WT/DS454/AB/R  
WT/DS460/AB/R  
 
14 October 2015  
(15-5372)  Page: 1/107  
  Original: English  
 
 CHINA – MEASURES IMPOSING ANTI-DUMPING DUTIES ON 
HIGH-PERFORMANCE STAINLESS STEEL SEAMLESS TUBES ("HP-SSST")  
FROM JAPAN  
AB-2015-4 
CHINA – MEASURES IMPOSING ANTI-DUMPING DUTIES ON 
HIGH-PERFORMANCE STAINLESS STEEL SEAMLESS TUBES ("HP-SSST")  
FROM THE EUROPEAN UNION 
AB-2015-5 
Reports of the Appellate Body 
Note: 
The Appellate Body is issuing these Reports in th e form of a single document constituting two 
separate Appellate Body Reports: WT/DS454/AB/R; and WT/DS460/AB/R. The cover page, preliminary pages, sections 1-4, 5.3, the subsecti ons of section 5.5 that are not attributed below 
to only DS454 or DS460, and the annexes contained in the Addendum (document 
WT/DS454/AB/R/Add.1, WT/DS460/AB/R/Add.1) are common to both Reports. The page header throughout the document bears the two document symbols WT/DS454/AB/R and WT/DS460/AB/R, with the following exceptions: sections 5.5.2.1 and 5.5.3.1.2, which bear the document symbol for 
the Appellate Body Report WT/DS454/AB/R; and sections 5.1, 5.2, 5.4, 5.5.1.2, and 5.6, which 
bear the document symbol for the Appellate Body Report WT/DS460/AB/R. Finally, Section 6, on pages JPN-103 and JPN-104, bears the document symbol for and contains the Appellate Body's 
conclusions and recommendation in the Appellate Body Report WT/DS454/AB/R; and Section 6, on 
pages EU-105 to EU-107, bears the document sy mbol for and contains the Appellate Body's 
conclusions and recommendation in the Appellate Body Report WT/DS460/AB/R. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  TABLE OF CONTENTS 
1  INTRODUC TION ......................................................................................................... 11  
2  ARGUMENTS OF TH E PARTICIPANTS ......................................................................... 17  
3  ARGUMENTS OF THE TH IRD PARTICIPANTS .............................................................. 18  
4  ISSUES RAISED IN THESE APPEALS ........................................................................... 18  
5  ANALYSIS OF THE APPELLATE BODY ......................................................................... 21  
5.1  Data for SG&A amounts – Ar ticles 2.2.1 and 2.2.2 of the 
Anti-Dumping Agreement ...................................................................................... 21  
5.1.1  The Panel's te rms of re ference .............................................................................. 21 
5.1.1.1  The Panel's findings ............................................................................................. 21 
5.1.1.2  The relevant legal standa rd under Article 6.2 of the DSU .......................................... 23 
5.1.1.3  Whether the European Union's claims under Articles 2.2.1 and 2.2.2 of the 
Anti-Dumping Agreement were within the scope of the Panel's terms of reference ........................................................................................................... 25
 
5.1.1.3.1  Article 2.2.1 of the Anti-Dumping Agreement ...................................................... 25 
5.1.1.3.2  Article 2.2.2 of the Anti-Dumping Agreement ...................................................... 26 
5.1.2  The Panel's interpretation and application of Article 2.2.2 of the 
Anti-Dumping Agreement ..................................................................................... 29 
5.1.2.1  The Panel's findings ............................................................................................. 29 
5.1.2.2  Analysis of the Panel's findings regarding MOFCOM's determination of an SG&A 
amount fo r SMST ................................................................................................ 30 
5.1.2.3  Conclusion ......................................................................................................... 35 
5.1.3  The European Union's conditional appeal under Articles 2.2 and 2.2.1.1 of the 
Anti-Dumping Agreement ..................................................................................... 35 
5.2  MOFCOM's alleged failure to ta ke into account certain information 
provided during the ve rification visit .................................................................... 35  
5.2.1  The Panel's findings ............................................................................................. 35 
5.2.2  Whether the Panel erred in finding that China acted inconsistently with 
Article 6.7 and paragraph 7 of Annex I to the Anti-Dumping Agreement by rejecting SMST's rectification request ..................................................................... 37
 
5.2.3  The European Union's conditional appeal under Article 6.8 and paragraphs 3 
and 6 of Annex II to the Anti-Dumping Agreement ................................................... 39 
5.3  Showing of "good cause" under Articl e 6.5 of the Anti-Dumping Agreement ........ 41  
5.3.1  The Panel's findings ............................................................................................. 41 
5.3.2  Assessment of th e Panel's analysis ........................................................................ 43 
5.3.3  Whether the Panel applied internally inconsistent reasoning in violation of 
Article 11 of the DSU ........................................................................................... 46 
5.3.4  Whether the Panel made a case for the complainants ............................................... 48 
5.3.5  Conclusion ......................................................................................................... 49 WT/DS454/AB/R • WT/DS460/AB/R 
 
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  5.4  Disclosure of the essential facts concerning MOFCOM's dumping 
determinat ion ....................................................................................................... 50  
5.4.1  The Panel's findings ............................................................................................. 50 
5.4.2  Whether the Panel erred in rejecting the European Union's claim under 
Article 6.9 of the Anti -Dumping Ag reement ............................................................. 51 
5.5  MOFCOM's injury  determination ............................................................................ 56  
5.5.1  Price effects – Articles 3.1 and 3.2 of the Anti-Dumping Agreement ............................ 57 
5.5.1.1  The Panel's interpretation of "price undercutting" in its review of MOFCOM's 
assessment of price effect s for Grade C imports ...................................................... 58 
5.5.1.1.1  The Panel's findings ........................................................................................ 58 
5.5.1.1.2  Argume nts on a ppeal ...................................................................................... 59 
5.5.1.1.3  Analysis ........................................................................................................ 60 
5.5.1.2  Whether MOFCOM was required to make a finding of price undercutting for the 
product as a whole .............................................................................................. 65 
5.5.1.2.1  The Panel's findings ........................................................................................ 65 
5.5.1.2.2  Argume nts on a ppeal ...................................................................................... 66 
5.5.1.2.3  Analysis ........................................................................................................ 66 
5.5.2  MOFCOM's impact analysis – Articles 3.1 and 3.4 of the 
Anti-Dumping Agreement ..................................................................................... 68 
5.5.2.1  Japan's claim under Article 6.2 of the DSU .............................................................. 69 
5.5.2.2  The Panel's assessment of  MOFCOM's impa ct analysis .............................................. 71 
5.5.2.2.1  The Panel's findings ........................................................................................ 71 
5.5.2.2.2  Argume nts on a ppeal ...................................................................................... 72 
5.5.2.2.3  Analysis ........................................................................................................ 72 
5.5.3  MOFCOM's causation analysis – Articles 3.1 and 3.5 of the 
Anti-Dumping Agreement ..................................................................................... 75 
5.5.3.1  The Panel's assessment of  MOFCOM's causat ion analysis .......................................... 76 
5.5.3.1.1  The Panel's findings ........................................................................................ 76 
5.5.3.1.2  Japan's panel reques t and Article 6.2 of the DSU ................................................. 78 
5.5.3.1.3  Whether the Panel made the case for the complainants ........................................ 81 
5.5.3.1.4  Whether the Panel erred in finding that MOFCOM's causation analysis is 
inconsistent with Articles 3.1 and 3.5 of the Anti-Dumping Agreement .................... 82 
5.5.3.1.4.1  Article 11 of the DSU ....................................................................................... 83 
5.5.3.1.4.2  The Panel's assessment regarding MOFCOM's findings concerning the market 
share of imports ............................................................................................. 83 
5.5.3.1.4.3  MOFCOM's findin g of price correlation  ............................................................... 84 
5.5.3.1.4.4  Conclusion ..................................................................................................... 91 
5.5.3.1.5  MOFCOM's non- attribution analysis ................................................................... 91 
5.5.3.1.5.1  The Panel's findings ........................................................................................ 91 
5.5.3.1.5.2  Argume nts on a ppeal ...................................................................................... 91 
5.5.3.1.5.3  Analysis ........................................................................................................ 92 WT/DS454/AB/R • WT/DS460/AB/R 
 
