WT/DS494/8  
 
8 September 2020  
(20-6050) Page: 1/10 
  Original: English  
 
EUROPEAN UNION – COST ADJUSTMENT METHODOLOGIES AND CERTAIN  
ANTI -DUMPING MEASURES ON IMPORTS FROM RUSSIA (SECOND COMPLAINT)  
NOTIFICATION OF AN OTHER APPEAL BY THE RUSSIAN FEDERATION  UNDER ARTICLE 16.4  
AND ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING  
THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 23(1) OF THE  
WORKING PROCEDURES FOR APPELLATE REVIEW  
The following communication, dated 2  September  2020, from the delegation of the 
Russian Federation, is  being circulated to Members.  
 
_______________  
 
 
Pursuant to Article  16.4 and Article  17 of the DSU, the Russian  Federation hereby notifies to the 
Dispute Settlement Body its decision to appeal to the Appellate  Body certain issues of la w covered 
in the Report of the Panel and certain legal interpretations developed by the Panel in its Report in 
the dispute European  Union – Cost Adjustment Methodologies and Certain Anti -Dumping Measures 
on Imports from Russia (Second Complaint) (WT/DS494/ R).  
Pursuant to Rule 23(1) of the Working Procedures for Appellate Review , the Russian  Federation 
simultaneously files this Notice of Other Appeal with the Appellate  Body Secretariat.  
The Russian  Federation restricts its appeal to those errors in the Pane l report that it believes 
constitute serious errors of law and legal interpretation that need to be corrected. Non -appeal of an 
issue, reasoning or finding does not signify or imply agreement therewith.  
For the reasons to be further elaborated in its subm issions to the Appellate  Body, the 
Russian  Federation appeals the following errors of law and legal interpretation contained in the 
Panel  Report1, and requests the Appellate  Body to reverse, modify or declare moot and of no legal 
effect the findings and conclusions of the Panel, and where indicated to complete the analysis.  
I. Claims concerning the second subparagraph of Article  2(3) of the Basic AD  Regulation  
1. To resolve this dispute, the Panel's duty is to follow the DSU, including Articles 3.2 -3.5, 7.1, 
7.2, 11, and 19.2. In particular, Article  3.2 of the DSU directs panels to clarify provisions of the 
covered agreements in accordance with Articles 31 -33 of the Vienna  Convent ion on the Law of 
Treaties ("Vienna  Convention "). The words of the treaty form the foundation for the interpretative 
process, and thus a treaty interpreter must read and interpret "the words actually used by the 
agreement under examination, not words the i nterpreter may feel should have been used".2 
Interpretation that reduces parts of the agreement to redundancy or inutility is not permitted.3 
2. As agreed by all WTO  Members in Articles 7 and 11 of the DSU, a panel is required to make 
an objective assessmen t of the matter before it, including conformity of the measure with the 
covered agreements, in order to fulfil its mandate. It is part of the Panel's duties to "thoroughly 
 
1 In the following descriptions of the legal errors of the Panel, the Russian  Federation provides an 
indicative list of the paragraphs of the Panel  Report , in particular paragraphs with the primary instance of the 
errors. These errors may also be reflected in or have consequences for other parts of the Panel  Report , and the 
Russian  Federation also appeals all findings and conclusions deriving from or relying on the appealed errors.  
2 Appellate  Body Reports, EC – Hormones , para.  181; Japan – Alcoholic Beverages II , para.  24. 
3 Appellate  Body Report, US – Gasoline , para.  61. WT/DS494/8  
 
