WT/DS482/R  
 
21 December 2016 
(16-6914) Page: 1/68 
  Original: English  
 
  CANADA – ANTI -DUMPING MEASURES ON IMPORTS OF CERTAIN 
CARBON STEEL WELDED PIPE FROM THE SEPARA TE CUSTOMS 
TERRITORY OF TAIWAN,  PENGHU, KINMEN AND M ATSU  
REPORT  OF THE PANEL  WT/DS482/R  
 
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  TABLE OF CONTENTS  
1   INTRO DUCTION  ................................ ................................ ................................ ........  10 
1.1   Complaint by the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu  ......... 10 
1.2   Panel establishment an d composition  ................................ ................................ ............ 10 
1.3   Panel proceedings  ................................ ................................ ................................ .......10 
1.3.1    General  ................................ ................................ ................................ .................. 10 
1.3.2   Working procedures on Business Confidential Information (BCI)  ................................ ....11 
2   FACTUAL ASPECTS ................................ ................................ ................................ ..... 11 
2.1   The measures at issue  ................................ ................................ ................................ 11 
3   PARTIES' REQUESTS FO R FINDINGS AND RECOM MENDATIONS  ................................  12 
4   ARGUMENTS OF THE PAR TIES  ................................ ................................ ...................  13 
5   ARGUMENTS OF THE THI RD PARTIES  ................................ ................................ ........  13 
6   INTERIM REVIEW  ................................ ................................ ................................ ...... 14 
6.1   Paragraphs 6.9, 6.49, 6.50, 6.51, 6.72 , 6.91, 6.102, 6.113, 6.123, 6.149, 6.166, 
and 6.213 (paragraphs 7.9, 7.49, 7.50, 7.51, 7.73, 7.92, 7.103, 7.114, 7.124, 7.150, 
7.167, and 7.214 of the Final Report)  ................................ ................................ ................... 14 
6.2   Paragraph 6.14 (p aragraph 7.14 of the Final Report)  ................................ ...................... 14 
6.3   Paragraph 6.53 (paragraph 7.54 of the Final Report)  ................................ ...................... 14 
6.4   Paragraph 6.64 (paragra ph 7.65 of the Final Report)  ................................ ...................... 15 
6.5   Paragraph 6.79 (paragraph 7.80 of the Final Report)  ................................ ...................... 15 
6.6   Paragraph 6.84 (paragraph 7.8 5 of the Final Report)  ................................ ...................... 15 
6.7   Paragraphs 6.109 and 6.111 (paragraphs 7.110 and 7.112 of the Final Report)  ................. 15 
6.8   Paragraphs 6.133 and 6.135 (paragraphs 7.134 and 7.136 of the Final Report)  ................. 16 
6.9   Paragraph 6.142 (paragraph 7.143 of the Final Report)  ................................ ................... 16 
6.10   Paragraphs 6.144 and 6.145 (paragraphs 7.145 and 7.146 of the Final Report)  ................ 16 
6.11   Paragraphs 6.170 -6.173 (paragraphs 7.171 -7.174 of the Final Report)  ........................... 16 
7   FINDINGS  ................................ ................................ ................................ .................  17 
7.1   General principles regarding treaty interpretation, the applicable standard of review, 
and burden of proof  ................................ ................................ ................................ ........... 17 
7.1.1    Treaty Interpretation  ................................ ................................ ................................ 17 
7.1.2    Standard of Review  ................................ ................................ ................................ ..17 
7.1.3    Burden of Proo f ................................ ................................ ................................ .......17 
7.2   Immediate termination under Article  5.8 of the Anti -Dumping  Agreement: 
exporter -specific or country -wide margins of dumping?  ................................ .......................... 18 
7.2.1    Introduction  ................................ ................................ ................................ ............ 18 
7.2.2    Main arguments of the parties  ................................ ................................ ................... 18 
7.2.3    Main arguments of third parties  ................................ ................................ ................. 19 
7.2.3.1    Brazil ................................ ................................ ................................ ................... 19 
7.2.3.2    European Union  ................................ ................................ ................................ ....19 
7.2.3.3    Norway  ................................ ................................ ................................ ................ 19 
7.2.3.4    United Arab Emirates  ................................ ................................ ............................. 20 
7.2.3.5    United States  ................................ ................................ ................................ .......20 WT/DS482/R  
 
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  7.2.4    Evaluation by the Panel  ................................ ................................ ............................ 20 
7.2.4.1    Article  3.3 of the Anti -Dumping  Agreement  ................................ .............................. 22 
7.2.4.2    Article  9.4 of the Anti -Dumping  Agreement  ................................ .............................. 23 
7.2.4.3    De minimis  exporters in Article  9.5 new shipper reviews  ................................ ............ 25 
7.2.4.4    Conclusion  ................................ ................................ ................................ ........... 25 
7.3   Multiple margins of dumping: Article  6.10 of the Anti -Dumping  Agreement  ........................ 26 
7.3.1    Introduction  ................................ ................................ ................................ ............ 26 
7.3.2    Main arguments of the parties  ................................ ................................ ................... 26 
7.3.3    Main arguments of third parties  ................................ ................................ ................. 26 
7.3.3.1    Brazil ................................ ................................ ................................ ................... 26 
7.3.4    Evaluation by the Panel  ................................ ................................ ............................ 26 
7.4   Provisional measures on imports from a Chinese  Taipei exporter with a preliminary 
de minimis  margin of dumping: Article  7.1(ii) of the Anti -Dumping  Agreement  .......................... 27 
7.4.1    Introduction  ................................ ................................ ................................ ............ 27 
7.4.2    Main arguments of the parties  ................................ ................................ ................... 27 
7.4.3    Main arguments of third parties  ................................ ................................ ................. 29 
7.4.3.1    Brazil ................................ ................................ ................................ ................... 29 
7.4.4    Evaluation by the Panel  ................................ ................................ ............................ 29 
7.5   Additional claims under Articles  1, 7.5, and 9.2 of the Anti -Dumping  Agreement, 
and Article  VI:2 of the GATT 1994  ................................ ................................ ........................ 31 
7.5.1    Introduction  ................................ ................................ ................................ ............ 31 
7.5.2    Main arguments of the parties  ................................ ................................ ................... 32 
7.5.3    Evaluation by the Panel  ................................ ................................ ............................ 32 
7.6   The treatment of imports from exporters with de minimis  margins of dumping in the 
injury investigation: Article  3 of the Anti -Dumping  Agreement  ................................ ................. 33 
7.6.1    Introduction  ................................ ................................ ................................ ............ 33 
7.6.2    Main arguments of the parties  ................................ ................................ ................... 33 
7.6.3    Main arguments of third par ties ................................ ................................ ................. 34 
7.6.3.1    Brazil ................................ ................................ ................................ ................... 34 
7.6.3.2    United Arab Emirates  ................................ ................................ ............................. 34 
7.6.4   Evaluation by the Panel  ................................ ................................ ............................ 34 
7.7   The treatment of factors other than dumped imports in the causation analysis: 
Articles  3.1 and 3.5 of the Anti -Dumping  Agreement  ................................ .............................. 35 
7.7.1    Introduction  ................................ ................................ ................................ ............ 35 
7.7.2    Main arguments of the parties  ................................ ................................ ................... 36 
7.7.2.1    The effect  of subsidization  ................................ ................................ ...................... 36 
7.7.2.2    Overcapacity  ................................ ................................ ................................ ........ 36 
7.7.3    Main arguments of third parties  ................................ ................................ ................. 36 
7.7.3.1    Brazil ................................ ................................ ................................ ................... 36 
7.7.3.2    European Union  ................................ ................................ ................................ ....37 
7.7.3.3    United States  ................................ ................................ ................................ .......37 
7.7.4    Evaluation by the Panel  ................................ ................................ ............................ 37 WT/DS482/R  
 
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  7.7.4.1    The effect of subsidization  ................................ ................................ ...................... 37 
7.7.4.2    Overc apacity  ................................ ................................ ................................ ........ 39 
7.8   The use of facts available in the determination of the dumping margin and duty rate 
for "all other exporters": Article  6.8 and Annex  II, paragraph  7, of the 
Anti-Dumping  Agree ment ................................ ................................ ................................ ....40 
7.8.1    Introduction  ................................ ................................ ................................ ............ 40 
7.8.1.1    The relevant provisions  ................................ ................................ .......................... 41 
7.8.1.2    Factual background  ................................ ................................ ............................... 41 
7.8.2    Main arguments of the parties  ................................ ................................ ................... 42 
7.8.3    Main arguments of third parties  ................................ ................................ ................. 44 
7.8.3.1    European Union  ................................ ................................ ................................ ....44 
7.8.3.2    United States  ................................ ................................ ................................ .......45 
7.8.4    Evaluati on by the Panel  ................................ ................................ ............................ 45 
7.9   The treatment of imports of new product models or types  ................................ ............... 48 
7.9.1    Introduction  ................................ ................................ ................................ ............ 48 
7.9.2    The relevance of the margin of dumping established during the investigation: 
Article  9.3 of the Anti -Dumping  Agreement  ................................ ................................ ........... 49 
7.9.2.1    Main arg uments of the parties  ................................ ................................ ................ 49 
7.9.2.2    Main arguments of third parties  ................................ ................................ .............. 50 
7.9.2.2.1    European Union  ................................ ................................ ................................ .50 
7.9.2.3    Evaluation by the Panel  ................................ ................................ ......................... 51 
7.9.3    The CBSA's use of facts available: Article  6.8 and Annex  II of the 
Anti-Dumping  Agreement  ................................ ................................ ................................ ....54 
7.9.3.1    Main arguments of the parties  ................................ ................................ ................ 54 
7.9.3.2    Evaluation by the Panel  ................................ ................................ ......................... 55 
7.9.4   The determination of normal values for new product models or types: Article  2.2 
of the Anti -Dumping  Agreement  ................................ ................................ .......................... 56 
7.9.4.1    Main arguments of the parties  ................................ ................................ ................ 56 
7.9.4.2    Evaluation by the Panel  ................................ ................................ ......................... 57 
7.9.5    The determination of an additional margin of dumping: Article  6.10 of the 
Anti-Dumping  Agreement  ................................ ................................ ................................ ....57 
7.9.5.1    Main arguments of the parties  ................................ ................................ ................ 57 
7.9.5.2    Evaluation by the Panel  ................................ ................................ ......................... 58 
7.10   Additional claim under Article  1 of the Anti -Dumping  Agreement and Article  VI of 
the GATT 1994  ................................ ................................ ................................ .................. 58 
7.10.1    Introduction  ................................ ................................ ................................ .......... 58 
7.10.2    Main arguments of the parties  ................................ ................................ ................. 58 
7.10.3    Evaluation by the Panel  ................................ ................................ .......................... 58 
7.11   "As such" claims concerning subsection  2(1), section  30.1, and subsections  35(1), 
35(2), 38(1), and 41(1) of SIMA  ................................ ................................ .......................... 59 
7.11.1    Introduction  ................................ ................................ ................................ .......... 59 
7.11.2    Main arguments of the parties  ................................ ................................ ................. 59 
7.11.3    Main arguments of third parties  ................................ ................................ ............... 60 WT/DS482/R  
 
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  7.11.3.1    United States  ................................ ................................ ................................ ......60 
7.11.4    Evaluation by the Panel  ................................ ................................ .......................... 61 
7.12   "As such" claims concerning subsections  42(1), 42(6), and 43(1) of SIMA and 
subsection  37.1(1) of SIMR  ................................ ................................ ................................ .64 
7.13   Additional "as such" claims concerning subsection  2(1), section  30.1 and 
subsections  35(1), 35(2), 38(1), 41(1), 42(1), 42(6), and 43(1) of SIMA and 
subsection  37.1(1) of SIMR  ................................ ................................ ................................ .65 
8   CONCLUSIONS AND RECO MMENDATION  ................................ ................................ ... 66 
 WT/DS482/R  
 
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  LIST OF ANNEXES  
ANNEX A  
WORKING PROCEDURES O F THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel (as amended)  A-2 
Annex  A-2 Additional Working Procedures on Business Confidential Information  A-7 
ANNEX B  
ARGUMENTS OF  THE SEPARATE CUSTOMS  TERRITORY  
OF TAIWAN, PENGHU, K INMEN AND MATSU  
Contents  Page  
Annex B -1 Executive summary of the first written s ubmission of the Separate Customs  
Territory of Taiwan, Penghu, Kinmen and Matsu  B-2 
Annex B -2 Executive summary of the second w ritten submission of the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu  B-9 
Annex B -3 Integrated executive summary of the statements of the Sepa rate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu at the first meeting of the 
Panel  B-16 
Annex B -4 Integrated executive summary of the statements of the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu at the second meeting of the 
Panel B-20 
ANNEX C  
ARGUMENTS OF CANADA  
Contents  Page  
Annex C -1 Executive summary of the first written submission of Canada  C-2 
Annex C -2 Executive summary of the second written submission of Canada  C-10 
Annex C -3 Executive summary  of the statement of Ca nada at the first meeting of the 
Panel  C-18 
Annex C -4 Executive summary of the statement of Canada at the second meeting of the 
Panel  C-23 
ANNEX D  
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex D -1 Executive summary of the arguments of Brazil  D-2 
Annex D -2 Executive summary of the arguments of the European Union  D-5 
Annex D -3 Executive summary of the arguments of Norway  D-11 
Annex D -4 Executive summary of the arguments of the United Arab Emirates  D-14 
Annex D -5 Executive summary of the arguments of the United States  D-16 
 WT/DS482/R  
 
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  CASES CITED IN THIS REPORT  
Short title  Full case title and citation  
Argentina – Footwear (EC)  Panel Report, Argentina – Safeguard Measures on Imports of Footwear , 
WT/DS121/R , adopted 12 January 2000, as modified by Appellate B ody 
Report WT/DS121/AB/R, DSR 2000:II, p. 575  
Argentina – Poultry 
Anti-Dumping Duties  Panel Report, Argentina – Definitive Anti -Dumping Duties on Poultry from 
Brazil , WT/DS241/R , adopted 19 May 2003, DSR 2003:V, p. 1727  
China – Autos (US)  Panel Report, China – Anti-Dumping and Countervailing Duties on Certain 
Automobiles from the United States , WT/DS440/R  and Add.1, adopted 
18 June 2014, DSR 2014:VII, p. 2655  
China – Broiler Products  Panel Report, China  Anti-Dumping and Countervailing Duty Measures on 
Broiler Products from the United States , WT/DS427/R  and Add.1, adopted 
25 September 2013, DSR 2013:IV, p. 1041  
China – GOES  Panel Report, China – Countervailing and Anti -Dumping Duties on Grain 
Oriented Flat -Rolled Electrical Steel from the United States , WT/DS414/R  
and Add.1, adopted 16 November 2012, upheld by Appellate Body Report 
WT/DS414/AB/R, DSR 2012:XII, p. 6369  
EC – Bed Linen  
(Article  21.5 – India)  Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton -Type Bed Li nen from India – Recourse to Article  21.5 of 
the DSU  by India , WT/DS141/AB/RW , adopted 24 April 2003, DSR 2003:III, 
p. 965 
EC – Bed Linen  
(Article  21.5 – India)  Panel Report, European Communities – Anti-Dumping Duties on Imports of 
Cotton -Type Bed Linen from India – Recourse to Article  21.5 of the DSU  by 
India, WT/DS141/RW , adopted 24 April 2003, as modified by Appellate Body 
Report WT/DS141/AB/RW, DSR 2003:IV, p.  1269 
EC – Countervailing Measures 
on DRAM Chips  Panel Report, European Communities – Counte rvailing Measures on Dynamic 
Random Access Memory Chips from Korea , WT/DS299/R , adopted 
3 August  2005, DSR 2005:XVIII, p. 8671  
EC – Fasteners (China)  Appellate Body Report, European Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel F asteners from China , WT/DS397/AB/R , 
adopted 28 July 2011, DSR 2011:VII, p. 3995  
EC – Fasteners (China)  Panel Report, European Communities – Definitive Anti -Dumping Measures on 
Certain Iron or Steel Fasteners from China , WT/DS397/R  and Corr.1, 
adopted 28 J uly 2011, as modified by Appellate Body Report 
WT/DS397/AB/R, DSR 2011:VIII, p. 4289  
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R , WT/DS48/AB/R , adopted 13 February 1998, 
DSR 1998:I, p. 135  
EC – Salmon (Norway)  Panel Report, European Communities – Anti-Dumping Measure on Farmed 
Salmon from Norway , WT/DS337/R , adopted 15 January 2008, and Corr.1, 
DSR 2008:I, p. 3  
EU – Biodiesel (Argentina)  Panel Report, European Union – Anti-Dumping Measures o n Biodiesel from 
Argentina , WT/DS473/R  and Add.1, adopted 2 6 October  2016, as modified 
by Appellate Body Report WT/DS4 73/AB/R  
Japan – Alcoholic Beverages II  Appellate Body Report, Japan – Taxes on Alcoholic Beverages , 
WT/DS8/AB/R , WT/DS10/AB/R , WT/DS11/AB /R, adopted 1 November 1996, 
DSR 1996:I, p. 97  
Japan – DRAMs (Korea)  Appellate Body Report, Japan – Countervailing Duties on Dynamic Random 
Access Memories from Korea , WT/DS336/AB/R  and Corr.1, adopted 
17 December 2007, DSR 2007:VII, p. 2703  
Mexico – Anti-Dumping 
Measures on Rice  Appellate Body Report, Mexico – Definitive Anti -Dumping Measures on Beef 
and Rice, Complaint with Respect to Rice , WT/DS295/AB/R , adopted 
20 December 2005, DSR 2005:XXII, p. 10853  
Mexico – Anti-Dumping 
Measures on Rice  Panel Rep ort, Mexico – Definitive Anti -Dumping Measures on Beef and Rice, 
Complaint with Respect to Rice , WT/DS295/R , adopted 20 December 2005, 
as modified by Appellate Body Report WT/DS295/AB/R, DSR 2005:XXIII, 
p. 11007  WT/DS482/R  
 
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  US – Anti-Dumping and 
Countervailing Duties  (China)  Appellate Body Report, United States – Definitive Anti -Dumping and 
Countervailing Duties on Certain Products from China , WT/DS379/AB/R , 
adopted 25 March 2011, DSR 2011:V, p. 2869  
US – Carbon Steel  Appellate Body Report, United States – Countervai ling Duties on Certain 
Corrosion -Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/AB/R  and Corr.1, adopted 19 December 2002, DSR 2002:IX, 
p. 3779 
US – Carbon Steel (India)  Appellate Body Report, United States – Countervailing Measures on Certa in 
Hot-Rolled Carbon Steel Flat Products from India , WT/DS436/AB/R , adopted 
19 December 2014, DSR 2014:V, p. 1727  
US – Continued Zeroing  Appellate Body Report, United States – Continued Existence and Application 
of Zeroing Methodology , WT/DS350/AB/R , adop ted 19 February 2009, 
DSR 2009:III, p. 1291  
US – Corrosion -Resistant Steel 
Sunset Review  Appellate Body Report, United States – Sunset Review of Anti -Dumping 
Duties on Corrosion -Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/R , adopted 9 Jan uary 2004, DSR 2004:I, p. 3  
US – Countervailing Duty 
Investigation on DRAMS  Appellate Body Report, United States – Countervailing Duty Investigation on 
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea, 
WT/DS296/AB/R, adopted 20 July 2005, DS R 2005:XVI, p. 8131  
US – Countervailing Measures 
(China)  Appellate Body Report, United States – Countervailing Duty Measures on 
Certain Products from China , WT/DS437/AB/R , adopted 16 January 2015  
US – Hot-Rolled Steel  Appellate Body Report, United States  – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R , adopted 
23 August  2001, DSR 2001:X, p. 4697  
US – Oil Country Tubular 
Goods Sunset Reviews  Appellate Body Report, United States – Sunset Reviews of Anti -Dumping 
Measur es on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R , 
adopted 17 December 2004, DSR 2004:VII, p. 3257  
US – Softwood Lumber V 
(Article 21.5 – Canada)  Appellate Body Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada  – Recourse to Article 21.5 of the DSU by 
Canada , WT/DS264/AB/RW , adopted 1 September 2006, DSR 2006:XII, 
p. 5087 
US – Stainless Steel (Mexico)  Appellate Body Report, United States – Final Anti -Dumping Measures on 
Stainless Steel from Mexico , WT/DS344/AB/ R, adopted 20 May 2008, 
DSR 2008:II, p. 513  
US – Wool Shirts and Blouses  Appellate Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R , adopted 23 May 1997, 
and Corr.1, DSR 1997:I, p. 323  
US – Zeroing (EC)  Appellate Body Report, United States – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") , WT/DS294/AB/R , adopted 
9 May 2006, and Corr.1, DSR 2006:II, p. 417  
US – Zeroing (Japan)  Appellate Body Report, United States  – Measures Relating to Zeroing and 
Sunset Reviews , WT/DS322/AB/R , adopted 23 January 2007, DSR 2007:I, 
p. 3 WT/DS482/R  
 
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  ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
Anti-Dumping  Agreement  Agreement on Implementation of Article VI of the General Agree ment on Tariffs 
and Trade 1994  
BCI Business Confidential Information  
CBSA  Canada Border Services Agency  
Chinese  Taipei  The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu  
CITT Canadian International Trade Tribunal  
CSWP  Carbon Steel Weld ed Pipe  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
GATT 1994  General Agreement on Tariffs and Trade 1994  
Marrakesh Agreement  Marrakesh Agreement Establishing the World Trade Organization  
Vienna Convention  Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 
1155 UNTS 331; 8 International Legal Materials 679  
SCM Agreement  Agreement on Subsidies and Countervailing Measures  
SIMA Special Import Measures Act  
SIMR Special Im port Measures Regulation s 
WTO World Trade Organization  
 WT/DS482/R  
 
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  1  INTRODUCTION  
1.1  Complaint by the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu  
1.1.  On 25 June 2014, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu 
(Chinese  Taipei ) requested consultations with Canada  pursuant to Articles  1 and 4 of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) , Article  XXII 
of the General Agreement on Tariffs and Tra de 1994 (GATT 1994) and Article  17 of the Agre ement 
on Implementation of Article  VI of the GATT 1994 (Anti -Dumping  Agreement ) with respect to 
provisional and de finitive anti -dumping measures  imposed by Canada on imports of certain Carbon 
Steel Welded Pipe (CSWP) originating in or exported from  Chinese  Taipei and the investigations 
underlying the measures .1 
1.2.  On 7 November 2014, Chinese  Taipei , in an addendum  to its initial request for consultations, 
requested further consultations with Canada on other aspects of the above -mentioned 
anti-dumping measures and  on certain provisions of the Special Import Measures Act (SIMA) and 
the Special Import Measures Regulations (SIMR).2 
1.3.  Consultations were held on  24 July 2014 and 4  December 2014, but faile d to resolve the 
dispute. On 22  January 2015, Chinese  Taipei  request ed the establishment of a panel.3 
1.2  Panel establishment and composition  
1.4.  At its meeting on 10  March 2015, the Dispute Settlement Body  (DSB) established a panel  
pursuant to the request of Chinese  Taipei  in document WT/DS482/2 , in accordance with Article  6 
of the DSU.4 
1.5.  The Panel's terms of reference are the following:  
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by the Separate Customs 
Territory of Taiwan, Penghu , Kinmen and Matsu in document WT/DS482/2 and to 
make such findings as will assist the DSB in making the recommendations or in giving 
the rulings provided for in those agreements.5 
1.6.  Following the agreement of the parties, the Panel was composed on 12  May 20 15 as follows:  
Chairperson:  Mr Jose Antonio Buencamino  
Members:  Ms Andrea Marie Dawes (né e Brown)  
Mr David Evans  
1.7.  Brazil, China, the European Union, the Republic of Korea, Norway, the United Arab Emirates,  
and the United States reserved their rights to pa rticipate in the Panel proceedings as third parties.  
1.3  Panel proceedings  
1.3.1   General  
1.8.  After consultation with the parties, the Panel adopted its Working Procedures6 and timetable 
on 12 August 2015 . The Panel revised its Working Procedure s on 17  December 2015 . The  Panel 
revised its timetable on 17  December 2015, 13  January 2016 , and 1  February 2016.  
                                                
1 See Canada – Welded Pipe , Chinese  Taipei 's request for consultations, WT/DS482/1 
(dated  25 June 2014, circulated 30  June 2014).  
2 See Canada – Welded Pipe , Addendum  to Chinese  Taipei 's request for consultations, 
WT/DS482/1/Add.1 (dated 7 November 2014, circulated 12 Novemb er 2014).  
3 See Canada – Welded Pipe , Chinese  Taipei 's request for the establishment of a panel, WT/DS482/2 
(dated 22 January 2015, circulated 27 January 2015).  
4 See Dispute Settlement Body, Minutes of meeting held on 10 March 2015, WT/DSB/M/358 
(circulat ed 20 April 2015).  
5 See Canada – Welded Pipe , Constitution of the Panel, Note by the Secretariat, WT/DS482/3 
(dated  10 March 2015, circulated 13 May 2015).  
6 See the Panel's Working Procedures in Annex  A-1. WT/DS482/R  
 
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  1.9.  The Panel held a first substantive meeting with the parties on 16 and 17  March 2016 . 
A session with the third parties took place on 17 March 2016 . The Panel held a seco nd substantive 
meeting with the parties on 28 and 29  June 2016 . On 5 August 2016 , the Panel issued the 
descriptive part of its Report to the parties. The Panel issued its Interim Report to the parties 
on 7 October 2016 . The Panel issued its Final Report to  the parties on 18 November 2016 . 
1.3.2   Working procedures on Business Confidential Information (BCI)  
1.10.   After consultations with the parties, the Panel adopted, on 15  September 2015, additional 
procedures for the protection of Business Confidential Information (BC I).7 
2  FACTUAL ASPECTS  
2.1  The measures at issue  
2.1.  This dispute concerns the provisional and definitive anti -dumping measures applied by  
Canada on imports of certain C SWP originating in  or exported from Chinese  Taipei , as well as 
certain provisions of SIMA and SIM R, in particular subsection  2(1), section  30.1, and 
subsections  35(1), 35(2), 38(1), 41(1), 42(1), 42(6), and 43(1)  of SIMA, as well as 
subsection  37.1(1) of SIMR.  
2.2.  On 14  May 2012, the  Canada Border Services Agency (CBSA) initiated investigations with 
respe ct to dumping of certain CSWP from , among others,  Chinese  Taipei .8 On 15  May 2012,  the 
Canadian  International Trade Tribunal (CITT) issued a notice of commencement of a preliminary 
injury inquiry.9 
2.3.  On 13  July 2012, the CITT determined that there was eviden ce that disclosed a reasonable 
indication that the dumping of CSWP  had caused injury or retardation or was threatening to cause 
injury.10 The CBSA issued its preliminary dumping determination on 13  August 201211 and its f inal 
dumping determination on 9 Novem ber 2012.12 On 11  December  2012, the CITT issued  its final 
(threat of) injury determination.13 
                                                
7 See the Panel's Additional Working Procedures on Business Confidential Information, Annex  A-2. 
8 CBSA, Notice of Initiation of the Investigation, 14  May 2012, (Exhibit TPKM -4). See also CBSA, 
Statement of Reasons concerning the initiation of investigations into the dumping of certain CSWP originating 
in or exported from TPKM, India, Oman, Korea, Thailand, Turkey, and the United Arab Emirates  and the 
subsidizing of certain CSWP originating in or exported from India, Oman, and the United Arab Emirates , 
29 May 2012, (Exhibit TPKM -5). The investigation als o extended to the subsidizing of certain CSWP from 
countries other than Chinese  Taipei . 
9 CITT, Commencement of Preliminary Injury Inquiry, 15  May 2012, Canada Gazette  2012.I.146.21 
(26 May 2012), pp.  1382 and 1383, (Exhibit TPKM -6). 
10 CITT, Determination,  Preliminary Injury Inquiry No.  PI-2012-003, 13  July 2012, Canada 
Gazette  2012.I.146.29 (21  July 2012), pp.  2095 and 2096, (Exhibit TPKM -7). See also CITT, Determination 
and Reasons, Preliminary Injury Inquiry No.  PI-2012-003, 30  July 2012, (Exhibit TPKM -8). 
11 CBSA, Decision, Preliminary Determinations of Dumping and Subsidizing, 13  August 2012, Canada 
Gazette  2012.I.146.34 (25  August 2012), p.  2518, (Exhibit TPKM -9). See also CBSA, Statement of Reasons 
concerning the preliminary determinations with respect  to the dumping of certain CSWP originating in or 
exported from TPKM, India, Oman, Korea, Thailand, Turkey and the United Arab Emirates  and the subsidizing 
of certain CSWP originating in or exported from India, Oman and the United Arab Emirates , 28 August 2012, 
(Exhibit TPKM -10). 
12 CBSA, Decision, Final Determinations Dumping and Subsidizing, 9  November 2012, Canada Gazette  
2012.I.146.47 (24  November 2012), pp.  3172 and 3173, (Exhibit TPKM -12). See also CBSA, Statement of 
Reasons concerning the making of Fi nal Determinations of Dumping and Subsidizing and the Termination of 
Dumping and Subsidizing Investigations respecting certain CSWP originating in or exported from TPKM, India, 
Oman, Korea, Thailand, Turkey, and the United Arab Emirates , 26 November 2012 ( Statement of Reasons 
concerning the Final Determination), (Exhibit TPKM -2). 
13 CITT, Finding, Injury Inquiry No.  NQ-2012-003, 11  December 2012, Canada Gazette  2012.I.146.51, 
22 December 2012, pp.  3555 and 3556, (Exhibit TPKM -13). See also CITT, Finding and Reasons, Injury Inquiry 
No. NQ-2012-003, 27  December 2012, (Exhibit TPKM -14). WT/DS482/R  
 
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  3  PARTIES' REQUESTS FO R FINDINGS AND RECOM MENDATIONS  
3.1.  Chinese  Taipei  requests the Panel to find that14: 
a. With respect to the treatment of exporters with a de minimis  margin of dumping Canada 
violated:  
i. Article  5.8 of the Anti-Dumping  Agreement  because Canada failed to immediately 
terminate the investigation with respect to exporters with a de minimis  margin of 
dumping;  
ii. Article  6.10 of the Anti-Dumping  Agreement  because Ca nada failed to determine only 
one individual margin of dumping for each exporter in its determination of whether 
to continue the investigation and the subsequent determination of duty rates;  
iii. Article  7.1(ii) of the Anti-Dumping  Agreement  because Canada appl ied provisional 
anti-dumping measures in the absence of a preliminary affirmative determination of 
dumping when it applied such measures to imports of certain CSWP from exporters 
with a de minimis  margin of dumping;  
iv. Articles  7.5 and 9.2 of the Anti-Dumping  Agreement  because, in imposing provisional 
and definitive anti -dumping duties on imports from exporters with a de minimis  
margin of dumping, Canada caused anti -dumping duties to be collected from sources 
found not to be dumped and causing injury; and  
v. Article VI:2 of the GATT 1994 and Article  1 of the Anti-Dumping  Agreement  because 
the possibility to levy an anti -dumping duty only applies "in order to offset or prevent 
dumping" and therefore not with respect to imports from exporters with a de minimis  
margi n of dumping.  
b. With respect to the treatment of non -dumped imports and of factors other than the 
dumped imports in the injury and causation analyses Canada violated:  
i. Articles  3.1, 3.2, 3.4, 3.5 , and 3.7 of the Anti-Dumping  Agreement  because, for the 
purpose  of the injury and causation analyses, Canada failed to exclude from the 
dumped imports, the imports of the exporters with a de minimis  dumping margin 
thereby failing to properly consider the volume of dumped imports, the effects of the 
dumped imports on p rices in the domestic market, the impact of the dumped imports 
on the domestic industry and whether the dumped imports are causing injury and/or 
threat of injury to the domestic industry.  
ii. Articles  3.1 and 3.5 of the Anti-Dumping  Agreement  because Canada fa iled to 
examine all known factors other than the alleged dumped imports which at the same 
time were injuring the domestic industry – including the overcapacity of the domestic 
industry and the subsidies – and failed to ensure that the injury caused by such  
other factors was not attributed to the alleged dumped imports.  
c. With respect to the dumping determination and determination of the duty rate for 
"all other exporters" Canada violated:  
i. Article  6.8 and Annex  II, paragraph  7, of the Anti-Dumping  Agreement  because 
Canada improperly applied facts available in determining the dumping margin and 
duty rate applicable to "all other exporters " without complying with the conditions 
laid down in those provisions.  
                                                
