 6.8. If the Panel considered that the MDCCE had not 
communicated sufficiently with interested parties, it should have analyzed the MDCCE 's conduct in 
light of the specific obligations under Annex II. However, the Panel provided no analysis under 
Annex  II. In any case, the Panel 's finding is in error as the MDCCE engaged sufficiently with the 
producers on the issue of unreported sales, and substantiated its finding of the non -reported sales. 
The MDCCE thoroughly looked into the issue of the unreported sales, and based its finding of non -
cooperation on obj ective assessment of the facts on the record. Furthermore, given the fact that the 
unreported sales constituted around 50% of the reported sales and 30% of the total sales, the 
MDCCE was entitled to reject all of the reported information.10 In making its fi ndings regarding the 
MDCCE 's engagement, the Panel also erred in its appreciation of Morocco 's evidence under Article 
11 of the DSU. Therefore, Morocco requests the Appellate Body to reverse the Panel 's finding that 
the MDCCE 's recourse to facts available was inconsistent with Article 6.8.  
C. THE PANEL ERRED UNDER ARTICLE 3.1 OF THE ANTI -DUMPING AGREEMENT AND 
ARTICLE 11 OF THE DSU IN ITS FINDINGS REGARDING "ESTABLISHMENT " 
9. Compliance with Article 3 cannot be assessed in the abstract. A panel cannot assess whether 
an investigating authority has conducted an objective examination based on positive evidence 
without knowing what obligation the investigating authority is required  to fulfill. In order to assess 
the objectivity of an assessment, a panel must first know what should be assessed, and what is the 
standard for such assessment. Whether a determination is based on positive evidence necessarily 
depends on the elements that need to be established under the relevant treaty provision. However, 
the Panel did not identify or define the contours of the underlying obligation before conducting its 
analysis under Article 3.1. On the contrary, it deliberately declined to decide whethe r the obligation 
to make a determination of "unestablishment " existed and, as a consequence, also declined to define 
the contours of such an obligation.11 As a result, it also did not decide what factors an investigating 
authority should assess in its exami nation of establishment or whether a particular methodology is 
required. In other words, the Panel did not explain what obligations, if any, exist on the investigation 
authority with regard to its "establishment " analysis. As the Panel did not determine wh at the 
obligations on the MDCCE were in this context, it also could not determine whether the assessment 
was done objectively or was based on positive evidence.  
10. Because the Panel did not identify any obligation set for the MDCCE 's analysis of 
establishment , it erred in its interpretation and application of Article 3.1. For these reasons, Morocco 
respectfully requests that the Appellate Body reverse the Panel 's finding that Morocco acted 
inconsistently with Article 3.1 of the Anti -Dumping Agreement in determ ining that the domestic 
industry was unestablished.  
 
4 Final Determination, Exhibit TUR -11, para. 53; See also, Preliminary Determination, Exhibit TUR -6, 
Table No. 4  
5 Draft Final Determination, Exhibit TUR -10, para. 56. 
6 Final Determination, Exhibit TUR -11, paras. 60 -61. 
7 Panel Report, para. 7.91.  
8 Final Determination, Exhibit TUR -11, para. 58 . 
9 Panel Report, para. 7.92.  
10 See, Panel Report, US – Steel Plate, paras. 7.60 -7.62. 
11 Panel Report, fn 213 to para 7.148.  WT/DS513/AB/R/Add.1  
 