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  scrutinize the measure before it", including its meaning, scope, design and operatio n, so the Panel 
can make its own objective, independent, detailed examination and assessment of the matter.4 While 
the starting point of the analysis of the measure is its face, i.e. text, other evidence also shows the 
meaning, scope, structure, and logic  of the measure at issue.5 It follows that for the proper 
assessment of the matter, the Panel is required to examine all provided evidence, evaluate the 
relevance and probative force of each piece and consider all evidence in its totality.6 
3. As to the bur den of proof, this concept applies to issues of fact only. Consistent with the 
principle of jura novit curia , the burden of proof does not apply to questions of law or legal 
interpretation.7 It is also well known that requirement to prove a negative const itutes an "erroneous 
burden of proof".8 
4. Since this dispute concerns anti -dumping, the Russian  Federation recalls that t he 
Anti-Dumping Agreement is focused on injurious "dumping" in trade in goods. The term "dumping" 
is understood as international price d iscrimination which "arises from the pricing practices of 
exporters as both normal values and export prices reflect their pricing strategies in home and foreign 
markets".9 In other words, "dumping" is "the result of the [international] pricing behaviour of 
individual exporters or foreign producers" of the product under consideration.10 Thus, any 
anti-dumping investigation is focused on the analysis of the pricing behaviour of the investigated 
exporter or producer of the product under consideration , i.e. not on input used to produce the 
product under consideration or the producer of that input. The investigated exporter or producer of 
the product under consideration can be ac countable only for its own behavior in international trade 
in goods.  
5. All said above is reflected in the DSU, the Anti -Dumping Agreement and WTO  jurisprudence 
and helps to understand the Panel's errors described below.  
6. The Russian  Federation appeals the Pan el's approach and analysis and conclusions, including 
the Panel's examination and rejection of Russia's rationales, and related descriptions, interpretation, 
reasoning and findings11. In particular, the Russian  Federation appeals the Panel's conclusion tha t 
Russia's arguments failed to support Russia's claim that the second subparagraph of Article  2(3) of 
the Basic AD Regulation is inconsistent with Article  2.2 of the Anti -Dumping Agreement and that 
Russia did not discharge its burden of demonstrating that its legal rationale regarding the 
interpretation of Article  2.2 provides a valid basis for this claim.12 Accordingly, the 
Russian  Federation also appeals the Panel's dismissal of Russia's claim.13 The Panel's conclusion and 
related findings are based, in p articular, on the Panel's errors in its examination of Russia's claim, 
imposition of burden of proof, legal interpretation of Article  2.2 of the Anti -Dumping Agreement and 
its application, as well as errors in reasoning and the examination and evaluation o f provided 
evidence.  
7. In its submissions to the Panel, the Russian  Federation explained in detail its understanding 
of the meaning, scope, design and operation of the second subparagraph of Article  2(3) of the 
Basic AD Regulation and provided supporting ev idence. Due to errors in Panel's analysis, it failed to 
engage in examination of Russia's arguments and provided evidence14, as illustrated by the 
Section  7.4 of the Panel  Report . The Russian  Federation appeals these omissions because, as a 
 
4 Appella te Body Reports, US – Hot-Rolled Steel , paras.  54, 200; India – Patents (US) , para.  66; 
US - Carbon Steel (India) , para.  4.454.  
5 Appellate  Body Reports, US – Corrosion -Resistant Steel Sunset Reviews, para.  168; US – Carbon 
Steel, para.  157; EU – Biodiesel  (Argentina), para.  6.201; China – Measure Affecting Imports of the Automobile 
Parts, para. 171. 
6 Appellate  Body Report, Korea – Dairy , para.  137. 
7 Appellate  Body Report, EC – Tariff Preferences , para.  105 and ft 220. 
8 Appellate  Body Report, Japan – Agricultural Products II , para.  137. 
9 Appellate  Body Report, US – Stainless Steel (Mexico) , para.  95. 
10 Appellate  Body Report, EU – Biodiesel (Argentina) , fn 130 (referring to Appellate  Body Reports, 
US - Zeroing (Japan) , paras.  111 and 156; US – Zeroing (EC), para.  129; and US – Stainless Steel (Mexico) , 
paras.  94-95 and fn  208 to para.  94). 
11 In Section  7.4 of the Panel  Report , the Panel's analysis is in paras.  7.173 -7.201.  
12 Panel  Report , para s. 7.201, 8.1.d.  
13 Ibid. 
14 See Panel  Report , paras.  7.173 -7.201.  WT/DS494/8  
 
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  result, the Panel did not fulfil its mandate and duties under Article  7 and other said provisions of the 
DSU.15 
8. Instead of focusing on the measure at issue, ascertaining its meaning and examining its 
consist ency with WTO  rules, the Panel decided to first examine the "validity"16 and "capability"17 of 
arguments on the legal interpretation of Article  2.2 of the Anti -Dumping Agreement which Russia 
provided to explain its claim that the challenged measure is inco nsistent with Article  2.2 of the 
Anti-Dumping Agreement. This decision on the approach and the following erroneous analysis, 
reflected in paragraphs 7.173 -7.201 of the Report, resulted in the Panel's failure to fulfil its mandate 
and duties under the DSU, including Articles 3.3, 7.1, 7.2 and 11.  Thus, the prompt settlement of 
the dispute is out of reach.  The Russian  Federation appeals the approach taken by the Panel, the 
burden of proof imposed on Russia and the Panel's failure to ascertain the meaning, sco pe, design 
and operation of the measure at issue and to make relevant findings, including on inconsistency of 
this measure with Article  2.2 of the Anti -Dumping Agreement.18 , the Russian  Federation appeals, 
in particular, the Panel's findings and reasoning  in paragraphs  7.173 -7.175, 7.189, 7.193, 7.195, 
7.197, 7.198, 7.199, 7.200, 7.201, 8.1.d of the Panel  Report . 
9. The Russian  Federation also appeals the Panel's interpretation and application of the term "the 
particular market situation" in Article  2.2 of th e Anti -Dumping Agreement .19The Russian  Federation 
also appeals the related statements, reasoning and intermediate findings20, conclusion and dismissal 
of Russia's claim that the second subparagraph of Article  2(3) of the Basic AD Regulation is 
inconsistent with Article  2.2 of the Anti -Dumping Agreement21. 
10. The Panel should have interpreted the term "the particular market situation" in accordance 
with Articles 31 -33 of the Vienna  Convention  starting its analysis in the following order: to examine 
the ordinary meaning of the word "situation" and its three qualifiers "market", "particular" and the 
definite article "the" and then the ordinary meaning of the whole term in its context, and in lig ht of 
the object and purpose of the Anti -Dumping Agreement. As part of the contextual analysis, the Panel 
should have examined, inter alia , the meaning of the words "when", "because of", the structure of 
Article  2.2 and the fact that the term "determine" i s used in this provision only once, connection of 
Article  2.2 with other provisions related to determination of normal value, including Article  2.2.1 
(ordinary -course -of-trade test by reason of price), Article  2.2.1.1 (calculation of costs), Article  2.7 
(link with the second Ad Note).The Panel should have recognized that the wording "the particular 
market situation" is the term of art rather than a random "phrase". Considering the term "the 
particular market situation" in light of the object and purpose of the Anti -Dumping Agreement, the 
Panel should have taken into account that this Agreement provides detailed procedural rules and 
reflects a delicate balance of rights and obligations of WTO  Members and their producers and 
exporters. A loose interpretation o f procedural rules would relax them and permit their 
circumvention, and as a result such interpretation would upset the delicate balance and undermine 
the object and purpose of the Anti -Dumping Agreement.22 
11. However, instead of following the described analy sis, the Panel immediately provided its 
ostensibly "better explanation" for the use of the definite article "the" by relying on the "functional 
understanding of the application of Article  2.2"23. The Panel erroneously conflated "the legal 
interpretation" a nd with the next step – "application". While Article  2.1 of the Anti -Dumping 
Agreement provides the definition of the term "dumping" and indeed applies to the entire 
Agreement, consideration of Article  2.1 should neither precede the examination of the ordi nary 
meaning of the term "the particular market situation" nor negate the meaning of the definite 
article  "the" and its role as a qualifier in this term.  
 