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  5.5.3.1.6  Additional "independent" claims under Articles 3.1 and 3.5 of the 
Anti-Dumping Agreement ................................................................................ 93 
5.5.3.1.6.1  The Panel's findings ........................................................................................ 93 
5.5.3.1.6.2  Argume nts on a ppeal ...................................................................................... 94 
5.5.3.1.6.3  Analysis ........................................................................................................ 94 
5.5.3.2  Conclusions ........................................................................................................ 95 
5.6  Additional working procedures concerning BCI ..................................................... 97  
5.6.1  The Panel's findings ............................................................................................. 97 
5.6.2  Ar gument s ......................................................................................................... 99 
5.6.3  Analysis ........................................................................................................... 100  
6  FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT 
WT/DS454/AB/R ............................................................................................. JPN-103  
6  FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT 
WT/DS460/AB/R ............................................................................................... EU-105 WT/DS454/AB/R • WT/DS460/AB/R 
 
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  ABBREVIATIONS USED IN THESE REPORTS 
Abbreviation Description 
Anti-Dumping 
Agreement Agreement on Implementation of Arti cle VI of the General Agreement on 
Tariffs and Trade 1994  
BCI business confidential information 
BCI Procedures Additional Working Procedures of the Panels Concerning Business 
Confidential Information (contained in Annex A-2 to the Panel Reports) 
complainants Japan and the European Union 
COP cost of production 
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes 
EU Panel Report Panel Report, China – Measures Imposing Anti-Dumping Duties on High-
Performance Stainless Steel Seamless Tubes ("HP-SSST") from the 
European Union , WT/DS460/R, Add.1 and Corr.1 
European Union's 
panel request Request for the Establishment of a Panel by the European Union, 
WT/DS460/4, 16 August 2013 
GAAP generally accepted accounting principles  
GATT 1994 General Agreement on Tariffs and Trade 1994  
HP-SSST high-performance stainless steel seamless tubes 
Japan Panel Report Panel Report, China – Measures Imposing Anti-Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan , WT/DS454/R and Add.1 
Japan's panel request Request for the Establishment of a Panel by Japan, WT/DS454/4, 
11 April 2013 
Kobe Kobe Special Tube Co., Ltd.  
MOFCOM Ministry of Commerce of the People's Republic of China  
Panel Reports Japan Panel Report and EU Panel Report  
petitioners jointly, Jiangsu Wujin Stainless Steel Pipe Group Co., Ltd. and Changshu 
Walsin Specialty Steel Co., Ltd.  
POI period of investigation  
SCM Agreement Agreement on Subsidies and Countervailing Measures 
SG&A administrative, selling and general 
SMI Sumitomo Metal Industries, Ltd.  
SMST Salzgitter Mannesmann Stainless Tubes  
Tubacex Tubacex Tubos Inoxidables, S.A.  
Working Procedures Working Procedures for Appellate Review, WT/AB/WP/6, 16 August 2010 
WTO World Trade Organization 
 WT/DS454/AB/R • WT/DS460/AB/R 
 
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  PANEL EXHIBITS CITED IN THESE REPORTS 
Exhibit Abbreviation 
(if any) Description 
CHN-5-EN (BCI) 
EU-10 (BCI) SMST's Dumping 
Questionnaire Response Excerpts of the narrative of SMST's response to MOFCOM's 
dumping questionnaire of 21 November 2011  
CHN-10-CH (BCI) 
CHN-10-EN (BCI) 
EU-14 (BCI) SMST's 
Supplemental 
Dumping 
Questionnaire 
Response Excerpts of the narrative of SMST's response to MOFCOM's 
supplemental dumping questionnaire of 20 February 2012  
CHN-11-EN MOFCOM's 
Verification Notification to SMST Notification from MOFCOM to SMST concerning relevant issues for 
the on-site verification of 3 May 2012 
CHN-12-EN (BCI) MOFCOM's 
Preliminary 
Dumping Disclosure 
to SMST Letter dated 9 May 2012 from MOFCOM to SMST concerning 
Disclosure of Basic Facts relied upon in the Dumping Part of the 
Preliminary Determination concerning Certain High-performance 
Stainless Steel Seamless Tubes 
CHN-16-EN (BCI)  Objections as to the accuracy of English translations of exhibits 
attached to the first written submissions of Japan and/or the European Union to the Panel  
CHN-19-EN (BCI)  Updated English version of Tabl e 6 annexed to SMST's Dumping 
Questionnaire Response 
CHN-20-CH (BCI) 
CHN-20-EN (BCI) SMI's Injury 
Questionnaire Response Extract (question 8) of the narrative of SMI's response to 
MOFCOM's injury questionnaire  
EU-23-EN MOFCOM's 
Verification 
Disclosure to SMST MOFCOM, High-performance Stainless Steel Seamless Tubes 
Antidumping Investigation – Disclosure of Basic Verification 
Facts, 25 June 2012 
EU-25-CH 
EU-25-EN MOFCOM's Final 
Dumping Disclosure 
to SMST MOFCOM, High-performance Stainless Steel Seamless Tubes 
Antidumping Investigation – Dumping Margin Calculation 
Disclosure before Final Determination, 26 September 2012 
EU-27-CH 
EU-27-EN MOFCOM's Final 
Dumping Disclosure 
to the EU Annex, Government Disclosure pr ior to the Anti-Dumping Final 
Determination on Certain High -performance Stainless Steel 
Seamless Tubes, 26 September 2012 
EU-28-CH (BCI) 
EU-28-EN (BCI) SMST's Comments 
on Final Dumping Disclosure Comments of the SMST on SMST  Final Dumping Disclosure of 
8 October 2012 
JPN-1-CH 
JPN-1-EN 
EU-29 MOFCOM's Final 
Determination 
Notice MOFCOM, Announcement No. 72 of 2012 on the Final Ruling of 
the Anti-dumping Case against Imports of Certain High-
performance Stainless Steel Seamless Tubes Originated in the EU 
and Japan, 8 November 2012 
JPN-2-CH 
JPN-2-EN 
EU-30 MOFCOM's Final 
Determination Final Determination Notice, Appendix: Final Determination in the 
Anti-dumping Investigation on Imports of Certain High-performance Stainless Steel Seamless Tubes from the EU and Japan 
JPN-3-CH 
JPN-3-EN 
EU-1 Petition by the PRC 
Industry Petition by the PRC Industry of Certain High-performance 
Stainless Steel Seamless Tubes fo r Anti-dumping Investigation on 
Imports of Certain High-perform ance Stainless Steel Seamless 
Tubes Originating in Japan and the EU, 15 July 2011 
JPN-6-CH 
JPN-6-EN 
EU-17 MOFCOM's 
Preliminary Determination Notice MOFCOM, Announcement No. 21 of 2012 on Releasing the 
Preliminary Ruling on Anti-dumping Investigation on Imports of Certain High-performance Stainl ess Steel Seamless Tubes from 
the EU and Japan, 8 May 2012 WT/DS454/AB/R • WT/DS460/AB/R 
 