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  11. The Panel also erred under Article 11 of the DSU in finding that the MDCCE 's analysis of 
"establishment " violated the Anti -Dumping Agreement even though the Panel did not find that the 
Anti-Dumping Agreement requires an investigating authority to determine that the domestic industry 
is "unestablished ". The Panel recognized that the parties disagreed as to wh ether there exists such 
an obligation, but decided that it did not need to address that question.12 The Panel was under an 
obligation to assess whether or not there exists an obligation in Article 3.1 of the Anti -Dumping 
Agreement for an investigating autho rity to determine that the domestic industry is not established. 
The Panel could not have examined the consistency with Article 3.1 without first having resolved 
this issue of legal interpretation. Morocco notes that there is nothing in Article 3.1 that su ggests that 
an investigating authority is required to determine whether the domestic industry is "established " in 
order to rely on the concept of material retardation. Moreover, Turkey 's claim that an investigating 
authority is required to determine that t he industry is unestablished was not even based on 
Article  3.1. In finding that it need not address this question, the Panel acted inconsistently with its 
obligation to make an objective assessment of the matter under Article 11 of the DSU.  
12. As a consequenc e of reversing the Panel 's finding under 3.1 regarding "unestablishment ", 
Morocco requests that the Appellate Body also reverse the Panel 's finding that the MDCCE improperly 
proceeded to conduct its injury analysis in the form of material retardation and t hus acted 
inconsistently with Articles 3.1 and 3.4 of the Anti -Dumping Agreement.  
D. THE PANEL ERRED IN FINDING THAT THE MDCCE FAILED TO COMPLY WITH 
ARTICLES 3.1 AND 3.4 OF THE ANTI -DUMPING AGREEMENT WITH RESPECT TO THE 
CAPTIVE MARKET  
13. The Panel erroneously  found that an investigating authority must separately examine and 
discuss merchant and captive markets for each of the factors listed in Article 3.4 in order to comply 
with Article 3.1 requirement of an "objective examination ".13 Neither the text of Anti -Dumping 
Agreement nor prior Appellate Body statements support the Panel 's finding.  
14. Article 3.1 requires "an objective examination " that is "based on positive evidence ". Article  3.4 
lists numerous "economic factors and indices having a bearing on the state o f the industry ". This 
includes factors that either do not exist within the captive market or are irrelevant within the context 
of the captive market. The Panel 's interpretation is a mischaracterization of the Appellate Body 's 
previous findings. The Appella te Body has found that, to be consistent with their obligations under 
Article 3.4, investigating authorities must address all the factors listed thereunder.14 However, the 
Appellate Body has not found that an investigating authority must separately address each factor as 
to the captive and merchant markets.  
15. MDCCE 's actions are supported by the Appellate Body 's statement that "investigating 
authorities must determine, objectively, and on the basis of positive evidence, the importance to be 
attached to each po tentially relevant factor and the weight to be attached to it " under Article 3.4.15 
In other words, the Appellate Body found that it is up to the investigating authority to weigh the 
evidence and decide the importance of each potential factor. MDCCE weighed  the evidence and found 
that it was appropriate to exclude the captive market from its analysis. The Panel 's interpretation 
that MDCCE should have examined the captive market under each factor of Article 3.4 fails to take 
into account how an investigating authority must perform its injury analysis and creates meaningless 
obligations unsupported by the Agreement. For these reasons, Morocco requests the Appellate Body 
reverse the Panel 's finding that the MDCCE 's analysis of the captive market was inconsistent with 
Articles 3.1 and 3.4.  
E. THE PANEL ERRED IN ITS APPLICATION OF ARTICLE S 3.1 AND 3.4 OF THE 
ANTI -DUMPING AGREEMENT IN FINDING THAT THE MDCCE 'S RELIANCE ON THE 
MCLELLAN REPORT WAS IMPROPER  
16. To make its assessment of material retardation, the  MDCCE compared the projections in the 
business plan prepared by Maghreb Steel to its actual performance.16 The business plan had been 
 
12 Panel Report, fn 213 to para 7.148.  
13 See Panel Report, para. 7.274.  
14 Appellate Body Report, Thailand – H-Beams , paras. 121 -128. 
15 Appellate Body Report, US – Hot Rolled Steel , para 197.  
16 Preliminary Determination, Exhibit TUR -6, para. 116.  WT/DS513/AB/R/Add.1  
 
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  drawn up on the basis of a pre -feasibility report prepared by McLellan.17 Most of the projections in 
the McLellan report we re accurate and it was thus a reliable basis against which to compare the 
Maghreb Steel 's actual performance.18 The MDCCE, however, noted that some of the hypotheses 
were imprecise, and decided to analyse these issues in the light of what had actually taken  place, in 
order to assess the reliability of the plan.19 
17. The Panel faulted the MDCCE for relying on the McLellan report because three of the 
projections in the report did not turn out to be accurate. The Panel failed to recognize that projections 
by their very nature cannot be expected to always be accurate. The fact that all of the projections 
in a report do not turn out to be 100% accurate is not a sufficient basis to invalidate the report, 
much less to fault an investigating authority for relying on such  a report. Faulting the MDCCE for 
relying on the McLellan report is to subject MDCCE to an impossible standard.  
18. In any case, the reasons given by the Panel with respect to each of the three inaccuracies are 
also unpersuasive. The Panel acknowledged that t he MDCCE properly recognized that there were 
certain shortcoming in the McLellan report and addressed the inaccuracies.20 Importantly, the 
MDCCE did not simply accept the projections without more, but rather assessed them in light of 
what actually happened and analysed their appropriateness based on the facts before it.21 Therefore, 
contrary to the Panel 's finding, the MDCCE reached its conclusion on the appropriateness of the 
McLellan report based on an unbiased and objective assessment of the facts.  
19. The MDC CE properly considered all the differences in the projections and the actual figures. 
The MDCCE reached a reasonable conclusion that the differences did not render the business plan 
unreliable. For these reasons, the Panel erred in finding that the MDCCE i mproperly relied on the 
McLellan report. Therefore, Morocco respectfully requests the Appellate Body to reverse the Panel 's 
finding that the MDCCE dismissed the significance of the inaccuracies in the Business Plan without 
further investigating the impact of those inaccuracies on Maghreb Steel 's actual and projected 
performance levels and based on explanations that were not reasoned and adequate. Accordingly, 
Morocco respectfully requests the Appellate Body to reverse the Panel 's finding that the MDCCE 's 
overall injury analysis, which was based on that report, is inconsistent with Articles 3.1 and 3.4 of 
the Anti -Dumping Agreement.  
 