15 Panel  Report , paras.  7.173 -7.201.  
16 See Panel  Report , paras.  7.175, 7.193, 7.198, 7.201.  
17 See Panel  Report , paras.  7.195, 7.196, 7.201.  
18 Panel  Report , paras.  7.173 -7.201, in particular, 7.173 -7.175, 7.194, 7.196 , 7.198, 7.199 -7.201 . 
19 Panel  Report , paras.  7.175, 7.178 -7.181, 7.183, 7.186 -7.187, 7.189, 7.192 -7.193, 7.195, 7.197 -
7.201.  
20 Panel  Report , paras.  7.178 -7.181, 7.183, 7.186 -7.187, 7.189, 7.192 -7.193, 7.195, 7.197 -7.200 . 
21 Panel  Report , paras.  7.201 and 8.1.d . 
22 Appellate  Body Report, US – Softwood Lumber IV , para.  64. 
23 Panel  Report , para.  7.178.  WT/DS494/8  
 
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  12. The Panel erred when it indicated that "the choice of a definite or indefinite article" in the term 
"the particular market situation" is not significant24 and preferred "understanding" that "avoids 
placing undue significance"25 on the choice of the article in the legal text. The Panel also erred when 
it refused to resort to Article  32 (for reviewing the te xt of Article  2:4 of the Tokyo Round 
Anti-Dumping Code)26, and to Article  33 of the Vienna  Convention  (for reconciliation of the use of 
definite articles in the English and French versions of the term "the particular market situation" in 
Article  2.2 with t he use of indefinite article in the Spanish version of this term)27. The Panel also 
erred when it rejected Russia's interpretation of the use of the article "the" as the qualifier for the 
term "particular market situation"28. 
13. In paragraphs 7.179 -7.181, the  Panel provided a very limited consideration of the terms 
"situation" (on its singular form) and "particular" ("it is not a general situation and is specific to the 
facts and circumstances as viewed on a case -by-case basis", erroneously assuming the use of  
article  "a" instead of "the"). These words were not examined in their immediate context of all words 
in the term "the particular market situation". The word "market" was not considered in these 
paragraphs. The ordinary meaning of the term "the particular market situation" was not provided. 
This is not a proper interpretation, and thus the Panel's findings are in error.  
14. In paragraph 7.186 the Panel found that "Article 2 and the second Ad Note should operate in 
conjunction without narrowing the sc ope or effect of the second Ad Note". This finding recognizes 
the existence of the link between these provisions. The fact is that Article  2 contains several 
provisions related to determination of normal value, including Article  2.2, and the inclusion to e ach 
of them an explicit reference to the second Ad Note would result in unnecessary repetition that is 
clearly avoided by putting Article  2.7 which already contains a clear link to the second AD Note to 
Article  VI:1 of the GATT  1994. Furthermore, it cannot  be denied that Article  VI:1 of the GATT  1994 
is linked with the second Ad Note and linked with Article  2, including Article  2.2, of the Anti -Dumping 
Agreement. However, in paragraphs 7.176, 7.183, the Panel mistakenly considered that a definition, 
explici t reference from the term "the particular market situation" in Article  2.2 to the second Ad Note 
or the use of identical wording are the only ways to show relations between these provisions. This 
is incorrect. As a result, the Panel's made erroneous findin g in respect of the scope of the phrase 
"the particular market situation"29. The errors in the Panel's interpretation of the term "the particular 
market situation" tainted the Panel's further analysis and its findings that Russia's interpretation 
"would re strict the second Ad Note … or would nullify the mandatory nature of the provision relating 
to 'the particular market situation' in Article  2.2 in all cases in which it applies", and the related 
findings30. In its consideration of the Appellate  Body's stat ement in EC – Fasteners (China) 
(Article  21.5 – China) , the Panel recognized the Appellate  Body's statement "on the relation between 
Article  2.2 and the second Ad Note"; however, the Panel erred in finding that this statement does 
not "offer any support Ru ssia's asserted interpretation"31. The Panel also erred in its interpretation 
of the word "market" in the term "the particular market situation", and statements in which the 
Panel stated and implied that "a situation pertaining to a market" "for the like p roduct or its inputs" 
constitutes "the particular market situation" within the meaning of Article  2.2 of the Anti -Dumping 
Agreement.32 In its interpretation, the Panel read into the term "the particular market situation" of 
Article  2.2 of the Anti -Dumping Agreement words that are not there, i.e. "pertaining to a market", 
"for the like product or its inputs", and substituted the definite article "the" with article "a". This is 
incorrect legal interpretation. Instead of basing its interpretation on the legal text, the Panel was 
seeking "functional reason" and relied on the "operation" of Article  2.2 and as a result the Panel 
used an erroneous test, explained below. Accordingly, the related findings and conclusions of the 
Panel are also legally incorrect.33 
15. The Panel erred when it stated and implied that Article  2.2 provides for a determination of 
"whether or not [the particular market situation] causes the exporter's sales of the like product in 
 