14 See Chinese  Taipei 's first written submission, paras.  318-321. WT/DS482/R  
 
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  d. With respect to the treatment of new product types to b e exported by cooperating 
producers Canada violated:  
i. Article  9.3 of the Anti-Dumping  Agreement  because Canada imposed anti -dumping 
duties on new product types of the cooperating exporters that exceed their margin of 
dumpi ng as established under Article  2 of the Anti-Dumping  Agreement ; 
ii. Article  6.8 and Annex  II of the Anti-Dumping  Agreement  because Canada resorted to 
facts available for the calculation of the normal values with respect to imports of new 
product types of the cooperating exporters, thus resorti ng to facts available even 
though the conditions laid down in these provisions had not been met;  
iii. Article  2.2 of the Anti-Dumping  Agreement  because Canada calculated normal values 
for new product types of cooperating exporters on the basis of a methodology which 
is not foreseen in Article  2.2 of the Anti-Dumping  Agreement ; 
iv. Article  6.10 of the Anti-Dumping  Agreement  because Canada determined more than 
one individual margin of dumping for cooperating exporters; and  
e. As a consequence of the above -mentioned viola tions, Canada ac ted inconsistently with 
Article  1 of the Anti-Dumping  Agreement  and Article  VI of the GATT 1994.  
3.2.  Furthermore, Chinese  Taipei  requests the Panel to find that the provisions of SIMA and SIMR 
are inconsistent "as such " with the Anti-Dumping  Agreement  and the GATT 1994, and more 
specifically that:  
a. subsection  2(1), section  30.1, and subsections  35(1) , 35(2), 38(1) , and 41(1) of SIMA 
are incon sistent, as such, with Articles  1, 5.8, 7.1(ii), 7.5 , and 9.2 of the 
Anti-Dumping  Agreement  and Article  VI:2 of the GATT 1994; and  
b. subsections  42(1), 42(6 ), and 43(1) of SIMA and subsection  37.1(1) of SIMR are 
inconsistent "as such " with Articles  3.1, 3.2, 3.4, 3.5 , and 3.7 of the 
Anti-Dumping  Agreement . 
3.3.  Chinese  Taipei  requests the Panel to also find that, as a consequence of the above , Canada 
acted inconsistently with Article  XVI:4 of the Marrakesh Agreement and Article  18.4 of the 
Anti-Dumping  Agreement  insofar as it failed to take all steps to ensure the conformity of its laws, 
regulations , and administrativ e procedures with the provisions of the GATT 1994 and of the 
Anti-Dumping  Agreement . According to Chinese  Taipei , this also res ults in the violation of Article  1 
of the Anti-Dumping  Agreement  and Article  VI of the GATT 1994.  
3.4.  In light of the above, Chinese  Taipei  requests the Panel to  recommend that the DSB request  
Canada to bring its measures into conformity with its obl igations under the 
Anti-Dumping  Agreement  and the GATT 1994.  
3.5.  Canada requests that the Panel reject all of Chinese  Taipei 's claims in this d ispute.  
4  ARGUMENTS OF THE PAR TIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the 
Panel in accordance with paragraph 19 of the Working Procedures adopted by the Pan el 
(see Annexes  B-1 to B -4 and C -1 to C -4). 
5  ARGUMENT S OF THE THIRD PARTI ES 
5.1.  The arguments of Brazil, the European Union, Norway, the United Arab Emirates,  and the 
United States  are reflected in their executive summaries, provided in accordance with 
paragraph  20 of the Working Procedures adopted by the Panel (see Annexes  D-1 to D -5). 
China  and Korea  did not submit written or oral arguments to the Panel.  WT/DS482/R  
 
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  6  INTERIM REVIEW  
6.1.  On 7  October 2016, the Panel submitted its Interim Report to the parties. On 
21 October  2016, Chinese Taipei and Canada each submitted written r equests for the review of 
precise aspects of the Interim Report. On 4 November 2016 , both parties submitted comments on 
each other's requests for review. Neither party requested an interim review meeting.  
6.2.  In accordance with Article  15.3 of the DSU, this se ction of the Panel Report sets out the 
Panel's response to the parties' requests made at the interim review stage. The Panel modified 
aspects of its Report in the light of the parties' comments where it considered it appropriate, as 
explained below. Due to  changes as a result of our review, certain numbering of the paragraphs 
and footnotes in the Final Report has changed from the Interim Report. The text below refers to 
the numbers in the Interim Report, with the numbers in the Final Report in parentheses f or ease of 
reference.  
6.3.  In addition to the modifications specified below, the Panel also corrected a number of 
typographical and other non -substantive errors throughout the Report, including those identified 
by the parties. The Panel is grateful for the assi stance of the parties in this regard.  
6.1  Paragraphs 6.9, 6.49, 6.50, 6.51, 6.72, 6.91, 6.102, 6.113, 6.123, 6.149, 6.166 , and 
6.213 (paragraphs 7.9, 7.49, 7.50, 7.51, 7.73, 7.92, 7.103 , 7.114 , 7.124 , 7.150 , 7.167 , 
and 7.214  of the Final Report)  
6.4.  Chinese Taipei asks the Panel to supplement and/or amend its description of Chinese Taipei's 
arguments in a number of parts of the Interim Report.  
6.5.  Canada makes no comment on Chinese Taipei's request . 
6.6.  We have decided to accommodate the requests by Chinese Taipei. The amendments 
proposed by Chinese Taipei all reflect arguments made in Chinese Taipei's submissions to the 
Panel. Although the current summaries of those arguments are no t inaccurate, we see no reason 
not to include further elements that more closely mirror the actual arguments made by 
Chinese  Taipei. With respect to paragraph 6.9, we consider it more appropriate to use a wording 
that differs from Chinese Taipei 's proposal  in order to accurately reflect the arguments made. With 
respect to paragraph 6.50, we have decided to include the proposed additional sentence in a 
footnote at the end of that paragraph and with a slight modification to the suggested source 
reference. Regarding paragraph 6.72, r ather than adding a supplementary description of 
Chinese  Taipei's arguments at the end of the paragraph, we consider it more appropriate to 
include this description in a sentence that precedes that paragraph's last sentence.  
6.2  Paragra ph 6.14 (paragraph 7.14 of the Final Report)  
6.7.  Chinese Taipei  proposes  that the Panel supplements its description of Norway's arguments to 
fully reflect the arguments presented by Norway.  
6.8.  Canada makes no comment on Chinese Taipei 's request.  
6.9.  We have decided to accommodate Chinese Taipei's request.  
6.3  Paragraph 6.53 (paragraph 7.54 of the Final Report)  
6.10.   Canada requests that the footnote reference to "Canada's second written submission, 
para. 47" be changed t o "Canada's second written submission, paras. 49 -52". 
6.11.   Chinese Taipei disagrees with the suggested change, to th e extent that paragraphs other 
than paragraph 49 of Canada's second written submission should be referenced in this footnote.  
6.12.   We agree with Chine se Taipei that only paragraph 49 of Canada's second written submission 
should be included in the footnote and have made the modification accordingly.  WT/DS482/R  
 
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  6.4  Paragraph 6.64 (paragraph 7.65 of the Final Report)  
6.13.   Chinese Taipei requests the Panel to include discussion of Chinese Taipei's arguments in 
relation Article  7.1(iii) of the Anti -Dumping Agreement and its relevance to the issue before the 
Panel.  Chinese Taipei also does not support Canada's request to delete the reference to that article 
in the paragraph.  
6.14.   Canada suggests that the statements relating to Article  7.1(iii) in the last three sentences of 
the paragraph are outside of the Panel's terms of reference, and therefore requests deletion 
thereof.  Should the Panel decide to acced e to Chinese Taipei's request, Canada asks that the Panel 
also include Canada's response to Chinese Taipei's arguments.  
6.15.   We have not made any changes to our Report concerning this matter. Since there is no 
claim under Article  7.1(iii), there is no need for  us to examine this provision in great detail. We 
refer to it merely to explain our treatment of certain arguments made by Chinese Taipei 
concerning th e object and purpose of Article  7.1. 
6.5  Paragraph 6.79 (paragraph 7.80 of the F inal Report)  
6.16.   Chinese Taipei requests the Panel to amend its description of Canada's arguments in order 
to clarify that observations relating to the case law invoked by Chinese Taipei were made by 
Canada.  
6.17.   Canada makes no comment on Chinese Taipei's request.  
6.18.   We have decided to accommodate Chinese Taipei's request.  
6.6  Paragraph 6.84 (paragraph 7.85 of the Final Report)  
6.19.   Canada requests the Panel to modify this paragraph to accurately reflect Canada's position 
as set out in paragraph  72 of its second written submission. Canada contends that it does not 
argue that C hinese Taipei's claim is undermined by the fact that there are no Appellate Body 
decisions that endorse the approach advanced by Chinese Taipei . Rather, Canada's point is that 
the Appellate Body report cited by Chinese Taipei does not, contrary to Chinese Taipei's 
submission, address the issue of whether imports from exporters with a de minimis  margin of 
dumping are to be excluded in an injury analysis.  
6.20.   Chinese Taipei disagrees with Canada and considers that the paragraph accurately reflects 
Canada's argument.  
6.21.   We have decided  to accommodate Canada's request by modifying the paragraph 
accordingly.  
6.7  Paragraph s 6.109  and 6.111  (paragraph s 7.110  and 7.112  of the Final Report)  
6.22.   Chinese Taipei requests the Panel to modify paragraph  6.109 to more accurately reflect  
Chinese Taipei's reliance in its submissions on spe cific statements made by the interested party 
Knightsbridge  in the C SWP investigation .15 In light of this modification, Chinese Taipei also 
requests that paragraphs  6.109 and 6.111 be changed to no longer state that Chinese Taipei did 
not specify exactly which statement made by Knightsbridge it was relying on.  
6.23.   Canada makes no comment on Chinese Taipei's request.  
6.24.   We have decided to accom modate Chinese Taipei's request, albeit not in the exact manner 
as suggested by Chinese Taipei.  
                                                
15 Knightsbridge International Corp., Submission to CITT related to the Preliminary Injury Inquiry 
PI-2012-003, 18  June 2012, (Exhibit TPKM -16). WT/DS482/R  
 
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  6.8  Paragraph s 6.133  and 6.135  (paragraph s 7.134  and 7.136  of the Final Report)  
6.25.   Chinese Taipei understands  that the Ministerial Specification is not a document that is 
published and made available to the public. Chinese Taipei observes that it is thus not a "published 
report", contrary to i ts char acterization in these  paragraph s. 
6.26.   Canada makes no comment on Chinese Taipei's request.  
6.27.   We have decided to change the description of the documents referred to in 
paragraph  6.133 . Instead of referring to "published reports", we now refer to " documents in the  
record of the investigation". A consequential change is  made in paragraph 6.135  which now refers 
to the "record's relevant documents" . 
6.9  Paragraph 6.142  (paragraph 7.143  of the Final Report)  
6.28.   Chinese Taipei requests the Panel to insert a footnote following the paragraph's second 
sentence. Chinese Taipei recalls its position  that while the fact of imposing residual duties may 
allow investigating authorities to preclud e circumvention and to provide a n incentive to cooperate, 
this ob jective does not itself justify the use of one of the worst possible information available.  
6.29.   Canada makes no comment on Chinese Taipei's request.  
6.30.   We have decided not to accommodate Chinese Taipei's request. The Panel's statement, in 
respect of which Chinese  Taipei seeks clarification of its argument, accurately reflects a specific 
issue on which the parties' views did not d iverge.  
6.10  Paragraphs 6.144 and 6.145 (paragraphs 7.145  and 7.146  of the Final Report)  
6.31.   Canada requests the Panel to correct factual inaccuracies with respect to the Panel's 
description of the operation of Canada's p rospective normal value system.  
6.32.   Chinese Taipei makes no comment on Canada's request.  
6.33.   We have decided  to correct  the in accuracies identified by Canada . In the interest of clarity, 
we revised the relevant sentence in paragraph 6.145.  
6.11  Paragraphs 6.170 -6.173 (paragraphs 7.171 -7.174  of the Fin al Report)  
6.34.   Chinese Taipei requests the Panel to address Chinese Taipei's argument that the conditions 
set forth in Article 6.8 or Annex II of the Anti -Dumping Agreement were not met because the 
information concerning new product types was not "held" by the  cooperating exporters as such 
information was non -existent at the time of the original investigation.  
6.35.   Canada makes no comment on Chinese Taipei's request.  
6.36.   We have decided not to accommodate Chinese Taipei's request. Addressing Chinese Taipei's 
argument in  addition to the reasoning contained in t he relevant parts of the Report is not 
necessary for resolving the dispute. As we observed  in the R eport , Canada did not contend that 
relevant information was requested from the exporters when a determination based on facts 
available was made  in the original investigation . As a result, t he issue of whether such information 
was in fact  "held" by the relevant exporters does not arise in the analysis under Article  6.8 and 
Annex  II. WT/DS482/R  
 
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  7  FINDINGS  
7.1  General principles regarding treaty interpretation, the applicable standard of 
review , and burden of proof  
7.1.1   Treaty Interpretation  
7.1.  Article 3.2 of the DSU provides that the dispute settlement system serves to clarify the 
existing provisions of the covered agreements "in accordance with c ustomary rules of 
interpretation of public international law". It is generally accepted that the principles codified in 
Articles  31 and 32 of the Vienna Convention are such customary rules.  
7.1.2   Standard of Review  
7.2.  Panels generally are bound by the standard of r eview set forth in Article  11 of the DSU, which 
provides, in relevant part:  
[A] panel should make an objective assessment of the matter  before it, including an 
objective assessment of the facts of the case and the applicability of and conformity 
with the r elevant covered agreements.16 
7.3.  The Appellate Body has stated that the "objective assessment" to be made by a panel 
reviewing an investigating authority's determination is to be informed by an examination of 
whether the agency provided a reasoned and adequate  explanation as to: ( a) how the evidence on 
the record supported its factual findings; and ( b) how those factual findings supported the overall 
determination.17 
7.4.  The Appellate Body has also commented that a panel reviewing an investigating authority's 
determ ination may not conduct a de novo  review of the evidence or substitute its judgment for 
that of the investigating authority. A panel must limit its examination to the evidence that was 
before the agency during the course of the investigation and must take into account all such 
evidence submitted by the parties to the dispute.18 At the same time, a panel must not simply 
defer to the conclusions of the investigating authority. A panel's examination of those conclusions 
must be "in -depth" and "critical and sear ching".19 
7.5.  Further to Article 11 of the DSU, Article 17.6 of the Anti-Dumping  Agreement  sets forth a 
specific standard of review applicable to anti -dumping disputes, namely:  
(i) in its assessment of the facts of the matter, the panel shall determine whether 
the authorities' establishment of the facts was proper and whether their evaluation of 
those facts was unbiased and objective. If the establishment of the facts was proper 
and the evaluation was unbiased and objective, even though the panel might have 
reached a different conclusion, the evaluation shall not be overturned; and  
(ii) the panel shall interpret the relevant provisions of the Agreement in accordance 
with customary rules of interpretation of public international law. Where the panel 
finds that a r elevant provision of the Agreement admits of more than one permissible 
interpretation, the panel shall find the authorities' measure to be in conformity with 
the Agreement if it rests upon one of those permissible interpretations.  
7.1.3   Burden of Proof  
7.6.  The gener al principles applicable to the allocation of the burden of proof in WTO dispute 
settlement require that a party claiming a violation of a provision of a WTO Agreement must assert 
and prove its claim.20 Therefore, Chinese  Taipei  bears the burden of demonstr ating that the 
                                                
16 Emphasis added.  
17 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS , para.  186. 
18 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS , para. 187. 
19 Appellate Body Report, US – Softwoo d Lumber  VI (Article 21.5 – Canada) , para.  93. 
20 Appellate Body Report, US – Wool Shirts and Blouses , p. 16. WT/DS482/R  
 
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  Canadian measures are inconsistent with the WTO  Agreement. The Appellate Body has stated that 
a complaining party will satisfy its burden when it establishes a prima facie  case, namely a case 
which, in the absence of effective refutation by the defending party, requires a panel, as a matter 
of law, to rule in favour of the complaining party.21 Finally, it is generally for each party asserting a 
fact to provide proof thereof.22 
7.2  Immediate termination under Article  5.8 of the Anti-Dumping  Agreemen t: 
exporter -specific or country -wide margins of dumping?  
7.2.1   Introduction  
7.7.  This claim concerns the interpretation and application of the second sentence of Article  5.8 of 
the Anti-Dumping  Agreement , which provides:  
There shall be immediate termination in cases where the authorities determin e that 
the margin of dumping is  de minimis , or that the volume of dumped imports, actual or 
potential, or the injury, is negligible.  
7.8.  Chinese  Taipei 's claim is brought under the first part of this provision, concerning terminat ion 
of an investigation in respect of de minimis  margins of dumping. Chinese  Taipei  submits that 
Canada violated this provision by failing to terminate the investigation in respect of 
two Chinese  Taipei  exporters for which the CBSA had determined de minimi s final23 margins of 
dumping. Canada asks the Panel to reject Chinese  Taipei 's claim, arguing that the second sentence 
of Article  5.8 only requires immediate termination in respect of country -wide margins of dumping 
that are de minimis . 
7.2.2   Main arguments of th e parties  
7.9.  Chinese  Taipei 's arguments are based principally on the Appellate Body's finding in Mexico  – 
Anti-Dumping Measures on Rice that the phrase "margin of dumping" in the second sentence of 
Article  5.8 of the Anti-Dumping  Agreement  relates to the indi vidual margin of dumping of an 
exporter or producer, rather than a country -wide margin of dumping .24 Chinese  Taipei  relies in 
particular on the Appellate Body's finding that "the second sentence of Article  5.8 requires the 
immediate termination of the inves tigation in respect of exporters for which an individual  margin of 
dumping of zero or de minimis  is determined".25 Chinese Taipei further submits that the ordinary 
meaning of the words used in Article  5.8 as well as the context provided by other provisions of the 
Anti-Dumping Agreement, including Article  3.3 and 9.4, do not support Canada's position that 
Article  5.8 requires immediate termination of the investigation when the country -wide margin of 
dumping is de minimis .26 
7.10.   Canada submits that the termination of an investigation under Article  5.8 of the 
Anti-Dumping  Agreement  is only required when the country -wide margin of dumping is 
de minimis . Canada contends that the ordinary meaning of the terms used in the second sentence 
of Article  5.8 is consistent with  this approach .27 Canada contends that Chinese  Taipei  reads into 
Article  5.8 the words "with regard to that exporter", without any basis in the text or context for 
doing so. Canada contends that there is nothing in Article  5.8 o r elsewhere in the 
Anti-Dumpi ng Agreement  that subdivides an investigation into any number of separate 
                                                
21 Appellate Body Report, EC – Hormones , para.  104. 
22 Appellate Body Report, US – Wool Shirts and Blouses , p. 14. 
23 Chinese  Taipei 's claim concerns Article 5.8 termination in the context of final margins of dumping that 
are de minimis  ("Canada violated Article 5.8 of the Anti-Dumping  Agreement  because it failed to immediately 
terminate the investigation with respect to those exporters whose final marg ins of dumping were found to be 
de minimis  within the meaning of that provision"). ( Chinese  Taipei 's first written submission, para. 43). 
We confirm at paras. 7.63.-7.64 below that the second sentence of Article 5.8 only applies in respect of final 
margins of dumping that are de minimis . Our findings here therefore only concern the issue of whether or not 
Canada should have immediately terminated the inves tigation after finding that the final margins of dumping of 
two Chinese  Taipei  exporters were de minimis . 
24 Appellate Body Report,  Mexico – Anti-Dumping Measures on Rice , paras. 216 -221. 
25 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para . 217. (emphasis original)  
26 Chinese Taipei's second written submission, paras. 10 -26. 
27 Canada's first written submission, para. 56.  WT/DS482/R  
 
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  investigations that could be individually terminated for individual exporters.28 Canada submits that 
the immediate context of Article  5.8 taken as a whole shows that termination under  the 
second  sentence of Article  5.8 pertains to a country, particularly since it is clear that termination in 
respect of negligible volume or injury must pertain to a country.  
7.11.   Regarding broader context, Canada observes that Article  5 provides for the initi ation of a 
single investigation in relation to a product of a country of export.29 Canada also argues that 
Chinese  Taipei 's interpretation of Article  5.8 would render Article  9.4 redundant, because there 
would be no need any longer to exclude de minimis  margins at the assessment stage if the 
investigation had already been terminated in respect of exporters with individual de minimis  
margins of dumping.30 Canada further asserts that the specific reference in Article  3.3 to a 
country -based margin of dumping, "a s defined" in Article  5.8, provides further confirmation that 
the de minimis  margin of dumping found in Article  5.8 is also country -based.31 Canada also argues 
that Chinese  Taipei 's interpretation of Article  5.8 would result in inconsistent treatment of 
exporters under Article  9.5. In particular, Canada contends that any termination pursuant to 
Article  5.8 would not apply to new shippers, since the investigation would already have been 
completed and measures put in place. Canada asserts that new shippers fou nd to have dumped 
would therefore be subject to anti -dumping measures pursuant to Article  9.5, even if their margin 
of dumping were only de minimis . Canada asserts that this inconsistent treatment does not occur 
if termination under Article  5.8 for a de minimis  margin of dumping pertains to a country. Canada 
submits that its arguments provide cogent reasons for the Panel to depart from the interpretation 
of Article  5.8 of the Anti-Dumping  Agreement  developed by the WTO adjudicators in Mexico  – 
Anti-Dumping Measures on Rice .32 
7.2.3   Main arguments of third parties  
7.2.3.1   Brazil  
7.12.   Brazil contends that if the factual background presented by Chinese  Taipei  is accurate, the 
investigation should have been terminated with respect to those exporters whose final margins of 
dumping w ere found to be de minimis . Brazil asserts that the combined interpretation of the 
articles  mentioned by Chinese  Taipei , as supported by the jurisprudence of the DSB, leads to the 
conclusion that during an investigation the competent authority should take into account individual 
margins of dumping for each exporter or producer, whenever it is possible for the authority to 
determine them. The investigating authority cannot rely on a country -wide margin of dumping 
when the individual margins are determined.33 
7.2.3.2   European Union  
7.13.   The European Union recalls that the Appellate Body has already clarified that the margin of 
dumping in Article  5.8 refers to "individual " margins of dumping of the exporters, as opposed to a 
"country -wide" margin of dumping. The European Uni on also recalls that panels are expected, 
even in practice "obliged" to follow previous Appellate Body findings with respect to previously 
decided legal issues.34 
7.2.3.3   Norway  
7.14.   Norway disagrees with the position that the requirement to immediately terminate an 
investigation pertains to a country rather than the individual producer. Norway holds that the 
determination of de minimis  dumping is by nature producer -specific. The wording of Article  5.8, as 
well as the context and the consistency with the other a rticles  of the Anti-Dumping  Agreement , 
clearly leads to this conclusion. Norway observes that the panel and the Appellate Body in 
Mexico  – Anti-Dumping Measures on Rice reached this very same conclusion on this exact 
                                                
28 Canada's second written submission, para. 20.  
29 Canada's second written submission, paras. 22 and 23.  
30 Canada's second written submission, para. 30.  
31 Canada's second written submission, para. 25.  
32 Canada's first written submission, paras. 85 -92; second written submission, paras. 1 2-44.  
33 Brazil's third -party submission, para. 3.  
34 European Union's third -party submission , paras. 7 -10. WT/DS482/R  
 
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  question.35 Norway contends that the context prov ided by Article  9.4 supports the interpretation 
that the obligation to terminate  an investigation under Article  5.8 when the margin of dumping is 
de minimis  pertains to the individual producer.36 
7.2.3.4   United Arab Emirates  
7.15.   The United Arab Emirates  shares the anal ysis provided by Chinese  Taipei . The United Arab 
Emirates  considers that Chinese  Taipei 's claim is justified by the language of the 
Anti-Dumping  Agreement , and confirmed by p revious p anels and the Appellate Body.37 
7.2.3.5   United States  
7.16.   The United States, while tak ing no position on the merits of the factual allegations made by 
both parties, agrees with Chinese  Taipei  that a proper interpretation of Article  5.8 of the 
Anti-Dumping  Agreement  requires that the investigating authority terminate an investigation with 
respect to an exporter or producer for which an individual margin of dumping is determined as 
zero or de minimis . Accordingly, the United States understands that Canada did not comply with 
its Anti-Dumping  Agreement  obligations if, as was the case here, thes e two exporters were 
included in the scope of the definitive anti -dumping measure.38 
7.17.   The United States contends that panels are not obliged to follow Appellate Body findings. 
The United States asserts that, to the extent a panel finds prior Appellate Body o r panel reasoning 
to be persuasive, a panel may rely on that reasoning in conducting its own objec tive assessment 
of the matter. Nowhere in the DSU, however, is a panel given the authority not to assess 
objectively the legal issues in dispute, including by  applying customary rules of interpretation to 
the text of the covered agreements, nor does the DSU require, or permit, a panel to follow – 
without any examination – prior Appellate Body findings.39 
7.2.4   Evaluation by the Panel  
7.18.   The parties agree that the second sentence of Article  5.8 requires immediate termination of 
an investigation in the event that the "margin of dumping" is de minimis .40 The parties disagree 
whether the "margin of dumping" that triggers immediate termination relates to the exporting 
country a s a whole, or to each exporter or producer individually. This is the issue that we must 
resolve.  
7.19.   The same issue was addressed by the panel and Appellate Body in Mexico – Anti-Dumping 
Measures on Rice . Both the panel and the Appellate Body found that the te rm "margin of dumping" 
in Article  5.8 refers to the individual margin of dumping of an exporter or producer rather than to a 
country -wide margin of dumping. The panel noted that A rticle 6.10 of the 
Anti-Dumping  Agreement  provides that "the authorities shal l, as a rule, determine an individual 
margin of dumping for each known exporter or producer concerned of the product under 
investigation".41 The panel considered that this provision provides for the general rule of 
calculating an individual margin of dumpin g for each known exporter or producer. The panel 
observed that the exception to this rule is provided for in Article  9.4 of the 
Anti-Dumping  Agreement . The panel stated that both the general rule and the exception to the 
rule provide for the calculation of  individual margins of dumping, and do not envisage the 
calculation of a country -wide margin. The panel then examined the rest of the 
Anti-Dumping  Agreement  to see whether there is anything in the Agreement that contradicts this 
conclusion that the term "margin of dumping " in the Anti-Dumping  Agreement  is company -specific 
rather than country -wide. The panel found that there was not. According to the panel, "whenever 
the Agreement refers to the determination of a margin of dumping, it refers to the margin of  
                                                
35 Norway's third -party submission, para. 5.  
36 Norway's third -party statement, paras. 5 and 6.  
37 United Arab Emirates' third -party submission, para s. 5 and 8 . 
38 United States' third -party submission, para. 3.  
39 United States' third -party stat ement, para. 7.  
40 The parties also agree that Article 5.8 only requires immediate termination in respect of final margins 
of dumping that are de minimis . 
41 See Panel Report, Mexico – Anti-Dumping Measures on Rice , para.  7.137.  WT/DS482/R  
 
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  dumping determined for the individual exporter".42 The panel also noted that, in Article  5.8 of the 
Anti-Dumping  Agreement , the margin of dumping is juxtaposed to the volume of dumped imports. 
The panel observed that while it is expressly stipulated that t he latter is to be examined on a 
country -wide basis, no such stipulation is made with regard to the margin of dumping. This further 
confirmed the panel's view that the reference to the margin of dumping in Article  5.8 of the 
Anti-Dumping  Agreement  is a ref erence to the individual margin of dumping determined on an 
exporter -specific basis.43 
7.20.   The Appellate Body agreed with the reasoning of the panel.44 The Appellate Body further 
observed that:  
The Panel's position  – that the term "margin of dumping" in Article  5.8 refers to the 
individual margin of dumping of an exporter or producer rather than to a country -wide 
margin of dumping  – is consistent with the use of the term "margins of dumping" in 
Article  2.4.2 of the Anti-Dumping  Agreement , as s tated by the Appella te Body in US – 
Hot-Rolled Steel :  
"[M]argins" means the individual margin of dumping determined for each 
of the investigated exporters and producers of the product under 
investigation, for that particular product.45 
7.21.   For our part, we consider that the ordin ary meaning of the text of the second sentence of 
Article  5.8 does not unambiguously resolve the legal issue before us, since it does not clarify 
whether the "margin of dumping" that triggers immediate termination should be established for an 
exporting cou ntry or for individual exporters in a given exporting country.46 The text of the phrase 
"margin of dumping" offers no guidance in this respect. The "investigation" to be immediately 
terminated is expressed in the singular, suggesting that it pertains to a s ingular investigation of 
exports of a given product from some or all of the producers/exporters of that product in a given 
exporting country as a whole. However, Article 6.10 of the Anti-Dumping  Agreement  provides for a 
general rule that a margin of dumpin g is to be determined for each foreign producer/exporter.  
Thus,  a single investigation could be "terminated" in respect of  some of those individual 
producers/exporters (even if it remains active for others).47 We agree with the panel and 
Appellate  Body in Mexico – Anti-Dumping Measures on Rice  that, when viewed in the context of 
other provisions of the Anti-Dumping  Agreement , the "margin of dumping" that triggers immediate 
termination under the second sentence of Article  5.8 should be understood to relate to  the margin 
of dumping established for each producer or exporter individually, rather than a margin of 
dumping established for the exporting country as a whole.  
7.22.   The findings of the panel and Appellate Body in Mexico – Anti-Dumping Measures on Rice  
have bee n adopted by the DSB. It is well established that adopted reports create legitimate 
expectations, such that the same legal issues should be resolved in the same way in subsequent 
cases, absent cogent reasons for finding differently.48 Canada contends that t here are cogent 
reasons why we should not follow the decisions of the panel and Appellate Body in Mexico – 
Anti-Dumping Measures on Rice . Canada points to the reference to a country -wide margin of 
dumping in Article  3.3, the alleged redundancy of part of A rticle 9.4, and the alleged inconsistent 
treatment of de minimis  exporters under Article  9.5. We shall address each of these elements in 
turn. 
                                                