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  Exhibit Abbreviation 
(if any) Description 
JPN-7-CH 
JPN-7-EN 
EU-18 MOFCOM's 
Preliminary 
Determination Preliminary Determination Notice, Appendix: Preliminary 
Determination in the Anti-dumping Investigation on Imports of 
Certain High-performance Stainl ess Steel Seamless Tubes from 
the EU and Japan 
JPN-18 (BCI)  Letter dated 9 May 2012 from MOFCOM to SMI on the Disclosure 
of Basic Facts upon Which the Preliminary Dumping Determination in the Anti-dumping Investigation on Imports of Certain High-performance Stai nless Steel Seamless Tubes is 
Based 
JPN-20 (BCI)  Letter 26 September 2012 from MOFCOM to SMI on the 
Disclosure of Basic Facts upon Which the Final Dumping 
Determination in the Anti-dumping Investigation on Imports of 
Certain High-performance Stai nless Steel Seamless Tubes is 
Based 
JPN-23-EN 
EU-24 MOFCOM's Injury 
Disclosure MOFCOM, Notice on Information Di sclosure Concerning Industry 
Injury Investigation in the Anti-dumping Investigation on Imports of Certain High-performance St ainless Steel Seamless Tubes from 
the EU and Japan, 7 August 2012 
JPN-25-EN  Request for Considering Public Interest in the Anti-Dumping 
Investigation on Certain High -Performance Stainless Steel 
Seamless Tubes by Sumitomo Metal Industries, Ltd. and Kobe 
Special Tube Co., Ltd., February 2012 
JPN-29 
EU-32  Translation exhibit – Comments on Panel Exhibit CHN-16-EN 
(BCI)  
 
 
CASES CITED IN THESE REPORTS 
Short Title Full Case Title and Citation 
Australia – Apples Appellate Body Report, Australia – Measures Affectin g the Importation of Apples 
from New Zealand , WT/DS367/AB/R, adopted 17 December 2010, DSR 2010:V, 
p. 2175 
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, p. 3327 
Brazil – Desiccated 
Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, p. 167 
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres , 
WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, p. 1527 
Canada – Aircraft Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft , 
WT/DS70/AB/R, adopted 20 Augu st 1999, DSR 1999: III, p. 1377 
Canada – Aircraft 
(Article 21.5 – Brazil) Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft 
– Recourse by Brazil to Article 21.5 of the DSU , WT/DS70/AB/RW, adopted 
4 August 2000, DSR 2000:IX, p. 4299 
Canada – Periodicals Appellate Body Report, Canada – Certain Measures Concerning Periodicals , 
WT/DS31/AB/R, adopted 30 July 1997, DSR 1997:I, p. 449 
Canada – Renewable 
Energy / 
Canada – Feed-in Tariff 
Program  Appellate Body Reports, Canada – Certain Measures Affecting the Renewable Energy 
Generation Sector / Canada – Measures Relating to the Feed-in Tariff Program , 
WT/DS412/AB/R / WT/DS426/AB/R, adopted 24 May 2013, DSR 2013:I, p. 7 
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 WT/DS454/AB/R • WT/DS460/AB/R 
 
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  Short Title Full Case Title and Citation 
China – GOES Appellate Body Report, China – Countervailing and Anti -Dumping Duties on Grain 
Oriented Flat-Rolled Electrical Steel from the United States , WT/DS414/AB/R, 
adopted 16 November 2012, DSR 2012:XII, p. 6251 
China – HP-SSST 
(Japan) /  China – HP-SSST (EU) Panel Reports, China – Measures Imposing Anti-Dumping Duties on High-
Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan / China – Measures Imposing Anti-Dumping Duties  on High-Performan ce Stainless Steel 
Seamless Tubes ("HP-SSST") from the European Union , WT/DS454/R and Add.1 / 
WT/DS460/R, Add.1 and Corr.1, circulated to WTO Members 13 February 2015 [appeal in progress] 
China – Rare Earths Appellate Body Reports, China – Measures Related to the Exportation of Rare Earths, 
Tungsten, and Molybdenum , WT/DS431/AB/R / WT/DS432/AB/R / WT/DS433/AB/R, 
adopted 29 August 2014 
China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of Various 
Raw Materials , WT/DS394/AB/R / WT/DS395/AB /R / WT/DS398/AB/R, adopted 
22 February 2012, DSR 2012:VII, p. 3295 
China – X-Ray Equipment Panel Report,  China – Definitive Anti-Dumpi ng Duties on X-Ray Security 
Inspection Equipment from the European Union , WT/DS425/R and Add.1, adopted 
24 April 2013, DSR 2013:III, p. 659 
EC – Bananas III Appellate Body Report, European Communities – Regime  for the Importation, Sale 
and Distribution of Bananas , WT/DS27/AB/R, adopted 25 September 1997, 
DSR 1997:II, p. 591 
EC – Bed Linen Appellate Body Report, European Communities – Anti-D umping Duties on Imports 
of Cotton-Type Be d Linen from India , WT/DS141/AB/R, adopted 12 March 2001, 
DSR 2001:V, p. 2049 
EC – Bed Linen 
(Article 21.5 – India) Appellate Body Report, European Communities – Anti-D umping Duties on Imports 
of Cotton-Type Bed Linen 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 – Chicken Cuts Appellate Body Report, European  Communities – Customs Classification of Frozen 
Boneless Chicken Cuts , WT/DS269/AB/R, WT/DS286/AB/R, adopted 27 September 
2005, and Corr.1, DSR 2005:XIX, p. 9157 
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping Measures 
on Certain Iron or St eel Fasteners from China , WT/DS397/AB/R, adopted 28 July 
2011, DSR 2011:VII, p. 3995 
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 – Poultry Appellate Body Report, European Communities – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/AB/R, adopted 23 July 1998, 
DSR 1998:V, p. 2031 
EC – Salmon (Norway) Panel Report, European Communities – Anti-Dumpi ng Measure on Farmed Salmon 
from Norway , WT/DS337/R, adopted 15 January 2008, and Corr.1, DSR 2008:I, 
p. 3 
EC – Selected Customs 
Matters Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791 
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – An ti-Dumping Duties on 
Malleable Cast Iron Tube or  Pipe Fittings from Brazil , WT/DS219/AB/R, adopted 
18 August 2003, DSR 2003:VI, p. 2613 
EC and certain member 
States – Large Civil Aircraft Appellate Body Report, European Communities and Certain Member States  
– Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R, adopted 
1 June 2011, DSR 2011:I, p. 7 
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R, adopted 25 November 1998, 
DSR 1998:IX, p. 3767 
India – Patents (US) Appellate Body Report, India – Patent Protection  for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R, adopted 16 January 1998, 
DSR 1998:I, p. 9 WT/DS454/AB/R • WT/DS460/AB/R 
 