24 Panel  Report , ft 354 to para.  7.178.  
25 Ibid. 
26 This Article  is the basis for the current text of Article  2.2 of the Anti -Dumping Agreement.  
27 Panel  Report , ft 354 to para.  7.178.  
28 Panel  Report , paras.  7.178, 7.180, 7.181.  
29 Panel  Report , para.  7.183.  
30 Panel  Report , paras.  7.186, 7.187, 7.189 . 
31 Panel  Report , para.  7.192. 
32 Panel  Report, paras.  7.195, 7.197.  
33 Panel  Report , paras.  7.195, 7.197, 7.201.  WT/DS494/8  
 
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  the domestic market to not permit a proper compari son"34. Despite the Panel's clear 
acknowledgment that the words "when" and "because" are part of the immediate context for the 
term "the particular market situation" in Article  2.2, in its interpretation the Panel failed to examine 
them and in fact substit uted these words with the words "whether", "where", "if" and "to cause", 
"causes" or "causing", respectively. The created test does not have textual support in Article  2.2 and 
fails to take into account the relevant context, in particular Articles 2.2.1 an d 2.2.1.1 of the 
Anti-Dumping Agreement.  
16. In paragraphs 7.197 -7.198 the Panel erred when it rejected Russia's arguments regarding so 
called "artificially low prices" and found that Russia's arguments on the basis of the legal text of 
Article  2.2 were not su fficient. Several errors in the Panel's interpretation of Article  2.2 also tainted 
the Panel's findings in these paragraphs. In particular, the Panel referred to "condition" and read 
into Article  2.2 words "whether", "caused, "where", "if" which are not us ed in this provision. 
Furthermore, the Panel erred by requiring Russia to proof a negative. Accordingly, the Panel erred 
in its findings.  
17. In paragraph 7.199 the Panel noted that in its examination of legal issues ("the interpretative 
issues … in the cours e of addressing Russia's legal rationale for its claim"), the Panel "focused on 
the text and relevant context" of Article  2.2 of the Anti -Dumping Agreement. However, as stated 
above, the Panel's interpretation was not proper. In particular, some terms and provisions were 
disregarded, including such relevant context as Articles 2.2.1 and 2.2.1.1 of the Anti -Dumping 
Agreement. It follows that the Panel's interpretation cannot be in accord with the object and purpose 
of the Anti -Dumping Agreement as it upsets the delicate balance of rights and obligations of the 
WTO Members. The Panel's findings in paragraph 7.199 are in error.  
18. In paragraph 7.200 the Panel "noted that the term 'the particular market situation' was 
recently examined by the panel in Australia – Anti-Dumping Measures on A4 Copy  Paper ". On the 
one hand, the Panel noted that "the measures, legal rationales and records at issue in these 
two disputes were substantially different", and, on the other hand, the Panel relied on the reasoning 
of that panel. In particular, the Panel made a loose assumption that its "findings and reasoning in 
respect of this claim are additionally supported by the findings and reasoning of the panel in 
Australia  – Anti-Dumping Measures on A4 Copy Paper ". The Panel failed to jus tify such an 
assumption based on particular paragraphs, findings and reasoning of the panel in 
Australia  - Anti-Dumping Measures on A4 Copy  Paper . The Russian  Federation provided extensive 
explanations to the Panel to the contrary; however,  the Panel failed to engage in any analysis of 
these explanations as evidenced by the text of paragraph 7.200 of the Panel  Report . 
19. Should the Panel had acted in accordance with the relevant provisions of the DSU and 
considered all the evidence and arguments provided by the Russian  Federation, the Panel should 
have arrived at different conclusions. In particular, the Panel should have found that correct 
interpretation of the term "the particular market situation" in Article  2.2 of the Anti -Dumping 
Agreement does not pe rmit to read into this term words that are not there, for example, "a situation 
for a market of input".  
20. The Russian  Federation requests the Appellate  Body to reverse35 or modified the appealed 
conclusion, dismissal of Russia's claim and related findings an d reasoning or to declare them moot 
and with no legal effect.  
II. Claims concerning the second subparagraph of A rticle  2(5) of the Basic AD Regulation  
21. The Russian  Federation appeals the Panel's approach and analysis and conclusion, including 
the Panel's examination and rejection of Russia's rationales, and related descriptions, interpretation, 
reasoning and findings36. In particular, the Russian  Federation appeals the Panel's conclusion that 
Russia failed to demonstrate its claim that the final pa rt of the second subparagraph of Article  2(5) 
of the Basic AD Regulation is inconsistent with Article  2.2 of the Anti -Dumping Agreement. The 
 