42 Panel Report, Mexico – Anti-Dumping Measures on Rice , para.  7.140.  
43 Panel Report, Mexico – Anti-Dumping Measures on Rice , paras. 7.137 -7.141.  
44 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 217.  
45 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 216. (fns omitted)  
46 Canada asserts at para. 56 of its first written submission that the ordinary meaning of the 
second  sentence of Article 5.8 is "consistent" with termination occurring on a country -wide basis. We consider 
rather that the ordinary meaning is ambiguous in this regard.  
47 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 218.  
48 See, for example, Appellate Body Reports, Japan – Alcoholic Beverages II , p. 14; and US – Stainless 
Steel (Mexico) , para. 160.  WT/DS482/R  
 
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  7.2.4.1   Article  3.3 of the Anti-Dumping  Agreement  
7.23.   Canada submits that the interpretation of the phrase "margin of dumping " by the panel and 
Appellate Body in Mexico – Anti-Dumping Measures on Rice  is at odds with Article  3.3 of the 
Anti-Dumping  Agreement , which establishes conditions for the cumulative assessment of the 
effects of imports from multiple exporting countries. A rticle 3.3 provides in relevant part:  
Where imports of a product from more than one country are simultaneously subject to 
anti-dumping investigations, the investigating authorities may cumulatively assess the 
effects of such imports only if they determine that (a) the margin of dumping 
established in relation to the imports from each country is more than de minimis  as 
defined in paragraph  8 of Article  5 … . 
7.24.   Canada observes that Article  3.3 refers to a single margin of dumping being established for 
all impor ts from an exporting country, i.e. a country -wide margin of dumping. According to 
Canada, the specific reference in Article  3.3 to the Article  5.8 de minimis  standard "implies that the 
type of margin of dumping is the same in both provisions  – a margin of dumping with respect to a 
country".49 Canada therefore concludes that Article  5.8, like Article  3.3, refers to a country -wide 
margin of dumping. Canada contends that the panel ignored Article  3.3 in its analysis, and that the 
Appellate Body endorsed the pan el's analysis without referring to that error by the panel.50 
7.25.   We recall that the Mexico – Anti-Dumping Measures on Rice  panel reasoned that "whenever 
the Agreement refers to the determination of a margin of dumping, it refers to the margin of 
dumping determ ined for the individual exporter".51 In making this statement, the panel did not 
refer to Article  3.3 in its analysis. However, the Appellate Body did consider the relevance of this 
provision, because Mexico made arguments regarding Article  3.3 to the Appel late Body that are 
similar to those being made by Canada in the present case. The Appellate Body rejected Mexico's 
arguments on the ground that "Article  3.3 does not add to the analysis of Article  5.8".52 
The Appellate Body reasoned as follows:  
First, Artic le 3.3 establishes conditions for cumulation of the effects of the imports 
from more than one country, which is unrelated to the termination of an investigation 
under Article  5.8. Secondly, although, as Mexico pointed out, Article  3.3 refers to 
Article  5.8, this reference concern s uniquely the definition of a de minimis  margin of 
dumping (defined in the third sentence of Article  5.8 as a margin of less than two per 
cent, expressed as a pe rcentage of the export price). Mexico's contention that the 
Panel erre d in the interpretation of Article  5.8 does not relate to the definition of 
"de minimis ". Accordingly, we are of the view that the reference to Article  5.8 in 
Article  3.3 is not relevant to Mexico's argument under Article  5.8. Thirdly, it is 
explicitly pro vided in Article  3.3 that "the margin of dumping [is] established in 
relation to t he imports from each country". It could be argued that this specific 
language was incorporated into Article  3.3 to mark a departure from the general rule 
that the term "margi n of dumping" refers to the individual margin of dump ing of an 
exporter or producer.  In other words, although Mexico contends that Article  3.3 
provides context to suggest that the Panel erred in its interpretation of Article  5.8, it 
could also be viewed as  context that supports the Panel's interpretation of Article  5.8, 
as no language similar to that of Article  3.3 ("the margin of dumping [is] established 
in relation to imports from each country") can be found in Article  5.8. Accordingly, we 
are of the view  that, contrary to what Mexico argues, Article  3.3 does not provide 
useful context for interpreting the term "margin of dumping" in Article  5.8.53 
7.26.   We agree. In our view, Article  3.3 marks a departure from the general rule that the term 
"margin of dumping" r efers to the individual margin of dumping of an exporter or producer. 
Neither Canada's argument that Article  3.3 refers to the margin of dumping "as defined" in 
Article  5.8, nor Canada's suggestion that both provisions therefore refer to the same type of 
margin of dumping (i.e. a country -wide margin) , persuade us otherwise. As the Appellate Body 
                                                
49 Canada's fi rst written submission, para. 83.  
50 Canada's first written submission, para. 87.  
51 Panel Report, Mexico – Anti-Dumping Measures on Rice , para. 7.140.  
52 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 220.  
53 Ibid. WT/DS482/R  
 
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  observed, this reference in Article  3.3 concerns uniquely the definition of de minimis .54 The fact 
that Article  3.3 refers to the Article  5.8 de minimis  standard doe s not mean that the basis for 
determining the margin of dumping in Article  5.8 must necessarily be the same as the one referred 
to in Article  3.3. It simply means that the definition of de minimis  provided for in Article  5.8 
(i.e. a margin of less than 2%)  applies under Article  3.3. Under Article  3.3, this standard is applied 
per country, whereas the same standard is applied per -exporter or producer under Article  5.8. 
There is nothing to suggest that Article  3.3, a provision that concerns the unrelated matt er of 
cumulation, is intended to import any meaning into Article  5.8. 
7.2.4.2   Article  9.4 of the Anti-Dumping  Agreement  
7.27.   Canada also relies on Article  9.4, which regulates the maximum amount of anti -dumping 
duty that may be imposed or collected in respect of import s from exporters that were not 
individually examined, in cases where authorities limit their examination in accordance with the 
second sentence of Article  6.10. Article  9.4 provides in relevant part that the anti -dumping duty 
applied to imports from export ers not included in the investigating authority's examination shall 
not exceed:  
(i) the weighted average margin of dumping established with respect to the 
selected exporters or producers or,  
(ii) where the liability for payment of anti -dumping duties is ca lculated on the basis 
of a prospective normal value, the difference between the weighted average 
normal value of the selected exporters or producers and the export prices of 
exporters or producers not individually examined,  
provided that the authorities sh all disregard for the purpose of this paragraph any 
zero and de minimis  margins and margins established under the circumstances 
referred to in paragraph  8 of Article  6. 
7.28.   Canada suggests that the requirement in Article  9.4 to disregard zero or de minimis  margins 
of dumping of individual exporters when calculating a weighted average margin of dumping or a 
weighted average normal value for non -examined exporters is most telling for interpreting 
Article  5.8.55 Canada asserts that the application of duties contemp lated in Article  9.4 takes place 
during the period of duty assessment, and therefore after an investigation has been completed. 
Canada submits that, had the investigation already been terminated with respect to individual 
exporters with zero or de minimis  margins of dumping pursuant to Article  5.8, there would be no 
need to exclude their margins under Article  9.4. According to Canada, the need to expressly 
exclude zero or de minimis  exporter -specific margins of dumping at this stage confirms that an 
investi gation is only terminated pursuant to Article  5.8 when the margin of dumping of a country is 
de minimis . Canada contends that an interpretation of Article  5.8 supporting termination of an 
investigation with respect to an individual exporter with a de minim is margin of dumping would 
make part of Article  9.4 redundant, contrary to the principle of effectiveness in treaty 
interpretation. Canada further observes that, unlike Article  3.3, Article  9.4 does not contain any 
reference to the definition of a de minim is margin of dumping in Article  5.8. Canada submits that 
the absence of such a reference indicates that the margin of dumping r eferred to in Article  9.4, 
i.e. an exporter -specific margin of dumping, is not the same type as that in Article  5.8, 
i.e. a count ry-based margin of dumping.56 
7.29.   We are not persuaded by Canada's argument. First, Article  9.4 provides that the 
anti-dumping duties for non -examined exporters or producers shall not exceed the weighted 
average normal values or weighted average margins of dump ing of investigated exporters or 
producers. Nothing in this provision is inconsistent with the proposition that Article  5.8 requires 
immediate termination in the event that an exporter has a de minimis  individual margin of 
dumping. It is worth emphasising that Article  9.4 is unrelated to the termination of an 
investigation under the second sentence of Article  5.8. These provisions concern discrete issues, 
and there is nothing in the text of Article  9.4 to suggest that it has any bearing on the termination 
of an investigation under Article  5.8. 
                                                
54 Ibid. 
55 Canada's fir st written submission, paras. 80 and 81.  
56 Canada's first written submission, para. 84.  WT/DS482/R  
 
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  7.30.   Second, we consider that the distinction drawn by Canada between the investigation and 
assessment phases is overly rigid. We do not consider that all elements addressed in Article  9 
must necessarily be viewed as pertai ning only to a post -investigation phase of duty assessment. 
Canada relies57 on the statement by the Appellate Body stated in EC – Bed Linen (Article  21.5 – 
India) that the use of the present perfect tense in sub -paragraphs 1 and 4 of Article  9: 
[I]ndicates that the imposition and collection of anti -dumping duties under Article  9 is 
a separate and distinct phase of an anti -dumping action that necessarily occurs after 
the determination of dumping, injury, and causation under Articles  2 and 3 has been 
made. Members have the right to impose and collect anti -dumping duties only after 
the completion of an investigation in which it has been established  that the 
requirements of dumping, injury, and causation " have been fulfilled ".58 
7.31.   EC – Bed Linen (Article  21.5 – India) did not present the Appellate Body with the legal issue 
currently before us , namely the relevance of Article 9.4 for the interpretation of Article 5.8 . 
We note that t he Appellate Body also stated in Mexico – Anti-Dumping Measures on Rice that 
"[t]he iss uance of the order that establishes anti -dumping duties  – or the decision not to issue an 
order  – is the ultimate step of the 'investigation' contemplated in Article  5.8".59  
7.32.   For us, there is a logical progression in the investigation and imposition of anti -dumping 
duties. In order to issue an order imposing anti -dumping duties on non -examined exporters, an 
investigating authority must determine the amount of anti -dumping duty to be imposed and 
collected.60 In order to do that, it must first calculate the cei ling for the amount of duty that may 
legitimately be imposed and collected in respect of imports from such exporters. It seems to us 
that the calculation of that ceiling, governed by Article  9.4, would be part of the 
authority's  investigation of dumping, a nd be undertaken after the calculation of the investigated 
exporters'  individual margins of dumping, but before the imposition of any anti -dumping duty.61 
7.33.   Third, in any event , we recall that Article  9.4 provides that the ceiling for non -examined 
exporters b e fixed by reference to the margins of dumping established for investigated exporters. 
The simple fact that an investigation has already been terminated in respect of an exporter having 
a de minimis  margin of dumping does not mean that  the margin of dumpin g determined for that 
investigated exporter would necessarily be excluded by the investigating authority when 
determining the ceiling for non -examined exporters. The fact that the investigation has been 
terminated in respect of an exporter does not remove that exporter from the category of exporters 
that were investigated, i.e. the category that is used as the basis for determining the ceiling for 
non-examined exporters. Nor does termination in respect of an investigated exporter mean that 
the data pertaini ng to that exporter is expunged from the investigating authority's record. Since 
the data pertains to an investigated exporter, it would seem reasonable that an investigating 
authority might subsequently use that data when establishing the ceiling for duty  collection in 
respect of non -examined exporters, consistent with the general approach set forth in the first part 
of Article  9.4 (up to and including sub -paragraphs (i) and (ii)). It is only the express textual 
exclusion of zero and de minimis  margins in the latter part of Article  9.4 that prevents the 
authority from doing so.62 Indeed, one might consider that this express textual exclusion is only 
                                                
57 For example, Canada's opening statement at the second meeting of the Panel, para. 14.  
58 Appellate Body Report, EC – Bed Linen (Article  21.5 – India) , para. 123. (emph asis original, 
fn omitted)  
59 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 219.  
60 Indeed, the fact that the Article 12.2.2 public notice refers to the "conclusion … of an investigation in 
the case of an affirmative determination prov iding for the imposition of a definitive duty" suggests to us that 
the "determination providing for the imposition of a definitive duty" is made before  the investigation is 
concluded.  
61 This would be consistent with the scope of the investigation envisaged  by the Appellate Body in 
Mexico – Anti-Dumping Measures on Rice , discussed above at para. 7.31. Furthermore, the determination of a 
duty rate for unexamined exporter s, at some level below the calculated ceiling, could be viewed as the 
corollary to the determination of margins of dumping for examined exporters under Article 2 of the 
Anti-Dumping  Agreement . 
62 It is similarly possible that facts pertaining to an exporter  with a zero or de minimis  margin could be 
used as facts available under Article 6.8 (if properly verified , etc.). For example, the authority may use cost 
data pertaining to that exporter as facts available in constructing a normal value for a different ex porter. 
The fact that the investigation in respect of the exporter whose data is being used is terminated under 
Article  5.8 does not necessarily undermine the utility of that exporter's data in the context of Article 6.8. 
Absent any express exclusion of th e use of such facts, there is no reason why they should not be used by the WT/DS482/R  
 
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  required precisely because the zero or de minimis  margins of dumping might otherwise be retained 
by the invest igating authority.  
7.2.4.3   De minimis  exporters in Article  9.5 new shipper reviews  
7.34.   Canada submits that, because the de minimis  standard under Article  5.8 does not apply to 
new exporter reviews under Article  9.5, a new exporter with a de minimis  margin would be sub ject 
to anti -dumping duties, while an exporter with the same margin would be subject to termination in 
an original investigation.63 
7.35.   Canada's argument is premised on a conclusion of law concerning the relationship between 
Articles  5.8 and 9.5, a question tha t has not been addressed in WTO dispute settlement.64 It is not 
clear to us that, in the context of an Article  9.5 new shipper review, an anti -dumping duty could be 
imposed on a new shipper for which a de minimis  margin of dumping is determined in that 
review.65 
7.36.   In any event, Article  9.5 is unrelated to the termination of an investigation under the 
second  sentence of Article  5.8. We do not consider that Article  9.5 informs the interpretation of the 
second sentence of Article  5.8. These provisions concern disc rete issues, and there is nothing in 
the text of Article  9.5 to suggest that it should import meaning into the second sentence of 
Article  5.8. 
7.2.4.4   Conclusion  
7.37.   We recall our view that the second sentence of Article  5.8, when read in light of the context 
of the p hrase "margin of dumping" as used in other provisions of the Anti-Dumping  Agreement , 
requires immediate termination of an investigation in respect of exporters that have individual 
de minimis  margins of dumping. We further recall that this approach is cons istent with the 
decisions of the panel and Appellate Body regarding the same issue in Mexico – Anti-Dumping 
Measures on Rice. For the reasons explained above, we find that Canada has failed to establish 
that there are cogent reasons for us to depart from t hose decisions. We therefore uphold 
Chinese  Taipei 's claim that Canada violated the second sentence of Article  5.8 by failing to 
immediately terminate the investigation in respect of two Chinese  Taipei  exporters with de minimis  
margins of dumping.  
                                                                                                                                                  
investigating authority in the context of Article 6.8 simply because they pertain to an exporter in respect of 
which the investigation has been terminated.  
63 Canada' s second written  submission, paras. 39 -44. 
64 Canada observes that the Appellate Body stated at para. 341 of its report in EC – Fasteners (China)  
that all of the paragraphs of Article 9 concern the imposition of duties. Canada understands that Article 9.5, 
like the remaind er of Article 9, only applies to the duty assessment phase, as distinct from the investigation 
phase. We also observe that the Appellate Body found in US – Carbon Steel  that the de minimis  standard set 
forth in the equivalent provision in the SCM Agreement  (i.e. Article 11.9) did not apply in the context of sunset 
reviews undertaken under Article 21.3 of the SCM Agreement. (Appellate Body Report, US – Carbon Steel , 
para. 68). However, in neither of these cases was the Appellate Body considering the applicat ion of the 
immediate termination mechanism in the context of new shipper reviews.  
65 It may be that an Article  9.5 new shipper review should rather be viewed as a supplementary 
investigation, bearing in mind that it is the first time that the margin of dum ping is being established for that 
shipper. Canada accepts that the Article 6.8 facts available mechanism applies in the context of Article 9.5 
reviews, even though that provision applies when an interested party fails to provide necessary information or 
significantly impedes the "investigation". (Canada's response to Panel question No. 7.4, para. 13). There is 
some inconsistency, therefore, in Canada's argument that provisions pertaining to the "investigation" phase 
should not apply in the context of new s hipper reviews. Canada contends that there is no justifiable reason 
why the criteria in Article 5.8 would be applicable to new shipper reviews. (Canada's response to Panel 
question No. 7.4, para. 16). It seems to us that there is an obvious reason why the relevant parts of Article 5.8 
might apply in this context, namely to ensure that new shippers with de minimis  margins of dumping are not 
subject to anti -dumping duties in the same way as exporters examined in the original investigation. The 
first sentence of Article 9.2 may also apply in this context, to ensure appropriateness and non -discrimination in 
respect of the anti -dumping duties.  WT/DS482/R  
 
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  7.3  Multiple  margins of dumping: Article  6.10 of the Anti-Dumping  Agreement  
7.3.1   Introduction  
7.38.   Chinese  Taipei  submits that Canada violated the first sentence of Article  6.10, whereby:  
The authorities shall, as a rule, determine an individual margin of dumping for each 
known  exporter or producer concerned of the product under investigation.  
7.39.   Canada asks the Panel to reject Chinese  Taipei 's claim.  
7.3.2   Main arguments of the parties  
7.40.   Chinese  Taipei  submits that the CBSA failed to comply with the requirement in the first 
sentence of Ar ticle 6.10 to determine a single margin of dumping for each known exporter. 
Chinese  Taipei  asserts that the CBSA determined – and the exporters and producers were 
confronted with – two margins for each exporter, namely one company -specific margin establish ed 
under Article  2, and a second, country -wide dumping margin used for assessing the need for 
immediate termination under the second sentence of Article  5.8. Chinese  Taipei  stresses that what 
violates Article  6.10 is not the simple fact that Canada has cal culated more than one margin of 
dumping for each exporter, but rather that Canada used the additional, country -wide margin of 
dumping for the purpose of applying Article  5.8.66 
7.41.   Canada rejects Chinese  Taipei 's claim on the basis that the CBSA complied with t he 
Article  6.10 requirement to determine individual exporter -specific margins of dumping. Canada 
asserts that the determination of an additional, country -wide margin of dumping is irrelevant 
under Article  6.10.67 
7.3.3   Main arguments of third parties  
7.3.3.1   Brazil  
7.42.   Brazil considers that Canada has not violated Article  6.10 of the Anti-Dumping  Agreement . 
Brazil asserts that the CBSA complied with the Article  6.10 obligation to "determine an individual 
margin of dumping for each known exporter or producer". According to Bra zil, the mere fact that 
the CBSA calculated a country -based margin of dumping does not in itself violate Article  6.10, and 
such calculation may be used for other purposes in the Anti-Dumping  Agreement , such as in 
Article  3.3(a).68 
7.3.4   Evaluation by the Panel  
7.43.   We see neither a factual nor a legal foundation for Chinese  Taipei 's claim. Chinese  Taipei  
asserts, as a matter of fact, that the CBSA determined "two margins [of dumping] for each 
exporter".69 However, the second allegedly exporter -specific margin of dumping  identified by 
Chinese  Taipei  is actually the country -wide margin established for Chinese  Taipei  as a whole.70 
By definition, the country -wide margin pertains to the country, rather than to any given exporter.  
7.44.   As a matter of law, nothing in the text of the first sentence of Article  6.10 precludes an 
investigating authority from determining – in addition to exporter -specific margins of dumping – 
a country -wide margin of dumping.71 
                                                
66 Chinese  Taipei 's second written submission, paras. 36 -39. 
67 Canada's first written submission, para. 94.  
68 Brazil's thi rd-party submission, para. 6.  
69 Chinese  Taipei 's second written submission, para. 38.  
70 See Chinese  Taipei 's second written submission, para. 38: " Canada determined – and the exporters 
and producers were confronted with – two margins for each exporter, nam ely one company -specific margin 
established under Article 2, and a second, country -wide dumping margin, which was to be applied to each and 
every exporter from that country, in order to determine whether their dumping margin was de minimis ". There 
is nothi ng on the record to suggest that Canada somehow used the country -wide margin to determine whether 
or not individual exporter margins were de minimis .  
71 According to para. 39 of Chinese  Taipei 's second written submission, Chinese  Taipei 's main concern in 
bringing this Article 6.10 claim is to address the manner in which the CBSA used the country -wide margin for WT/DS482/R  
 
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  7.45.   We therefore reject Chinese  Taipei 's claim that Canada acted in a manner inconsi stent with 
the first sentence of Article  6.10. 
7.4  Provisional measures on imports from a Chinese  Taipei  exporter with a preliminary 
de minimis  margin of dumping: Article  7.1(ii)  of the Anti-Dumping  Agreement  
7.4.1   Introduction  
7.46.   Chinese  Taipei  claims that Canada acte d inconsistently with Article  7.1(ii) of the 
Anti-Dumping  Agreement  by imposing provisional measures on imports from a Chinese  Taipei  
exporter with a preliminary margin of dumping below the 2% de minimis  threshold set forth in 
Article  5.8. Canada imposed p rovisional duties on this exporter after determining that the 
preliminary country -wide margin of dumping for Chinese  Taipei  was greater than de minimis . 
The amount of provisional duty was based on the individual exporter's preliminary margin of 
dumping.72 
7.47.   Article 7.1 of the Anti-Dumping  Agreement  provides:  
Provisional measures may be applied only if:  
(i) an investigation has been initiated in accordance with the provisions of Article  5, 
a public notice has been given to that effect and interested parties hav e been given 
adequate opportunities to submit information and make comments;  
(ii) a preliminary affirmative determination has been made of dumping and 
consequent  injury to a domestic industry;  and 
(iii) the authorities concerned judge such measures necessa ry to prevent injury 
being caused during the investigation.  
7.48.   Canada asks the Panel to reject Chinese  Taipei 's claim, principally on the basis that 
provisional duties may be imposed in respect of any exporter found to have dumped.  
7.4.2   Main arguments of the parti es 
7.49.   Chinese  Taipei  submits that there can be no "preliminary affirmative determination … of 
dumping" (within the meaning of Article  7.1(ii)) for a specific exporter if the preliminary margin of 
dumping for that exporter is de minimis  as defined by Article  5.8. Chinese  Taipei  relies in this 
regard on a finding by the panel in EC – Salmon (Norway)  that "a finding of de minimis  dumping 
margins is a finding that there is no legally cognizable dumping by the producer or exporter in 
question".73 Chinese Taipei note s that the term "preliminary affirmative determination " can be 
understood as "initial positive finding " of dumping.74 Chinese Taipei submits that Canada' s 
investigating authorities could not make such "initial positive finding " of dumping since imports 
from exporters with a de minimis  margin of dumping cannot be treated as "dumped ". 
                                                                                                                                                  
the purpose of applying the second sentence of Article 5.8. This issue is already addressed in our evaluation of 
Chinese  Taipei 's Article 5.8 claim,  above.  
72 On a number of occasions in its first written submission (see, for example, paras. 97 and 105 of 
Chinese  Taipei 's first written submission), Chinese  Taipei  makes reference to the alleged WTO -inconsistency of 
Canada's imposition of a 0% preliminar y anti -dumping duty on imports from Chung Hung Steel Corporation, a 
Chinese  Taipei  exporter with a preliminary margin of dumping of zero. We note that there is no claim regarding 
this issue in Chinese  Taipei 's request for the establishment, which refers on ly to the imposition of provisional 
measures in respect of exporters with de minimis  margins of dumping. ( Canada – Welded Pipe , 
Chinese  Taipei 's request for the establishment of a panel, WT/DS482/2 (dated  22 January 2015, circulated 
27 January 2015), p.  3, bullet  4). Nor is this issue referred to in para . 318 of Chinese  Taipei 's first written 
submission, where Chinese  Taipei  summarizes the findings that it would like the Panel to make. Bearing in 
mind that our terms of reference are circumscribed by Chinese  Taipei 's request for the establishment, we do 
not address this issue in our findings.  
73 Chinese  Taipei 's first written submission, paras. 69 -74 (quoting Panel Report, EC – Salmon (Norway) , 
para. 7.625).  
74 Chinese Taipei's second written submission, paras.  43-44; response to Panel question No.  1.15, 
para. 33. WT/DS482/R  
 
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  7.50.   Chinese  Taipei  submits that, in accordance with Article  5.8, an investigation needs to be 
terminated with regard to producers/exporters with a final margin of dumping that is de minimis . 
Chinese  Taipei  asserts that it logically follows that no definitive anti -dumping duties can be 
imposed on such imports since they are no longer part of the investigation. This also implies that 
imports with a de minimis  margin of dumping have to b e excluded from the injury analysis.75 
Chinese  Taipei  submits that the consistent interpretation of the term "dumped " requires that the 
same reasoning be applied in the context of Article  7.1(ii) with regard to the imposition of 
provisional measures, even i f Article  5.8 is not directly applicable at the preliminary stage of the 
investigation. According to Chinese  Taipei , it therefore follows that Article  7.1(ii) of the 
Anti-Dumping  Agreement  precludes the application of provisional anti -dumping measures on 
exporters with a n individual  de minimis  margin of dumping .76 
7.51.   Chinese Taipei also asserts that the conditions for the imposition of provisional measures 
are stricter than those for the imposition of definitive measures since pursuant to Article 7.1(iii) 
they must be "necessary to prevent injury being caused during the investigation" .77 Chinese Taipei 
posits  that if no definitive measure can be imposed on imports from exporters with a de minimis  
margin of dumping pursuant to Article 5.8, a fortiori  no anti -dumpi ng measure may be applied at 
the provisional stage on imports of such exporters.  Chinese Taipei also argues  that since no injury 
can be caused "through the effects of dumping " by imports from exporters with a de minimis  
margin of dumping, the imposition of  provisional measures to offset de minimis  margins of 
dumping is unnecessary to prevent injury.78 
7.52.   Chinese  Taipei  contends that its interpretation is confirmed by the object and purpose of 
Article  VI of the GATT 1994 and the Anti-Dumping  Agreement , which is to balance the potentially 
conflicting interests of offsetting injury caused by dumped imports with the due process rights of 
investigated exporters. Chinese  Taipei  contends that the Anti-Dumping  Agreement  therefore 
provides for a statutory threshold for t he margin of dumping, below which a product cannot be 
considered as "dumped ".79 
7.53.   Canada asserts80 that Chinese  Taipei 's claim must fail for two reasons. First, because the 
specific reference in Article  7.1(i) to a single investigation being initiated in accor dance with the 
provisions of Article  5 contradicts Chinese  Taipei 's argument that the preliminary affirmative 
determination of dumping relates to individual exporters, rather than the exporting country as a 
whole. Canada observes that there are not as many  preliminary determinations as there are 
exporters. Article  7.1(ii), read with the chapeau , sets out that "[p]rovisional measures may be 
applied only if … a preliminary affirmative determination has been made". According to Canada, 
this singular  determinat ion relates to the investigation as a whole, without reference to individual 
exporters, per Article  7.1(i), and will be affirmative if dumping has been preliminarily found to be 
occurring, per Article  7.1(ii).  
7.54.   Second, Canada asserts that there is no legal basis for Chinese  Taipei 's assertion that 
exporters with a de minimis  margin of dumping may not be considered as dumping.81 Canada 
asserts that the definition of dumping is found in Article  2.1 of the Anti-Dumping  Agreement , 
where a product is considered to  be dumped if it is imported into a country at an export price less 
than its normal value. The operation of comparing whether the export price is less than the normal 
value to determine if dumping exists is a clear and simple comparison; there is no additi onal 
threshold or percentage that must be factored in. According to Canada, this definition of dumping 
does not distinguish between goods being dumped at a margin above de minimis  or below 
de minimis . 
                                                
75 Chinese  Taipei 's second written submission, para. 45.  
76 Chinese  Taipei 's second written submission, para. 46.  Chinese  Taipei makes a distinction between 
terminating the investigation and applying the  provisional duty . (Chinese  Taipei's response to Panel question 
No. 1.2, paras. 6 and 7; second written submission, paras. 49 and 50). According to Chinese  Taipei,  while the 
investigation may continue in case of finding of preliminary de minimis  margin of dumping, the authorities 
cannot apply any measures during the remaining part of the investigation.  
77 Chinese  Taipei's second written submission, para. 47; opening statement at the second meeting of 
the Panel, para.  28. 
78 Chinese  Taipei's  opening statement at the second meeting of the Panel, para.  27. 
79 Chinese  Taipei 's response to Panel question No. 1.15, para. 42.  
80 Canada's second written submission, paras.  46-48. 
81 Canada's second written submission, para. 4 9.  WT/DS482/R  
 
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  7.55.   Canada also objects to Chinese  Taipei 's argument that t he object and purpose of the 
Anti-Dumping  Agreement  provide for a statutory threshold for the margin of dumping, below which 
a product cannot be considered to be dumped. Canada contends that there is no basis in the 
Agreement for these arguments, either in  terms of its object and purpose or in terms of 
Chinese  Taipei 's assertion of the existence of a "statutory threshold". Canada observes that the 
Appellate Body has noted specifically that the Anti-Dumping  Agreement  does not contain an 
explicit indication o f its object and purpose.82 Canada also observes that Chinese  Taipei  refers to 
the panel report in US – Zeroing (EC)  in an attempt to justify its argument regarding the object 
and purpose of the Anti-Dumping  Agreement . According to Canada, that reference is  taken out of 
context.83 Canada also refers to the findings of the panel in EC – Salmon (Norway)  to argue that it 
is the normal value that constitutes the point of reference when imposing anti -dumping duties, not 
the normal value less an additional de minim is threshold. Moreover, Canada suggests that 
Article  7.2 of the Anti-Dumping  Agreement  provides relevant context to Article  7.1(ii). Article  7.2 
stipulates that provisional measures may be applied, through the imposition of duties or by use of 
a security, in an amount "equal to the amount of the anti -dumping duty provisionally estimated, 
being not greater than the provisionally estimated margin of dumping". Canada observes that 
there is no exception in Article  7.2 that the provisional measure must not be ap plied if the margin 
of dumping is de minimis , and no such exception should be read into that provision.84 
7.4.3   Main arguments of third parties  
7.4.3.1   Brazil  
7.56.   Brazil considers that neither provisional nor definitive anti -dumping duties may be imposed 
on imports from expo rters with a de minimis  margin of dumping.85 
7.4.4   Evaluation by the Panel  
7.57.   Article  7.1 of the Anti-Dumping  Agreement  provides that provisional measures may be 
applied only if certain conditions are met. One of those conditions, set forth in sub -paragraph (ii), 
is that "a preliminary affirmative determination has been made of dumping". Chinese  Taipei 's claim 
is premised on two factors. First, that this "preliminary affirmative determination" needs to be 
made for each foreign producer/exporter, rather than for each exporting country, and second, that 
the term "dumping" in this context only refers to margins of dumping exceeding the 
2% de minimis  threshold set forth in Article  5.8. 
7.58.   Regarding the nature of the "preliminary affirmative determination" to be made, we have  
already explained in the context of Chinese  Taipei 's Article  5.8 claim that determinations of 
dumping are generally made in respect of individual exporters.86 The fact that a single 
investigation is undertaken is not inconsistent with this approach, since,  as we have concluded 
above, such an investigation may be terminated in respect of a given exporter. Similarly, a 
"preliminary affirmative determination" may be made in respect of multiple exporters. In addition, 
Article  7.2 provides that provisional measu res should take the form of a cash deposit or bond 
equal to "the amount of anti -dumping duty provisionally estimated". Article  7.5 states that the 
relevant provisions of Article  9 should be followed in the application of provisional measures. This 
includes  the requirement in Article  9.2 to collect anti -dumping duties from "all sources found to be 
dumped ". The Appellate Body has confirmed that the term "sources" relates to individual 
exporters, rather than exporting countries.87 Read together, these considera tions indicate that the 
"preliminary affirmative determination" should be made in respect of individual exporters. It is 
difficult to conceive of the utility of Article  7.1(ii) providing for a country -wide preliminary 
affirmative determination of dumping, if provisional duties are to be applied on the basis of 
exporter -specific margins of dumping.  
                                                