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  Short Title Full Case Title and Citation 
Japan – Agricultural 
Products II Appellate Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, p. 277 
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguar d Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I, 
p. 3 
Mexico – Corn Syrup Panel Report, Mexico – Anti-Dumping Investigatio n of High Fructose Corn Syrup 
(HFCS) from the United States , WT/DS132/R, adopted 24 February 2000, and 
Corr.1, DSR 2000:III, p. 1345 
Mexico – Steel Pipes and 
Tubes Panel Report, Mexico – Anti-Dumping Duties on Steel Pipes and Tubes from 
Guatemala , WT/DS331/R, adopted 24 July 2007, DSR 2007:IV, p. 1207 
Peru – Agricultural 
Products Appellate Body Report, Peru – Additional Duty on Im ports of Certain Agricultural 
Products , WT/DS457/AB/R and Add.1, adopted 31 July 2015 
Thailand – H-Beams Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and 
Sections of Iron or Non-Alloy Steel and H-Beams from Poland , WT/DS122/AB/R, 
adopted 5 April 2001, DSR 2001:VII, p. 2701 
Thailand – H-Beams Panel Report, Thailand – Anti-Dumping Duties on  Angles, Shapes and Sections of 
Iron or Non-Alloy Steel and H-Beams from Poland , WT/DS122/R, adopted 5 April 
2001, as modified by Appellate Body Report WT/DS122/AB/R, DSR 2001:VII, 
p. 2741 
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 Stee l 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 – Countervaili ng Measures on Certain Hot-
Rolled Carbon Steel Flat Products from India , WT/DS436/AB/R, adopted 19 
December 2014 
US – Certain EC Products Appellate Body Report, United States – Import Measur es on Certain Products from 
the European Communities , WT/DS165/AB/R, adopted 10 January 2001, 
DSR 2001:I, p. 373 
US – COOL Appellate Body Reports, United States – Certain Country of Origin Labelling (COOL) 
Requirements , WT/DS384/AB/R / WT/DS386/AB/R, adopted 23 July 2012, DSR 
2012:V, p. 2449 
US – Corrosion-Resistant 
Steel Sunset Review Panel Report, United States – Sunset Review of Anti-Dumping Duties on 
Corrosion-Resistant Carbon St eel Flat Products from Japan , WT/DS244/R, adopted 
9 January 2004, as modified by Appellate Body Report WT/DS244/AB/R, 
DSR 2004:I, p. 85 
US – Countervailing and 
Anti-Dumping Measures (China) Appellate Body Report, United States – Countervailing and Anti-Dumping 
Measures on Certain Products from China , WT/DS449/AB/R and Corr.1, adopted 
22 July 2014 
US – Countervailing and 
Anti-Dumping Measures 
(China) Panel Report, United States – Countervailing and Anti-Dumping Measures on 
Certain Products from China , WT/DS449/R and Add.1, adopted 22 July 2014, as 
modified by Appellate Bo dy Report WT/DS449/AB/R 
US – Countervailing Duty 
Investigation on DRAMS Appellate Body Report, United States – Countervaili ng Duty Investigation on 
Dynamic Random Access Memory Se miconductors (DRAMS) from Korea , 
WT/DS296/AB/R, adopted 20 July 2005, DSR 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 – FSC Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" , WT/DS108/AB/R, adopted 20 Ma rch 2000, DSR 2000:III, p. 1619 
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R, adopted 20 April 
2005, DSR 2005:XII, p. 5663 (Corr.1, DSR 2006:XII, p. 5475) 
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, p. 3 WT/DS454/AB/R • WT/DS460/AB/R 
 
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  Short Title Full Case Title and Citation 
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 – Lamb Appellate Body Report, United States – Safeguard Meas ures on Imports of Fresh, 
Chilled or Frozen Lamb Meat from New Zealand and Australia , WT/DS177/AB/R, 
WT/DS178/AB/R, adopted 16 May 2001, DSR 2001:IX, p. 4051 
US – Large Civil Aircraft 
(2nd complaint) Appellate Body Report, United States – Measures Affecting Trade in Large Civil 
Aircraft (Second Complaint) , WT/DS353/AB/R, adopted 23 March 2012, DSR 
2012:I, p. 7 
US – Oil Country Tubular 
Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures 
on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R, adopted 
17 December 2004, DSR 2004:VII, p. 3257 
US – Section 211 
Appropriations Act Appellate Body Report, United States – Section 211 Omnibus Appropriations Act of 
1998, WT/DS176/AB/R, adopted 1 February 2002, DSR 2002:II, p. 589 
US – Shrimp Appellate Body Report, United States – Impo rt Prohibition of Certain Shrimp and 
Shrimp Products , WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, 
p. 2755 
US – Steel Safeguards Appellate Body Report, United States – Definitive Sa feguard Measures on Imports 
of Certain Steel Products , WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, 
WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, 
WT/DS259/AB/R, adopted 10 December 2003, DSR 2003:VII, p. 3117 
US – Tyres (China) Appellate Body Report, United States – Measures A ffecting Imports of Certain 
Passenger Vehicle and Ligh t Truck Tyres from China , WT/DS399/AB/R, adopted 
5 October 2011, DSR 2011:IX, p. 4811 
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3 
US – Upland Cotton Panel Report, United States – Subsidies on Upland Cotton , WT/DS267/R, Add.1 to 
Add.3 and Corr.1, adopted 21 March 2005, as modified by Appellate Body Report WT/DS267/AB/R, DSR 2005:II, p. 299 
US – Wheat Gluten Appellate Body Report, United States – Definitive Sa feguard Measures on Imports 
of Wheat Gluten from the European Communities , WT/DS166/AB/R, adopted 
19 January 2001, DSR 2001:II, p. 717 
US – Wool Shirts and 
Blouses Appellate Body Report, United States – Measure Affe cting 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 (Japan) 
(Article 21.5 – Japan) Appellate Body Report, United States – Measures Relating to Zeroing and Sunset 
Reviews – Recourse to Article 21.5 of the DSU by Japan , WT/DS322/AB/RW, 
adopted 31 August 2009, DSR 2009:VIII, p. 3441 
 WT/DS454/AB/R • WT/DS460/AB/R 
 
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  WORLD TRADE ORGANIZATION  
APPELLATE  BODY 
  
China – Measures Imposing Anti-Dumping 
Duties on High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from 
Japan (DS454) 
 China – Measures Imposing Anti-Dumping Duties on High-Performance Stainless 
Steel Seamless Tubes ("HP-SSST") from 
the European Union (DS460)  
Japan,  
 Appellant
1/Appellee2/Third Participant3 
China,  
 Appellant4/Other Appellant5/Appellee6 
European Union,   Other Appellant
7/Appellee8/Third Participant9 
 