 
 
17 Preliminary Determination, Exhibit TUR -6, para. 118.  
18 Final Determination, Exhibit TUR -11, paras. 155 -158. 
19 Final Determination, Exhibit TUR -11, para. 159.  
20 Final Determination, Exhibit TUR -11, para . 159.  
21 Final Determination, Exhibit TUR -11, para. 159.  WT/DS513/AB/R/Add.1  
 
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  ANNEX B -2 
EXECUTIVE SUMMARY OF TURKEY'S APPELLEE'S SUBMISSION1  
1  MOROCCO'S APPEAL OF THE PANEL'S FINDING OF INCONSISTENCY WIT H ARTICLE 6.8 
OF THE ANTI -DUMPING AGREEMENT  
In the underlying investigation, the Moroccan investigating authority (MDCCE) alleged that 
there was a shortfall of 10'200  metric tonnes in the reporting by the two investigated Turkish 
exporters, Erdemir Group an d Colakoglu,  of their sales of the subject product to Morocco during the 
period of investigation (PoI). The MDCCE derived this figure by subtracting the 18'800  metric tonnes  
of sales reported by the Turkish exporters in their questionnaire responses from t he figure of 
29'000  metric tonnes  of sales, which the MDCCE claimed was the total volume of subject imports 
during the PoI, based on Moroccan official statistics. The MDCCE, therefore, rejected all of the sales 
data submitted by the two Turkish exporters a nd determined the dumping margins for these 
companies by relying solely on "facts available".2  
The Panel stated that "[i]n order to resort to facts available as a result of a failure by the 
producers to report certain export sales, the MDCCE was required to determine affirmatively that 
these producers had in fact failed to report the relevant export sales".3 The MDCCE did not, however, 
make a sufficient determination that the exporters had, in fact, failed to provide information. The 
Panel also found fault  with the MDCCE's "failure to engage meaningfully with the producers on this 
issue", in order to resolve whether the exporters had actually failed to report any sales.4 The Panel 
thus upheld Turkey's claim "that the MDCCE's recourse to facts available in r espect of the producers' 
alleged failure to report the entirety of their export sales [was] inconsistent with Article 6.8".5 
Morocco appealed the Panel's findings on several grounds. As explained below, all of these 
grounds lack merit, and should be dismis sed. 
With respect to ground 1 , Morocco disagrees with the Panel's view that " [t]he MDCCE … did 
not affirmatively determine that the producers had in fact failed to report particular export sales".6 
Morocco presents this ground of appeal as "a matter of leg al characterization [of the MDCCE's 
determination] that falls within the scope of appellate review under Article 17.6 of the DSU".7 In the 
alternative, "Morocco considers that the Panel did not conduct an objective assessment of the final 
determination", a nd, therefore, "acted inconsistently with its obligations under Article 11 of the 
DSU".8 
Morocco improperly describes this ground as an error in the legal characterization of the 
MDCCE's Final Determination. This ground of appeal is clearly directed at the  Panel's assessment of 
the content  of the Final Determination, i.e. the Panel's appreciation of the record facts. Such 
assessments are factual  in their nature, and may not be reviewed on any basis except under 
Article  11 of the DSU.9 
Furthermore, regarding  the Panel's factual assessment of the Final Determination , Morocco has 
not pointed to any instance where the Panel acted inconsistently with Article 11 of the DSU.  
However, even assuming that Morocco's ground of appeal concerns the legal characterization  
of the MDCCE's Final Determination, Morocco has not established that the Panel made any legal 
errors in its assessment of the MDCCE's findings. In finding that the MDCCE's use of facts available 
 
1 This Executive Summary contains a total of 3 ,741 words (including footnotes). Turkey's appellee's 
submission contains a total of 42 ,142 words (including footnotes).  
2 Final Determination, Exhibit TUR -11, paras. 52 -63.  
3 Panel Report, para. 7.91.  
4 Panel Report, para. 7.92.  
5 Panel Report, paras. 7.104 -7.107.  
6 Panel Report, para. 7.91.  
7 Morocco's appellant's submission, para. 65.  
8 Morocco's appellant's submission, para. 66.  
9 See, inter alia , Appellate Body Report , EC – Tube or Pipe Fittings , para. 177.  WT/DS513/AB/R/Add.1  
 