34 Panel  Report , paras.  7.195, 7.187, 7.179, 7.197, 7.198.  
35 This is without prejudice to the Russian  Federation's  appeal of the Panel's approach to its examination 
of Russia's claims  and imposition of the burden of proof . 
36 See Panel  Report , paras.  7.205, 7.206 (the last sentence), 7.207, 7.208, 7.211 (the last sentence), 
7.212, 7.214 (the second sentence), 7.220 (ex cept the first sentence), 7.221 (the first sentence with finding, 
and others with supporting reasoning), 7.222 (the last sentence), 7.223, 7.224, 7.225, 8.1.e.  WT/DS494/8  
 
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  Panel's conclusion and related findings are based, in particular, on the Panel's errors in its 
examination of Russi a's claims, imposition of burden of proof, legal interpretation of Article  2.2 of 
the Anti -Dumping Agreement and its application, as well as errors in reasoning and the examination 
and evaluation of provided evidence.  
22. To avoid unnecessary repetition, the R ussian  Federation refers to the previous section where, 
with reference to provisions of the DSU, Anti -Dumping and WTO  jurisprudence, it described essential 
understanding on the Panel's duties in examination and assessment of the measure at issue and 
legal interpretation.  
23. First, the Panel erred by imposing on Russia the burden of proof with respect to issues of law 
and legal interpretation.  
24. Second, the Panel erred in its examination and assessment of Russia's claims on 
WTO-inconsistency of the last pa rt of the second subparagraph of Article  2(5) of the Basic 
AD Regulation.  
25. In its submissions to the Panel, the Russian  Federation explained in detail its understanding 
of the meaning, scope, design and operation of the second subparagraph of Article  2(5) of the Basic 
AD Regulation and provided supporting evidence. However, the text of Section  7.5 of the 
Panel  Report  demonstrates that the Panel erroneously disregarded most of Russia's arguments on 
the meaning of the second subparagraph of Article  2(5) of th e Basic AD Regulation, its scope  and 
design. Supporting evidence was neither properly examined, nor evaluated, nor considered in its 
totality. Also, the Panel erroneously omitted that the scenario posited by Russia concerns costs which 
were incurred by the  investigated producers of the product under consideration in the country of 
origin. The Russian  Federation appeals these omissions because  they resulted in the Panel's failure 
to fulfil its mandate and duties under Articles 3.3, 7.1, 7.2 and 11 of the DSU .37 
26. Instead of focusing on the measure at issue, ascertaining its meaning and examining its 
consistency with WTO  rules, the Panel decided to fist examine the "validity" of arguments which 
Russia provided to explain its claim that the challenged measure is inconsistent with Article  2.2 of 
the Anti -Dumping Agreement. The Panel found that two arguments lack a valid basis in Articles  2.2 
and 2.2.1.1 of the Anti -Dumping Agreement respectively and dismissed these arguments. As a 
result, the meaning of the challen ged measure, in particular its certain essential elements for 
Russia's claim, was not ascertained by the Panel. Only where the Panel found that "Russia ha[d] 
presented a valid basis in Article  2.2 of the Anti -Dumping Agreement upon which to assert a claim 
of inconsistency"38, the Panel considered the text of the challenged measure but only to the extent 
of that particular argument. Other arguments on the meaning of the challenged measure, in 
particular the phrase "or, where such information is not available  or cannot be used, on any other 
reasonable basis, including information from other representative markets", the structure and logic 
of the second subparagraph of Article  2(5) were not examined. Thus, the ascertaining of the meaning 
of the measure at issue  was, in fact, conditioned by the Panel on its finding that Russia's arguments 
have a valid basis in Articles 2.2 and 2.2.1.1 of the Anti -Dumping Agreement.  
27. This decision on the approach and the following erroneous analysis, reflected in 
paragraphs  7.206 -7.225 of the Report, resulted in the Panel's failure to fulfil its mandate and duties 
under the DSU, including Article  7 and other stated above provisions of the DSU. The 
Russian  Federation appeals the approach taken by the Panel, the burden of proof impos ed on Russia 
and the Panel's failure to properly ascertain the meaning, scope, design and operation of the 
second  subparagraph of Article  2(5) of the Basic AD Regulation, including its last part, and to make 
relevant findings, including on inconsistency of  this measure with Article  2.2 of the Anti -Dumping 
Agreement.39 Accordingly, the Russian  Federation appeals the Panel's findings in paragraphs  7.208, 
7.212, 7.222 (last sentence), 7.223, 7.225.  
 