India, Third Participant  
Korea, Third Participant  
Russia, Third Participant  
Saudi Arabia, Third Participant  
Turkey, Third Participant 
United States, Third Participant  AB-2015-4 
  
 
 AB-2015-5  
 
  
Appellate Body Division:  
 Van den Bossche, Presiding Member 
Graham, Member 
Ramírez-Hernández, Member  
  1  INTRODUCTION 
1.1.  Japan and China each appeals certain issues of law and legal interpretations developed in the 
Panel Report, China – Measures Imposing Anti-Dumping Duties on High-Performance Stainless 
Steel Seamless Tubes ("HP-SSST") from Japan , WT/DS454/R
10 (Japan Panel Report); and China 
and the European Union each appeals certain issues  of law and legal interpretations developed in 
the Panel Report, China – Measures Imposing Anti-Dumping Duties on High-Performance Stainless 
Steel Seamless Tubes ("HP-SSST") from the European Union , WT/DS460/R11 (EU Panel Report).12 
1.2.  On 24 May 2013 and 30 August 2013, respectively, two panels were established to consider 
complaints by Japan13 and the European Union14 (the complainants) with respect to China's 
                                               
1 In DS454 only. 
2 In DS454 only. 
3 In DS460 only. 
4 In DS460 only. 
5 In DS454 only. 
6 In DS454 and DS460. 
7 In DS460 only. 
8 In DS460 only. 
9 In DS454 only. 
10 And Addendum thereto, WT/DS454/R/Add.1, 13 February 2015. 
11 And Corr. 1 and Addendum thereto, WT/DS460/R/Add.1, 13 February 2015. 
12 The Panel issued its findings in the form of a single do cument containing two separate reports. The 
cover page, preliminary pages, descriptive part, sections 1-6, 7.1-7.2, and 7.5-7.11, and the Annexes contained in the Addendum are common to both Panel Re ports. Section 8.1 relates to the Japan Panel Report 
WT/DS454/R only; and Sections 7.3-7.4 and 8.2 relate to  the EU Panel Report WT/DS460/R only. We refer to 
these two reports collectively as the "Panel Reports". 
13 Request for the Establishment of a Panel by Japan, WT/DS454/4, 11 April 2013 (Japan's panel 
request). 
14 Request for the Establishment of a Panel by the European Union, WT/DS460/4, 16 August 2013 
(European Union's panel request). WT/DS454/AB/R • WT/DS460/AB/R 
 
- 12 - 
 
  measures imposing anti-dumping duties on imports of certain high-performance stainless steel 
seamless tubes (HP-SSST) from Japan and the European Union.15  
1.3.  On 27 September 2013, after consultation with the parties, the Panel16 adopted additional 
working procedures concerning business confidential information (BCI Procedures). Following a 
request for a preliminary ruling by the European Union, the Panel introduced modifications to the 
BCI Procedures on 22 May 2014.17 
1.4.  China's measures at issue in these disputes are set forth in the Preliminary Determination18 
and the Final Determination19 of the Ministry of Commerce of the People's Republic of China 
(MOFCOM), including any annexes and amendments thereto.20 MOFCOM identified the scope of the 
products under investigation as imports of certain HP-SSST from the European Union and Japan.21 
HP-SSST is mainly used in the manufacture of pr essurized components such  as superheaters and 
reheaters of supercritical and ultra-supercritical boilers.22 MOFCOM found that there are three main 
types or grades of HP-SSST, which the Panel referred to as Grade A, Grade B, and Grade C, respectively.
23  
1.5.  Both complainants requested the Panel to find  that China, in the conduct of the anti-dumping 
investigation at issue, acted inconsistently with several provisions of the Agreement on Implementation of Article VI of the Gene ral Agreement on Tariffs and Trade 1994 
(Anti-Dumping Agreement), as well as Article VI of the General Agreement on Tariffs and Trade 
1994 (GATT 1994). In particular, they requested the Panel to find that China acted contrary to the provisions of the Anti-Dumping Agreement in its: (i) determination of injury; (ii) treatment of certain confidential information provided by the applicants; (iii) alleged failure to disclose certain 
essential facts; (iv) application of provisional measures; and (v) alleged provision of inadequate 
information in its Final Determination Notice. In addition, the European Union requested the Panel to find that China acted inconsistently with the Anti-Dumping Agreement in arriving at its 
determination of dumping.
24 
1.6.  The Panel Reports were circulated to Members of the World Trade Organization (WTO) on 
13 February 2015.25 In the Japan Panel Report, the Panel concluded that MOFCOM's determination 
of injury is inconsistent with Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement, for the 
following reasons: 
a. MOFCOM failed to account properly for differences in quantities when comparing the 
price of Grade C subject imports with the domestic Grade C price in its price effects 
analysis, contrary to Articles 3.1 an d 3.2 of the Anti-Dumping Agreement; 
                                               
15 On 29 July 2013, the Director-General composed th e Panel to hear Japan's complaint in DS454. On 
11 September 2013, the European Union and China agreed to compose the Panel to hear the European Union's complaint in DS460 with the same persons hearing Japan's complaint. (Panel Reports, para. 1.5) 
16 For ease of reference, we refer to the Panels in DS454 and DS460 collectively as the "Panel".  
17 Panel Reports, para. 1.10 and Annex A-2.  
18 Preliminary Determination Notice, 8 May 2012 (Panel Exhibits JPN-6-CH and JPN-6-EN, and EU-17); 
and Preliminary Determination, 8 May 2012 (Panel Exhibits JPN-7-CH and JPN-7-EN, and EU-18). 
19 Final Determination Notice, 8 November 2012 (Panel Exhibits JPN-1-CH and JPN-1-EN, and EU-29); 
and Final Determination, 8 November 2012 (Panel Exhibits JPN-2-CH and JPN-2-EN, and EU-30). 
20 Panel Reports, paras. 1.1 and 2.1.  The period of investigation (POI) for the determination of dumping 
was from 1 July 2010 to 30 June 2011, and the POI for the determination of injury was from 1 January 2008 to 30 June 2011. (MOFCOM's Preliminary Determination (Panel Exhibits JPN-7-EN and EU-18), internal p. 2) 
21 MOFCOM's Final Determination (Panel Exhibi ts JPN-2-EN and EU-30), internal p. 1. 
22 MOFCOM's Final Determination (Panel Exhibi ts JPN-2-EN and EU-30), internal pp. 19-20. 
23 See Petition by the PRC Indust ry (Panel Exhibits JPN-3-CH an d JPN-3-EN, and EU-1), internal 
pp. 9-10; and MOFCOM's Final Determin ation (Panel Exhibits JPN-2-EN an d EU-30) internal pp. 23-28. Japan 
argued before the Panel that Grade A is the least ex pensive and lowest grade product; Grade B is in the 
middle, in terms of both price and grade; and Grade C is the most expensive and highest grade product. Due 
to differences in the chemical and mechan ical properties of these products, manufacturers of ultra-supercritical 
boilers rely on Grades B and C, while Grade A is used mainly in supercritical boil ers. (Japan's first written 
submission to the Panel, para. 15) 
24 Panel Reports, paras. 3.1-3.6. 
25 On 17 September 2015, a correction to a clerical error in para. 8.9 of the EU Panel Report was 
circulated in document WT/DS454/R/Corr.1, WT/DS460/R/Corr.1.  WT/DS454/AB/R • WT/DS460/AB/R 
 