82 Canada's second written submission, para.  54 (referring to Appellate Body Report, US – Softwood 
Lumber V (Article  21.5 – Canada) , para. 118).  
83 Canada's second written submission, para. 54.  
84 Canada's second written submission, para. 59.  
85 Brazil's third -party submission, para. 9.  
86 With the exce ption of the margin of dumping referred to in Article 3.3.  
87 Appellate Body Report, EC – Fasteners (China) , para. 338.  WT/DS482/R  
 
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  7.59.   We now turn to the second premise of Chinese  Taipei 's claim, namely that the 
exporter -specific determination of dumping referred to in Article  7.1(ii) contains a de minimis  
component. The term "dumping" is defined in Article  2.1 as referring to a situation where a 
product is "introduced into the commerce of another country at less than its normal value". 
By virtue of this definition, a product is either dumped (i.e . the export price is less than normal 
value), or it is not dumped (i.e. the export price is equal to or greater than normal value). There is 
no scope in this definition for any notion of de minimis  dumping, in the sense of the export price 
being less than  normal value by only a particular degree. Had the drafters intended to define 
"dumping" with a de minimis  component, they could readily have done so.  
7.60.   Chinese  Taipei  argues that its interpretation of Article  7.1(ii) is supported by case law. 
We disagree. A s we explain below, the findings cited by Chinese  Taipei  were made by panels 
addressing different issues than the one before us in this dispute. Furthermore, only one of the 
panels provided any rationale for its findings, and that rationale does not apply in respect of 
provisional measures.  
7.61.   Chinese  Taipei  refers88 to the findings of three panels that imports from exporters with 
de minimis  margins of dumping may not be treated as "dumped imports" for the purpose of the 
Article  3 injury analysis. This is not t he issue currently before us. In the first two cases, namely 
EC – Bed Linen (Article  21.5 – India) and Argentina – Poultry  Anti-Dumping Duties , neither panel 
provided any rationale for its finding. While the Argentina – Poultry  Anti-Dumping Duties  panel 
stated that, "[o]n the basis of the ordinary meaning of the text … the term 'dumped imports' refers 
to all imports attributable to producers or exporters for which a margin of dumping greater than 
de minimis  has been calculated"89, that panel did not  explain how the ordinary meaning of the 
phrase "dumped imports" supported that finding. In particular, the panel made no reference to the 
definition of the term "dumping" set forth in Article  2.1. 
7.62.   Chinese  Taipei  then notes that a similar approach was adopted by th e panel in EC – Salmon 
(Norway) . That panel explained its approach by refer ence to Article  5.8 of the 
Anti-Dumping  Agreement : 
We consider that imports attributable to a producer or exporter for which a de minimis  
margin of dumping is calculated may not be treated as "dumped " for purposes of the 
injury analysis in that investigation. Article  5.8 of the AD Agreement provides that 
there shall be "immediate termination in cases where the authorities determine that 
the margin of dumping is de minimis ". Thus, it is clear that no anti -dumping duties 
can be imposed on such imports. In our view, a finding of de minimis  dumping 
margins is a finding that there is no legally cognizable dumping by the producer or 
exporter in question . If there is no legally cognizable du mping by a particular producer 
or exporter, as a result of a finding of de minimis  margins, then it seems inescapable 
to us that imports attributable to such producer or exporter may not be treated as 
"dumped" imports for any aspect of that investigation.90 
7.63.   We see logic in the panel referring to the second sentence of Article  5.8 when considering 
the meaning of the phrase "dumped imports" in Article  3, since the requirement to immediately 
terminate an investigation in respect of an exporter with a final de minimis  margin of dumping 
suggests that imports from that exporter should not be treated as dumped. However, the 
relevance of the EC – Salmon (Norway)  panel's finding in the present case is not apparent since , 
for the reasons outlined below , we do not consi der that the second sentence of Article  5.8 applies 
in respect of preliminary affirmative determinations of dumping.  
7.64.   Article  7.2 makes it clear that the preliminary determination relates to "the amount of the 
anti-dumping duty provisionally estimated", and  the "provisionally estimated margin of dumping". 
This "preliminary affirmative determination" of dumping is therefore no more than a provisional 
estimate. This reflects the fact that the provisional determination may be based on data that is 
incomplete, o r that the investigating authority has not yet satisfied itself is accurate. We do not 
consider that an investigating authority would be required to immediately terminate an 
                                                
88 We are referring in particular to the explanation of Chinese  Taipei 's claim set forth in its response to 
Panel question No. 1.15.  
89 Panel Report, Argentina – Poultry Anti -Dumping Duties , para. 7.303.  
90 Panel Report, EC – Salmon (Norway) , para. 7.625. (emphasis added)  WT/DS482/R  
 
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  investigation on the basis of only a provisional  estimate  of the amount of dumping  determined 
using unverified data. Nor do we consider that the "legal cognizance" of dumping should be based 
on no more than a provisional estimate. The parties also agree that it is only a final determination 
of a de minimis margin of dumping that trigger s immediate termination under Article  5.8. 
Chinese  Taipei  even goes so far as to assert that "[t] his finding rela ting to Article  5.8 of the 
Anti-Dumping  Agreement  is irrelevant to the issue of the application of provisional measures".91 In 
these circumstanc es, the findings of the EC – Salmon (Norway)  panel are not relevant to the 
interpretation of the term "dumping" in the context of Article  7.1(ii), and those findings therefore 
provide no support for an argument that there is no legally cognizable dumping o nce a preliminary  
affirmative determination of de minimis  dumping has been made.92 
7.65.   In addition, Chinese  Taipei  also refers to the object and purpose of Article  7.1. 
Chinese  Taipei  asserts that Article  7.1 is designed to strike a balance between the need to 
safeguard free trade as long as there is no final determination that anti -dumping duties are 
actually justified and the application of provisional measures in case these are necessary to 
prevent injury being caused while the investigation is carried out.93 As indicated by Canada, the 
Appellate Body has already stated that no object and purpose of the Anti-Dumping  Agreement  has 
been formulated.94 Furthermore, even if Chinese  Taipei  had correctly identified the object and 
purpose of Article  7.1, we note that su ch purpose is broadly reflected in the requirement, set forth 
in Article  7.1(iii), that "the authorities concerned judge such measures necessary to prevent injury 
being caused during the investigation". It is entirely possible that an investigating authori ty might 
determine that provisional measures are not necessary to prevent injury being caused during the 
investigation by imports from an exporter with a preliminary de minimis  margin of dumping. 
However, this determination would be made pursuant to Articl e 7.1(iii), rather than Article  7.1(ii). 
Chinese  Taipei  has not pursued any claim under Article  7.1(iii).  
7.66.   For the above reasons, we reject Chinese  Taipei 's claim that Canada acted in violation of 
Article  7.1(ii) by applying provisional measures in respect of imports from a Chinese  Taipei  
exporter with a preliminary de minimis  margin of dumping.  
7.5  Additional claims under Articles  1, 7.5 , and 9.2 of the Anti-Dumping  Agreement , and 
Article  VI:2 of the GATT 1994  
7.5.1   Introduction  
7.67.   Chinese  Taipei  contends that the impos ition of provisional and definitive anti -dumping duties 
on imports from exporters with de minimis  margins of dumping is inconsistent with Articles  1, 7.5 , 
and 9.2 of the Anti-Dumping  Agreement , and Article  VI:2 of the GATT 1994.  
7.68.   The first sentence of Arti cle 1 of the Anti-Dumping  Agreement  provides that:  
An anti -dumping measure shall be applied only under the circumstances provided for 
in Article  VI of GATT  1994 and pursuant to investigations initiated and conducted in 
accordance with the provisions of thi s Agreement.95  
7.69.   Article  9.2 of the Anti-Dumping  Agreement  provides in relevant part:  
When an anti -dumping duty is imposed in respect of any product, such anti -dumping 
duty shall be collected in the appropriate amounts in each case, on a 
non-discriminatory b asis on imports of such product from all sources found to be 
dumped and causing injury, except as to imports from those sources from which price 
undertakings under the terms of this  Agreement have been accepted.  
                                                
91 Chinese  Taipei 's second written submission, para. 53.  
92 We note that the EC – Salmon (Norway)  panel also stated that imp orts attributable to a de minimis  
producer or exporter should not be treated as dumped "for any aspect of that investigation". However, 
consistent with our reasoning above, we do not interpret this to be referring to the provisional measure stage 
of the in vestigation.  
93 Chinese  Taipei 's second written submission, para. 48.  
94 Appellate Body Report, US – Softwood Lumber V (Article  21.5 – Canada) , para. 118.  
95 Fn omitted.  WT/DS482/R  
 
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  7.70.   Article  7.5 of the Anti-Dumping  Agreement  provides:  
The relevant provisions of Article  9 shall be followed in the application of provisional 
measures.  
7.71.   The first sentence of Article  VI:2 of the GATT 1994 provides:  
In order to offset or prevent dumping, a Member may levy on any dumped product an 
anti-dumping duty not greater than the margin of dumping in respect of such product.  
7.72.   Canada asks the Panel to reject Chinese  Taipei 's claims.  
7.5.2   Main arguments of the parties  
7.73.   Chinese  Taipei  asserts that exporters with final de minimis  margins of dumping do not 
constitute "sources found to be dumped" within the meaning of Article  9.2 first sentence of the 
Anti-Dumping  Agreement . Chinese  Taipei  contends that the imposition of definitive anti -dumping 
duties on exporters with de minimis  margins of dumping is therefore inconsistent with 
Article  9.2.96 Chinese  Taipei  submits that Article  9.2 of the Anti-Dumping  Agreement  applies 
equally to the imposition of provisional measures, by virtue of Article  7.5 of the 
Anti-Dumping  Agreement . Chinese Taipei contends that the phrase  "sources found to be dumped" 
cannot be given a different meaning in the context of provisional measures.97 According to 
Chinese  Taipei , therefore, Canada's imposition of provisional duties on imports from a 
Chinese  Taipei  exporter with a preliminary de minimis margin of dumping is inconsistent with 
Article  7.5.98 
7.74.   Chinese  Taipei  contends that Canada violated Article  VI:2 first sentence of the GATT 1994 
by imposing provisional anti -dumping duties on imports from exporters with preliminary 
de minimis  dumping ma rgins, and by imposing definitive anti -dumping duties on imports from 
Chinese  Taipei  exporters with final de minimis  margins of dumping.99 According to Chinese  Taipei , 
the existence of de minimis  margins of dumping means that there was no dumping to offset or 
prevent as required under Article  VI:2 of the GATT 199 4. Chinese  Taipei  alleges that the violation 
of Article  VI:2 of the GATT 199 4 necessarily entails a violation o f Article  1 of the 
Anti-Dumping  Agreement .100 
7.75.   Canada insists that the CBSA acted in accord ance with the requirements of Articles  7.5 
and 9.2. In particular, Canada argues that Article  9.2 allows the imposition of anti -dumping duties 
on all sources found to be dumped. Canada asserts that Article  9.2 contains no exception for 
individual exporters  with de minimis  margins of dumping.101 Canada contends that there is 
therefore no basis to uphold Chinese  Taipei 's consequential claims under Article  1 of the 
Anti-Dumping  Agreement  or Article  VI:2 of the GATT 1994.102 
7.5.3   Evaluation by the Panel  
7.76.   We recall our fi nding that Canada violated the second sentence of Article  5.8 by failing to 
terminate its investigation in respect of individual Chinese  Taipei  exporters with margins of 
dumping of less than 2%. We also recall our findings that the second sentence of Artic le 5.8 only 
applies in respect of final margins of dumping that are de minimis . It follows that exporters with 
final de minimis  margins of dumping should not have been treated as "sources found to be 
dumped" for the purpose of duty imposition under Article  9.2. The investigation in respect of those 
exporters should have been terminated immediately after final determinations of de minimis  
margins of dumping were made for those producers, and no anti -dumping measures should have 
been imposed on them. We there fore uphold Chinese  Taipei 's claim that the imposition of 
definitive anti -dumping measures in respect of imports from these exporters is inconsistent with 
                                                
96 Chinese  Taipei 's first written submission, para s. 87-93. 
97 Chinese  Taipei's second writ ten submission, para. 57.  
98 Chinese  Taipei 's first written submission, paras.  94-97. 
99 Chinese  Taipei 's first written submission,  para. 105.  
100 Chinese  Taipei 's first written submission, para . 107.  
101 Canada's first written submission, para. 108 . 
102 Canada's first written submission, para. 112.  WT/DS482/R  
 
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  Article  9.2 of the Anti-Dumping  Agreement . As a result, we also uphold Chinese  Taipei 's claims 
under Article  1 of the Anti-Dumping  Agreement  and Article  VI:2 of the GATT 1994 in respect of the 
imposition of definitive anti -dumping measures on these exporters.  
7.77.   We have rejected Chinese  Taipei 's claim that Canada acted inconsistently with Article  7.1(ii) 
by imposing provisional anti -dumping measures on a Chinese  Taipei  exporter with a preliminary 
de minimis  margin of dumping. At the stage of its preliminary determination, the CBSA was 
entitled to treat this exporter as a "source [] found to be dumped" within t he meaning of 
Article  9.2. At this preliminary stage, immediate termination under the second sentence of 
Article  5.8 was not required. There is therefore no basis for us to find that the imposition of 
provisional measures in respect of imports from this ex porter is inconsistent with Articl es 1 or 7.5 
of the Anti -Dumping  Agreement , or Article  VI:2 of the GATT 1994.  
7.6  The treatment of imports from exporters with de minimis  margins of dumping in the 
injury investigation: A rticle  3 of the Anti-Dumping  Agreement  
7.6.1   Introduction  
7.78.   Article  3, and the various sub -paragraphs thereof, require the investigating authority to 
demonstrate that "dumped imports" are causing material injury to a domestic industry. 
Chinese  Taipei  challenges the CITT's decision to treat imports from Chinese  Taipei  exporters with 
final de minimis  margins of dumping as "dumped imports" for the purpose of its injury and 
causation determination s. 
7.6.2   Main arguments of the parties  
7.79.   Chinese  Taipei  submits that Canada violated each of the provisions of Article  3 that address 
the treatment of "dumped imports" in the investigating authority's injury and causation 
determinations (Articles  3.1, 3.2, 3.4, 3.5 , and 3.7 o f the Anti-Dumping  Agreement ). In particular, 
Chinese  Taipei  asserts that Canada acted inconsistently  with each of these paragraphs of Article  3 
of the Anti-Dumping  Agreement  by treating imports from exporters determined by the CBSA to 
have de minimis  margins of dumping as "dumped imports" within the meani ng of these 
provisions.103 Chinese  Taipei  contends t hat imports from de minimis  exporters may not be treated 
as "dumped" within the meaning of Article  3, and refers to case law in support.104 According to 
Chinese  Taipei , such imports should be excluded from the investigating authority's assessment of 
the inju rious effects of "dumped imports".  
7.80.   Canada contends that imports with a de minimis  margin of dumping remain "dumped" 
within the meaning of Article  2.1 of the Anti-Dumping  Agreement , and are therefore properly 
treated as "dumped imports" for the purpose of t he Article  3 injury and causation analyses. 
Canada asserts that only non -dumped imports should be excluded from the category of "dumped 
imports". In considering whether imports are "dumped", Canada contends that there is no 
distinction between imports that  are dumped at a margin above de minimis  and imports that are 
dumped at a margin below de minimis . Canada relies on findings by the Appellate Body in US – 
Carbon Steel  to support its position.105 Canada rejects the case law relied on by Chinese  Taipei , 
either because it contends that those cases concerned exporters for which the margins of dumping 
or duties were zero, or because it contends that the panels were only making obiter dicta .106 
                                                
103 Chinese Taipei's first written submission, para. 115; second written submission, para. 69.  
104 Chinese Taipei's first written submission, paras. 118 -128 (quoting Appellate Body Report, EC – Bed 
Linen (Article 21.5 – India); and Panel Reports, Argentina – Poultry Anti -Dumping Duties ; EC – Salmon 
(Norway) ; and EC – Fasteners (China) ). 
105 Canada's first written submission, para. 122 (referring to Appellate Body Report, US – Carbon Steel , 
para. 80). 
106 Canada's first written s ubmission, para. 123.  WT/DS482/R  
 
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  7.6.3   Main arguments of third parties  
7.6.3.1   Brazil  
7.81.   Brazil agrees with Chinese  Taipei  that the term "dumped imports " does not include imports 
from exporters with a de minimis  margin of dumping. Brazil asserts that the DSB has already 
addressed this issue on different occasions.107 
7.6.3.2   United Arab Emirates  
7.82.   The United Arab Emirates  agrees with Chinese Taipei 's arguments and analysis that by 
failing to exclude from the "dumped imports" the imports of exporters for which a de minimis 
dumping margin had been determined, the investigating authority acts inconsistently with 
Articles  3.1, 3.2, 3.4, 3.5, and 3.7  of the Anti-Dumping  Agreement .108 
7.6.4   Evaluation by the Panel  
7.83.   We have already examined, in the context of Chinese  Taipei 's Article  7.1(ii) claim, the 
finding by the EC – Salmon (Norway)  panel that imports from an exporter with a de minimis  
margin of dump ing may not be treated as "dumped " for purposes of the injury analysis.109 
The panel's finding was based on the immediate termination requirement set forth in the second 
sentence of Article  5.8. On the understanding that the finding by the EC – Salmon (Norwa y) panel 
applies only in respect of a final determination of an exporter's margin of dumping, we agree with 
that finding. Article  5.8 effectively means that there is no legally cognizable dumping by an 
exporter with a final de minimis  margin of dumping. As  a result, imports from that exporter should 
not be treated as "dumped" for the purpose of the analysis and final determination s of injury  and 
causation . 
7.84.   Canada suggests that the facts of the present case should be distinguished from the facts at 
issue in EC – Salmon (Norway) , because the definitive anti -dumping duty for the relevant exporter 
in that case was zero.110 Although Canada is correct as a factual matter that a zero duty was 
applied in the EC – Salmon (Norway)  case, the amount of the duty was irrele vant to the finding of 
the panel. The panel's finding was based rather on the fact that a de minimis  margin of dumping 
had been established for that exporter. The panel stated expressly that "an interpretation of 
'dumped imports' in Article  3 which would a llow an investigating authority to include in the volume 
of dumped imports for purposes of injury analysis imports attributable to a producer/exporter for 
which a de minimis  margin has been calculated  is impermissible".111 The panel rejected arguments 
by the  respondent that the fact that no anti -dumping duties were ultimately imposed on this 
exporter should justify the inclusion of its exports as "dumped imports".112 
7.85.   Canada also argues  that, contrary to Chinese Taipei's proposition,  there are no Appellate 
Body decisions that endorse the approach advanced by Chinese  Taipei .113 It is true that the 
Appellate Body jurisprudence invoked by Chinese Taipei did not address the issue of whether 
imports from exporters with a de minimis  margin of dumping are to be excluded f rom the injury 
analysis.  Nevertheless, w e consider this fact irrelevant. The findings of the EC – Salmon (Norway)  
panel have been adopted by the DSB. As a result, they give rise to legitimate expectations on the 
part of WTO Members, including Chinese  Taipe i. 
7.86.   Canada argues that there is Appellate Body support for its position that the phrase "dumped 
imports" includes any imports that are dumped, including those with only a de minimis  rate of 
dumping. Canada refers in this regard to the finding by the Appella te Body in US – Carbon Steel  
                                                
107 Brazil's third -party submission, para. 9.  
108 United Arab Emirates' third -party submission, para. 14.  
109 Panel Report, EC – Salmon (Norway) , para. 7.628. We recall that the same finding was also made by 
the EC – Bed Linen (Article 21. 5 – India)  and Argentina – Poultry Anti -Dumping Duties  panels.  
110 Canada's first written submission, para. 123; second written submission, para. 72.  
111 Panel Report, EC – Salmon (Norway) , para. 7.628. (emphasis added)  
112 Panel Report, EC – Salmon (Norway) , paras. 7.627 and 7.628.  
113 Canada's second written submission, para.  71. We understand Canada to refer to Chinese Taipei's 
reliance , at paragraphs  118 and 119 of its first written submission,  on the Appellate Body report in EC – Bed 
Linen (Article 21.5 – India), paras.  111 an d 113.  WT/DS482/R  
 
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  that the meaning of the term "subsidization" in the Agreement on Subsidies and Countervailing 
Measures  (SCM Agreement ) is not confined to subsidiza tion greater than de minimis .114 
7.87.   The facts of the present case are very different from the facts in US – Carbon Steel . In that 
case, the Appellate Body was examining whether or not the de minimis  standard set forth in 
Article  11.9 of the SCM Agreement applies in Article  21.3 sunset reviews. The Appellate Body 
found that it did not:  
[N]one of the words in Article  11.9 suggests that the de minimis  standard that it 
contains is applicable beyond  the investigation  phase of a countervailing duty 
proceeding. In particular, Article  11.9 does not refer to Article  21.3, nor to reviews 
that may fol low the imposition of a countervailing duty.115 
7.88.   The Appellate Body in the above extract was considering only whether the equivalent 
provision in the SCM Agreement should apply "beyond" the investigation phase. A different result 
is warranted in the factual c ircumstances of the present case, which concerns an original 
investigation. We are in no doubt that Article  5.8 applies in original investigations . The application 
of Article  5.8 means that there is no legally cognizable dumping by an exporter with a final  
de minimis  margin of dumping. Accordingly, imports from that exporter may not be treated as 
"dumped imports" for the purpose of the Article  3 injury analysis.  
7.89.   In light of the above, we find that Canada acted in a manner inconsistent with Articles  3.1, 
3.2, 3.4, 3.5, and 3.7  of the Anti-Dumping  Agreement  by treating imports from two Chinese  Taipei  
exporters with final de minimis  margins of dumping as "dumped imports" in the CITT's analysis 
and final determination s of injury  and causation . 
7.7  The treatment of f actors other than dumped imports in the causation analysis: 
Article s 3.1 and 3.5 of the Anti-Dumping  Agreement  
7.7.1   Introduction  
7.90.   Chinese  Taipei 's claim s are based on the so -called "non -attribution" requirement set forth in 
Article  3.5 of the Anti-Dumping  Agreem ent. After the first sentence of Article 3.5 requires the 
investigating authorities to demonstrate that the dumped imports are, through the effects of 
dumping, as set forth in paragraphs  2 and  4, causing injury, the third sentence provides:  
The authorities  shall also examine any known factors other than the dumped imports 
which at the same time are injuring the domestic industry, and the injuries caused by 
these other factors must not be attributed to the dumped imports.  
Previous panel and Appellate Body re ports have established that investigating authorities are 
thereby required to "separate and distinguish" any injury caused by other known factors from the 
injury caused by the subject imports.116 
 
7.91.   Following a negative determination of present material injury , the CITT made an affirmative 
determination that dumped imports were causing a threat of material injury. In its threat 
determination, the CITT considered the potential injury caus ed by two known other factors. 
Chinese  Taipei  submits that the CITT should also have considered  potential injury caused by 
two additional factors, namely : (a) the effect of subsidies provided in respect of imports from India 
(that were also dumped ); and ( b) overcapacity in the domestic industry.  
                                                
114 Canada's first written submission, para. 122; second written submission, para. 73 (both referring to 
Appellate Body Report, US – Carbon Steel , para. 80). 
115 Appellate Body Report, US – Carbon Steel , para. 68. (emphasis original, f n omitted)  
116 Appellate Body Report, US – Hot-Rolled Steel , para. 226.  WT/DS482/R  
 
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  7.7.2   Main arguments of the parties  
7.7.2.1   The effect of subsidization  
7.92.   Chinese  Taipei  argues that the CITT failed to separate and distinguish the effect of the 
subsidy from the effect of the dumping in respect of imports from India that were both subsidized 
and dumped. Chinese  Taipei  submits that Canad a thereby acted inconsistently with Article  3.5 and, 
as a result, Article  3.1. Chinese  Taipei  contends that Canada thereby rendered inutile the words 
"through the effects of dumping " contained in the first sentence of Article  3.5 of the 
Anti-Dumping  Agreem ent.117 According to Chinese  Taipei , the fact that Article  3.5 calls for a 
demonstration that the dumped imports are causing injury "through the effects of dumping " 
implies that the investigating authority needs to separate any effects that are not the resul t of 
dumping. In Chinese  Taipei 's view, when the same goods are both dumped and subsidized, there 
may be effects of subsidization that are not directly reflected in the dumping margin , particular ly 
in cases where subsidization leads to lower prices without  increasing the dumping margin .118 
Chinese Taipei submits that without analysing the relationship between the 36 subsidy programs 
available in India, including some non -export -oriented programs, and dumping in that country, 
Canada could not have assumed that  there is no need to distinguish between the effects of 
dumping and the effects of subsidization.119 
7.93.   Canada denies that an investigating authority is required to determine that injury or threat 
thereof was caused by the effects of the dumping specifically, a s opposed to the dumped imports 
more generally. Canada submits that the Appellate Body established in Japan – DRAMs (Korea)  
that there is no requirement under the Anti-Dumping  Agreement  to determine that the effect of 
the dumping specifically caused or thr eatened to cause injury.120 The central issue is rather 
whether dumped imports caused or threatened to cause injury. Canada submits that, because all 
subsidized imports from India were also dumped, it was not improper for the CITT to include those 
imports in  its causation analysis, without separating and distinguishing the subsidy and dumping 
effects embodied within those imports.121 
7.7.2.2   Overcapacity  
7.94.   Chinese  Taipei  submits that Canada violated Articles  3.1 and 3.5 of the 
Anti-Dumping  Agreement  by failing to separat e and distinguish the effect of alleged overcapacity. 
Chinese  Taipei  submits that this factor was "known" to the CITT as a potential cause of injury.122 
7.95.   Canada understands Chinese  Taipei  to equate overcapacity with low utilization of 
capacity.123 Canada conten ds that, pursuant to Article  3.4 of the Anti-Dumping  Agreement , 
capacity utilization is an indicator of injury rather than a potential cause of injury.124 According to 
Canada, therefore, there was no need for the CITT to examine this factor in the context of  its 
non-attribution analysis.  Canada contends that, e ven assuming that excess capacity may be a 
cause of injury in certain cases, Chinese  Taipei  has not demonstrated that it was a known cause of 
injury in the CSWP inquiry that the CITT had to examine in i ts threat of injury analysis.125 
7.7.3   Main arguments of third parties  
7.7.3.1   Brazil  
7.96.   Brazil submits that, since Canada made a finding of threat of material injury, the 
non-attribution requirement in Article  3.5 does not apply. In Brazil's opinion, the legal standard 
that should guide the causation assessment in the present case should be that foreseen in 
Article  3.7, which makes reference to the obligation of an investigating authority to take into 
                                                
117 Chinese  Taipei 's second written submission, para. 94.  
118 Chinese  Taipei 's second written submission, para. 95.  
119 Chinese  Taipei's second written submission, para. 101.  
120 Canada's first written submission, para. 141; second written submission, para. 89.  
121 Canada's second written submission, para. 92.  
122 Chinese  Taipei 's first written submission, paras. 156 and 157; second written submission, para. 107.  
123 Canada's first written submission, para. 146.  
124 Canada's first written submission, para s. 146 and 147.  
125 Canada's second written submission, para. 98.  WT/DS482/R  
 
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  consideration several factors that might contribute to a threat of damage to the domestic industry, 
such as those enshrined in subheadings (i), (ii), (iii) , and (iv) of Article  3.7.126 
7.7.3.2   European Union  
7.97.   The European Union observes that, according to Article  3.5 of the Anti-Dumping  Agreement , 
an investigating  authority  must demonstrat e that the dumped imports, "through the effects of 
dumping", are causing injury to the domestic industry within the meaning of that Agreement. The 
European Union is of the view that, as long as the prices are found to be dumped, subsidi zation 
causing the d umping is irrelevant for the injury and causation analysis under Articles  3.1 and 3.5 
of the Anti-Dumping  Agreement .127 In the view of the European Union, such subsidi zation should 
not be considered under non -attribution analysis as an "other factor" of inju ry causing injury to the 
domestic industry at the same time as dumped imports, (i.e. it should not be considered as 
another factor that must be separated from or must not be attributed to the effects of dumped 
imports in the sense of Article  3.5 of the Anti-Dumping  Agreement ).128 
7.7.3.3   United States  
7.98.   The United States considers that Chinese  Taipei 's claims lack legal merit. The United States 
asserts that, by its plain text, Article  3.5 requires an examination of known factors other  than the 
dumped imports, whereas Chinese  Taipei  would somehow require a non -attribution analysis with 
respect to these same  dumped imports. The United States asserts that, by definition, in the 
context of applying Article  3.5, the dumped imports cannot simultaneously be both "dumped 
import s" and "factors other than the dumped imports ".129 
7.7.4   Evaluation by the Panel  
7.7.4.1   The effect of subsidization  
7.99.   Chinese  Taipei 's claim concerns the CITT's investigation of imports from India that were 
both dumped and subsidized. Chinese  Taipei  claims that the CITT should have separated the 
subsidy and dumping effects in those imports, and shown that injury was caused by the dumping 
effect only. Chinese  Taipei 's position is that the non -attribution provision requires the investigating 
authority "to separate any effects  that are not the result of dumping".130  
7.100.   Chinese  Taipei 's claim is inconsistent with the text of Article  3.5. The text of this provision 
focuses the injury analysis on the effect of the dumped imports, rather than on the effects of the 
dumping per se . The f irst sentence of Article  3.5 requires the investigating authority to 
"demonstrate[] that the dumped imports are, through the effects of dumping, as set forth in 
paragraphs 2 and 4, causing injury". The first sentence of Article  3.5 therefore refers to inju ry 
being caused by the dumped imports that are the subject of the investigation, rather than by the 
effects of dumping. Moreover, "effects of the dumping" is modified by the phrase "as set for th in 
[Articles 3.2 and 3.4]". Article 3.2 requires investigatin g authorities to consider the volume and 
price effects of the dumped imports. Similarly, Article  3.4 requires investigating authorities to 
examine "the impact of the dumped imports on the domestic industry". The focus on the dumped 
imports continues in the  non-attribution provision in the third sentence of Article  3.5, which 
requires investigating authorities to examine any known factors "other than the dumped imports" 
which at the same time are injuring the domestic industry, and ensure that any injury cau sed by 
such other factors is not attributed "to the dumped imports". Logically, the imports subject to the 
investigation cannot simultaneously be both the "dumped imports " referred to in these provisions 
and factors "other than the dumped imports " referred  to in the third sentence of Article 3.5 . 
7.101.   Chinese  Taipei  suggests that a focus on the effect of the dumped imports, as opposed to 
the effect of the dumping, reads the words "through the effects of dumping" out of the first 
sentence of Article  3.5. We disag ree. As discussed above, the first sentence of Article  3.5 requires 
the investigating authority to demonstrate that dumped imports are causing injury through the 
                                                