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  was not based on any affirmative finding of non-cooperation, or failure to provide information,10 the 
Panel found many shortcomings and deficiencies in the MDCCE's investigation.11 The Panel's finding 
of inconsistency with Article 6.8 should therefore be affirmed.  
With respect to ground 2.1 , Morocco considers that "[t]he Panel applied an incorrect legal 
standard under Article 6.8 in requiring that there be a 'meaningful engagement' before an 
investigating authority is allowed to resort to facts available".12 However, rather than "set[ing] out 
a 'meanin gful engagement' requirement",13 in its assessment, the Panel addressed in a diligent and 
comprehensive manner the parties' arguments concerning the MDCCE's conduct of the investigation, 
and made relevant factual findings to buttress its overall finding of inconsistency with Article 6.8. In 
any event, Morocco's statement that "there is no specific requirement of 'meaningful engagement' 
under Article 6.8"14 is clearly contradicted by the plain wording of Article 6.8, Annex II and WTO  case 
law interpreting thes e provisions.15 Thus, Morocco's ground of appeal should be dismissed.  
Morocco appeals certain additional factual findings of the Panel ( grounds 2.2 -2.5), without, 
however, specifying the precise legal bases for its appeal. As a preliminary matter , Turkey c onsiders 
that these grounds of appeal fail to meet the requirements of Rules 20(2)(d) and 21(2)(b) in the 
Working Procedures for Appellate Review, and, therefore, should be dismissed. In the alternative, 
should the Appellate Body decide otherwise, Turkey s ubmits that Morocco failed to substantiate 
these grounds of appeal, by referring to specific legal errors of the Panel.  
With respect to ground 2.2 , Morocco states that "the Panel erred in considering that the 
MDCCE failed to engage sufficiently with the p roducers on the issue of unreported sales".16 Morocco, 
however, omits to mention that, throughout the investigation, the MDCCE did not provide the 
Turkish  exporters with details of the specific sales that it considered were not reported. In these 
circumstan ces, the Panel expressed its doubts "regarding the producers' alleged failure to report any 
additional, unidentified export sales".17 Likewise, the Panel rejected Morocco's argument that the 
Turkish producers failed to report the portion of their export sal es for which the MDCCE provided 
documents as an ex post  explanation.18 In sum, the Panel reached a reasonable and well -grounded 
factual finding and Morocco's appeal of this finding should be dismissed.  
With respect to ground 2.3 , Morocco submits that the Pa nel erred in suggesting that "the 
MDCCE did not have a proper basis to determine that the two producers had themselves failed to 
report the export sales" as the MDCCE "thoroughly looked into the issue of the unreported sales, 
and based its finding of non -cooperation on objective assessment of the facts on the record".19 
However, the Panel found that the MDCCE's investigation of the alleged discrepancy was anything 
but thorough and objective.20 Given that Morocco essentially repeats its arguments made before t he 
Panel, Turkey respectfully requests the Appellate Body to reject Morocco's attempt to re -argue the 
case.  
With respect to ground 2.4 , Morocco submits that the Panel erred in finding that "the MDCCE 
could not have reasonably applied facts available as a result of the MDCCE's inability to verify export 
sales information at third -party traders".21 While Morocco disagrees with the Panel's finding that 
whether the investigated exporters reported all of their sales could have been easily verified  during 
the verification visits at the exporters, it has not explained why the Panel's finding was incorrect.22 
Morocco has failed to establish any error in the Panel's finding.  
 
10 Panel Report, para. 7.91. 
11 Panel Report, paras. 7.92-7.104 . 
12 Morocco's appellant's submission, para. 70.  
13 Morocco's appellant's submission, para. 71.  
14 Morocco' s appellant's submission, para. 72.  
15 See, inter alia , Appellate Body Report, US – Hot-Rolled Steel , paras. 82, 86 ; Panel Report,  
Guatemala – Cement II , para. 8.251 . 
16 Morocco's appellant's submission, paras. 80 and 92.  
17 Panel Report, para. 7.99.  
18 Panel Report, para. 7.97.  
19 Morocco's appellant's submission, paras. 84, 92.  
20 Panel Report, para s. 7.97 , 7.101, 7.102 , footnote 153 . 
21 Morocco's appellant's submission, para. 92.  
22 Morocco's appellant's submission, para. 83 ; Panel Report, para.  7.95. WT/DS513/AB/R/Add.1  
 
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With respect to ground 2.5 , Morocco submits that "the Panel erred in finding t hat the MDCCE 
failed to explain why the [Turkish exporters' alleged] failure to report the sales [amounting to 
10,200  MT] tainted the sales data that had been reported".23 As the Appellate Body and the panels 
in US – Steel Plate  and China – Broiler Products  (Article 21.5 – US) have clarified, if the investigating 
authority concludes that certain facts that were not reported taint the reliability of the investigated 
exporter's entire data set, the authority must explain this conclusion in its determinations.24 As 
confirmed by the Panel, the MDCCE's Final Determination does not contain any such explanation.25 
In sum, Morocco failed to establish any error in this part of the Panel's analysis.  
Finally, with respect to ground 3 , Morocco appeals the Panel's dismissal  of Exhibit MAR -11 
(BCI), which, according to Morocco, listed the export sales constituting the alleged discrepancy.26 
Morocco fails to identify any legal error that would amount to a violation of Article 11 of the DSU. 
Morocco merely recasts its arguments,  which the Panel has already rejected, and attempts to 
re-argue the case before the Appellate Body. As is well settled, the mere fact that the Panel disagreed 
with Morocco's arguments and evidence is insufficient to substantiate an Article 11 claim.27  
For these reasons, Turkey submits that Morocco failed to establish that the Panel erred in its 
finding of inconsistency with Article 6.8. However, in the event that the Appellate Body reverses this 
finding, Turkey requests the Appellate Body to complete the le gal analysis with respect to its claims 
under Article 6.8 and Annex II to the Anti -Dumping Agreement, and to find that the MDCCE's use of 
facts available was inconsistent with these provisions.  
2  MOROCCO'S APPEAL OF THE MDCCE'S ANALYSIS  OF "ESTABLISHMENT" IN THE INJURY 
ANALYSIS  
In its analysis of material retardation, the MDCCE conducted a two -step analysis. First, it 
determined whether the industry was "established". The MDCCE described this first step as 
"indispensable".28 Second, the MDCCE ascertained whether that establishment was materially 
retarded.29  
The Panel concluded that  Article 3.1 of the Anti -Dumping Agreement can be violated 
independently when an erroneous finding that the domestic industry is "unestablished" ta ints the 
overall injury analysis.30  
Morocco appeals, both as an issue of law and an issue of "applicability" under Article 11 of the 
DSU, the fact that the Panel allegedly failed to identify any obligation in Article 3 requiring the MDCCE 
to conduct an ana lysis of "establishment".  
Article 3.1 requires that "[a] determination of injury" be based on objective examination and 
positive evidence. Article 3.1 applies not only to the ultimate conclusion of injury but also to each of 
the necessary intermediate step s leading up to the overall finding of injury. In an injury assessment 
based on "material retardation of the establishment of an industry", an authority must satisfy itself 
that the determinations that (1) an industry was "unestablished" and (2) the establ ishment was 
"retarded", were based on objective examination and positive evidence.  
The Panel observed that the MDCCE "relied on" its analysis of "establishment" in determining 
that the appropriate form of injury to be examined was material retardation of the establishment of 
the domestic industry.31 Thus, the Panel correctly concluded that, once the MDCCE had relied on an 
 