- 13 - 
 
  b. MOFCOM failed to evaluate properly the magnitude of the margin of dumping in 
considering the impact of subject imports on the domestic industry, contrary to 
Articles 3.1 and 3.4 of the Anti-Dumping Agreement; 
c. MOFCOM improperly relied on the market sh are of subject imports, and on its flawed 
price effects and impact analyses, in determining a causal link between subject imports 
and material injury to the domestic industry, contrary to Articles 3.1 and 3.5 of the Anti-Dumping Agreement; and 
d. MOFCOM failed to ensure that injury caused  by the decrease in apparent consumption 
and the increase in production capacity was not attributed to subject imports, contrary 
to Articles 3.1 and 3.5 of the Anti-Dumping Agreement.
26 
1.7.  The Panel, however, rejected Japan's claims under Articles 3.1, 3.2, 3.4, and 3.5 of the 
Anti-Dumping Agreement that: 
a. MOFCOM failed to consider whether Grade C subject imports had any price undercutting 
effect on domestic Grade C products and improperly extended its findings of price 
undercutting in respect of Grades B and C to the domestic like product as a whole, 
contrary to Articles 3.1 and 3.2 of  the Anti-Dumping Agreement; and 
b. MOFCOM failed to undertake a segmented analysis and to weigh properly the positive 
and negative injury factors when assessing the impact of subject imports on the 
domestic industry, contrary to Articles 3.1 and 3.4 of the Anti-Dumping Agreement.27 
1.8.  The Panel concluded that MOFCOM allowed certain information supplied by the petitioners28 
to remain confidential without objectively assessing the "good cause" alleged or scrutinizing the 
petitioners' showing of "good cause", contrary to Article 6.5 of the Anti-Dumping Agreement.29 
1.9.  The Panel also concluded that China acted inconsistently with Article 6.5.1 of the 
Anti-Dumping Agreement by failing to require th e petitioners to provide sufficiently detailed 
non-confidential summaries of information treated as confidential, or explanations as to why 
summarization of this information was not possible.30 
1.10.  The Panel found that China acted inconsistently with Article 6.9 of the 
Anti-Dumping Agreement by failing to disclose adequately essential facts in connection with: 
a. the methodology used to calculate the margins of dumping for Sumitomo Metal 
Industries, Ltd. (SMI) and Kobe Special Tube Co., Ltd. (Kobe); and 
b. import prices, domestic prices, and price comparisons considered by MOFCOM in its 
determination of injury.31 
1.11.  The Panel, however, rejected Japan's claim that China acted inconsistently with Article 6.9 
of the Anti-Dumping Agreement by failing to disclo se adequately essential facts in connection with: 
a. the data underlying MOFCOM's determination of dumping in respect of SMI and Kobe; 
and 
b. the determination and the calculation of the dumping margins for all Japanese 
companies other than SMI and Kobe.32 
                                               
26 Japan Panel Report, para. 8.1.a. 
27 Japan Panel Report, para. 8.2.a. 
28 Jointly, Jiangsu Wujin Stainless Steel Pipe Grou p Co., Ltd. and Changshu Walsin Specialty Steel 
Co., Ltd.  
29 Japan Panel Report, para. 8.1.b. 
30 Japan Panel Report, para. 8.1.c. 
31 Japan Panel Report, para. 8.1.d. 
32 Japan Panel Report, para. 8.2.c. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  1.12.  The Panel also rejected Japan's claim that MOFCOM's reliance on facts available to calculate 
the dumping margin for all Japanese companies other than SMI and Kobe is inconsistent with Article 6.8 and paragraph 1 of Annex II to the Anti-Dumping Agreement.
33 
1.13.  In the EU Panel Report, the Panel found that  the European Union's claim under Article 2.2 of 
the Anti-Dumping Agreement fell outside the Panel's terms of reference.34 The Panel also found 
that the European Union's claims under Article 2.2.1.1 of the Anti-Dumping Agreement  – pertaining to MOFCOM's use of data that: (i) allegedly were not in accordance with generally 
accepted accounting principles (GAAP); (ii) did not reasonably reflect the costs associated with the 
product under consideration; and (iii) were not historically utilized by Salzgitter Mannesmann Stainless Tubes (SMST) – fell outside the Panel's terms of reference.
35 
1.14.   Turning to the European Union's claims that  were within the Panel's terms of reference, the 
Panel concluded that:  
a. China acted inconsistently with Article 2.2.2 of the Anti-Dumping Agreement by failing to 
determine an amount for administrative, selli ng and general (SG&A) costs for SMST on 
the basis of actual data pertaining to production and sales in the ordinary course of trade 
of the like product36; consequently, the Panel did not consider it necessary to rule on the 
European Union's claims that China acted inco nsistently with Articles 2.2.1 and 2.2.1.1 
of the Anti-Dumping Agreement37; 
b. China acted inconsistently with Article 2.4 of the Anti-Dumping Agreement because 
MOFCOM failed to address SMST's request for an adjustment to ensure a fair comparison 
between the export price and the normal value for Grade C HP-SSST38; 
c. China acted inconsistently with Article 6.7 and paragraph 7 of Annex I to the 
Anti-Dumping Agreement because MOFCOM rejected SMST's request for rectification only on the basis that it was not provided prior to the verification visit
39; and 
d. MOFCOM's determination of injury is inconsiste nt with Articles 3.1, 3.2, 3.4, and 3.5 of 
the Anti-Dumping Agreement because: 
i. MOFCOM failed to account properly for differences in quantities when comparing the 
price of Grade C subject imports with the domestic Grade C price in its price effects 
analysis, contrary to Articles 3.1 an d 3.2 of the Anti-Dumping Agreement; 
ii. MOFCOM failed to evaluate properly the magnitude of the margin of dumping in 
considering the impact of subject imports on the domestic industry, contrary to 
Articles 3.1 and 3.4 of the Anti-Dumping Agreement; 
iii. MOFCOM improperly relied on the market sh are of subject imports, and on its flawed 
price effects and impact analyses, in determining a causal link between subject 
imports and material injury to the domestic industry, contrary to Articles 3.1 and 3.5 
of the Anti-Dumping Agreement; and 
iv. MOFCOM failed to ensure that injury caused by the decrease in apparent 
consumption and the increase in production capacity was not attributed to subject 
imports, contrary to Articles 3.1 an d 3.5 of the Anti-Dumping Agreement.40 
                                               