126 Brazil's third -party submission, paras. 16 and 17.  
127 European Union's third -party submission, para. 15.  
128 European Union's third -party sub mission, para. 16.  
129 United States' third -party statement, para. 11.  
130 Chinese  Taipei 's second written submission, para. 94.  WT/DS482/R  
 
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  effects of dumping "as set forth in paragraphs 2 and 4". This textual formulation indicates th at 
information relating to the volume and price effects (Article  3.2) and the consequent impact of the 
dumped imports  on the domestic industry (Article  3.4) define the "effects of dumping" for 
purposes of determining whether material injury is caused by du mped imports through those 
effects. Provided a proper consideration and evaluation are undertaken pursuant to paragraphs 2 
and 4 of Article  3, the authority may properly demonstrate that dumped imports are causing injury 
through the effects of dumping.  
7.102.   Our understanding of the text of Article  3.5 is consistent with the findings of the Appellate 
Body in Japan – DRAMS  (Korea) . That case concerned the equivalent provision of the 
SCM Agreement, i.e. Article  15.131 Like Chinese  Taipei  in the present case, Korea ar gued before 
the Appellate Body inter alia  that the panel's focus on the subsidized imports, rather than the 
effect of the subsidization, would read the "through the effects of subsidy" language out of 
Article  15.5 of the SCM Agreement. The Appellate Body r ejected Korea's appeal on the basis 
inter alia that: 
It is clear from the architecture of Articles  15.2, 15.4, and 15.5 that, for determining 
whether the "subsidized imports are, through the effects of subsidies, causing injury" 
to the domestic industry, w hat is required is the examination of the effects of the 
subsidized imports as set forth in Articles  15.2 and 15.4. These paragraphs neither 
envisage nor require the two distinct types of examinations suggested by Korea, 
namely, an examination of the effec ts of the subsidized imports as per Articles  15.2 
and 15.4;  and, a second examination of the effects of the subsidies as distinguished 
from the effects of the subsidized imports on a case -by-case basis.  
… 
We are therefore of the view that, if an investigat ing authority carries out the 
examination required under Articles  15.2, 15.4, and 15.5, such examination suffices 
to demonstrate that "subsidized imports are, through the effects of subsidies, causing 
injury" within the meaning of the  SCM Agreement .132 
7.103.   Chine se Taipei  argues that the Appellate Body's findings are of limited utility because while 
the Appellate Body found that there is no obligation to distinguish the effects of subsidies from the 
effects of the subsidized imports it "did not address at all the distinction between the effects of 
dumping and the effects of the subsidies".133 Chinese  Taipei  therefore maintains its position that 
the phrase "'through the effects of dumping' implies that the investigating authority needs to 
separate any effects that are  not the result of dumping".134 In making this argument, 
Chinese  Taipei  fails to recognize the full implications of the Appellate Body's findings for its claim. 
The Appellate Body confirmed that there is no need for the investigating authority to analyse  the 
effect  of the subsidy, as opposed to the effect of the subsidized imports. The starting point for 
Chinese  Taipei 's argument, namely the focus on the effect of the dumping  or subsidy , is therefore 
flawed. The  proper starting point for the causation and non -attribution analysis in an anti -dumping 
investigation is rather the effect of the dumped imports. There is no obligation to "separate any 
effects that are not the result of dumping" (such as effects that are the result of subsidization), 
because there is in any event no need to isolate the effects that are the result of dumping.  
7.104.   Chinese  Taipei  asserts that its position is supported by the findings of the Appellate Body 
in US – Anti-Dumping and Countervailing Duties (China) . That case concerned Article  VI:5 of the 
GATT 1994, which prohibits the concurrent application of anti -dumping and countervailing duties 
to compensate for the same situation  of dumping or export subsidization. In considering the 
meaning of the phrase "same situation", the Appellate Body o bserved that domestic subsidies will 
                                                
131 Article 15.5 of the SCM Agreement is virtually identical to Article 3.5 of the 
Anti-Dumping  Agreement . The reference in Article 3 .5 of the Anti-Dumping  Agreement  to the effects of 
dumping "as set forth in paragraphs 2 and 4" is provided for in fn 47 to Article 15.5 of the SCM Agreement. 
Furthermore, Ministers have recognized "the need for the consistent resolutio n of disputes arisin g from 
anti-dumping and countervailing duty measures". (Ministerial Declaration on Dispute Settlement Pursuant to 
the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 or Party V 
of the Agreement on Subsidies and Countervailing Measures).  
132 Appellate Body Report, Japan – DRAMs (Korea) , paras. 264 and 268.   
133 Chinese  Taipei 's second written submission, paras. 91 -93. 
134 Chinese  Taipei 's second written submission, para. 94.  WT/DS482/R  
 
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  generally affect the prices at which a producer sells its goods in the domestic market and in export 
markets in the same way and to the same extent, so that any lowering of prices attributable to the 
subsidy will be ref lected on both sides of the dumping margin calculation. The Appellate Body 
contrasted this to the situation of an export subsidy, which will result in a pro rata  reduction in the 
export price of a product but not the price of domestic sales of that product , resulting in a higher 
margin of dumping.135 Chinese  Taipei  contends that this finding supports its position that there 
may be situations where the effects of subsidies are unrelated to the effects of dumping.136  
7.105.   We do not consider that the findings in US – Anti-Dumping and Countervailing Duties 
(China)  offer any guidance for the interpretation of Article  3.5 of the Anti-Dumping  Agreement . 
That case concerned a different provision of a different Agreement and an entirely different issue. 
No reference was made  by the Appellate Body to the provisions governing causation or 
non-attribution requirements. Furthermore, the conclusion that Chinese  Taipei  seeks to draw from 
these findings is at odds with the above -mentioned findings made by the Appellate Body in 
Japan  – DRAMs  (Korea) , concerning the very same issue arising under the essentially identical 
provision in the SCM Agreement.137 The fact that the Appellate Body has suggested in a different 
context that subsidies and dumping can have different effects is irrelev ant, since the 
causation/non -attribution analysis is not focused on the dumping or subsidy effect.  
7.106.   For these reasons, we reject Chinese  Taipei 's claim that the CITT acted inconsistently with 
Article  3.5 (and Article  3.1) by failing to separate the effect o f the subsidization from the effect of 
the dumping in respect of subsidized and dumped imports from India.  
7.7.4.2   Overcapacity  
7.107.   The Article  3.5 non -attribution requirement applies only in respect of other injurious 
factors that are "known" to the investigating au thority. Chinese  Taipei  identifies two grounds for 
asserting that "overcapacity" was "known" to the CITT as a cause of injury that should have been 
examined pursuant to the non -attribution requirement: ( a) the CITT's reference to "the significant 
unused ca pacity of the domestic industry "138; and (b) the written submission made by 
Knightsbridge, an interested party in the investigation .139, 140 
7.108.   We understand the CITT's reference to "the significant unused capacity of the domestic 
industry " as referring to the low capacity utilization rates prevailing in the domestic industry during 
the period of investigation, rather than overcapacity.141 Low capacity utilization and overcapacity 
are different concepts. This is acknowledged by Chinese  Taipei  itself:  
TPKM  considers t hat "low capacity utilization rates " and "overcapacity " are two distinct 
concepts that should not be equated. As explained in TPKM 's replies to questions from 
                                                
135 Appellate Body Report, US – Anti-Dumping an d Countervailing Duties (China) , para. 568.  
136 Chinese  Taipei 's second written submission, para. 97.  
137 We emphasise that Ministers have recognized "the need for the consistent resolution of disputes 
arising from anti -dumping and countervailing duty measures ". (Ministerial Declaration on Dispute Settlement 
Pursuant to the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 
1994 or Party V of the Agreement on Subsidies and Countervailing Measures).  
138 See CITT, Finding and Re asons, Injury Inquiry No.  NQ-2012-003, 27  December 2012, 
(Exhibit  TPKM -14), para. 129.  
139 See Knightsbridge International Corp., Submission to CITT related to the Preliminary Injury Inquiry 
PI-2012-003, 18 June 2012, (Exhibit TPKM -16). 
140 See Chinese  Taipei 's first written submission, para. 154 ( Chinese  Taipei  refers to "this huge 
overcapacity" immediately after citing the CITT's reference to "the significant unused capacity of the domestic 
industry ") and fns 116 and 117; and second written submission, fn 102 . See also Chinese  Taipei 's response to 
Panel question No. 3.4, para. 66 ("overcapacity was also apparent from the submission of one of the interested 
parties called Knightsbridge").  
141 The reference to "the significant unused capacity of the domestic indus try" is properly understood in 
its context. The first paragraph (para.  125) of the section entitled "Production, Capacity and Capacity 
Utilization" in Exhibit TPKM -14 addresses domestic production. The beginning of the first sentence of para.  126 
refers to  "stable" production capacity. The second part of that first sentence observes that there were, 
however, "very low utilization rates". The remainder of the CITT discussion in that section discusses those 
capacity utilization rates. In this context, the ref erence in para.  129 to "the significant unused capacity of the 
domestic industry" is properly understood as a continued reference to those same "very low [capacity] 
utilization rates". (CITT, Finding and Reasons, Injury Inquiry No.  NQ-2012-003, 27  December  2012, 
(Exhibit  TPKM -14)). WT/DS482/R  
 
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  the Panel, while "overcapacity " stands for a situation where producer has capacity 
much larger th an what is required by the demand on the market, the term "low 
capacity utilization rates " refers to the actual production as a percentage of the total 
(over -) capacity.142 
7.109.   Since low capacity utilization and overcapacity are, in the words of Chinese  Taipei , 
"two distinct concepts that should not be equated", the fact that the CITT knew of, and refers to, 
low capacity utilization is not sufficient to establish that overcapacity was also "known" to the CITT 
as a cause of injury.143 
7.110.   Chinese Taipei refers to page 2  of Knightsbridge's submission which provides in relevant 
part: 
In this case, we are all aware of the economic downturn affecting the majority of 
industry. We are all operating at less than 50% of where we were at . This is a reality 
that all business must adjust to. The ERW Pipe and Tube from the named countries 
are not to blame for reduced sales and profitability. There remains a need for this 
product to be imported to give customers access to a full product range and 
competitive prices.144  
7.111.   Canada contends that this statement does not indicate that excess capacity was a cause of 
injury in the CSWP investigation. Canada suggests that Knightsbridge does not refer to excess 
capacity, but rather to a decline in the utilization of capacity, an indicator of injury  listed in 
Article  3.4 of the Anti-Dumping  Agreement . Canada notes that, in the same paragraph of its 
submission, Knightsbridge also refers to reduced sales and profitability, two other listed indicators 
of injury.145 
7.112.   We understand Knightsbridge's statement that "[w]e are all operating at less than 50% of 
where we were at" to mean that the industry  in general was  utilizing less than half of the capacity 
that it had previously utilized. In other words, this statement again refers to low capacity 
utilization, r ather than overcapacity. Since the decline in capacity utilization could be caused by 
dumped imports, rather than overcapacity, this statement is not sufficient to establish that 
overcapacity was "known" to the CITT as an "other factor" causing injury.  
7.113.   In light of the above, we find that Chinese  Taipei  has failed to establish that overcapacity 
in the domestic industry was "known" to the CITT as a factor causing injury to the domestic 
industry. Accordingly, there is no basis for us to find that the CITT acte d in a manner inconsistent 
with Article  3.5 (and Article  3.1) by failing to undertake a non -attribution analysis in respect of this 
factor.  
7.8  The use of facts available in the determination of the dumping margin and duty rate 
for "all other exporters": Arti cle 6.8 and Annex  II, paragraph  7, of the 
Anti-Dumping  Agreement  
7.8.1   Introduction  
7.114.   Chinese  Taipei  challenges the way in which the CBSA used facts available for determining 
the dumping margin and duty rate for imports from non -cooperating exporters from 
Chinese  Taipei , hereinafter also referred to as "all other exporters".146 Chinese  Taipei  asserts that 
Canada violated Article  6.8 and Annex  II, paragraph  7, of the Anti-Dumping  Agreement  because 
                                                
142 Chinese  Taipei 's second written submission, para. 104.  
143 Chinese  Taipei  argues at para. 105 of its second written submission that overcapacity "may be the 
cause of low capacity utilization rates". This is true. However, the fac t that overcapacity may cause low 
capacity utilization simply confirms that the two concepts are distinct. And the fact that overcapacity "may" 
cause low capacity utilization demonstrates that the existence of low capacity utilization does not in and of 
itself demonstrate the existence of overcapacity. This is because the low capacity utilization may also be 
caused by other factors, such as dumped imports.  
144 Knightsbridge International Corp., Submission to CITT related to the Preliminary Injury Inquiry 
PI-2012-003, 18 June 2012, (Exhibit TPKM -16), p.  2 (emphasis added) , cited in Chinese Taipei's first written 
submission, at para . 154. 
145 Canada's second written submission, para. 103.  
146 In this dispute, we use the term "all other exporters" as per the parties'  use of this term.   WT/DS482/R  
 
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  the CBSA used facts available in determining the dumping margin and dut y rate applicable to "all 
other exporters" without complying with the conditions laid down in those provisions. 
Chinese  Taipei 's claim does not concern the CBSA's resort to facts available per se . It is rather 
concerned with the nature of the available fac ts that the CBSA relied on  and the methodology 
followed by the CBSA to determine the facts available .147 
7.8.1.1   The relevant provisions  
7.115.   Article  6.8 of the Anti-Dumping  Agreement  and its Annex  II, paragraph  7, set out the 
requirements under which facts available can  be resorted to. Article  6.8 provides that:  
In cases in which any interested party refuses access to, or otherwise does not 
provide, necessary information within a reasonable period or significantly impedes the 
investigation, preliminary and final determin ations, affirmative or negative, may be 
made on the basis of the facts available. The provisions of Annex  II shall be observed 
in the application of this paragraph.  
7.116.   Annex  II is entitled "Best Information Available in Terms of Paragraph  8 of Article  6". 
Paragraph  7 thereof allows an investigating authority to base its determination on information 
from a secondary source, subject to certain conditions. Paragraph  7 provides that:  
If the authorities have to base their findings, including those with respect to n ormal 
value, on information from a secondary source, including the information supplied in 
the application for the initiation of the investigation, they should do so with special 
circumspection. In such cases, the authorities should, where practicable, che ck the 
information from other independent sources at their disposal, such as published price 
lists, official import statistics and customs returns, and from the information obtained 
from other interested parties during the investigation. It is clear, howev er, that if an 
interested party does not cooperate and thus relevant information is being withheld 
from the authorities, this situation could lead to a result which is less favourable to the 
party than if the party did cooperate.  
7.8.1.2   Factual background  
7.117.   The CBS A established the dumping margin and duty rate of 54.2% for "all other exporters" 
on the basis of facts available.148 The margin and rate were determined using the highest amount 
by which the normal value exceeded the export price on an individual transactio n for a cooperative 
producer from any country subject to the investigation.149 The relevant transaction was made by a 
cooperating producer from a country other than Chinese  Taipei .150 
7.118.   The CBSA explained its determination of the dumping margin for "all other ex porters" as 
follows:  
For all other exporters that did not provide the requested information during the 
course of the dumping investigation, normal values were determined in accordance 
with subsection  29(1) of SIMA, as in the opinion of the President, suffi cient 
information has not been furnished or is not available to enable the determination of 
normal value as provided in sections  15 to 23 of the Act. In accordance with the 
ministerial specification, the normal values of the goods sold to the importer in 
Canada were determined by advancing the export prices of the goods as determined 
under section  24 of SIMA by the highest amount by which the normal value exceeded 
the export price on an individual transaction (54.2%) for a cooperative exporter.  
For all of t he other exporters, import pricing information available from the CBSA 's 
internal information systems was used for the purposes of determining export price.  
                                                
147 Chinese Taipei's second written submission, para. 140.  
148 Statement of Reasons concerning the Final Determination, (Exhibit TPKM -2), paras.  112 and 198.  
149 Statement of Reasons concerning the Final Determination, (Exhibit TPKM -2), para.  110. 
150 See Canada's and Chinese  Taipei 's responses to Panel question No. 4.6, para. 49 and para. 90, 
respectively.  WT/DS482/R  
 
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  The subject goods exported to Canada by all other exporters during the POI were 
found to be dumped by a margin of dumping of 54.2%, expressed as a percentage of 
export price.151 
7.119.   With regard to the applicable duty rate, the CBSA stated:  
Exporters of subject goods who did not provide sufficient information in the dumping 
investigation will have normal value s established by advancing the export price by 
54.2% based on a ministerial specification pursuant to section 29 of SIMA. 
Anti-dumping duty will apply based on the amount by which the normal value exceeds 
the export price of the subject goods.152 
7.120.   The Ministe rial Specification referred to by the CBSA provided the following:  
Pursuant to subsection  29(1) of the Special Import Measures Act  (SIMA), I hereby 
specify that where, in your opinion, sufficient information has not been furnished or is 
not available to en able the determination of the normal value or the export price as 
provided for in sections  15 to 28 of SIMA, the normal value or the export price of the 
subject goods originating in or exported from Chinese  Taipei , the Republic of India, 
the Sultanate of O man, the Republic of Korea,  Thailand, and the 
United  Arab Emirates, as the case may be, shall be determined in the following 
manner:  
a) The normal value shall be determined on the basis of the export price as 
determined under section  24, 25 or 29 of SIMA, plus an amount equal to 54.2% of 
that export price.  
b) The export price shall be the selling price to the Canadian importer declared on 
customs entry documentation, adjusted by deducting therefrom all costs, charges, 
expenses, duties and taxes described in  subparagraph 24(a)(i) to (iii) of SIMA, where 
this information is included with the customs documentation.153 
7.121.   Section  5.12.2 of  the SIMA Handbook entitled "Ministerial Specifications for Dumping 
Purposes" provides in relevant part that:  
For the purposes of the final determination, and … in respect of goods for which an 
exporter is required to provide information and fails to provide a complete response, 
normal values will be established by a ministerial specification pursuant to 
subsection  29(1) of SIMA. Nor mal values of the goods will be based on the export 
price determined under section 24 or 25 of SIMA plus an amount equal to the highest 
margin of dumping (expressed as a percentage of the export price), found for the final 
determination from exporters who were required to provide information and who fully 
complied with the Agency 's request for information.154 
7.8.2   Main arguments of the parties  
7.122.   Chinese  Taipei  submits that the CBSA's reliance on the highest transaction -specific amount 
of dumping for a non -Chinese  Taipei exporter in its use of facts available is inconsistent with 
Article  6.8, and Annex  II, paragraph  7. This claim is based on the following three grounds.  
7.123.   First, referring to WTO case law to the effect that facts available must not be applied to 
punish n on-cooperation, Chinese  Taipei  submits that the CBSA's use of the highest 
                                                
151 Statement of Reasons concerning the Final Determination, (Exhibit TPKM -2), paras.  110-112. 
152 Statement of Reasons concerning the Final Det ermination, (Exhibit TPKM -2), para.  198. 
153 CBSA, Ministerial Specification , (Exhibit TPKM -20). Section  29(1) of SIMA, referred to in the 
Ministerial Specification, provides that "[w]here, in the opinion of the President, sufficient information has not 
been furnished or is not available to enable the determination of normal value or export price … the normal 
value or export price, as the case may be, shall be determined in such manner as the Minister specifies." 
(Special Import Measures Act, R.S.C., 1985, c.  S-15 (last amended on 1 November 2014), (Exhibits TPKM -25 
and CAN -12) (exhibited twice), section 29(1)).  
154 CBSA, SIMA Handbook , sections 5.12 -5.14, (Exhibit TPKM -17), section  5.12.2. The SIMA Handbook 
is a non -binding reference guide for the CBSA and prov ides a collection of its administrative practice.  WT/DS482/R  
 
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  transaction -specific amount of dumping was punitive.155 Chinese  Taipei  argues that the CBSA's 
final dumping determination shows that the CBSA considered the failure to provide requeste d 
information itself as being sufficient to justify the automatic use of the highest dumping margin.156 
In support of its characterization of the CBSA's approach as punitive, Chinese  Taipei  observes that 
the CBSA selected the worst or among the most adverse information possible. Chinese  Taipei  also 
relies on the reference contained in the SIMA Handbook that failure to provide necessary 
information should not benefit the exporter.157 
7.124.   Second, Chinese  Taipei  contends that the CBSA mechanistically relied on the hig hest 
transaction -specific amount of dumping, the approach essentially provided for at paragraph 5.12.2 
of the SIMA Handbook, without evaluating and assessing in a comparative manner the available 
information on file in order to identify the "best informati on available" to reasonably replace the 
information that the "all other exporters" failed to provide.158 In making this argument, 
Chinese  Taipei  emphasizes that the CBSA's determination does not contain any explanation 
reflecting why it used the highest amou nt by which the normal value exceeded the export price on 
an individual transaction for one cooperating exporter and which other available facts it had 
considered. In fact, according to Chinese  Taipei , the CBSA ignored other information available on 
the re cord, in particular the information provided by the cooperating exporters from 
Chinese  Taipei .159  
7.125.   Third, Chinese  Taipei  argues that by resorting to information pertaining to the highest 
transaction -specific amount of dumping for a non -Chinese  Taipei  produce r, the CBSA failed to 
consider what would be the "best information available" for determining the dumping margin and 
duty rate applicable to "all other exporters" from Chinese  Taipei .160 Chinese  Taipei  asserts that 
there is no logical relationship between th e rate of 54.2% and the exports from Chinese  Taipei .161 
It recalls that individual dumping margins had been determined for cooperating Chinese  Taipei  
exporters accounting for a vast majority of exports from Chinese  Taipei . It contends that 
information concer ning those cooperating Chinese  Taipei  exporters would have been more 
representative for the Chinese  Taipei  market and its exports as a whole, and thus would have been 
the most fitting or most appropriate information to use in the calculation of the dumping  margin 
and duty rate for "all other exporters" from Chinese  Taipei .162 
7.126.   Canada denies that the CBSA's use of facts available was punitive under the specific 
circumstances of the case.163 It emphasizes that the use of facts available may legitimately lead to 
less favourable results in case of non -cooperation, as foreseen in the third sentence of paragraph  7 
of Annex  II and recognized in WTO jurisprudence.164 Canada stresses that the investigating 
authority is allowed to draw adverse inferences from the exporter's failure to cooperate. Canada 
also asserts that the CBSA's use of facts available was based on verified facts gathered during the 
investigation, and on reasonable inferences concerning exporters that decided not to participate in 
the investigation.165 Moreove r, Canada argues that the CBSA's approach could not be deemed 
punitive because it serves a legitimate policy purpose, namely encouraging participation of 
exporters in investigations and preventing circumvention through non -cooperation.166 Given that 
the CBSA  did not use information from the petition, it also rejected the proposition that the worst 
information available had been used as facts available.  
                                                
155 Chinese  Taipei 's first written submission, para.  178 (referring to Panel Reports, Mexico – 
Anti-Dumping Measures on Rice , para. 7.238; and China – GOES , para.  7.302) ; second written submission, 
paras.  109-129. 
156 Chinese  Taipei 's first written submission, para.  178. 
157 Chinese  Taipei 's second written submission, paras.  113, 123, and 128; first written submission, 
para. 178. 
158 Chinese  Taipei 's first written submission, para.  179; second written submission, pa ras. 130-136. 
159 Chinese Taipei's first written submission, para. 180; second written submission, para. 135.  
160 Chinese  Taipei 's first written submission, para.  182; second written submission, paras.  137-141. 
161 Chinese  Taipei 's first written submission, para . 182; second written submission, para.  139. 
162 Chinese  Taipei 's opening statement at the first meeting of the Panel, para. 46; second written 
submission, para.  139. 
163 Canada's first written submission, paras.  160-168; second written submission, para.  118. 
164 See references to, e.g. the Appellate Body Report, US – Carbon Steel (India) , paras.  4.468 
and 4.469; and Panel Report, EC – Countervailing Measures on DRAM Chips , paras. 7.60 and 7.61.  
165 Canada's first written submission, para.  168. 
166 Ibid. WT/DS482/R  
 
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  7.127.   Canada asserts that the CBSA undertook a proper comparative assessment of all 
information on the record, wit hout acting "mechanistically" or "automatically" when resorting to 
the highest transaction -specific amount of dumping for a cooperating exporter.167 It submits that 
the CBSA properly determined that the highest amount by which the normal value exceeded the 
export price found on an individual transaction made by a cooperating non -Chinese  Taipei  exporter 
was "an appropriate basis" for establishing normal values for "all other exporters" from 
Chinese  Taipei .168 According to Canada, this determination was based on a careful evaluation and 
comparative assessment of all available evidence on the record of the investigation, including 
information provided by cooperating exporters from Chinese  Taipei .169 Canada asserts that this is 
demonstrated by the record of the CSWP i nvestigation, either explicitly, or by necessary 
implication.170 Canada argues that the CBSA's flexibility in evaluating facts available permitted the 
CBSA to conduct its comparative evaluation and assessment as part of the overall assessment of 
the informat ion on the record instead of conducting a discrete analysis.171 Moreover, the CSWP 
investigation should be distinguished from instances where violations of Article  6.8 and Annex  II of 
the Anti-Dumping  Agreement  have been found, such as cases where an investi gating authority 
simply used facts provided by the petitioner without further scrutiny, selected facts in an arbitrary 
manner, or made determinations devoid of any factual foundation.172 Canada also suggests that 
the general practice of the CBSA to consider whether to disregard anomalous or aberrant 
transactions when selecting facts available necessarily involved taking into account every export 
transaction which ensured that the CBSA did not apply facts available in a "mechanistic" or 
"automatic" manner.173 
7.128.   Canada recognizes that the information selected in the application of facts available must 
have a logical relationship to the information missing from the record. However, Canada asserts 
that Chinese  Taipei  failed to establish that the information selected, which pertained to actual sales 
transactions of subject goods during the period of investigation, lacks such logical relationship with 
exports from Chinese  Taipei .174 
7.129.   Canada also rejects Chinese  Taipei 's argument that the CBSA should have taken into 
account information pertaining to exporters from Chinese  Taipei .175 Canada argues that the 
obligations under Annex  II, paragraph  7, are procedural in nature and entrust the investigating 
authority with discretion and flexibility when selecting facts available.176 Hence, they do not 
require the CBSA to rely specifically on information provided by the cooperating exporters from 
Chinese  Taipei . Nor do they guarantee a specific outcome among different legitimate options. 
In any event, Chinese  Taipei  may not request the Pan el to conduct a de novo  review as to what 
specific information the CBSA should have used in order to establish the margin of dumping and 
duty rate for "all other exporters" from Chinese  Taipei .177 
7.8.3   Main arguments of third parties  
7.8.3.1   European Union  
7.130.   The European U nion argues that adverse inferences may be drawn under the disciplines of 
Article  6.8 of the Anti-Dumping  Agreement  and its Annex  II, paragraph  7.178 Moreover, to the 
extent that the facts selected for establishing normal values are not devoid of factual fou ndation 
and can contribute to arriving at an accurate determination for the non -cooperating exporters, the 
                                                
167 Canada's f irst written submission, paras.  169-173. 
168 Canada's first written submission, para. 171.  
169 Canada's first written submission, para.  172. See also Canada's opening statement at the first 
meeting of the Panel, para. 51.  
170 Canada's first written submission, p ara. 170 and Canada's opening statement at the first meeting of 
the Panel , para.  51. 
171 Canada's opening statement at the second meeting of the Panel , para.  74; response to Panel 
question No.  9.1, para.  28. 
172 Canada's first written submission, para.  173. 
173 Canada's response to Panel question No . 4.3, para.  39; second written submission, paras.  109-111. 
174 Canada's first written submission, para.  175. 
175 Canada's first written submission, para.  176. 
176 Canada's first written submission, para.  176. See also Canad a's second written submission, 
paras.  127-129. 
177 Canada's second written submission, para.  130. 
178 European Union's third -party submission, paras.  24 and 25.  WT/DS482/R  
 
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  European Union considers the selection of adverse facts to be consistent with Article  6.8, and 
Annex  II, paragraph  7.179 
7.8.3.2   United States  
7.131.   The United State s argues that the alleged insufficiency of the CBSA's explanation of the 
basis for its application of facts available should be addressed under Article  12 of the 
Anti-Dumping  Agreement , and not Article  6.8 thereof.180 In the view of the United States, the 
Panel should assess in accordance with Article 6.8 and Annex II whether the other exporters 
refused access to, or otherwise did not provide information that was necessary to the investigation 
within a reasonable period, or significantly impeded the investiga tion by CBSA. The Panel should 
also assess whether the CBSA provided a sufficient basis for its application of the facts available to 
the "all other exporters ".181 
7.8.4   Evaluation by the Panel  
7.132.   This claim raises the issue of whether Canada acted in accordance with  Article  6.8 and 
Annex  II, paragraph  7, of the Anti-Dumping  Agreement  in respect of the facts used by the CBSA to 
determine the margin of dumping and duty rate for "all other exporters".  
7.133.   We begin our analysis by examining Chinese  Taipei 's argument that the  CBSA failed to 
conduct a comparative evaluation and assessment of all the available facts. According to 
Chinese  Taipei , Article  6.8, and Annex  II, paragraph  7, required the CBSA to undertake a 
comparative evaluation and assessment of all the available evi dence when selecting facts 
available. We observe that Chinese  Taipei 's argument is consistent with the applicable legal 
standard under Article  6.8, and Annex  II, paragraph  7, developed by WTO adjudicators. 
In particular, we observe that the panel in Mexico  – Anti-Dumping Measures on Rice  found in 
respect of Article  6.8, and Annex  II: 
The use of the term " best information" means that information has to be not simply 
correct or useful per se , but the most fitting or "most appropriate" information 
available in  the case at hand. Determining that something is "best" inevitably 
requires, in our view, an evaluative, comparative assessment as the term "best" can 
only be properly applied where an unambiguously superlative status obtains. It means 
that, for the condit ions of Article 6.8 of the AD  Agreement and Annex II to be 
complied with, there can be no better information available to be used in the 
particular circumstances. Clearly, an investigating authority can only be in a position 
to make that judgement correctl y if it has made an inherently comparative evaluation 
of the "evidence available".182 
The panel's approach was upheld by the Appellate Body.183 We agree with the legal standard 
applied by the panel and Appellate Body in Mexico – Anti-Dumping Measures on Rice , and shall 
apply it in the present case.184 The requisite comparative evaluation and assessment necessarily 
involves consideration and comparison of "all substantiated facts on the record", and must be 
sufficiently reflected in the investigation's published r eports.185 
                                                