23 Morocco's appellant's submission, paras. 93 -94. 
24 Appellate Body Report, Mexico – Anti Dumping Measures on Rice , paras. 293 (and 289) ; Panel Report, 
US – Steel Plate , paras. 7.60 -7.61, footnote 60 ; Panel Report,  China – Broiler Products (Article 21.5 – US), 
para. 7.343 . 
25 Panel Report, para. 7.103.  
26 Panel Report, para. 7.101, footnote 153 ; Morocco's appellant's submission, paras.  97, 102.  
27 Appellate Body Report, China – Rare Earths , para. 5.227.  
28 Final Determination, Exhibit TUR -11, para. 80.  
29 Turkey's first written submission, paras. 8.6 -8.9 and 9.1 -9.5.  
30 Panel Report, Footnote 213.  
31 Panel Report, para. 7.148.  WT/DS513/AB/R/Add.1  
 
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  analytical step as a basis for its overall injury determination, it was required to take that step in 
accordance with Article 3.1.32 The P anel did not commit legal error.  
Morocco further claims, under Article 11 of the DSU, that the Panel made an error of 
"applicability" by failing to ascertain whether there exists an obligation in Article 3.1 for an 
investigating authority to determine whet her the domestic industry is unestablished.33  
The Panel assessed whether Article 3.1 applied to the MDCCE's analysis of establishment and 
concluded "that Article 3.1 can be violated independently when an erroneous act or omission, such 
as an erroneous find ing that the domestic industry in question is unestablished, taints the overall 
injury analysis".34 Thus, Article 3.1 is applicable  to any measure that taints the overall injury 
analysis. The Panel explicitly addressed the issue of applicability of Article 3.1 to the 
MDCCE's  analysis of "establishment".  
For these reasons, Morocco's appeal should be rejected.  
If, however, the Appellate Body finds that the Panel acted inconsistently with Article 11 of the 
DSU, Turkey requests the Appellate Body to complete th e analysis and find that Article 3.1 imposes 
obligations for injury analyses in the form of material retardation. If an industry is established, there 
is nothing to retard anymore. Thus, as a threshold matter, an authority must ensure that an industry 
is "unestablished" before it assesses whether that establishment has been retarded.  
Turkey thus requests the Appellate Body to uphold the Panel's finding that the MDCCE's 
"establishment" determination was inconsistent with Article 3.1.35 Similarly, Turkey requ ests the 
Appellate Body to uphold the separate Panel's finding that the MDCCE's "establishment" analysis 
was also inconsistent with Article 3.4.36  
3  MOROCCO'S APPEAL REG ARDING THE CAPTIVE M ARKET IN THE INJURY ANALYSIS  
The MDCCE excluded the captive production from its injury analysis under Article 3.4.37 The 
Panel agreed that the MDCCE should have assessed the data for the captive market in its overall 
injury analysis.38 The Panel also found that the MDCCE's explanation for dismissing the significance 
of the captive market was not objective. The Panel concluded that the MDCCE acted inconsistently 
with Articles 3.1 and 3.4 in disregarding the captive market in its analysis.39 
On appeal, Morocco raises two arguments.  
First, Morocco argues that " the Panel erroneously concluded that an investigating authority 
must separately examine and discuss merchant and captive markets for each of the factors listed  in 
Article 3.4".40 The Panel recalled the Appellate Body's guidance that Article 3.1 requires that, where 
an authority undertakes an examination of one part of a domestic industry, it should, in principle, 
examine , in like manner , all of the other parts that make up the industry, as well as examine the 
industry as a whole.41 
Morocco claims that there are several  factors that may not be relevant to the analysis of the 
captive market. However, even if that were case, the authority would still be required to evaluate 
those factors and, if not applicable to the captive market, to say so. Accordingly, no factor may be  
excluded a priori  from the analysis of the captive market. Rather, the authority must satisfy itself, 
on a case -by-case basis, whether each factor is relevant. For this reason, Turkey requests the 
 