33 Japan Panel Report, para. 8.2.b. The Panel made  additional findings of inconsistency under 
Articles 7.4, 12.2, and 12.2.2 of the Anti-Dumping Agreem ent (Japan Panel Report, paras. 8.1.e, 8.1.f, 8.2.d, 
and 8.3), and consequential findings of inconsistency under Article 1 of the Anti-Dumping Agreement and Article VI of the GATT 1994 (Japan Panel Report, para. 8. 1.g). None of these findings have been appealed.  
34 EU Panel Report, para. 8.9, as amended in document WT/DS454/R/Corr.1, WT/DS460/R/Corr.1. 
35 EU Panel Report, para. 8.9. 
36 EU Panel Report, para. 8.6.a. 
37 EU Panel Report, para. 8.8. 
38 EU Panel Report, para. 8.6.b. 
39 EU Panel Report, para. 8.6.c. 
40 EU Panel Report, para. 8.6.d. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  1.15.  The Panel, however, rejected the European Union's claims under Articles 3.1, 3.2, 3.4, 
and 3.5 of the Anti-Dumping Agreement that: 
a. MOFCOM failed to consider whether Grade C subject imports had any price undercutting 
effect on domestic Grade C products and improperly extended its findings of price 
undercutting in respect of Grades B and C to the domestic like product as a whole, 
contrary to Articles 3.1 and 3.2 of  the Anti-Dumping Agreement; and 
b. MOFCOM failed to undertake a segmented analysis and to weigh properly the positive 
and negative injury factors when assessing the impact of subject imports on the 
domestic industry, contrary to Articles 3.1 and 3.4 of the Anti-Dumping Agreement.41 
1.16.  The Panel also rejected the European Union's claims that China acted inconsistently with 
Article 6.8 and paragraphs 3 and 6 of Annex II to the Anti-Dumping Agreement by applying facts 
available in respect of certain information that SMST sought to rectify at the verification.42 
Likewise, the Panel rejected the European Union's cl aims that China's reliance on facts available to 
calculate the dumping margin for all EU companies other than SMST and Tubacex Tubos 
Inoxidables, S.A. (Tubacex) is inconsistent with Article 6.8 and paragraph 1 of Annex II to the 
Anti-Dumping Agreement.43 
1.17.  The Panel concluded that MOFCOM allowed ce rtain information supplied by the petitioners to 
remain confidential without objectively assessing the "good cause" alleged or scrutinizing the 
petitioners' showing of "good cause", contrary to Article 6.5 of the Anti-Dumping Agreement.44 
1.18.  Similarly, the Panel found that China ac ted inconsistently with Article 6.5.1 of the 
Anti-Dumping Agreement by failing to require th e petitioners to provide sufficiently detailed 
non-confidential summaries of information treated as confidential, or explanations as to why 
summarization of that information was not possible.45 
1.19.  The Panel also concluded that China acted inconsistently with Article 6.9 of the 
Anti-Dumping Agreement by failing to disclose adequately essential facts in connection with: 
a. the methodology used to calculate the marg ins of dumping for SMST and Tubacex; and 
b. import prices, domestic prices, and price comparisons considered by MOFCOM in its 
determination of injury.46 
1.20.  The Panel rejected the European Union's claims that China acted inconsistently with 
Article 6.9 of the Anti-Dumping Agreement by failing to disclose adequately essential facts in connection with: 
a. the data underlying MOFCOM's determination of dumping in respect of SMST and 
Tubacex; and 
b. the determination and the calculation of the dumping margins for all EU companies other 
than SMST and Tubacex.
47 
1.21.  In both the Japan and EU Panel Reports, th e Panel concluded that, pursuant to Article 3.8 of 
the Understanding on Rules and Procedures Govern ing the Settlement of Disputes (DSU), to the 
extent that China acted inconsistently with certain provisions of the Anti-Dumping Agreement, 
China nullified or impaired benefits accruing to Japan and the European Union under that 
                                               
41 EU Panel Report, para. 8.7.b. 
42 EU Panel Report, para. 8.7.a. 
43 EU Panel Report, para. 8.7.c. 
44 EU Panel Report, para. 8.6.e. 
45 EU Panel Report, para. 8.6.f. 
46 EU Panel Report, para. 8.6.g. 
47 EU Panel Report, para. 8.7.d. The Panel made additional findings of inconsistency under Articles 7.4, 
12.2, and 12.2.2 of the Anti-Dumping Agreement (EU Pane l Report, paras. 8.6.h, 8.6.i, 8.7.e, and 8.8), and 
consequential findings of inconsistency under Article 1 of the Anti-Dumping Agreement and Article VI of the GATT 1994 (EU Panel Report, para. 8.6.j). None of these findings have been appealed. WT/DS454/AB/R • WT/DS460/AB/R 
 
- 16 - 
 
  Agreement.48 Accordingly, pursuant to Article 19.1 of the DSU, the Panel recommended that China 
bring its measures into conformity with its obligations under the Anti-Dumping Agreement.49 
1.22.  On 20 May 2015, Japan notified the Dispute Settlement Body (DSB) of its intention to 
appeal50 certain issues of law covered in the Japan Panel Report and certain legal interpretations 
developed by the Panel, and filed a Notice of Appeal and an appellant's submission.51 On 
26 May 2015, China notified the DSB of its intention to appeal52 certain issues of law covered in 
the Japan Panel Report and certain legal interpretations developed by the Panel, and filed a Notice 
of Other Appeal and an other appellant's submission.53 
1.23.  On 20 May 2015, China notified the DSB of its intention to appeal54 certain issues of law 
covered in the EU Panel Report and certain legal interpretations developed by the Panel, and filed a Notice of Appeal and an appellant's submission.
55 On 26 May 2015, the European Union notified 
the DSB of its intention to appeal56 certain issues of law covered in the EU Panel Report and 
certain legal interpretations developed by the Panel, and filed a Notice of Other Appeal and an other appellant's submission.
57 
1.24.  By letter dated 28 May 2015, the Appellate Bo dy informed the participants and third parties 
that it intended to consolidate the appellate pr oceedings in these disputes, and gave them an 
opportunity to comment. No objections were received. By letter dated 1 June 2015, the 
Appellate Body informed the participants and third parties that, in the interests of "fairness and 
orderly procedure", as referred to in Rule 16(1) of the Working Procedures for Appellate Review58 
(Working Procedures), the appellate proceedings in respect of the aforementioned appeals would be consolidated due to the significant overlap in the content of these disputes for which the 
appeals were filed on the same date. A single Appe llate Body Division was selected to hear both 
appeals, and a single oral hearing was held by the Division. 
1.25.  On 8 June 2015, Japan, the European Union
59, and China each filed an appellee's 
submission.60 
1.26.  On 10 June 2015, the United States filed a third participant's submission.61 On the same 
day, India, Korea, Russia, Saudi Arabia, and Turkey each notified its intention to appear at the oral 
hearing as a third participant.62 
                                               