37 Panel  Report , paras.  7.205 -7.225.  
38 Panel  Report , para.  7.214.  
39 Panel  Report , Section  7.5, pa ras. 7.205 -7.225.  WT/DS494/8  
 
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  28. With respect to the errors described above in this section, the Russian  Federation requests 
the Appellate  Body to reverse40 or modify the appealed conclusion and related findings and reasoning 
or to declare them moot and with no legal effect.  
29. Second, the Panel erred in the legal interpretation and applicat ion of Article  2.2 of the 
Anti-Dumping Agreement.  
30. The Panel erred in the formulation of the interpretative question41 related to Russia's claim 
that the measure at issue is inconsistent with Article  2.2 of the Anti -Dumping Agreement. In 
particular, the Pan el disregarded the scenario described by Russia and the meaning of the measure 
at issue, and also erred in its characterization of the measure as "the allowance". In addition to 
being legal errors, these errors constitute a violation of Article  11 of the D SU and also result in 
violations of other said provisions of the DSU. Accordingly, the Panel also erred in its: finding that 
"Russia's claim lacks a valid basis in Article  2.2 of the Anti -Dumping Agreement"42; dismissal of 
Russia's argument43; and the fina l conclusion44. The Russian  Federation requests the 
Appellate  Body: to modify or declare the appealed interpretative question moot and of no legal 
effect; to reverse45 or declare the said finding and dismissal moot and of no legal effect; and to 
reverse th e final conclusion. The Russian  Federation also requests the Appellate  Body to find that 
the second  subparagraph of Article  2(5) of the Basic AD Regulation provides "the requirement" to 
"adjust" or "establish" costs.  
31. The Panel erred when stated that "there  is no hierarchy of sources upon which to base the 
cost of production in the country of origin".46 This statement disregards that Article  2.2 does not 
provide that an investigating authority may use cost data from third countries and markets to 
construct n ormal value. Instead, Article  2.2 explicitly requires to use "the cost of production in the 
country of origin", and investigating authorities "naturally look for information on the cost of 
production 'in the country of origin' from sources inside the count ry".47 After the records of the 
investigated producers which is "the preferred source of information"48, the second preferred source 
of information is the cost of production of other exporter or producer in the country of origin, and 
the out -of-country cos t data is the least preferred source. Accordingly, the Panel also erred in its: 
finding that "Russia's claim lacks a valid basis in Article  2.2 of the Anti -Dumping Agreement"; 
dismissal of Russia's argument49; and the final conclusion50. The Russian  Federation requests the 
Appellate  Body: to modify or declare the appealed statement moot and of no legal effect; to 
reverse51 or declare the said finding and dismissal moot and of no legal effect; and to reverse the 
final conclusion.   
32. In its interpretation  of Article  2.2 of the Anti -Dumping Agreement, the Panel was inconsistent 
in its reference to  the requirement in this provision to use "the cost of production in the country of 
origin" in construction of normal value. In some parts of its Report, which als o describe the Panel's 
"understanding and interpretation of Article  2.2", the Panel mistakenly referred to determination of 
"a" cost of production in the country of origin52. In contrast, Article  2.2 of the Anti -Dumping 
Agreement refers to "the cost of production in the country of origin". The Russian  Federation 
requests the Appellate  Body to modify the appealed statements and substitute the indefinite 
article  "a" with the definite article "the".  
 
40 This is without prejudice to the Russian  Federation's appeal of the Panel's approach to its examination 
of Russia's claims and imposition of the burden of proof.  
41 Panel report, para.  7.206.  
42 Panel report, para.  7.208.  
43 Panel report, para.  7.208, 7.225, 8.1.e.  
44 Panel report, paras.  7.225, 8.1.e.  
45 This is without prejudice to the Russian  Federation's appeal of the Panel's approach to its examination 
of Russia's claims and imposition of the burden of proof.  
46 Panel report, para. 7.207.  
47 Appellate  Body Reports, EU – Biodiesel (Argentina) , para.  6.70; Ukraine – Ammonium Nitrate , ft 415 
to para.  6.121.  
48 Panel report, para.  7.211; Appellate  Body Reports, EU – Biodiesel (Argentina) , para.  6.18; EC – Tube 
or Pipe  Fittings , para.  99; See, e.g. Russia's FWS, para.  243. 
49 Panel  Report , para.  7.208, 7.225, 8.1.e.  
50 Panel  Report , paras.  7.225, 8.1.e.  
51 This is without prejudice to the Russian  Federation's appeal of the Panel's approach to its examination 
of Russia's claims and imposition of the burden of proof.  
52 See Panel  Report , paras.  7.207, 7.211, 7.214.   WT/DS494/8  
 