32 Panel Report, paras. 7.149 and 7.150.  
33 Morocco's appellant 's submission, para. 124.  
34 Panel Report, para. 7.151.  
35 Panel Report, paras. 7.219 and 8.3.d.  
36 Panel Report, para s. 8.3.d and 8.3.e . 
37 Preliminary determination, Exhibit TUR -6, para. 11.  
38 Panel Report, para. 7.273.  
39 Panel Report, paras. 7.278 and 8.3(f) (ii). 
40 Morocco's appellant 's submission, para. 135.  
41 Appellate Body Report, US – Hot-Rolled Steel , para. 204 . (italics added ) WT/DS513/AB/R/Add.1  
 
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  Appellate Body to reject Morocco's appeal concerning the P anel's statement that the MDCCE was 
required to evaluate " each injury factor that formed part of its injury analysis".  
Second, Morocco criticizes the Panel's finding that the MDCCE's explanation that captive sales 
needed to be excluded from the injury ana lysis because they do not compete directly with imports 
was not "satisfactory".42 Morocco's appeal effectively requests the Appellate Body to reverse its own 
rulings in US – Hot-Rolled Steel  and in US – Cotton Yarn , where it emphasized that the fact that th e 
captive production is not in competition with imports is "highly pertinent" to the injury inquiry. Thus, 
the Panel correctly found that the MDCCE could not properly rely on its assertion that 
Maghreb  Steel's captive production was not in competition with  imports as a justification for 
disregarding the captive production.  
Turkey thus requests the Appellate Body to uphold the Panel's finding concerning the treatment 
of the captive market.43  
4  MOROCCO'S APPEAL REG ARDING THE ERRORS IN  THE MCLELLAN REPORT  IN TH E 
INJURY ANALYSIS  
 The MDCCE relied on the projections contained in the MCLELLAN report for purposes of the 
evaluating the injury factors listed in Article 3.4. However, the MDCCE recognized that at least three 
critical projections in that report were inac curate. The Panel found that the MDCCE acted 
inconsistently with Articles 3.1 and 3.4 by failing to assess the relevance and consequences of those 
errors.44 
First, Morocco argues that the fact  "[t]hat some of the projections may have turned out to be 
inaccu rate does not undermine the objectivity of the analysis".45 Morocco mischaracterizes the 
Panel's finding, which was that the MDCCE failed to analyze properly the impact of the inaccuracies, 
and not the fact that there were inaccuracies. Morocco's argument, if accepted, would mean that 
the MDCCE could use the MCLEL LAN report as a valid benchmark against which to compare the 
actual performance, even if those inaccuracies had the effect of exacerbating the existence of injury.  
Morocco's argument should be rejected.  
 Second, Morocco criticizes the Panel's analysis of t he MDCCE's consideration of each of the 
three inaccuracies in the MCLELLAN report.  
Regarding the projected increase in demand, Morocco merely repeats the MDCCE's factual 
findings and states that the MDCCE'S explanations were appropriate. The Panel noted t hat the 
inaccuracy in the increase in demand would, "in all likelihood", lead to an overestimation in the 
projections of certain factors relevant to the injury analysis, such as sales, investment decisions, 
inventories among others. Morocco fails to explai n how the MDCCE considered that the inaccurate 
increase in demand did not affect the projections for the relevant injury factors.  
Regarding the projected sales of the downstream product, Morocco criticizes the Panel's finding 
that the MDCCE should have add ressed whether the internal consumption of hot -rolled steel 
remained "unaffected" notwithstanding the inaccuracy in the projected increase in sales of the 
downstream product.46 The projected consumption for hot -rolled steel was used to forecast the 
performa nce of several economic factors under Article 3.4. The question, therefore, was whether 
the projection for hot -rolled steel consumption remained unaffected by the actual decrease in sales 
of the downstream product even though those sales were projected to increase. As the Panel found, 
the MDCCE should have assessed whether the error affected the projected hot -rolled steel 
consumption.  
Regarding the projected slab prices, Morocco argues that the Panel erred in finding that the 
MDCCE should have investigated what impact this inaccuracy had during the period 
June 2010 December 2011.47 Morocco further argues that the difference in slab prices did not affect 
 
42 Morocco 's appellant 's submission, para. 149.  
43 Panel Report, para. 8.3.f(ii) . 
44 Panel Report, para. 7.288.  
45 Morocco's appellant's submission, para. 165.  
46 Morocco's appellant 's submission, para. 169. 
47 Morocco's appellant's submission, para. 173.  WT/DS513/AB/R/Add.1  
 