179 European Union's third -party submission, para.  27. 
180 United States' third -party submission, para.  19. 
181 United States' third -party submission, para.  20. 
182 Panel Report, Mexico – Anti-Dumping Measures on Rice , para.  7.166 (emphasis original). See also 
Panel Report, China  Broiler Products , para.  7.312.  
183 Appellate Body Report, Mexico – Anti-Dumping Me asures on Rice , para.  289. Although instances may 
arise in which a comparative evaluation and assessment may not necessarily be required (see Appellate Body 
Report, US – Carbon Steel (India) , para.  4.434), none of the parties have invoked such circumstance s to apply 
in the case at hand and the Panel has no reason to consider that the CBSA was not required to conduct a 
comparative evaluation and assessment.  
184 Canada also accepts that this legal standard applies to the CBSA.  
185 Appellate Body Reports, US – Carbon Steel (India) , paras.  4.421 and 4.424; and US – Countervailing 
Measures (China) , para.  4.179.  WT/DS482/R  
 
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  7.134.   In the CSWP investigation, there were two relevant documents in the record of the 
investigation , namely the CBSA's Statement of Reasons concerning the Final Determinations of 
Dumping and Subsidizing186, and the Ministerial Specification.187 The Statem ent of Reasons, in the 
relevant sections on the dumping margin and duty rate for "all other exporters", states:  
In accordance with the ministerial specification, the normal values of the goods sold to 
the importer in Canada were determined by advancing the  export prices of the goods 
as determined under section 24 of SIMA by the highest amount by which the normal 
value exceeded the export price on an individual transaction (54.2%) for a 
cooperative exporter.188 
Exporters of subject goods who did not provide su fficient information in the dumping 
investigation will have normal values established by advancing the export price by 
54.2% based on a ministerial specification pursuant to section 29 of SIMA.189 
7.135.   The Statement of Reasons contains no comparative evaluation o f the facts available, nor 
any explanation of why the CBSA relied on the highest amount by which the normal value 
exceeded the export price on an individual transaction for a cooperative exporter. It also does not 
contain any alternative considerations. Th e Statement of Reasons refers simply to the Ministerial 
Specification. That Ministerial Specification, though, also contains no reference to any comparative 
evaluation of facts on the record, but instead is limited in relevant part to the statement that:  
The normal value shall be determined on the basis of the export price as determined 
under section 24, 25 or 29 of SIMA, plus an amount equal to 54.2% of that export 
price.190 
7.136.   There is therefore nothing in the record's relevant documents  to suggest that the CB SA 
conducted any comparative evaluation or assessment of all available facts on the record before 
determining the basis for the margin of dumping and duty rate for "all other exporters".191 
7.137.   Canada alleges that the Ministerial Specification was established on ly after a careful, 
comparative and systematic evaluation and assessment of all the evidence on the record, on the 
basis of a three -step methodology employed by the CBSA.192 In particular, Canada submits:  
[T]hat the record of the CSWP investigation establish es either explicitly, or by 
necessary implication, that the CBSA performed the following steps when selecting 
facts available in the determination of normal values for non -cooperating exporters:  
 First, the CBSA examined all information on the record, inclu ding information 
provided in the complaint, information provided by cooperating exporters, and 
customs documentation.  
 Second, the CBSA considered whether the information presented by the 
cooperating exporters, rather than information provided in other seco ndary 
sources (e.g., the complaint), was the best information on which to base the 
methodology for determining normal values.  
                                                
186 Statement of Reasons concerning the Final Determination, (Exhibit TPKM -2). 
187 CBSA, Ministerial Specification , (Exhibit TPKM -20). 
188 Statement of Reasons conc erning the Final Determination, (Exhibit TPKM -2), para. 110.  
189 Statement of Reasons concerning the Final Determination, (Exhibit TPKM -2), para. 198. 
190 CBSA, Ministerial Specification , (Exhibit TPKM -20), p.  1. 
191 We note that section  5.12.2 of the SIMA Handb ook provides for increasing export prices by an 
amount equal to the highest amount of dumping found for a cooperating exporter as the default methodology 
when establishing facts available for the determination of normal values. It does not refer to any com parative 
evaluation and assessment of all available record evidence. It appears that in the CSWP investigation the CBSA 
followed the approach set out in section  5.12.2 of the SIMA Handbook. (CBSA, SIMA Handbook , 
sections  5.12-5.14, (Exhibit TPKM -17)). 
192 Canada's first written submission, paras.  170-172. WT/DS482/R  
 
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   Third, after determining that verified information from the cooperating exporters 
was appropriate, the CBSA examined the differenc e between normal value and 
export price for each individual transaction for the exporters who provided 
sufficient information in order to identify an appropriate margin for the ministerial 
specification. In this process, the CBSA considered whether it was necessary to 
disregard any of those transactions as anomalies or aberrations. Based on its 
standard practice, the CBSA also took into account whether it was necessary to 
make any adjustments based on "[c]ommon sense, fairness and other practical 
considerat ions".193 
7.138.   At the first substantive meeting with the parties, the Panel asked Canada to explain in 
detail, by reference to record evidence and relevant documentation, the basis for its assertion that 
the record establishes either explicitly, or by necessary i mplication, that the CBSA had engaged in 
a systematic evaluation of all of the information on the record.194 Canada was unable to identify 
any precise element of the record in this regard. Instead, Canada merely referred to the entire 
Statement of Reasons, t aken as a whole.195 Canada points to the parts of the Statement of 
Reasons according to which the CBSA had issued requests for information to all potential exporters 
and importers, considered their responses, issued supplemental requests for information, 
conducted on -site verifications, and provided its analysis in respect of each cooperating 
exporter.196 In addition, Canada refers to the ruling letters197 sent to the individual cooperating 
exporters, in particular those from Chinese  Taipei , as providing further detail on the methodologies 
used to calculate each individual exporter's normal values and export prices and as showing how 
the CBSA had conducted a systematic evaluation of all of the information on the record for each 
exporter.198 
7.139.   At the second substantive  meeting with the parties, Canada maintained that the CBSA had 
considered it "appropriate" to resort to the highest margin of dumping found for a cooperating 
exporter in respect of a single transaction when selecting facts available. The Panel requested 
Canada to explain why the CBSA had considered this approach appropriate in the present case and 
to indicate where in the record this explanation is reflected.199 In response, Canada  repeated the 
elements already mentioned above.200 
7.140.   The factors identified by Cana da fail, individually or taken as a whole, to show that the 
CBSA conducted a comparative evaluation and assessment of all the facts on record when 
selecting facts available in respect of the margin of dumping and duty rate for "all other 
exporters". No ele ment referred to by Canada expressly or implicitly addresses the issue of 
whether and, if so, how the CBSA evaluated and assessed the available information specifically 
with respect to and for purposes of determining the dumping margin and duty rate for "a ll other 
exporters". The investigative and procedural steps taken by the CBSA, also invoked by Canada as 
part of the three -step methodology201, are entirely unrelated to the specific issue of the selection 
of facts available in respect of "all other exporter s". They simply demonstrate that the CBSA 
collected and verified a large volume of data. Collecting data is not the same as undertaking a 
comparative and systematic evaluation and assessment of that data for the purpose of applying 
facts available. Nor doe s checking for anomalies, aberrations , or the need for adjustments equate 
                                                
193 Canada's first written submission, para.  170. (fn omitted)  
194 Canada's response to Panel question No.  4.4. 
195 Canada's response to Panel question No.  4.4, para.  41. 
196 Canada's response to Panel question No.  4.4, paras.  41-44 (referring to the Statement of Reasons 
concerning the Final Determination, (Exhibit TPKM -2), paras.  42, 44, and 52 -102). See also Canada's second 
written submission, para.  112. 
197 Ruling letters were issued by the CBSA to give notice of th e final dumping determinations, including 
the relevant exporter's dumping margin and future normal values.  
198 Canada's response to Panel question No.  4.4, para.  44; second written submission, para.  113 
(referring to the relevant ruling letters provided as E xhibits TPKM -22 (CBSA, Final Dumping Determination 
regarding Chung Hung Steel Corporation, 9 November 2012, (Exhibit TPKM -22) (BCI)); TPKM -23 (CBSA, Final 
Dumping Determination regarding Shin Yang Steel Co. Ltd., 9 November 2012, (Exhibit TPKM -23) (BCI)); and 
TPKM -24 (CBSA, Final Dumping Determination regarding Yieh Phui Enterprise Co. Ltd., 9 November 2012, 
(Exhibit TPKM -24) (BCI))).  
199 Canada's response to Panel question No.  9.1(ii).  
200 Canada's response to Panel question No.  9.1(ii), para.  28. 
201 See para. 7.137  above.  WT/DS482/R  
 
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  to a comparative evaluation and assessment.202 Despite several specific requests from the Panel, 
Canada failed to provide any indication as to how the CBSA determined that the highest 
transaction -specific dumping margin from a cooperating exporter was appropriate, and even the 
best fitting information, for establishing dumping margins and duty rates for "all other 
exporters".203 
7.141.   In light of the above, we conclude that the CBSA applied fac ts available in respect of the 
margin of dumping and duty rate for "all other exporters" without undertaking a comparative 
evaluation and assessment of all the available information on the record before applying facts 
available in respect of "all other exp orters".  
7.142.   Regarding Chinese  Taipei 's argument that the CBSA should have relied on information 
concerning the cooperating Chinese  Taipei  exporters as the most fitting or most appropriate 
information, we recall our finding that the CBSA failed to conduct a co mparative and evaluative 
assessment of all the record evidence when determining that the highest amount of dumping for a 
specific transaction for any cooperating exporter should be used as facts available. Absent any 
such comparative and evaluative assessm ent by the CBSA, the Panel has no basis on which to 
determine whether information concerning cooperative exporters from Chinese  Taipei  would have 
been the "best information available".  
7.143.   Considering  the above, we do not need to reach  a definitive conclusion in respect of 
Chinese  Taipei 's argument that the CBSA used facts available to punish "all other exporters" from 
Chinese  Taipei . We observe, however, that both parties accept that any punitive use of facts 
available is inconsistent with the disciplines on f acts available.204 They also share the view that 
duty rates for non -cooperating exporters – based on facts available – may serve to encourage 
cooperation and prevent anti -dumping duty circumvention. We do not disagree. There may be a 
fine line between, on th e one hand, incentivizing cooperation and preventing circumvention and, 
on the other hand, punishing non -cooperating exporters. In the case at hand, it appears to us that 
by singling out the highest transaction -specific amount of dumping from a cooperative  exporter 
without any comparative evaluation and assessment, and without any form of explanation, the 
CBSA went beyond what was appropriate and necessary to achieve the objectives of encouraging 
cooperation and preventing circumvention.205 
7.144.   In light of the ab ove, we find that the CBSA acted in a manner inconsistent with Article  6.8 
of the Anti-Dumping  Agreement , and its Annex  II, paragraph  7, when establishing the dumping 
margin and duty rate for "all other exporters" on the basis of the highest amount by whic h the 
normal value exceeded the export price on an individual transaction for a cooperative producer 
from any country subject to the investigation.  
7.9  The treatment of imports of new product models or types  
7.9.1   Introduction  
7.145.   Under a prospective normal value duty a ssessment system as operated by Canada, the 
amount of anti -dumping duty is generally equivalent to the difference between the export price 
and the pre -determined, or prospective, normal value established for the particular product model 
being imported. Prospective normal values are usually established during the investigation for the 
models or types of the product subject to the investigation to the extent that such models or types 
have been exported by foreign producers/exporters to Canada during the perio d of investigation.  
7.146.   A difficulty arises in the event that a producer/exporter exports new product models or 
types after the investigation has been completed and an anti -dumping measure is imposed. Such 
                                                
202 It is more than obvious that the fact that a transaction is not anomalous or aberrant or does not 
need adjustment does not mean that it is appropriate to use as facts available.  
203 See the second step of the CBSA's methodology invoked by Canada.  
204 This is in line with established WTO case law. (See Panel Reports, China – GOES , para.  7.302; and 
Mexico  – Anti-Dumping Measures on Rice , para.  7.238; and Appellate Body Report , US – Carbon Steel (India) , 
para. 4.468).  
205 We do not exclude that there could be circumstances in which a single transaction made by a 
cooperating exporter may appropriately be selected as facts available. However, the onus would be on the 
investigating authority to explain the need for such an approach.  WT/DS482/R  
 
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  product models or types will not have been examined du ring the investigation, since they did not 
exist or were not exported to Canada  during the period of investigation. Consequently, the 
investigating authority will not have established any normal values for them. Accordingly, 
anti-dumping duties cannot be a ssessed by simply comparing the export price to a model -specific 
prospective normal value. This claim concerns the determination by the CBSA of the alternative 
basis for duty assessment to be used for new product models or types.  
7.147.   In its Final Determination , the CBSA established an amount of duty for imports of new 
product models or types from two investigated and cooperative Chinese  Taipei  exporters using 
facts available. The CBSA determined that the amount of duty would be the difference between the 
export  price and the export price increased by 54.2%.206 This is the same methodology as it used 
for establishing the facts available duty rate for "all other exporters" .207 This margin of dumping is 
significantly higher than the de minimis  margins of dumping that h ad been determined for the 
Chinese  Taipei  exporters at issue in the original investigation.  
7.148.   Chinese  Taipei  pursues a number of claims concerning the CBSA's determination. 
First, Chinese  Taipei  submits that Canada violated Article  9.3 because the anti -dumpi ng duty 
applied in respect of new product models or types is the same as the all others rate, and therefore 
does not reflect the margin of dumping established for the relevant exporters during the original 
investigation. Second, Chinese  Taipei  submits that  Canada violated Article  6.8 and Annex II of the 
Anti-Dumping  Agreement  because it resorted to facts available for the calculation of the normal 
value for new product types without finding that the relevant exporters had failed to cooperate. 
Third, Chinese  Taipei  submits that Canada violated Article  2.2 of the Anti-Dumping  Agreement  
because it calculated normal values for new product models or types of cooperating exporters on 
the basis of a methodology that is not foreseen in Article  2.2 of the Anti-Dumpin g Agreement . 
Fourth, Chinese  Taipei  submits that Canada violated Article  6.10 of the Anti-Dumping  Agreement  
because, in establishing a second margin of dumping for new product models or types, Canada 
determined more than one individual margin of dumping fo r the cooperating exporters. We discuss 
each of these claims below.  
7.9.2   The relevance of the margin of dumping established during the investigation : 
Article  9.3 of the Anti-Dumping  Agreement  
7.9.2.1   Main arguments of the parties  
7.149.   Chinese  Taipei 's claim is based on the chapeau  of Article  9.3, which provides that 
"the amount of the anti -dumping duty shall not exceed the margin of dumping as established 
under Article  2". 
7.150.   Chinese  Taipei  claims that Canada improperly applied anti -dumping duties on imports of 
new product mode ls or types for investigated  and cooperative exporters on the basis of the 
residual duty rate, rather than using the margins of dumping established for those exporters 
during the original investigation.208 In particular, Chinese  Taipei claims that in a prosp ective 
normal value system , such as the one in Canada, the normal value calculated for the purposes of 
determining the dumping margin during the original investigation constitutes the relevant 
benchmark when determining the anti -dumping duty.209 Chinese  Taipei claims that the margin of 
dumping established by the CBSA for each exporter during the original investigation was 
necessarily for the product under investigation as a whole for each exporter.210 Chinese  Taipei  
submits that because new product types still fall within the category of the product under 
investigation, a margin of dumping had already been established for those product types during 
the investigation. Chinese  Taipei  contends that, consistent with the chapeau  of Article  9.3, the 
anti-dumping dutie s collected on imports of new product models or types should therefore not 
exceed the margin of dumping established during the investigation.  
                                                
206 See, for example, CBSA, Final Dumping Determination regarding Chung Hung Steel Corporation, 
9 November 2012, (Exhibit TPKM -22) (BCI), appendices 2 and 3.  
207 See above at para . 7.117 .  
208 Chinese  Taipei 's opening statement at the second meeting of the Panel, para. 56; second written 
submission, para. 157.  
209 Chinese Taipei's second written submission, para. 163.  
210 Chinese  Taipei 's firs t written submission, para. 212.  WT/DS482/R  
 
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  7.151.   Canada contends that Chinese  Taipei  ignores that the chapeau  of Article  9.3 contains a 
general obligation that is implemented through the more specific sub -paragraphs of that 
provision.211 Canada suggests that the Appellate Body has found that Members comply with 
Article  9.3 by refunding any excess duties collected:  
The sub -paragraphs of Article  9.3 – including, of part icular relevance here, 
sub-paragraphs 1 and 2  – specify in greater detail how investigating authorities are to 
comply with this more general obligation, namely, by providing for refunds to 
respondents whose duties have exceeded their dumping margins. Artic le 9.3.1 deals 
with such refunds for Members employing a retrospective  system for the assessment 
and collection of anti -dumping duties, whereas Article  9.3.2 deals with those 
Members, such as Mexico, employing a prospective  system.212 
7.152.   According to Canada, Me mbers that employ prospective normal value systems comply with 
Article  9.3 by following the obligations under Article  9.3.2. Canada observes that, under 
Article  9.3.2, a refund for overpayment of duties is available if:  (a) an importer of subject goods 
actually pays anti -dumping duties; and  (b) that importer requests a refund for overpayment that is 
duly supported by evidence. Canada asserts that, because no evidence on the record indicates that 
Chinese  Taipei  exports of new product models have been subject  to an initial duty assessment, let 
alone an assessment that has been subject to a refund request, the CBSA cannot be said to have 
violated Article  9.3.2 or the general obligation under Article  9.3.213 Canada submits that 
Chinese  Taipei 's claim is therefore premature, and must be rejected on the basis that 
Chinese  Taipei  has not established a prima facie  case of violation.  
7.153.   Furthermore, Canada denies that the ceiling for anti -dumping duties under Article  9.3 is 
limited to the margin of dumping established for the product as a whole in the original 
investigation. Canada contends that Chinese  Taipei 's position is contradicted by case law 
concerning the payment and collection of anti -dumping duties in prospective normal value 
systems. First, Canada relies on the f inding by the Argentina – Poultry  Anti-Dumping Duties  panel 
that the margin of dumping established during the investigation was not the ceiling for the levy of 
anti-dumping measures.214 Canada also relies on the finding by the panel in EC – Salmon 
(Norway) , in the specific context of duty assessment conducted on a prospective basis, that 
anti-dumping duties should not exceed the actual margin of dumping determined on the sales that 
are subject to duty assessment .215 
7.9.2.2   Main arguments of third parties  
7.9.2.2.1   European Unio n 
7.154.   The European Union understands that Canada operates a prospective duty assessment 
system, which is explicitly authorised under Article  9.3.2 of the Anti-Dumping  Agreement . 
The European Union contends that it is in the nature of such a system that anti -dumping duties 
assessed on a prospective basis are subject to final assessment, so that the importer of the 
product is entitled to obtain, upon request, a prompt refund of any such duty paid in excess of the 
margin of dumping.216 The European Union asserts tha t there is no indication that the 
Anti-Dumping  Agreement  excludes the possibility for an authority to assess the amount of duties 
on a prospective basis in respect of product types or models for which a normal value has not 
previously been determined, beca use such types or models of subject products were not exported 
to the territory of that authority during the period of investigation.217 Provided that all the 
obligations in Article  9.3.2 are complied with, the European Union regards the operation of a 
prosp ective duty assessment system, and its application to new types or models of products 
                                                
211 Canada's first written submission, paras. 196 and 197; second written submission, para. 136.  
212 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 311. (emphasis original)  
213 Canada's first written submiss ion, para. 199.  
214 Canada's first written submission, para. 201; second written submission, para. 139 . 
215 Canada's first written submission, para. 202 . 
216 European Union's third -party submission, para. 37.  
217 European Union's third -party submission, para. 39.  WT/DS482/R  
 
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  subject to an anti -dumping investigation, as being consistent with the basic requirements of the 
Anti-Dumping  Agreement .218 
7.9.2.3   Evaluation by the Panel  
7.155.   The chapeau  of Article  9.3 establishes a general requirement that the amount of 
anti-dumpin g duty shall not exceed the margin of dumping.219 As discussed elsewhere in this 
Report, the phrase "margin of dumping" is exporter -specific.220 The Appellate Body has explained, 
in reference t o the chapeau  of Article  9.3, that investigating authorities "are required to ensure 
that the total amount of anti -dumping duties collected on the entries of a product from a given 
exporter shall not exceed the margin of dumping established for that export er".221 This finding 
reflects the fact that the chapeau  of Article  9.3 establishes a fundamental link between : (a) a 
particular exporter's margin of dumping ; and (b) the maximum amount of anti -dumping duty 
applicable to imports from that particular exporter.  According to its title, Article  9 governs both the 
imposition and collection of anti -dumping duties. The margin of dumping established for an 
exporter therefore serves as a ceiling for the amount of anti -dumping duty imposed or collected in 
respect of imp orts from that exporter.  
7.156.   Canada argues222 that, in the context of a prospective normal value or variable duty 
assessment system, the ceiling for anti -dumping duties under Article  9.3 need not be restricted to 
the margin of dumping established in the origina l investigation. Instead, the ceiling may be 
determined by reference to the "actual" margin of dumping referred to in Article  9.3.2. Canada's 
argument is consistent with the finding by the panel in EC – Salmon (Norway)  that: 
[T]he obligation in Article  9.3 to ensure that anti -dumping duties are not collected in 
excess of the "margin of dumping as established under Article  2" does not prohibit an 
investigating authority from imposing and collecting anti -dumping duties in excess of 
the margin of dumping calcu lated in the original investigation . In the specific context 
of duty assessment conducted "on a prospective basis", which is the situation that is 
before us at present as regards the application of the fixed duties, what is important 
in terms of compliance  with Article  9.3 (and Article  9.1) of the AD  Agreement is that 
any duties imposed and collected on investigated parties do not exceed the actual 
margin of dumping determined on the sales that are subject to duty assessment.223 
7.157.   We agree with this finding. If  an updated, "actual" margin of dumping is determined with 
respect to particular imports at some time after the original investigation has been completed, that 
updated margin of dumping serves as the ceiling for the amount of anti -dumping duty that may be 
imposed or assessed on those imports. In other words, the ceiling for the imposition or collection 
of anti -dumping duties is the exporter -specific margin of dumping prevailing at any given time. 
However, recognizing that an exporter's margin of dumping may  change over time is very different 
from allowing a particular exporter's margin of dumping to be ignored, and the duty ceiling for that 
exporter to be established by reference to some other exporter's data.  
7.158.   Even if the margin of dumping established in the  original investigation is subsequently 
replaced by an updated, "actual" margin of dumping, the updated margin of dumping still relates 
to the particular exporter at issue. The findings of the EC – Salmon (Norway)  panel do not 
envisage anti -dumping duties be imposed or collected with respect to imports from one exporter 
by reference to some other exporter's margin of dumping. The panel explicitly stated that the 
updated, "actual" margin of dumping must "represent[] the difference between an investigated 
party's normal value and the export price of the transaction subject to duty assessment".224 
                                                
218 European Union's third -party submission, para. 40.  
219 We note that the Appellate Body has referred to the chapeau  as con taining a "general obligation". 
(See Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 311). The Appellate Body has also 
referred to the "overarching requirement" set forth in the chapeau  of Article 9.3. (See Appellate Body Report, 
US – Stainless Steel (Mexico) , para. 102).  
220 See above, paras. 7.18-7.37.  
221 Appellate Body Report, US – Zeroing (EC) , para. 130.  
222 Canada's second written submission, paras. 147 -152. 
223 Panel Report, EC – Salmon (Norway) , para. 7.760 (fns omitted, emphasis original). The same  
approach was taken by the panel in Argentina – Footwear (EC).  
224 Panel Report, EC – Salmon (Norway) , para. 7.749.  WT/DS482/R  
 
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  We emphasise in this regard the panel's reference to the updated margin of dumping still being 
based on the "investigated party's normal value".  
7.159.   In this case, we are no t dealing with a situation where the margins of dumping established 
for the relevant exporters determined during the investigation were replaced by updated, "actual" 
margins of dumping established for those same exporters. Nor did Canada use normal values 
determined for those exporters in establishing a duty rate for imports of new models or types of 
the product from those exporters. Rather, the CBSA established a duty rate for such imports from 
these two exporters based on data collected during the origina l investigation from a different 
exporter. The CBSA thereby failed to preserve the fundamental link, established by the chapeau  to 
Article  9.3, between the amount of the anti -dumping duty imposed or collected in respect of a 
given exporter and a margin of dumping established for that exporter. There is no basis in the 
findings of EC – Salmon (Norway)  panel for the CBSA's approach and determination.225 
7.160.   Canada argues that Members comply with the chapeau  of Article 9.3 by complying with the 
obligations under Art icle 9.3.2. Canada refers in this regard to the Appellate Body's finding in US – 
Continued Zeroing that "[t]he collection of anti -dumping duties on the basis of a prospective 
normal value is only an intermediate stage of collection, since it is subject to final assessment and 
'a prompt refund, upon request', under Article  9.3.2".226 Canada also refers to the Appellate Body's 
finding in Mexico – Anti-Dumping Measures on Rice  that "[t]he sub -paragraphs of Article 9.3 … 
specify in greater detail how investigatin g authorities are to comply with [the] more general 
obligation [set forth in the chapeau ], namely, by providing for refunds to respondents whose 
duties have exceeded their dumping margins."227 
7.161.   Canada's reliance on these Appellate Body findings is not well -founded . These cases 
addressed different issues , and n othing in the Appellate Body's findings suggests that 
anti-dumping duties may be imposed on imports from one exporter on the basis of the margin of 
dumping established for another exporter. Nor do we read  the Appellate Body as finding that the 
fundamental link between the margin of dumping established for an exporter and the amount of 
duty imposed or collected in respect of that exporter, established in the chapeau  of Article 9.3, 
does not apply at the int ermediate stage of collection.228  
7.162.   We do not accept that the Appellate Body's findings should  be interpreted to mean that, in 
the context of a prospective normal value duty assessment system, a Member may initially impose 
whatever anti -dumping duty it choose s, provided there is a refund mechanism consistent with 
Article  9.3.2. Article  9.3.2 simply provides that, under a prospective assessment system, 
"provision shall be made for a prompt refund". Such a refund mechanism certainly establishes one 
means of ensu ring that duty collection remains consistent with the requirements of the chapeau  of 
Article  9.3. However, this does not mean that the provision of an effective refund mechanism 
addresses all potential violations of the chapeau  of Article 9.3.229 If it did, there would be no need 
for the chapeau . 
7.163.   In the context of a retrospective assessment system, the Appellate Body has stated that 
"Article  9.3.1 of the Anti-Dumping  Agreement  is subject to the overarching requirement in 
Article  9.3 that the amount of anti -dumping duty 'shall not exceed the margin of dumping as 
established under Article  2' of that Agreement".230 We consider that this statement applies equally 
                                                
225 Canada also invokes the findings of the panel in Argentina – Poultry Anti -Dumping Duties . Although 
that panel accepted the use of variable a nti-dumping duties, there is nothing in the findings of that panel to 
support the approach adopted by Canada in respect of new product model types.  
226 Canada's first written submission, para. 204 (referring to Appellate Body Report, US – Continued 
Zeroing , para. 295).  (emphasis original)  
227 Canada's second written submission, para. 138 (referring to Appellate Body Report, Mexico – 
Anti-Dumping Measures on Rice , para. 311).  
228 Indeed, the fact that the Appellate Body refers in Mexico – Anti-Dumping Measures on Rice to 
refunds for respondents "whose duties have exceeded their dumping margins" rather confirms this 
fundamental link. (Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 311 
(emphasis  added)).  
229 Canada observes that Article 18.3.1 of the Anti-Dumping  Agreement  refers to "refund procedures" 
under paragraph 3 of Article 9. (Canada's response to Panel question No. 10.2, para. 34). We do not read this 
to mean that Article 9.3 is concerned exclusively with refund procedures.  
230 Appellate Bod y Report, US – Stainless Steel (Mexico) , para. 102.  WT/DS482/R  
 
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  in respect of Article 9.3.2.231 If the refund mechanism provided for in sub -paragraph 1 and 2 of 
Article  9.3 remains "subject to" the "overarching requirement" of the chapeau , the chapeau  must 
have application independently of those refund mechanisms.  
7.164.   In addition, if the chapeau  of Article  9.3 were understood to allow the approach taken by 
Canada, any Member could impose an anti -dumping duty that is so high that imports effectively 
cease, and argue that it was not acting inconsistently with Article 9.3 because its refund 
mechanism ensured compliance. But the absence of imports would preclude any refund 
proceed ing, and interested parties could be left without recourse under the 
Anti-Dumping  Agreement .232 
7.165.   Canada further contends that, without recourse to facts available, anti -dumping duties 
could "never" be collected on new models.233 This is also not correct. Withou t resolving the 
question of how anti -dumping duties may be imposed or collected in respect of new product 
models or types in a prospective normal value system, we note that Canada has explained that it 
can initiate "re -investigations" to determine normal v alues for future imports of new product model 
types not covered by the original investigation.234 Anti-dumping duties in respect of new product 
models or types could be collected once the re -investigation is complete. In the meantime, 
reasonable security cou ld be required, pursuant to the first paragraph of the Ad Note to 
Article  VI:2 and 3 of the GATT 1994. Alternatively, anti -dumping duties in respect of imports of 
new product models or types could initially be collected on the basis of the normal value(s) 
established for the relevant exporter or other relevant information from the original investigation. 
We note in this regard Canada's statement that "[i]t is a reasonable starting point to apply 
information from the original investigation to imports of new product models subject to an ongoing 
anti-dumping measure when there is no other information available in relation to those 
imports".235 We do not disagree. However, in such a case, the information from the original 
investigation to use as a starting point m ust pertain to the exporter in question, and not to some 
other exporter.  
7.166.   Finally, we note Canada's argument that Chinese  Taipei 's Article  9.3 claim is premature, 
because no imports of new product model types have yet been assessed, and no refund 
proceeding  has yet taken place. As explained above, we consider that the chapeau  to Article  9.3 
applies independently of Article  9.3.2 (or Article  9.3.1 in respect of retrospective assessment 
systems).236 The chapeau  applies whenever an anti -dumping duty is imposed or  collected. 
It therefore applies when an anti -dumping duty is imposed, even if the absence of imports means 
that no duty is actually collected. Article  17.4 of the Anti-Dumping  Agreement  provides that a 
matter may be referred to the DSB provided "final act ion has been taken … to levy definitive 
anti-dumping duties". Canada acknowledges that "final action" has been taken, in that the CBSA 
has put in place a mechanism that will lead to the imposition of definitive anti -dumping duties 
when new models or types are imported.237 For these reasons, we see no basis to conclude that 
Chinese  Taipei 's claim is premature.  
                                                
231 We also observe that Article  9.3.2 does not even refer to prospective normal value duty assessment 
specifically (it refers more generally to duty assessment "on a prospective basis"). We therefore consi der it 
unlikely that provision of an effective refund mechanism would necessarily cover all possible issues arising in 
such a duty assessment system.  
232 Canada asserts that our interpretation of the chapeau  of Article  9.3 would lead to the result that an 
investigating authority would comply with Article  9.3 by providing an appropriate refund, yet violate Article  9.3 
by collecting duties in excess of the appropriate amount. (Canada's response to Panel question No.  10.2, 
para. 37). However, as explained above,  the chapeau  imposes a requirement that the amount of duty imposed 
or collected in respect of imports from an exporter shall not exceed the margin of dumping established for that 
exporter. Breach of this requirement cannot be remedied through the Article 9 .3.2 refund mechanism.  
233 Canada's first written submission, para. 209.  
234 Canada's response to Panel question Nos. 5.10 and 7.3.  
235 Canada's response to Panel question No. 5.9, para. 73.  
236 This is consistent with the finding by the panel in EU – Biodiesel (A rgentina)  that the European Union 
violated Article 9.3 by imposing anti -dumping duties in excess of the margin of dumping that should have been 
established under Article 2 of the Anti-Dumping  Agreement , independent of any finding under Articles 9.3.1 
or 9.3.2. (Panel Report, EU – Biodiesel (Argentina) , para. 7.367).  
237 Canada's response to Panel question No. 10.2, para. 33. Canada contends that the fact that "final 
action" has been taken does not allow a complaining party to disregard substantive elements of  treaty 
obligations. We recall that the chapeau  to Article 9.3 imposes an overarching requirement of broad application, 
independent of Articles 9.3.1 and 9.3.2. Accordingly, the substantive elements of the chapeau  are not being 
ignored.  WT/DS482/R  
 