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  33. The Russian  Federation also requests the Appellate  Body to review the Panel's understanding 
of the Appellate  Body's explanation on the obligation in Article  2.2 of the Anti -Dumping Agreement 
and findings on violations of this provision in EU – Biodiesel (Argentina)  and Ukraine – Ammonium 
Nitrate .53 The text of Ar ticle 2.2 contains the obligation to use "the cost of production in the country 
of origin" in construction of normal value; however, the Panel refers to the same obligation describing 
it as "the obligation to adapt information from outside the country of o rigin pursuant to Article  2.2".54 
It appears that the Panel also mischaracterized the Appellate  Body's reasoning as final findings on 
inconsistencies of the EU and Ukraine with Article  2.2 in these disputes. These WTO  Members acted 
inconsistently with Arti cle 2.2 because they failed to calculate the cost of production in the country 
of origin.55 Accordingly, the Panel's descriptions contain errors. The Russian  Federation requests the 
Appellate  Body to modify these Panel's descriptions.  
34. Third, as stated above, the examination of the measure at issue was not properly conducted, 
evidence was not properly considered, and the scenario described by Russia was not taken into 
account. In paragraph 265 of Ru ssia's FWS, the line of reasoning was focused on the text of the 
challenged measure, but it was mistakenly divided by the Panel. It is also not clear which exactly 
"adaptations" the Panel considered as "the required adaptations" in light of the posited sce nario 
when the EU authorities reject the available cost of production incurred in  the country of origin in 
order to eliminate the alleged "distortion". In other words, the EU authorities specifically select cost 
data from outside the country of origin prec isely because it is not the cost of input in the country of 
origin of the product under consideration.56 
35. While the Panel observes that the European Commission was not prevented from making 
"such adjustments" as "adjustments for transport costs, customs exp ort tax, value added tax, excise 
duty, local distribution costs, sea freight and fobbing costs"57, the Panel provides no explanation 
whether "such adjustments" actually bring the surrogate input price or cost to the price or cost in 
the country of origin f or domestic producers of the product under consideration.  
36. As a result, the Panel erred in its findings and supporting reasoning58 that provided evidence 
does not support, and Russia failed to demonstrate, that the challenged part of the second 
subparagraph  of Article  2(5) of the Basic AD Regulation prevents adaptation of out -of-country 
information to arrive at the cost of production in the country of origin. The Panel also erred in its 
dismissal of Russia's claim. Accordingly, the Panel erred in its ultimat e conclusion59.  
37. The Russian  Federation requests the Appellate  Body to reverse,60 modify or to declare these 
findings and reasoning moot and with no legal effect. As a consequence, the Russian  Federation also 
requests the Appellate  Body to reverse the Pane l's ultimate conclusion that Russia failed to 
demonstrate its claim that the final part of the second subparagraph of Article  2(5) of the Basic 
AD Regulation is inconsistent with Article  2.2 of the Anti -Dumping Agreement61.  
38. Finally, the Russian  Federation  requests the Appellate  Body to complete the analysis62 and 
find that the challenged measure is inconsistent with Article  2.2 of the Anti -Dumping Agreement.  
III. Claims concerning the European  Union's anti -dumping measures on imports of 
ammonium nitrate or iginating in Russia:  
39. With respect to claims concerning the European  Union's anti -dumping measures on imports 
of ammonium nitrate originating in Russia, the Russian  Federation respectfully requests the 
Appellate  Body to reverse and declare moot and of no legal effect the findings and conclusions of 
 
53 Panel  Report , para.  7.207.  
54 Ibid. 
55 Appellate  Body Reports,  EU – Biodiesel (Argentina) , para.  6.83; Ukraine – Ammonium Nitrate , 
paras.  6.123, 6.129, 7.8  
56 Panel  Report , EU – Biodiesel (Argentina) , paras.  7.258 -7.259.  
57 Panel  Report , para.  7.221.  
58 Panel  Report , paras.  7.220 (the second sentence), 7.221 (the first two sentences), 7.222 (the 
last sentence), 7.223, 7.224 (the second sentence).  
59 Panel Report , paras.  7.225 and 8.1.e.  
60 Without prejudice to the Russian  Federation's appeal of the Panel's approach to its examination of 
Russia's claims.  
61 Panel  Report , paras.  7.225 and 8.1.e.  
62 See Panel  Report , para.  7.220 (the first sentence).  WT/DS494/8  
 