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  Maghreb Steel during 2012, after the electric plants were put into operation. However, since s teel 
slab is a raw material used in the production of hot -rolled steel, the inaccurate projected steel slab 
prices "must have had an impact on business decisions, such as investment and production capacity, 
among others"48, during at least the first 19 mont hs of the period of investigation.  
Turkey requests the Appellate Body to uphold the Panel's findings with respect to the errors 
identified in the MCLELLAN report.  
5  MOROCCO'S APPEAL CON CERNING TURKEY'S CON SULTATIONS REQUEST  
 Morocco's appeal concerns the al leged insufficiency of the "legal basis of the complaint" in 
Turkey's consultations request. Morocco argues that Turkey was required to state in its consultations 
request that Turkey took issue with the specific MDCCE's analyses of "establishment" and 
"retardation", as well as the failure to analyze six economic factors listed in Article 3.4 of the 
Anti-Dumping Agreement.  
Article 4.4 of the DSU contains the requirements of a consultations request. The "legal basis of 
the complaint" refers to "the claims per taining to a specific provision of a covered agreement 
containing the obligation alleged to be violated".49 Moreover, the requirement in Article 4.4 of the 
DSU is to "indicate" the legal basis in the consultations request. Unlike Article 6.2, Article 4.4 do es 
not require a "brief summary" of the legal basis in a consultations request.  
In its consultations request, Turkey "indicated" the legal basis of the complaint in its 
consultations request: i.e. Articles 3.1, 3.2, 3.4 and 3.5 of the Anti -Dumping Agreemen t. Each of 
these provisions contains a single obligation. Moreover, Turkey's consultations request clearly took 
issue with the MDCCE's own and only injury determination.  
In its appeal, Morocco also conflates the legal standards applicable to Articles 4.4 and 6.2 of 
the DSU. Specifically, Morocco seeks to extrapolate the legal standard applicable to the "brief 
summary" in Article 6.2 to Article 4.4 of the DSU, even though the latter does not contain such a 
requirement.  
Accordingly, Turkey requests the Appel late Body to uphold the Panel's finding that Articles 3.1 
and 3.4 were properly within its terms of reference.50  
6  REQUEST FOR FINDINGS  AND RULINGS  
Turkey requests that the Appellate Body decline Morocco's requests to reverse the Panel's 
findings of inconsi stency with Articles 3.1, 3.4 and 6.8 of the Anti -Dumping Agreement. In addition, 
Turkey requests the Appellate Body to uphold the Panel's finding that Articles 3.1 and 3.4 were 
properly within its terms of reference as Turkey satisfied the requirements of  Article 4.4 of the DSU 
regarding its consultations request.  
7  REQUEST FOR A SUGGES TION FOR IMPLEMENTAT ION 
Turkey requests the Appellate Body to suggest that Morocco terminate the anti -dumping duty 
at issue.  
Regarding the Panel's finding under Article 5.10 of the Anti -Dumping Agreement, Morocco 
considers that a violation of this provision "would have no real implications for the anti -dumping 
measure in question".51 Furthermore, the multiple findings of violation of Articles 3.1, 3.4, 6.8 
and 6.9 require,  for implementation, the termination of the measure at issue.  
A suggestion by the Appellate Body would help avoid potential Article 21.5 proceedings. This 
suggestion is necessary because the Appellate Body report would likely be circulated in the course 
 
48 Panel Report, para. 7.286.  
49 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.80, referring to A ppellate Body 
Report, EC – Selected Customs Matters , para. 130.  
50 Panel Report, para. 7.29.  
51 Morocco's first written submission, para. 58.  WT/DS513/AB/R/Add.1  
 
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  of the sunset review investigation. A suggestion would timely assist the parties in furthering the 
objective of a positive and prompt solution to the dispute.  
Turkey requests the Appellate Body to suggest to Morocco that it terminate the anti -dumping 
duty a t issue.   
_______________  
 
 WT/DS513/AB/R/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF THE THI RD PARTICIPANTS   
Contents  Page  
Annex  C-1 Executive summary of the European Union's third participant's  submission  21 
Annex  C-2 Executive summary of Japan's third participant's  submission  22 
Annex  C-3 Executive summary of the United States' third participant's  submission  23 
 
  WT/DS513/AB/R/Add.1  
 
- 21 - 
 
   
 
ANNEX C-1 
EXECUTIVE SUMMARY OF THE EUROPEAN UNION'S THIRD PARTICIPANT'S SUBMISSION1 
1. The European Union agrees with the Panel that an investigating authority is required to engage 
meaningfully with the producers when doubts arise as to the completeness, accuracy or reliability of 
the inf ormation provided. However, this obligation does not require the investigating authority to 
tell exporters how to cure defects in their initial replies to questionnaires. Requests for explanations 
or additional information must be sufficiently clear and pr ecise, taking account of the circumstances 
of each investigation.  
2. The European Union notes that an investigating authority may only make determinations on 
the basis of facts available if it has observed the provisions of Annex II. Therefore, compliance wit h 
all the obligations laid down by those provisions is relevant for the evaluation of a claim of 
inconsistency with Article 6.8. Since Annex II contains the specific provisions informing the question 
of whether the necessary information has been provided a nd whether resort to facts available is 
justified, the Panel could have chosen to examine first the claims brought under the various 
paragraphs of Annex II.  
3. The European Union submits that investigating authorities may search for missing additional 
informa tion during on -the-spot verifications at the producers, but are under no obligation to do so. 
Cooperating producers should provide all relevant sales data during the stages of the investigation 
preceding the verification.  
4. The European Union agrees with th e Panel that an investigating authority may consider that 
a failure to report certain sales taints or renders unusable the sales data that has been reported. 
When rejecting incomplete data, the investigating authority must provide an appropriate explanatio n 
to that effect, focusing specifically on the manner in which the omitted information undermines the 
reliability of the sales information submitted during the investigation.  
5. The European Union considers that, when an investigating authority relies in orde r to make a 
determination of injury on findings that are not required by the Anti -Dumping Agreement, those 
findings must nonetheless be based on positive evidence and an objective examination. Article 3.1 
of the Anti -Dumping Agreement  requires that an investigating authority base on an objective 
examination and positive evidence any of its findings  that form part of the inquiry into the impact of 
dumped imports on domestic producers. In particular, it is key that the determination that  the 
industry is unestablished, a necessary logical precondition for a finding of retardation,  complies with 
Article 3.1 since an erroneous determination would taint the overall injury analysis.  
6. The European Union submits that an investigating authority m ust consider, in the absence of 
a satisfactory explanation, all of the Article 3.4 factors in relation to the merchant and captive 
segments of the domestic market and the domestic market as a whole.  
 