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  7.9.3   The CBSA's use of facts available : Article  6.8 and Annex  II of the 
Anti-Dumping  Agreement  
7.9.3.1   Main arguments of the parties  
7.167.   Chinese  Taipei  submits that Cana da violated Article  6.8 and Annex II of the 
Anti-Dumping  Agreement  by resorting to facts available for the calculation of the duty rate for 
imports of new product models or types from cooperating Chinese  Taipei  exporters without 
complying with the conditio ns laid down in those provisions.238 Chinese  Taipei  contends that it is 
only when the interested party refuses access to, or otherwise does not provide, the necessary 
information or when it significantly impedes the investigation that the investigating autho rity is 
allowed to use other information for making its preliminary and final determinations.239 
Chinese  Taipei  notes that the CBSA never determined that the relevant exporters had failed to 
cooperate with its investigation in any way.240 Furthermore, Chinese  Taipei submits that it cannot 
be claimed that cooperating exporters refused access to or did not provide "necessary information " 
given that such information was "non-existent ". Otherwise, according to Chinese  Taipei, this could 
lead to the result that an i nterested party which fully participates and cooperates in the 
investigation could be subject to facts available  determinations simply because it did not provide 
information that was non -existent.241 
7.168.   Chinese  Taipei  also submits that, even if the use of facts  available had been warranted, by 
using the highest margin of dumping calculated for a single transaction concerning an exporter 
from another country, the CBSA failed to use the "best information available ", or the "most 
appropriate information available ".242 Chinese  Taipei  asserts that the information provided by the 
two cooperating exporters themselves in the original investigation would constitute the 
"best information available".243 
7.169.   Canada justifies its recourse to facts available in respect of new product models or types 
by arguing that, without recourse to facts available, anti -dumping duties could "never" be levied 
on new models.244 Referring to panel and Appellate Body reports concerning the use of facts 
available for determining residual rates for unknown  or non -existing exporters245, Canada suggests 
that an investigating authority may resort to facts available in situations where they act to the best 
of their ability to seek out all relevant information from interested parties under investigation.  
Canada as serts that  the CBSA sought all relevant information from exporters during the initial 
investigation246 and the re -investigation.247 Canada submits that Chinese  Taipei  has presented no 
evidence showing that the CBSA failed to consider information relevant to ne w product models. 
Canada also contends that, when claiming that the CBSA's application of the ministerial 
specification248 contravenes paragraph 7 of Annex II, Chinese  Taipei  fails to recognize the variety 
                                                
238 Chinese  Taipei 's first written submission, para. 217. 
239 Chinese  Taipei 's first written submission, para. 226.  
240 Chinese  Taipei 's first written submission, para. 227.  
241 Chinese  Taipei 's first written submission, para.  227; second written submission, para. 165.  
242 Chinese  Taipei's firs t written submission, para. 232 . 
243 Ibid. 
244 Canada's first written submission, para. 209.  
245 Canada's first written submission, para. 210 and fn 165 (quoting Panel Reports, China – Autos (US) , 
para. 7.130: " a residual duty rate may be determined on  the basis of facts available if the record of the 
investigation shows that the [investigating authority] took all reasonable steps that might be expected from an 
objective and unbiased [investigating authority] to specify in detail the information request ed from unknown 
producers";  China – Broiler Products , para.  7.302: "Article 9.5 of the Anti-Dumping  Agreement  implicitly 
recognises that an anti -dumping duty may be applied even to the category of producers/exporters who did not 
exist, or did not export du ring the POI, until they request an individual rate through a new -shipper review"; 
and China – GOES , para.  7.390: "[w]hile the Panel agrees that there is indeed a gap in the 
Anti-Dumping  Agreement  regarding how dumping margins should be calculated  for unkn own exporters, 
Article  6.8 and Annex II are very explicit regarding the conditions that must exist before an investigating 
authority may resort to facts available. The existence of a lacuna in the Anti-Dumping  Agreement  does not 
mean that the conditions sh ould be ignored in order to fill the gap. Although the lack of guidance in the 
Anti-Dumping  Agreement  may leave investigating authorities with some discretion regarding the calculation of 
margins of dumping for unknown exporters, in our view, this discreti on should not extend to acting 
inconsistently with the express terms of Article 6.8 and paragraph 1 of Annex II").  
246 Statement of Reasons concerning the Final Determination, (Exhibit TPKM -2), paras. 20 and 21.  
247 See CBSA, Notice of Conclusion of Re -Investi gation, Dumping case AD/1396, 7 May 2013, 
(Exhibit  TPKM -15). 
248 See para. 7.120  above.  WT/DS482/R  
 
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  of review procedures under Canada's trade remedies r egime that fairly accommodate exporters 
and importers of new product models of subject goods. Canada observes that importers may seek 
re-determinations of the duty assessment and exporters may request re -investigations with 
respect to their normal values. Canada asserts that, so long as an exporter cooperates with these 
review procedures, duty assessments on new product models can be adjusted, and duties paid will 
be refunded, if warranted, consistent with the Anti-Dumping  Agreement . 
7.9.3.2   Evaluation by the Panel  
7.170.   Article  6.8 provides that facts available may only be used when an interested party refuses 
access to, or otherwise does not provide "necessary information" within a reasonable period, or 
significantly impedes the investigation. Pursuant to paragraph  1 of Annex II, use of facts available 
is subject to the investigating authority having "specif[ied] in detail the information required", and 
having ensured that the party is aware that if information is not supplied within reasonable time, 
it may resort to fac ts available.  
7.171.   The CBSA did not apply facts available on the basis of the conditions set forth in Article  6.8 
or Annex II of the Anti-Dumping  Agreement . Indeed, Canada acknowledges that these exporters 
"fully cooperated in the original investigation".249 Furthermore, Canada asserts that "because the 
CBSA requires a model -specific normal value to assess duties, it uses facts available for product 
models it has yet to investigate".250 Since the CBSA had "yet to investigate" the new product 
models or types at issue , there could be no basis for any determination that the Chinese  Taipei  
exporters failed to provide any necessary information requested by the CBSA in the investigation 
thereof. In these circumstances, the CBSA's use of facts available did not meet the req uirements 
of Article  6.8 or Annex II of the Anti-Dumping  Agreement .251 
7.172.   Canada suggests that the CBSA's reliance on facts available in the present case is 
supported by the approach taken in WTO dispute settlement to the application of facts available in 
respe ct of the determination of all others rates for unknown exporters. According to Canada, these 
decisions suggest that an investigating authority may resort to facts available in situations where 
they act to the best of their ability to seek out all relevant  information from interested parties 
under investigation.252 Canada refers in this regard to the findings of the panels in China – Autos 
(US), China – Broiler Products , and China – GOES . 
7.173.   None of these cases support the CBSA's resort to facts available in res pect of imports of 
new product model types from cooperative exporters, since none of these cases allow the use of 
facts available outside of the conditions identified in Article  6.8 and Annex II. Indeed, in China – 
GOES , the panel stated specifically that although "there is indeed a gap in the 
Anti-Dumping  Agreement  regarding how dumping margins should be calculated for unknown 
exporters, Article  6.8 and Annex II are very explicit regarding the conditions that must exist before 
an investigating authority ma y resort to facts available. The existence of a lacuna in the 
Anti-Dumping  Agreement  does not mean that the conditions should be ignored in order to fill the 
gap."253 Furthermore, although in China – Autos  (US) the panel accepted that facts available could 
potentially be used to determine the all others rate for unknown exporters, the panel found in that 
case that the investigating authority had failed to comply with the Annex II:1 requirement to 
"specify in detail to the unknown exporters the information req uired from them for the 
determination of the residual AD rate".254 The panel in China – Broiler Products also insisted on 
compliance with Annex II:1,  ultimately finding that the need for the relevant necessary 
                                                
249 Canada's response to Panel question No. 5.5, para. 51. Canada asserts that it requested inform ation 
in respect of new product models as part of its re -investigation that concluded on 7 May 2013. (Canada's 
response to Panel question No. 5.8, para. 65; see also second written submission, paras. 159 -161). However, 
we note that facts available w ere applied for new product models or types in the CBSA's final determination for 
the original investigation. Canada does not contend that relevant information was requested in the original 
investigation.  
250 See Canada's response to Panel question No. 5.6, para. 5 3. 
251 In the alternative, even if the conditions for resort to facts available were considered to have been 
met by Canada, the CBSA's actual selection of the facts on which to base its determination has already been 
shown to be flawed. The facts relied on b y the CBSA in this context are the same as used by the CBSA to 
establish the rate for "all other exporters". As explained above, the CBSA failed to undertake any comparative 
evaluation or assessment of all available information on the record in selecting t hose facts.  
252 Canada's first written submission, para. 210.  
253 Panel Report, China – GOES , para. 7.390.  
254 Panel Report, China – Autos (US) , para. 7.133.  WT/DS482/R  
 
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  information had been adequately communicated to interested parties.255 In all three cases, 
therefore, recourse to facts available was evaluated in light of the requirements of Article  6.8 and 
Annex II. In the present case,  as outlined above at paragraph 7.171  those requirement s have 
plainly not been met, and the CBSA's use of facts available is inconsistent with those provisions.  
7.174.   Canada also argues256 that Chinese  Taipei  has presented no evidence showing that the 
CBSA failed to consider information relevant to new product models or types. This argument is not 
persuasive, since the burden is on Canada to demonstrate that the investigating authority 
informed  interested parties of the information that was required of them and of the possibility that 
facts available would be used if t hat information was not provided, and that those parties failed to 
cooperate in the provision of that necessary information. There has been no such demonstration in 
the present case. On the contrary, as noted above, Canada has confirmed that the relevant 
exporters cooperated fully with the CBSA during the original investigation.  
7.175.   Finally, we note Canada's argument that the CBSA was required to resort to facts available 
in order to fill a "gap"257 in the WTO anti -dumping disciplines. We are not persuaded that t here is 
any gap in the relevant WTO disciplines. As explained in the previous section, other methods were 
open to Canada to impose or collect anti -dumping duties in respect of imports of new product 
models or types from investigated and cooperative exporte rs, without resorting to facts available. 
Furthermore, even if there were a gap in the disciplines, we agree with the abovementioned 
finding of the panel in China – GOES  that "[t]he existence of a lacuna in the 
Anti-Dumping  Agreement  does not mean that the  conditions [of Article  6.8 and Annex II] should 
be ignored in order to fill the gap" .258 
7.176.   For the above reasons, we uphold Chinese  Taipei 's claim that the CBSA's use of facts 
available to determine the amount of anti -dumping duty imposed or collected on impo rts of new 
product models or types from investigated and cooperative exporters is inconsistent with 
Article  6.8 and Annex II of the Anti-Dumping  Agreement . 
7.9.4   The determination of normal values for new product models  or types:  Article  2.2 
of the Anti-Dumping  Agreement  
7.9.4.1   Main arguments of the parties  
7.177.   Chinese  Taipei  submits that Canada violated Article  2.2 of the Anti-Dumping  Agreement  
because it calculated normal values for imports of new product models or types from investigated 
exporters on the basis of a metho dology that is not foreseen in Article  2.2 of the 
Anti-Dumping  Agreement .259  
7.178.   Canada notes that Chinese  Taipei  has not referred to a single shipment of a new product 
model by one of its exporters that was subject to the treatment that Chinese  Taipei  alleges 
violates Article  2.2.260 Moreover, even if the CBSA had applied the ministerial specification to 
establish normal values for new product models, Chinese  Taipei 's argument under Article  2.2 
would still be flawed because the obligations under Article  2.2 presu ppose that an investigating 
authority has the information necessa ry to calculate normal values.261 Canada asserts that an 
investigating authority is not in a position to determine model -specific normal values for new 
product models when they are imported as they have yet to be investigated. Canada asserts that 
Chinese  Taipei  ignores this, and does not explain how the CBSA could properly apply one of the 
                                                
255 Panel Report, China – Broiler Products , para. 7.306.  
256 Canada's first written submission, para. 210.  
257 Canada's first written submission, para. 209.  
258 Panel Report, China – GOES , para. 7.390.  In its response to Panel question No. 5.7, at para. 61, 
Canada similarly suggests that investigating authorities enjoy flexibility with regard to the treatment of new  
model types for the purpose of duty assessment (because the Anti-Dumping  Agreement  is silent on this issue). 
Canada argues that the CBSA's application of facts available to establish normal values for new product model 
types was in line with that flexibil ity. We disagree. Whatever flexibility might exist for Members assessing 
anti-dumping duties under a prospective normal value assessment system, the use of facts available is 
circumscribed by the requirements of Article 6.8. Facts available may not be used  outside of the conditions set 
forth in that provision.  
259 Chinese Taipei's first written submission, para. 234; second written submission, para. 178.  
260 Canada's first written submission, para. 214.  
261 Canada's first written submission, para. 215.  WT/DS482/R  
 
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  Article  2.2 methodologies to new models of subject goods exported to Canada after the original 
CSWP investi gation.262 Canada submits that, in the absence of the required information, Article  6.8 
of the Anti-Dumping  Agreement  permits the CBSA to use facts available from the original 
investigation to determine a normal value for new product models or types.263 
7.9.4.2   Evalua tion by the Panel  
7.179.   We have already upheld Chinese  Taipei 's Article  9.3 and 6.8 claims concerning the CBSA's 
determination of the amount of anti -dumping duty imposed or collected on imports of new product 
models or types from investigated and cooperative exp orters. Chinese  Taipei 's Article  2.2 claim is 
concerned with essentially the same issue regarding the CBSA's methodology. It is therefore not 
necessary for us to also evaluate that additional claim in order to effectively resolve this dispute or 
provide gu idance in the event this issue arises in implementation.  
7.9.5   The determination of an additional margin of dumping: Article  6.10 of the 
Anti-Dumping  Agreement  
7.9.5.1   Main arguments of the parties  
7.180.   Chinese  Taipei  submits that Canada violated Article  6.10 of the Anti-Dumping Agreement  
because it determined more than one individual margin of dumping for investigated Chinese  Taipei  
exporters.264 In particular, Chinese  Taipei  contends that after establishing an individual margin of 
dumping for the product of each producer as a  whole, the CBSA calculated the duty for new 
product types on the basis of the highest dumping margin found for a different exporter. According 
to Chinese  Taipei , this additional step results in the determination for the same exporting producer 
of two diff erent dumping margins, namely the dumping margin established for the subject product 
during the investigation and a residual dumping margin applicable to new model types of the 
subject product.265 
7.181.   Canada contends that Chinese  Taipei 's claim is premised on an  incorrect interpretation of 
the term "margin of dumping" and a fundamental misunderstanding of Canada's prospective duty 
assessment system. The CBSA would not be establishing two margins of dumping for cooperating 
Chinese  Taipei  exporters in the event it applied the ministerial specification to establish normal 
values for new product models.266 
7.182.   According to Canada, Chinese  Taipei  fails to take into account that, under the 
Anti-Dumping  Agreement , "margins of dumping" are not specific to a particular product m odel or 
export transaction, but instead are determined for all export transactions from a particular 
exporter or producer, pertaining to products within the same defined scope over a designated 
period of time.267 In US – Zeroing (Japan) , the Appellate Body m ade this clear when it found that:  
A product under investigation may be defined by an investigating authority. But 
"dumping" and "margins of dumping" can be found to exist only in relation to that 
product as defined by that authority. They cannot be found to exist for only a type, 
model, or category of that product. Nor, under any comparison methodology, can 
"dumping" and "margins of dumping" be found to exist at the level of an individual 
transaction.268 
                                                
262 Canada's  first written submission, para. 216.  
263 Canada's first written submission, para. 217.  
264 Chinese  Taipei 's first written submission, para. 243; second written submission, para. 183.  
265 Chinese  Taipei 's first written submission, para. 247 . 
266 Canada's first wri tten submission, para. 221.  
267 Indeed, at paras . 198 and 199 of its first written submission,  Chinese  Taipei itself acknowledges this. 
(Canada's first written submission, para. 222).  
268 Appellate Body Report, US – Zeroing ( Japan) , para. 115. (emphasis origin al, fns omitted)  WT/DS482/R  
 
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  7.183.   Canada asserts that a "margin of dumping", by definiti on, cannot be based on transactions 
pertaining only to specific product models.269 Canada submits therefore that, what Chinese  Taipei  
claims is a second margin of dumping for new product models is nothing of the sort.  
7.184.   Canada further asserts that the general rule under Article  6.10 has limited relevance after 
the conclusion of an anti -dumping investigation, since in Canada's system the margin of dumping 
for a particular exporter calculated during the investigation phase has no relevance during the 
enforcement phase. During the latter phase, the CBSA compares the relevant normal value to an 
individual export transaction price to determine the appropriate amount, if any, of the 
anti-dumping duty to be collected. Canada recalls that the calculation of an anti -dump ing duty on 
this basis does not constitute a determination of a "margin of dumping". This is the case 
regardless of whether the normal value for a particular product model was established during the 
investigation or is established by ministerial specificat ion during the enforcement phase.270 
7.9.5.2   Evaluation by the Panel  
7.185.   We have already upheld Chinese  Taipei 's Article  9.3 and 6.8 claims concerning the CBSA's 
determination of the amount of anti -dumping duty imposed or collected on imports of new product 
models or ty pes from investigated and cooperative exporters. Chinese  Taipei 's Article  6.10 claim is 
concerned with essentially the same issue (in the sense that Chinese  Taipei  alleges that the 
residual margin of dumping established for new product models or types cons titutes a second 
exporter -specific margin of dumping not envisaged by Article 6.10). It is therefore not necessary 
for us to also evaluate that additional claim in order to effectively resolve this dispute or provide 
guidance in the event this issue arises  in implementation.  
7.10  Additional claim under Article  1 of the Anti-Dumping  Agreement  and Article  VI of 
the GATT 1994  
7.10.1   Introduction  
7.186.   Chinese  Taipei  has also raised a claim under Article  1 of the Anti-Dumping  Agreement  and 
Article  VI of the GATT 1994 regarding a ll the measures contested in the sections above.  
7.10.2   Main arguments of the parties  
7.187.   Chinese  Taipei  argues that the alleged violations of the Anti-Dumping  Agreement  discussed 
in the sections above entail a violation of Article  1 of the Anti-Dumping  Agreement  and Article  VI of 
the GATT 1994.271 
7.188.   Canada insists that it acted in accordance with its obligations under the 
Anti-Dumping  Agreement  and that there is therefore no basis for Chinese  Taipei 's consequential 
claim under Article  1 of the Anti-Dumping  Agreement  and Article  VI of the GATT 1994.272 
7.10.3   Evaluation by the Panel  
7.189.   We observe that t hese are consequential claim s. As a consequence of the violations of 
Articles  3.1, 3.2, 3.4, 3.5, 3.7, 5.8, 6.8, 9.2,  and 9.3 of the Anti-Dumping  Agreement , and its 
Annex  II (including its paragraph  7) found above, we also find that Canada has acted 
inconsistently with Article  1 of the Anti-Dumping  Agreement  and Article  VI of the GATT 1994. 
To the extent that we have rejected Chinese  Taipei 's claims above, we also reject its claim under 
Article  1 of the Anti-Dumping  Agreement  and Article  VI of the GATT 1994.  
                                                
269 Canada's first written submission, para. 223 (referring to Appellate Body Report, US – Stainless Steel 
(Mexico) , para. 120).  
270 Canada's first written submission, para. 225.  
271 Chinese  Taipei 's first written submission, para. 249; second w ritten submission, para. 186.  
272 Canada's first written submission, para. 229.  WT/DS482/R  
 
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  7.11  "As such" claims concerning subsection  2(1), section  30.1, and subsections  35(1), 
35(2), 38(1), and 41(1) of SIMA  
7.11.1   Introduction  
7.190.   Chinese  Taipei  claims that certain provisions of SIMA, n amely subsection  2(1), 
section  30.1, and subsections  35(1), 35(2), 38(1) , and 41(1) of SIMA, are inconsistent, "as such", 
with Articles  1, 5.8, 7.1(ii), 7.5 , and 9.2 of the Anti-Dumping  Agreement  as well as Article  VI:2 of 
the GATT 1994.273 According to Chinese Taipei , the crux of these claims is the fact that the 
challenged provisions of SIMA improperly provide for a de minimis -test on a country -wide, rather 
than an exporter -specific basis.274 
7.11.2   Main arguments of the parties  
7.191.   Chinese  Taipei 's "as such" claims are  in substance similar to the "as applied" claims 
addressed above. For the most part, Chinese  Taipei 's "as such" claims are therefore based on the 
arguments already advanced in that context275, in particular the argument that the second 
sentence of Article  5.8 of the Anti-Dumping  Agreement  requires immediate termination in respect 
of exporters with individual de minimis  margins of dumping.  
7.192.   Canada also relies principally on the arguments it made in respect of Chinese  Taipei 's 
"as applied" claims.276 Regarding the  Article  5.8 "as such" claim specifically, Canada denies that 
this provision requires termination on the basis of exporter -specific margins of dumping. Canada 
also asserts that subsection  43(1) of SIMA in any event provides the CITT with discretion to 
exclude exporters with de minimis  margins of dumping from the affirmative injury findings, 
thereby terminating the investigation in respect of such exporters in accordance with the second 
sentence of Article  5.8.277 
7.193.   Chinese  Taipei  disagrees that subsection  43(1)  of SIMA gives the CITT discretion to 
exclude exporters from the injury analysis specifically based on their de minimis  margins of 
dumping.278 Chinese  Taipei  asserts that there is no reference in the text of subsection  43(1) of 
SIMA to exporters with a de minimis  margin of dumping, and that this discretion appears to be 
entirely unrelated to the challenged provisions.279 Chinese  Taipei  also submits that it is not aware 
of any instance in the CITT's past practice in which this provision has been used to exclude an 
exporter on the basis of an individual margin of dumping being de minimis .280 Chinese  Taipei  cites 
in this regard the example of Conares, an exporter from the United Arab Emirates  in the CSWP 
investigation, whose request for producer exclusion under subse ction 43(1) of SIMA was denied – 
and an affirmative threat of injury determination was made – even though a zero dumping margin 
                                                
273 In response to Panel question No.  11.10, paras.  14-17, Chinese  Taipei  clarified that it claims that: 
(a) subsection  38(1) of SIMA, read together with subsection  2(1), section  30.1 as well as subsections  35(1) 
and 35(2), is "as such" inconsistent with Article  7.1(ii) of the Anti-Dumping  Agreement ; (b) subsection  41(1) of 
SIMA, read together with subsection  2(1) and section  30.1, is "as such" inconsistent with Article  5.8 of the 
Anti-Dumping  Agreement ; (c) subsection  2(1), section  30.1 and subsections  35(1), 35(2), 38(1), and 41(1) of 
SIMA are "as such" inconsistent with Articles  7.5 and 9.2 of the Anti-Dumping  Agreement ; and 
(d) subsection  2(1), section  30.1, subsections  35(1), 35 (2), 38(1), and 41(1) of SIMA are "as such" 
inconsistent with Article  1 of the Anti-Dumping  Agreement  and Article  VI:2 of the GATT 1994. Canada does not 
contest Chinese  Taipei 's understanding of the operation of SIMA, nor does it contest the scope of the S IMA 
provisions challenged by Chinese  Taipei . 
274 Chinese  Taipei 's first written submission, para.  255. 
275 Chinese  Taipei 's first written submission, paras.  265-267, 269 -274, 280 -285, and 287 -289. 
276 Canada's first written submission, paras.  239, 244, and 249.  
277 Canada's first written submission, paras.  245-247; second written submission, paras.  169-176. 
We also understand Canada to invoke subsection  43(1) of SIMA in response to Chinese  Taipei 's "as such" 
claims under Articles  1 and 9.2 of the Anti-Dumping  Agree ment as well as under Article  VI:2 of the GATT 1994. 
(See Canada's first written submission, paras.  253 and 256 and fn  185).  
278 Chinese  Taipei 's response to Panel question No.  6.1, paras.  119-124; second written submission, 
paras.  197-204. 
279 Chinese  Taipei 's response to Panel  question No.  6.1, para.  120; second written submission, 
paras.  200 and 201.  
280 Chinese  Taipei 's response to Panel  question No.  6.1, para.  121; second written submission, 
para. 202. WT/DS482/R  
 
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  had been found for this exporter.281 Chinese  Taipei  also refers to a statement made by the CITT in 
the CSWP investigation in which  it "reiterate[d] that producer exclusions are typically not 
appropriate other than in the most specific set of circumstances".282 In the view of Chinese  Taipei , 
this leaves no room for the CITT to exclude producers having de minimis  margins of dumping.  
7.194.   In addition, Chinese  Taipei  advances three arguments according to which the exclusion of 
exporters pursuant to subsection  43(1) of SIMA could not, in any case, satisfy the requirements of 
the second sentence of Article  5.8. First, Chinese  Taipei  contends that Article  5.8 imposes a 
positive obligation and does not allow for any type of discretion in deciding on the termination of 
the investigation.283 Second, Chinese  Taipei  contends that excluding an exporter from an injury 
finding is not the same as terminating t he investigation in respect of such exporter.284 Finally, 
Chinese  Taipei  claims that for "immediate termination" as contemplated in Article  5.8 to occur, 
termination would need to be decided by the CBSA, and not the CITT.285 
7.195.   Canada asserts that the CITT's past  practice regarding the exclusion of de minimis  
exporters under subsection  43(1) of SIMA is irrelevant to the assessment of Chinese  Taipei 's 
claim.286 Canada suggests that the Panel should instead focus its analysis on the wording of 
subsection  43(1) of SIMA .287 Canada also submits that Chinese  Taipei  has ignored 
subsection  43(1) of SIMA in making its "as such" claims.288 According to Canada, the burden is on 
Chinese  Taipei  to demonstrate that subsection 43(1) of SIMA does not grant the CITT discretion to 
exclude  exporters with de minimis  margins of dumping. Canada contends that Chinese  Taipei  has 
failed to adduce evidence to this effect.289 
7.196.   Regarding Chinese  Taipei 's argument that Article  5.8 precludes any form of discretion to 
exclude relevant exporters, Canada po ints out that this proposition is inconsistent with 
WTO jurisprudence according to which an "as such" violation cannot be found if discretion exists 
that allows a WTO Member to comply with its WTO obligations.290 In addition, Canada argues that 
the exclusion  of de minimis  exporters from the CITT's affirmative injury finding is consistent with 
the Appellate Body's statement that "immediate termination" is in most cases achieved through 
exclusion from the scope of the order establishing the definitive anti -dump ing duties.291 
7.11.3   Main arguments of third parties  
7.11.3.1   United States  
7.197.   Without taking any position on the merits of the alleged "as such" inconsistency, the 
United States submits that the Panel's assessment should focus on whether SIMA and SIMR 
require WTO -inconsisten t conduct or provide discretion to Canada's investigating authority to 
comply with its WTO obligations.292 In case Chinese  Taipei  could show that SIMA and SIMR require 
Canada to act in a WTO -inconsistent manner or preclude WTO -consistent action, Chinese  Taipei 
                                                
281 Chinese  Taipei 's second written submission, para.  208; see also CITT, Finding and Reasons, Injury 
Inquiry No.  NQ-2012-003, 27  December 2012, (Exhibit TPKM -14), para.  181. 
282 Chinese  Taipei 's second written submission, para.  203 (quoting CITT, Finding and Reasons, Injury 
Inquiry No.  NQ-2012-003, 27  December 201 2, (Exhibit TPKM -14), para.  181).  
283 Chinese  Taipei 's response to Panel question No.  6.1, para.  122; second written submission, 
paras.  205-207. 
284 Chinese  Taipei 's response to Panel question No.  6.1, para.  123; second written submission, 
para. 208. 
285 Chinese  Taipei 's response to Panel question No.  6.1, para.  124; second written submission, 
para. 209. 
286 Response of Canada to a question put by Chinese  Taipei  through the Panel at the first substantive 
meeting. See also Canada's second written submission, paras.  180 and 182; and opening statement at the 
second meeting of the Panel, para.  104. 
287 Canada's second written submission, para.  183. 
288 Canada's response to Panel question No.  11.2, para.  48; comments on Chinese  Taipei 's response to 
the Panel question No.  11.9, para.  11. 
289 Canada's second written submission, paras.  177 and 180.  
290 Canada's second written submission, para.  179. 
291 Canada's second written submission, paras.  186 and 187.  
292 United States' third -party submission, para.  25. WT/DS482/R  
 
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  should prevail on its claims. Moreover, the United States submits that past practice may serve, in 
certain circumstances, as evidence for the "as such" inconsistency of a challenged measure.293 
7.11.4   Evaluation by the Panel  
7.198.   The crux of Chinese  Taipei 's "as such " claims concerns the fact that SIMA bases the 
de minimis -test on a country -wide, rather than an exporter -specific margin of dumping. 
We therefore begin with this claim. In doing so, we recall our earlier finding that the second 
sentence of Article  5.8 of the Anti-Dumping  Agreement  requires immediate termination of the 
investigation in respect of exporters for whom a final determination has established individual 
de minimis  margins of dumping. We also recall our rejection of many of the arguments that 
Canad a also relies on to rebut Chinese  Taipei 's "as such" claim under Article  5.8. 
7.199.   With regard to the final dumping determination, the application of a country -wide 
de minimis -test is provided for in subsection  41(1) of SIMA.294 In the circumstances of this case,  to 
prevail with its "as such" claim under Article  5.8, Chinese  Taipei  must demonstrate that 
subsection  41(1) of SIMA necessarily leads to WTO -inconsistent conduct or prevents 
WTO-consistent conduct, by precluding the termination of an investigation in res pect of exporters 
with an individual de minimis  margin of dumping.295 Chinese  Taipei  has shown that this provision 
of SIMA requires a final dumping determination to be made in respect of all goods of a country, 
i.e. including those from exporters with indivi dual de minimis  margins of dumping, if  that country 's 
margin of dumping is 2% or more.296 The text of subsection  41(1) of SIMA only provides for 
termination of the investigation when there is a country -wide de minimis  margin of dumping. 
It does not provide f or immediate termination in respect of exporters with individual de minimis  
margins of dumping, contrary to the requirement of the second sentence of Article  5.8. 
We therefore conclude that Chinese  Taipei  has established a prima facie  case that 
subsection  41(1) of SIMA is "as such" inconsistent with the second sentence of Article  5.8.297 
7.200.   Canada contends that subsection  43(1) of SIMA provides the CITT with discretion to 
immediately terminate investigations in respect of exporters with de minimis  margins of dum ping, 
as required by Article  5.8. We shall therefore consider whether this provision is sufficient to rebut 
the prima facie  case of WTO -inconsistency established by Chinese  Taipei .298 
7.201.   Subsection  43(1) of SIMA reads in relevant part:  
[The CITT shall] not late r than one hundred and twenty days after the date of receipt 
of notice of a preliminary determination  with respect to the goods,  make such order or 
                                                