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  the Panel as set out in paragraphs 7.280, 7.284, 7.288, 7.293, 7.319 -7.321, 7.338 -7.339,  7.425, 
7.591 -7.599, 8.1.g.i, 8.1.g.ii i and 8.1.g.xi, with respect to the following errors of law and legal 
interpretations, and to complete the analysis.63 
40. The Panel erred in law in its interpretation of Article  18.3 of the Anti -Dumping Agreement by 
concluding that Article  18.3 of the Anti -Dumping Agreement precludes Russia from challeng ing 
aspects of investigations or reviews which were initiated prior to its WTO  accession. The 
Russian  Federation respectfully requests the Appellate  Body to reverse the Panel's findings in 
paragraphs  7.280, 7.284, 7.288, 7.293, 7.319 -7.321, 7.338 -7.339, 7. 591-7.599, 8.1.g.i and 
8.1.g.xi of the Report and to complete the analysis in relation to Claims  #1, #2 first ground and 
#12-15. 
41. Should the Appellate  Body not reverse the Panels' findings mentioned in the preceding 
paragraph64: 
- The Panel committed a legal error in the application of the legal standard of 
"re-examination" to the facts on the Panel record. The Russian  Federation respectfully 
requests the Appellate  Body to reverse the Panel's findings in footnote 491 and 
paragraphs  7.319 -7.321 and 7.338 -7.339 of the Panel  Report  to the effect that no 
re-examination of the product scope occurred in the course of the third expiry review.  
- The Panel committed a legal error and acted contrary to Article  11 of the DSU by treating 
Russia's GATT claims as consequential  and by failing to determine whether the customs 
duties that the EU applies on Russian imports of Stabilized AN fall within the scope of the 
Anti-Dumping Agreement before proceeding to assess the consistency of these duties with 
the Anti -Dumping Agreement as well as GATT Articles I, II and VI. The Russian  Federation 
respectfully requests the Appellate  Body to reverse the Panel's findings in 
paragraph  7.321 of the Report.  
- The Panel acted contrary to DSU Articles 12.7 and committed a legal error in the 
applic ation of the legal standard to the facts on the Panel record by concluding 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 European Commission's 
reliance on the product definition used in the 2008 review.  The Russian  Federation 
respectfully requests the Appellate  Body to reverse the Panel findings in 
paragraphs  7.338 -7.339 of the Report.  
- The Panel committed a legal error when applying the legal sta ndard to the facts on the 
record as well as violated Articles 11 and 12.7 of the DSU when considering the evidence 
and providing rationale in relation to Claims  #12-15 and thus erred when it found that 
Claims #12 to 15 could not be subject to WTO  scrutiny,  because the dumping 
determinations in Regulations 661/2008 and 658/2002 were made before the 
Russian  Federation's WTO  accession. The Russian  Federation respectfully requests the 
Appellate  Body to reverse the Panel's findings in paragraphs 7.591 -7.599 and 8.1.g.xi of 
the Report.  
- With regard to the claims listed in the preceding three sub -paragraphs, the 
Russian  Federation also respectfully requests the Appellate  Body to complete the analysis 
of Russia's claim #1, the first ground of Claim #2 and Claims  #12-15. 
42. The Panel violated Article  11 of the DSU when considering the evidence in relation to Claim  #5, 
namely by concluding that the record of the investigation did no t show where, in the investigation, 
the interested parties made a request for adjustments to the price of Russian exports to 
third countries. The Russian  Federation respectfully requests the Appellate  Body to reverse the 
Panel's findings in paragraphs 7.425 and 8.1.g.iii of the Panel's Report and complete the analysis in 
relation to Claim  #5. 
_______________  
 
63 As sta ted in ft 1 above, the Russian  Federation provides an indicative list of the paragraphs of the 
Panel  Report . 
64 Conditional appeal.  WT/DS494/8  
 
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  Pursuant to Rule 23(3) of the Working Procedures for Appellate Review , the Russian  Federation files 
this Notice of Other Appeal together with its Other Appellant's Submission with the Appellate  Body 
Secretariat.  
The Russian  Federation reserves the right, in addressing the EU appeal, to disagree with any 
statement in the Panel  Report  made in the context o f matter on which the Russian  Federation 
prevailed.  
Pursuant to Rule 23(2)(c)(ii)(C) of the Working Procedures for Appellate Review , this Notice of Other 
Appeal provides an indicative list of the paragraphs of the Panel  Report  containing the errors of law 
and legal interpretation by the Panel, without prejudice to the Russian  Federation's ability to rely on 
other paragraphs of the Panel  Report  in the context of its other appeal.  
There is currently an insufficient number of Appellate  Body Members to constitu te a division for 
serving on appeal in this dispute. In these exceptional circumstances, and in the interests of fairness 
and orderly procedure in the conduct of the appeal, in accordance with Rule 16(1) and (2) of the 
Working Procedures for Appellate Revi ew, the Russian  Federation will await further instructions from 
the division, when it may eventually be composed, or the Appellate  Body, regarding any further 
steps to be taken by the Russian  Federation in this appeal.  
Filing of the Other Appellant 's Submission by the Russian  Federation should be without prejudice to 
its right to re -file it once the division becomes operational.  
__________