 
1 Total words of the submission (including footnotes but excluding the executive summary) = 4,478; 
total words of th e executive summary = 444.  WT/DS513/AB/R/Add.1  
 
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  ANNEX C-2 
EXECUTIVE SUMMARY OF JAPAN'S THIRD PARTICIPANT'S SUBMISSION1 
1. Japan welcomes this opportunity to present its views to the Appellate Body  on three systemic 
interpretive issues arising in this dispute.   
2. First, t he consultations process is for the parties  to define and delimit the scope of the dispute . 
The scope of a consultations  request is not necessarily identical to the request for panel 
establishment, because the claims in a panel request co nstitute a natural  evolution of  the 
consultations process.  
3. Second, "facts available" under Article 6.8 (incorporating  Annex II ) of the Anti -Dumping 
Agreement should be used,  not to  punish non -cooperation by interested parties , but to replace 
information that may be missing , in order to arrive at an accurate determination  of dumping or 
injury.  
 
4. Finally, a ll Anti-Dumping Agreement  provisions on "injury ", including t he fifteen factors 
specified in Ar ticle 3.4 , apply to a determination of "material retardation".  Where a partic ular factor 
listed in Article 3.4 is not relevant , that irrelevance must be  explained . 
 
 
 
1 Total Number of words, 160. WT/DS513/AB/R/Add.1  
 
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  ANNEX C-3 
EXECUTIVE SUMMARY OF THE UNITED STATES ' THIRD PARTICIPANT'S SUBMISSION1 
1. The United States welcomes the opportunity to present its views on certain findings raised on 
appeal by Morocco. In this submission, the United States will present its views on the proper legal 
interpretation of certain provisions of the Agreement on Imple mentation of Article VI of the General 
Agreement on Tariffs and Trade 1994  ("AD Agreement") and the Understanding on Rules and 
Procedures Governing the Settlement of Disputes  ("DSU") that have been raised in this dispute.  
2. The United States ' submission add resses Morocco 's claims under Articles 3.1 and 6.8 of the 
AD Agreement, as well as Article 11 of the DSU. First, the United States addresses certain of 
Morocco 's claims concerning the Panel 's findings under Article 6.8 of the AD agreement. As set forth 
below, the United States agrees that the Panel erred in reading an additional obligation into the text 
of Article 6.8 by finding that the MDCCE failed to "meaningfully engage" with the parties at issue.  
3. However, Morocco 's appeal concerning the Panel 's findin gs under Article 6.8 of the 
AD Agreement also raises systemic concerns. Specifically, Morocco 's claim under Article 11 of the 
DSU highlights the burden placed on the Appellate Body and other parties when parties appeal what 
are clearly factual determinatio ns by a panel through characterizing such determinations as a failure 
of a panel 's obligation to make an "objective assessment" under Article 11 of the DSU. The 
Appellate  Body has an opportunity in this appeal to reconsider how its originally limited appro ach to 
review the "objective assessment" of a panel has been seized by appellants to cover practically all 
factual determinations by a panel. Given the lack of textual basis in the DSU for appellate review of 
panel fact -finding, the Appellate Body should i nstead reassert that the proper issues for appeal are 
limited to issues of law and legal interpretations covered by a panel report.2 
4. Furthermore, the United States will also explain that Morocco 's appeal under Article 6.8 raises 
the issue of whether the mu nicipal law of a WTO Member is an issue of law or fact. As the 
Unite d States has previously stated, the meaning of a Member 's municipal law, and certainly the 
application of a Member 's municipal law as in this case, is an issue of fact and not law under th e 
scope of appellate review.  
5. The United States will then address Morocco 's claim under Article 3.1 of the AD Agreement, 
and explain that while it disagrees with Morocco that Article 3.1 cannot be breached independently 
of other obligations under Article 3 , a panel may also not assess Article 3.1 in the abstract. Thus, 
the United States agrees with Morocco that the Panel erred in its interpretation of Article 3.1 by 
imposing obligations that do not exist in the text of Article 3.1.  
__________  
 
 
 
 
 
1 Pursuant to the Guidelines in Respect of Executive Summaries of Written Submissions , WT/AB/23 
(March 11, 2015), the United States indicates that this executive summary contains a total of 485 words, and 
this U.S. third participant submission (not including the text of the executive summary) contains 8,124 words 
(including footnotes) . 
2 DSU, Article 17.6 ( "An appeal shall be limited to issues of law covered in the panel report and legal 
interpre tations developed by the panel. ").