293 United States' third -party response to Panel question No.  3.1, paras.  10 and 13.  
294 Consistent with Chinese  Taipei 's response to Panel question No.  11.10, para.  16, we read 
subsection  41(1) of SIMA together with subsection  2(1) and section  30.1 of SIMA.  
295 Appellate Body Reports, US – Oil Country Tubular Goods Sunset Reviews , para.  172; and US – 
Carbon Steel , para.  157. 
296 Section  41(1) of SIMA provides, in relevant part, that a final determination of dumping shall only be 
made if, among others, "the margin of dumping of … the goods o f that country or of any of those countries is 
not insignificant". (Special Import Measures Act, R.S.C., 1985, c. S -15 (last amended on 1 November 2014), 
(Exhibits TPKM -25 and CAN -12) (exhibited twice)) . 
297 Where the meaning and content of the challenged pr ovision are clear on its face, as it is the case 
here, an analysis of its text may suffice to establish the "as such" inconsistency of the challenged provision. 
(See Appellate Body Reports, US – Carbon Steel , para.  157; and US – Corrosion -Resistant Steel S unset 
Review , para.  168). 
298 Our conclusions in respect of subsection  43(1) of SIMA apply irrespective of which party bears the 
burden of proof regarding the operation of this provision. Nevertheless, we do not accept Canada's argument 
that it was Chinese  Taipei's burden to establish that subsection  43(1) of SIMA does not allow the CITT to 
exclude exporters based on their de minimis  margin of dumping. Nothing in the text of the relevant provisions 
suggests that the mandatory provision of subsection  41(1) of SIMA should be viewed in light of the discretion 
contained in subsection  43(1) of SIMA. The provisions concern the distinct issues of dumping and injury 
determinations to be made by different authorities. Past practice also indicates that exclusions under 
subsection  43(1) of SIMA are made on the basis of the potential for injury, rather than the extent of an 
exporter's margin of dumping. In the absence of any apparent nexus between subsections  41(1) and 43(1) of 
SIMA, Chinese  Taipei  was not required to iden tify, and discharge a burden of proof with respect to, 
subsection  43(1) of SIMA in making its "as such" claim in this case. The burden was rather on Canada, as the 
defending party, to assert and demonstrate that subsection 43(1) of SIMA provides sufficient  discretion for 
Canada to act in a manner consistent with the second sentence of Article 5.8.  WT/DS482/R  
 
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  finding with respect to the goods to which the final determination applies as the 
nature of the matter may r equire, and shall declare to what goods, including, where 
applicable, from what supplier and from what country of export, the order or finding 
applies.299 
7.202.   Upon completion of an injury inquiry, the CITT makes an affirmative or negative finding in 
respect of w hether the dumped imports have caused or are threatening to cause material injury to 
the domestic industry.300 Subsection  43(1) requires the CITT to specify to what goods, suppliers 
(i.e. exporters) or countries such an affirmative finding applies. In exerci sing its discretion under 
subsection  43(1), the CITT can exclude certain goods, exporters or countries from the application 
of an affirmative final injury finding. Canada argues that absent any express limitations, this 
discretion is sufficiently broad to allow the CITT to exclude exporters with de minimis  margins of 
dumping from the affirmative injury findings.301 When specifically asked by the Panel, Canada 
confirmed that the CITT is able to make such exclusion solely on the basis of an exporter's 
individua l margin of dumping being de minimis .302 Canada also confirmed to the Panel that, in the 
absence of any statutory limitation on the CITT's discretion under subsection  43(1) of SIMA, such 
exclusion would be consistent with the mandate and statutory role of th e CITT.303 
7.203.   Bearing in mind the absence of any express textual limitations on the type of exporter 
exclusion that may be made by the CITT under subsection  43(1) of SIMA, and taking into account 
the assurances provided by Canada in this respect, we do not excl ude that subsection  43(1) of 
SIMA might operate in the manner explained by Canada.304 However, the second sentence of 
Article  5.8 of the Anti-Dumping  Agreement  requires that the termination of the investigation in 
respect of de minimis  exporters must be "imm ediate". As explained in the following, we are not 
persuaded that any termination of an investigation by way of a producer exclusion under 
subsection  43(1) of SIMA would occur with the degree of immediacy required by Article  5.8 of the 
Anti-Dumping  Agreeme nt. 
7.204.   In Canada's bifurcated anti -dumping regime, the final dumping determination is issued by 
the CBSA, and the final injury determination is issued by the CITT. Exclusion under 
subsection  43(1)  of SIMA only becomes effective once the CITT issues its final injury 
determination, and that final injury determination is only m ade approximately one month 
(or more) after the CBSA's final dumping determination.305 Thus, even though the CBSA 
determines that an exporter's final margin of dumping is de minimis , the inve stigation will continue 
to apply in respect of that exporter until such time as the CITT issues its final injury determination.  
7.205.   The text of the second sentence of Article  5.8 Anti-Dumping  Agreement  requires that 
"[t]here shall be immediate termination in c ases where the authorities determine that the margin 
of dumping is de minimis ". It is the final determination of an exporter's de minimis  margin of 
dumping that triggers the obligation to terminate the investigation. Textually, termination must 
follow "imm ediately" thereafter. The text of Article  5.8 does not allow for the continuation of the 
investigation in respect of that exporter beyond the final dumping determination, pending issuance 
of the final injury determination at some later date, as envisaged u nder subsection  43(1) of 
                                                
299 Special Import Measures Act, R.S.C., 1985, c. S -15 (last amended on 1 November 2014), 
(Exhibits  TPKM -25 and CAN -12) (exhibited twice). The term "preliminary det ermination" refers to the 
preliminary dumping determination issued by the CBSA pursuant to subsection  38(1) of SIMA; the term "final 
determination" refers to the final dumping determination issued by the CBSA pursuant to subsection  41(1) of 
SIMA; the terms  "order or finding" refer to the actual decision made by the CITT pursuant to subsection  43(1) 
of SIMA following its injury analysis conducted under subsection  42(1) of SIMA as to whether or not dumped 
imports have caused or are threatening to cause injury . (See Canada's response to Panel question No.  11.3, 
para. 50). 
300 Canada's second written submission, para.  170. 
301 Canada's second written submission, para.  177; opening statement at the second meeting with the 
Panel, para.  104; and response to Panel quest ion No.  11.8, paras.  64 and 66.  
302 Canada's response to Panel question No.  11.8, para.  64. 
303 Canada's response to Panel question No.  11.8, para.  66. 
304 Such an approach would be contrary to current CITT policy. However, we do not exclude that the 
CITT has su fficient discretion to change that policy in light of a proper interpretation of Article  5.8 of the 
Anti-Dumping  Agreement . 
305 Canada's responses to Panel question Nos.  11.4, para.  51, 11.6, para.  58, and 11.12, para.  70. 
In the underlying CSWP investigatio n, the CBSA issued its final dumping determination on 9  November 2012, 
and the CITT issued its final injury determination on 11  December 2012.  WT/DS482/R  
 
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  SIMA.306 Subsection  43(1) of SIMA therefore does not result in the "immediate" termination 
required by Article  5.8. 
7.206.   Our interpretation of  "immedia te" termination under Article  5.8 is consistent with our 
findings in relation to Articl e 3 of the Anti-Dumping  Agreement , interpreted in light of Article  5.8. 
Imports from exporters with final de minimis  margins of dumping should not be treated as 
"dumped imports" in the CITT's final injury analysis, precisely because the investigation shoul d 
already have been terminated in respect of such exporters.307 Our approach is also consistent with 
the fact that the Canadian anti -dumping legislation foresees termination of the investigation 
immediately after the determination of a country -wide de minimi s margin of dumping is made.308 
Thus, the CBSA terminated the CSWP investigation in respect of Turkey (based on Turkey having a 
de minimis  country -wide margin of dumping) on the same day that the CBSA issued its final 
dumping determination, i.e. on 9  Novembe r 2012.309 
7.207.   Canada argues that the Appellate Body's findings in Mexico – Anti-Dumping Measures on 
Rice provide support for its position that exclusion from the CITT's final injury determination under 
subsection  43(1) of SIMA constitutes immediate termination within the meaning of Article  5.8. 
Canada refers in this regard to the Appellate Body's statement that "the only way to terminate 
immediately  an investigation, in respect of producers or exporters for which a de minimis  margin 
of dumping is determined, is to exclude them from the scope of the order" that establishes the 
anti-dumping duties.310 
7.208.   The facts of the present case are very different from those in Mexico – Anti-Dumping 
Measures on Rice . That case concerned Mexico's unitary anti -dumping system, under w hich the 
dumping and injury determinations are made simultaneously by the same investigating authority, 
and the issuance of the order imposing anti -dumping duties is the ultimate step of the 
investigation following those final determinations.311 The situatio n is very different under Canada's 
bifurcated system. Here the CITT issues its final injury determination approximately one month 
(or more) after the CBSA issues its final determination . 
7.209.   The Appellate Body did not contemplate how immediate termination shou ld occur in such 
situations, where further investigative steps are taken following issuance of the final dumping 
determination .312 There is nothing in the Appellate Body's findings to suggest that, in such 
circumstances, termination under Article  5.8 of the Anti-Dumping  Agreement , rather than being 
"immediate", may be delayed until those additional investigative steps have been undertaken. 
Furthermore, the fact that the CBSA terminates the investigation in respect of countries with 
de minimis  margins of dumpi ng at the same time that it issues its final dumping determination 
demonstrates that exclusion from the order (via exclusion from the CITT's injury determination) is 
not "the only way" to immediately terminate an investigation in the context of Canada's bi furcated 
system.  
                                                
306 The term "immediate" is commonly defined to mean "present or nearest in time; most urgent, 
occurring or taking effect without delay; done at once, instant". ( Shorter Oxford English Dictionary , 6th edn, 
A. Stevenson (ed.) (Oxford University Press, 2007), Vol.  1, p. 1330). An investigation could not be said to be 
terminated "without delay" or "at once" if it could co ntinue following the final determination of a de minimis  
margin of dumping.  
307 Under Canada's approach, provisional duties would continue to be levied in respect of de minimis 
exporters until the CITT's injury determination is issued. ( See Canada's response  to Panel question No.  11.6, 
para. 58). We see no basis for imposing provisional duties on exporters in respect of which the investigation 
should already have been terminated pursuant to a final determination of de minimis  dumping. Even if those 
provisiona l duties are subsequently refunded, exporters subject to such duties suffer commercial inconvenience 
that should normally be avoided as a result of immediate termination of the investigation under Article  5.8 of 
the Anti-Dumping  Agreement . 
308 See Special Im port Measures Act, R.S.C., 1985, c. S -15 (last amended on 1 November 2014), 
(Exhibits TPKM -25 and CAN -12) (exhibited twice), subsection  41(1)(b).  
309 CBSA, Decision, Final Determinations Dumping and Subsidizing, 9  November 2012, Canada Gazette  
2012.I.146.47 (24 November 2012), pp.  3172 and 3173, (Exhibit TPKM -12). 
310 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para.  219. (emphasis original)  
311 See Panel Report, Mexico – Anti-Dumping Measures on Rice , paras.  2.6 and 2.7 and fn  4; and 
Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice , para.  219. 
312 The Appellate Body specifically qualified its analysis with the remark that "in most cases" termination 
of the investigation in respect of a de minimis exporter would occur through the orde r imposing anti -dumping 
duties. (Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para.  219). In other cases, 
therefore, an alternative means of termination may be required.  WT/DS482/R  
 
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  7.210.   We conclude that exclusions from the injury findings under subsection  43(1) of SIMA do 
not constitute immediate termination as required under Article  5.8. Accordingly, we find that 
subsection  43(1) of SIMA is not sufficient to rebut the prima facie  case of WTO -inconsistency 
established by Chinese  Taipei  in respect of subsection  41(1) of SIMA. We therefore find that 
subsection  41(1) of SIMA, read together with section  30.1 and subsection  2(1) of SIMA, is 
"as such" inconsistent with the secon d sentence of Article  5.8. 
7.211.   Chinese  Taipei  also claims that subsection  38(1) of SIMA, read together with 
subsection  2(1), section  30.1 and subsections  35(1) and 35(2) of SIMA, is "as such" inconsistent 
with Article  7.1(ii) of the Anti-Dumping  Agreement  because this provision requires an affirmative 
preliminary dumping determination to be made for exporters with de minimis  margins of dumping 
when the country -wide margin of dumping is more than de minimis .313 Above, we have rejected 
Chinese  Taipei 's "as applied"  claim that Canada acted inconsistently with Article  7.1(ii) by imposing 
provisional anti -dumping measures on a Chinese  Taipei  exporter with a preliminary de minimis  
margin of dumping. Similarly , there is no basis for us to find that subsection  38(1) of SI MA is 
"as such" inconsistent with Article  7.1(ii) . We therefore reject Chinese  Taipei 's "as such" claim 
under Article  7.1(ii) of the Anti-Dumping  Agreement . 
7.212.   Chinese  Taipei  also challenges sub section  2(1), section  30.1 and subsections  35(1), 35(2), 
38(1) , and 41(1) of SIMA as being inconsistent "as such" with Articles  7.5 and 9.2 of the 
Anti-Dumping  Agreement . Chinese  Taipei  submits that these provisions of SIMA require affirmative 
preliminary and definitive dumping determinations to be made for exporters wi th de minimis  
margins of dumping when the country -wide margins of dumping is above the de minimis  level, 
thereby causing anti -dumping duties to be collected from such exporters.314 Canada does not 
contest that the challenged provisions of SIMA result in duty  imposition on imports from such 
exporters. We recall our earlier finding that the imposition of definitive anti -dumping duties in 
respect of imports from exporters with final de minimis  margins of dumping is inconsistent with 
Article  9.2. Accordingly, we find that the challenged provisions of SIMA are "as such" inconsistent 
with Article  9.2, to the extent that they result in the imposition of definitive anti -dumping duties on 
exporters with final de minimis  margins of dumping . Above, however, we have rejec ted 
Chinese  Taipei 's "as applied" claim that the imposition of provisional measures in respect of 
exporters with a preliminarily determined de minimis  margin of dumping is inconsistent with 
Article  7.5 of the Anti-Dumping  Agreement . Consequently, we also r eject Chinese  Taipei 's 
"as such" claim under Article  7.5. 
7.213.   Chinese  Taipei  also claims that subsection  2(1), section  30.1 and subsections  35(1), 35(2), 
38(1) , and 41(1) of SIMA are inconsistent "as such" with Article  1 of the Anti-Dumping  Agreement  
and Artic le VI:2 of the GATT 1994. To the extent that we have found subsection  2(1), section  30.1 
and subsections  35(1), 35(2), 38(1) , and 41(1) of SIMA to be "as such" inconsistent with 
Articles  5.8 and 9.2 of the Anti-Dumping  Agreement , we also find that these pr ovisions of SIMA 
are, as a consequence, "as such" inconsistent with Article  1 of the Anti-Dumping  Agreement  and 
Article  VI:2 of the GATT 1994. To the extent that we have rejected Chinese  Taipei 's claims 
concerning subsection  2(1), section  30.1 and subsecti ons 35(1), 35(2), 38(1) , and 41(1) of SIMA 
under Articles  7.1(ii) and 7.5 of the Anti-Dumping  Agreement , we also reject its claim of "as such" 
inconsistency under Article  1 of the Anti-Dumping  Agreement  and Article  VI:2 of the GATT 1994.  
7.12  "As such" claims c oncerning subsections  42(1), 42(6), and 43(1)  of SIMA and 
subsection  37.1(1) of SIMR  
7.214.   Chinese  Taipei  argues that subsections  42(1), 42(6) , and 43(1) of SIMA and 
subsection  37.1(1) of SIMR are, as such, inconsistent with Articles  3.1, 3.2, 3.4, 3.5, and 3.7  of 
the Anti-Dumping  Agreement . Chinese  Taipei  contends that these provisions result in the 
treatment  of imports from exporters with de minimis  margins of dumping as "dumped imports " in 
the analysis and determination s of injury and causation, contrary to th e referenced paragraphs of 
Article  3.315 
                                                
313 Chinese  Taipei 's response to Panel question No.  11.10, para.  16. 
314 Ibid. 
315 Chinese  Taipei 's first written submission, para. 291; second  written submission, para. 215.  WT/DS482/R  
 
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  7.215.   Chinese  Taipei  relies on the same arguments made in the context of its corresponding 
"as applied" claims, in particular invoking case law regarding the interpretation of the term 
"dumped imports".316 
7.216.   Canada does not con test that, in the context of the preliminary and final determination s of 
injury and causation, the challenged provisions result in the treatment of imports from exporters 
with a de minimis  margin of dumping as "dumped imports". As above in the context of t he "as 
applied" claims, Canada denies, however, that the meaning of the term "dumped imports" is 
limited to imports that are dumped at a margin above the de minimis  threshold.317 
7.217.   We have already addressed the issue of the interpretation of "dumped imports" u nder 
Article  3 of the Anti-Dumping  Agreement . We have found that Canada acted in a manner 
inconsistent with Articles  3.1, 3.2, 3.4, 3.5, and 3.7  by treating imports from two Chinese  Taipei  
exporters with final de minimis  margins of dumping as "dumped impor ts" in the CITT's final 
determination s of injury and causation. The same reasoning applies in respect of Chinese  Taipei 's 
"as such" claims. We therefore find that subsections  42(1), 42(6), and 43(1)  of SIMA and 
subsection  37.1(1) of SIMR are "as such" inco nsistent with Articles  3.1, 3.2, 3.4, 3.5, and 3.7  of 
the Anti-Dumping  Agreement , to the extent that the challenged provisions relate to the final 
determination s of injury and causation. To the extent that the challenge is brought in relation to 
the prelim inary determination s of injury and causation, we reject the claims.  
7.13  Additional "as such" claims concerning subsection  2(1), section  30.1 and 
subsections  35(1), 35(2), 38(1), 41(1), 42(1), 42(6), and 43(1) of SIMA and 
subsection  37.1(1) of SIMR  
7.218.   Chinese  Taipei pursues additional "as such" claims of violation of Article  XVI:4 of the 
Marrakesh Agreement and Article  18.4 of the Anti-Dumping  Agreement  in respect of 
subsection  2(1), section  30.1 and subsections  35(1), 35(2), 38(1), 41(1), 42(1), 42(6), and 43(1) 
of SIMA and subsection  37.1(1) of SIMR.  
7.219.   Article  XVI:4 of the Marrakesh Agreement provides that:  
Each Member shall ensure the conformity of its laws, regulations and administrative 
procedures with its obligations as provided in the annexed Agreements.  
7.220.   Article 18.4 of the Anti-Dumping  Agreement  provides that : 
Each Member shall take all necessary steps, of a general or particular character, to 
ensure, not later than the date of entry into force of the WTO Agreement for it, the 
conformity of its laws, regulation s and administrative procedures with the provisions 
of this Agreement as they may apply for the Member in question.  
7.221.   Chinese  Taipei  argues that it follows from the alleged inconsistencies of SIMA and SIMR 
addressed in the sections above that Canada has not ensured confo rmity of its laws with the 
GATT  1994 and the Anti-Dumping  Agreement , contrary to  Article  XVI:4 of the 
Marrakesh  Agreement and Article  18.4 of the Anti-Dumping  Agreement .318 Moreover, 
Chinese  Taipei  separately challenges these provisions of SIMA and SIMR "as such" under Article  1 
of the Anti-Dumping  Agreement  and Article  VI of the GATT 1994.319 
7.222.   Referencing its arguments set forth above, Canada submits that Chinese  Taipei 's claims 
are without merit.320 
                                                
316 Chinese  Taipei 's first written submission, para.  298. 
317 Canada's first written submission, paras.  264 and 265.  
318 Chinese  Taipei 's first written submissio n, paras.  304-315. 
319 Chinese  Taipei 's first written submission, paras.  316 and 317.  
320 Canada's first written submission, paras.  267-270. WT/DS482/R  
 
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  7.223.   We observe that these are consequential  claims. Th ey are therefore addressed in light of 
the Panel's evaluation of the claims on which they depend. In respect of the final dumping and 
injury determinations, we found above that subsection  2(1), section  30.1 and subsections  35(1), 
35(2), 38(1), 41(1), 42(1) , 42(6), and 43(1) of SIMA and subsection  37.1(1) of SIMR are "as 
such" inconsistent with Articles  3.1, 3.2, 3.4, 3.5 , 3.7, 5.8,  and 9.2 of the 
Anti-Dumping  Agreement . As a result, we also uphold Chinese  Taipei 's corresponding 
consequential claims under Ar ticle XVI:4 of the Marrakesh Agreement and Article  18.4 of the 
Anti-Dumping  Agreement  as well as under Article  1 of the Anti-Dumping  Agreement  and Article  VI 
of the GATT 1994. In relation to the preliminary dumping and injury determinations, we rejected 
above Chinese  Taipei 's "as such" claims under Articles  3.1, 3.2, 3.4, 3.5 , 3.7, 7.1(ii) , and 7.5 of 
the Anti-Dumping  Agreement  concerning subsection  2(1), section  30.1 and subsections  35(1), 
35(2), 38(1), 41(1), 42(1), 42(6), and 43(1) of SIMA and subsection  37.1(1) of SIMR. To the 
same extent, we therefore also reject Chinese  Taipei 's consequential claims under Article  XVI:4 of 
the Marrakesh Agreement and Article  18.4 of the Anti-Dumping  Agreement  as well as under 
Article  1 of the Anti-Dumping  Agreement  and Article  VI of the GATT 1994.  
8  CONCLUSIONS AND RECO MMENDATION  
8.1.  For the reasons set forth in this Report, the Panel concludes as follows:  
a. Canada acted inconsistently with the second sentence of Article  5.8 of the 
Anti-Dumping  Agreement  by failing to immediatel y terminate the investigation in respect 
of exporters from Chinese  Taipei  with final de minimis  margins of dumping;  
b. Chinese  Taipei  failed to establish that Canada acted inconsistently with Article  6.10 of 
the Anti-Dumping  Agreement  by failing to determine only one individual margin of 
dumping for each exporter from Chinese  Taipei  with a de minimis  margin of dumping 
when basing the de minimis -test on a country -wide margin of dumping;  
c. Chinese  Taipei  failed to establish that Canada acted inconsistently with Ar ticle 7.1(ii) of 
the Anti-Dumping  Agreement  by applying provisional anti -dumping measures in respect 
of imports from a Chinese  Taipei  exporter with a preliminary de minimis  margin of 
dumping;  
d. Canada acted inconsistently with Article  9.2 of the Anti-Dumping  Agreement  by imposing 
definitive anti -dumping duties on imports from Chinese  Taipei  exporters with final 
de minimis  margins of dumping;  
e. Chinese  Taipei  failed to establish that Canada acted inconsistently with Article  7.5 of the 
Anti-Dumping  Agreement  by imposing provisional anti -dumping duties on imports from 
Chinese  Taipei  exporters with preliminary de minimis  margins of dumping;  
f. Canada acted inconsistently with Article  1 of the Anti-Dumping  Agreement  and 
Article  VI:2 of the GATT 1994, to the extent that Canada imposed definitive 
anti-dumping duties on imports from Chinese  Taipei  exporters with final de minimis  
margins of dumping. Chinese  Taipei  failed to establish that Canada acted inconsistently 
with Article  1 of the Anti-Dumping  Agreement  and Article  VI:2 of the GATT 1994, to the 
extent that Canada imposed provisional anti -dumping duties on imports from 
Chinese  Taipei  exporters with preliminary de minimis  margins of dumping;  
g. Canada acted inconsistently with Articles  3.1, 3.2, 3.4, 3.5 , and 3.7 of the 
Anti-Dumping  Agreement  by treating imports from two Chinese  Taipei  exporters with 
final de minimis  margins of dumping as "dumped imports" in the analysis and final 
determination s of injury and causation;  
h. Chinese  Taipei  failed to establish that Canada acted in consistently with Articles  3.1 and 
3.5 of the Anti-Dumping  Agreement  by failing to undertake a non -attribution analysis in 
respect of the effect of subsidization for imports from India and the effect of 
overcapacity in the domestic industry;  WT/DS482/R  
 
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  i. Canada acted i nconsistently with Article  6.8 of the Anti-Dumping  Agreement , and its 
Annex  II, paragraph  7, by establishing the dumping margin and duty rate for "all other 
exporters" on the basis of the highest amount by which the normal value exceeded the 
export price o n an individual transaction for a cooperative producer from any country 
subject to the investigation;  
j. Canada acted inconsistently with Article  9.3 of the Anti-Dumping  Agreement  by imposing 
anti-dumping duties on new product models or types from investigate d and cooperative 
exporters from Chinese  Taipei  that exceeded their margin s of dumping as established 
under Article  2 of the Anti-Dumping  Agreement ; 
k. Canada acted inconsistently with Article  6.8 of the Anti-Dumping  Agreement , and its 
Annex  II, by using fact s available to determine the amount of anti -dumping duty 
imposed or collected on imports of new product models or types from investigated and 
cooperative exporters from Chinese  Taipei ; 
l. Canada acted inconsistently with Article  1 of the Anti-Dumping  Agreemen t and Article  VI 
of the GATT 1994, to the extent that Canada has been found to violate Articles  3.1, 3.2, 
3.4, 3.5, 3.7, 5.8, 6.8, 9.2, and 9.3 of the Anti-Dumping  Agreement , and its Annex  II 
(including its paragraph  7). Chinese  Taipei  failed to establish that Canada acted 
inconsistently with Article  1 of the Anti-Dumping  Agreement  and Article  VI of the 
GATT  1994, to the extent that Chinese  Taipei 's claims under Articles  3.1, 3.5, 6.10, 
7.1(ii) , and 7.5 of the Anti-Dumping  Agreement  have been rejected;  
m. subsection  41(1) of SIMA, read together with section  30.1 and subsection  2(1) of SIMA, 
is inconsistent "as such" with the second sentence of Article  5.8 of the 
Anti-Dumping  Agreement  because it bases the de minimis -test for the final dumping 
determination on a  country -wide, rather than an exporter -specific margin of dumping;  
n. Chinese  Taipei  failed to establish that section  38(1) of SIMA, read together with 
subsection  2(1), section  30.1 and subsections  35(1) and 35(2) of SIMA, is inconsistent 
"as such" with Artic le 7.1(ii) of the Anti-Dumping  Agreement  because it requires an 
affirmative preliminary dumping determination to be made for exporters with de minimis  
margins of dumping when the country -wide margin of dumping is more than de minimis ; 
o. subsection  2(1), sect ion 30.1 and subsections  35(1), 35(2), 38(1) , and 41(1) of SIMA 
are inconsistent "as such" with Article  9.2 of the Anti-Dumping  Agreement , to the extent 
that these provisions of SIMA result in the imposition of definitive anti -dumping duties 
on imports fro m exporters with final de minimis  margins of dumping;  
p. Chinese  Taipei  failed to establish that subsection  2(1), section  30.1 and 
subsections  35(1), 35(2), 38(1) , and 41(1) of SIMA are inconsistent "as such" with 
Article  7.5 of the Anti-Dumping  Agreement , to the extent that these provisions of SIMA 
result in the imposition of provisional anti -dumping duties on imports from exporters 
with preliminary de minimis  margins of dumping;  
q. subsection  2(1), section  30.1 and subsections  35(1), 35(2), 38(1) , and 41(1) of SIMA 
are inconsistent "as such" with Article  1 of the Anti-Dumping  Agreement  and Article  VI:2 
of the GATT 1994, to the extent that these provisions of SIMA have been found to be 
inconsistent "as such" with Articles  5.8 and 9.2 of the Anti-Dumping  Agreement . 
Chinese  Taipei  failed to establish that subsection  2(1), section  30.1 and 
subsections  35(1), 35(2), 38(1) , and 41(1) of SIMA are inconsistent "as such" with 
Article  1 of the Anti-Dumping  Agreement  and Article  VI:2 of the GATT 1994, to the 
extent that the se provisions of SIMA have not been found to be inconsistent "as such" 
with Articles  7.1(ii) and 7.5 of the Anti-Dumping  Agreement ; 
r. subsections  42(1), 42(6) , and 43(1) of SIMA and subsection  37.1(1) of SIMR are 
inconsistent "as such" with Articles  3.1, 3.2 , 3.4, 3.5 and 3.7 of the 
Anti-Dumping  Agreement , to the extent that these provisions of SIMA and SIMR result in 
the treatment of imports from exporters with final de minimis  margins of dumping as 
"dumped imports" in the final determination s of injury and causation. Chinese  Taipei  WT/DS482/R  
 
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  failed to establish that subsections  42(1), 42(6) , and 43(1) of SIMA and 
subsection  37.1(1) of SIMR are inconsistent "as such" with Articles  3.1, 3.2, 3.4, 3.5 , 
and 3.7 of the Anti-Dumping  Agreement , to the extent that these provi sions of SIMA and 
SIMR result in the treatment of imports from exporters with preliminary de minimis  
margins of dumping as "dumped imports" in the preliminary determination s of injury and 
causation;  and 
s. subsection  2(1), section  30.1 and subsections  35(1), 35(2), 38(1), 41(1), 42(1), 42(6) , 
and 43(1) of SIMA and subsection  37.1(1) of SIMR are inconsistent "as such" with 
Article  XVI:4 of the Marrakesh Agreement and Article  18.4 of the 
Anti-Dumping  Agreement  as well as with Article  1 of the Anti-Dumping  Agreem ent and 
Article  VI of the GATT 1994, to the extent that these provisions of SIMA and SIMR have 
been found to be inconsistent "as such" with Articles  3.1, 3.2, 3.4, 3.5 , 3.7, 5.8, and 9.2 
of the Anti-Dumping  Agreement , namely in relation to the final determ inations of 
dumping and injury. To the extent that these provisions of SIMA and SIMR have not 
been found to be inconsistent "as such" with  Articles  3.1, 3.2, 3.4, 3.5, 3.7, 7.1(ii), 
and 7.5 of the Anti-Dumping  Agreement , namely in relation to the prelimina ry 
determinations of dumping and injury, Chinese  Taipei  failed to establish that they are 
inconsistent "as such" with Article  XVI:4 of the Marrakesh Agreement and Article  18.4 of 
the Anti-Dumping  Agreement  as well as with Article  1 of the Anti-Dumping  Agreement  
and Article  VI of the GATT 1994.  
8.2.  We do not consider it necessary to address Chinese  Taipei 's claims under Articles  2.2 
and 6.10 of the Anti-Dumping  Agreement  concerning the determination of the amount of 
anti-dumping duties imposed or collected on im ports of new product models or types from 
investigated and cooperative exporters from Chinese  Taipei . 
8.3.  Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations 
assumed under a covered agreement, the action is considered prima  facie to constitute a case of 
nullification or impairment. We conclude that, to the extent that the measures at issue are 
inconsistent with certain provisions of the Anti-Dumping  Agreement , the GATT 1994 and the 
Marrakesh Agreement, they have nullified or  impaired benefits accruing to Chinese  Taipei  under 
those  agreement s. 
8.4.  Pursuant to Article 19.1 of the DSU, we recommend that Canada bring its measures into 
conformity  with its obligations under the above -mentioned  Agreements.  
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