48 Japan Panel Report, para. 8.4;  EU Panel Report, para. 8.10. 
49 Japan Panel Report, para. 8.5;  EU Panel Report, para. 8.11. 
50 Pursuant to Articles 16.4 and 17 of the DSU. 
51 Pursuant to Rules 20 and 21, respectively, of  the Working Procedures for Appellate Review, 
WT/AB/WP/6, 16 August 2010 (Working Procedures).  
52 Pursuant to Articles 16.4 and 17 of the DSU. 
53 Pursuant to Rule 23 of the Working Procedures. 
54 Pursuant to Articles 16.4 and 17 of the DSU. 
55 Pursuant to Rules 20 and 21, respectively, of the Working Procedures. 
56 Pursuant to Articles 16.4 and 17 of the DSU. 
57 Pursuant to Rule 23 of the Working Procedures. 
58 WT/AB/WP/6, 16 August 2010. 
59 In its appellee's submission, the European Union referred to Article 5 of the DSU that provides that 
good offices, conciliation, or medi ation may be requested and take plac e "at any time". The European Union 
suggested that a "procedural possibility" that it could envi sage would be to invite info rmally the participants to 
"indicate whether or not they would be prepared to voluntarily participate in a short informal meeting". For the European Union, the purpose of the me eting would be to ascertain whether the parties would be able to reach 
an agreement concerning the Panel's findings under Arti cle 2.2.2 of the Anti-Dumping Agreement, "or indeed 
any other matter pending in this appeal". (European Union's appellee's submission, para. 215) At the oral hearing, China was given an  opportunity to comment. 
60 Pursuant to Rules 22 and 23(4) of the Working Procedures.  
61 Pursuant to Rule 24(1) of the Working Procedures. 
62 Pursuant to Rule 24(2) of the Working Procedures. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  1.27.  On 15 June 2015, in response to a letter from the Division specifying the dates of the oral 
hearing in these proceedings, Japan sent a letter to the Division indicating that it had concerns regarding the decision to hold the oral hearing on days 71-72 of these proceedings.
63 On 16 June 
2015, the Division received a letter from the European Union, in response to Japan's letter, stating 
that the European Union assumed that, pursuant to Article 17.5 of the DSU, the Appellate Body 
would inform the DSB, in due course, of the reasons for the delay.64 On 17 June 2015, the 
Appellate Body received a communication from China indicating that it did not have any 
substantive comments on the procedures adopted by the Division in these appeals. On the same 
date, the Appellate Body received a letter from Indi a indicating that it did not consider that more 
specific explanations regarding the Appellate Body's timetable were necessary. 
1.28.  By letter dated 18 June 2015, the Division hearing these appeals indicated that it would 
inform the DSB of the reasons for the delay by letter within two months of the date of the filing of 
these appeals. The Division added that, in that letter, or as soon as possible thereafter, it would provide an estimated date of circulation of the Appellate Body Reports in these disputes. 
1.29.  By letter dated 19 July 2015, the Chair of the Appellate Body notified the Chair of the DSB 
that the Appellate Body would not be able to circulate its Reports by the end of the 60-day period, 
or within the 90-day timeframe provided for in Article 17.5 of the DSU, due to the number and 
complexity of the issues raised in these appeals and parallel proceedings, scheduling issues arising 
from the overlap in the composition of the Divisions hearing the different appeals, and shortage of staff in the Appellate Body Secretariat . He further indicated that, due to a pending request for a 
change in the working schedule in the parallel appe llate proceedings in DS381, the Appellate Body 
was not, at that time, in a position to inform the DSB of the estimated date of circulation of the 
Appellate Body Reports in DS454 and DS460. The Chair indicated, however, that the Appellate Body expected that matter to be resolv ed soon and that the Appellate Body would then 
inform the DSB of the estimated date of circulation. 
1.30.  Subsequently, after the working schedule in DS381 was decided, the Chair of the 
Appellate Body informed the Chair of the DS B, by letter dated 28 July 2015, that the 
Appellate Body Reports in these appeals would be circulated no later than 14 October 2015. 
1.31.  The oral hearing in these appeals was held on 30-31 July 2015. The participants and two 
third participants (Turkey and the United States) made oral statements. The participants and third participants responded to questions posed by the Members of the Appellate Body Division hearing 
these appeals. 
2  ARGUMENTS OF THE PARTICIPANTS 2.1.  The claims and arguments of the participan ts are reflected in the executive summaries of 
their written submissions provided to the Appellate Body.
65 The Notices of Appeal and 
Other Appeal, and the executive summaries of the participants' claims and arguments, are contained in Annexes A and B of the Addendum to these Reports, WT/DS454/AB/R/Add.1, 
WT/DS460/AB/R/Add.1. 
                                               
63 Japan explained that, given the procedural histor y of these disputes and current workload of the 
Appellate Body, Japan was of the view  that the appellate proceedings shou ld not be further delayed. Japan 
requested the Appellate Body to prov ide the participants and third part icipants with the reasons for the 
eventual delay in the circulation of the Appellate Body Reports in these proceedings, together with an estimate of the period within which it  would circulate its Reports. 
64 The European Union clarified that it did not s eek from the Appellate Body any further specific 
explanations regarding the ti metable for the above appeal proceedings. The European Union stated that it was 
confident that the Appellate Body would do what it could to comply with all the provisions of the DSU, including Article 17.5, taking into account the resource constraints upon it. 
65 Pursuant to the Appellate Body communication on "Executive Summaries of Written Submissions in 
Appellate Proceedings" and "Guidelines in Respect of Executive Summaries of Written Submissions in Appellate 
Proceedings". (WT/AB/23, 11 March 2015) WT/DS454/AB/R • WT/DS460/AB/R 
 
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  3  ARGUMENTS OF THE THIRD PARTICIPANTS 
3.1.  The arguments of the United States, as th ird participant, are reflected in the executive 
summary of its written submission provided to the Appellate Body66, contained in Annex C of the 
Addendum to these Reports, WT/DS454/AB/R/Add.1, WT/DS460/AB/R/Add.1. 
4  ISSUES RAISED IN THESE APPEALS 
4.1.  The following issues are raised in these appeals: 
a. with respect to the Panel's findings regarding Articles 2.2.1 and 2.2.2 of the 
Anti-Dumping Agreement: 
i. whether the Panel erred in finding that the European Union's panel request, as it 
relates to Articles 2.2.1 and 2.2.2, complies with the requirement of Article 6.2 of the DSU to provide a brief summary of the legal basis of the complaint sufficient to 
present the problem clearly and, consequently, in finding that the European Union's 
claims under these provisions were within the Panel's terms of reference (raised in DS460 by China); 
ii. whether the Panel erred in its interpretation and application of Article 2.2.2 in finding 
that China failed to determine an SG&A amount for SMST on the basis of actual data pertaining to production and sales in the ordinary course of trade of the like product 
(raised in DS460 by China); and 
iii. whether, in reaching its finding under Article 2.2.2, the Panel acted inconsistently 
with its obligations under Articles 11 and 12.7 of the DSU and Article 17.6(i) of the 
Anti-Dumping Agreement (raised in DS460 by China);  
b. whether the Panel erred in finding that China acted inconsistently with Article 6.7 and 
paragraph 7 of Annex I to the Anti-Dumping Agreement by rejecting SMST's request for rectification of certain information only on the basis that it was not provided prior to 
verification (raised in DS460 by the European Union);  
c. with respect to the Panel's finding that China acted inconsistently with Article 6.5 of the 
Anti-Dumping Agreement: 
i. whether the Panel erred in its interpretation and application of Article 6.5 in finding 
that China acted inconsistently with that provision because MOFCOM permitted the full text of the reports in appendix V and appendix VIII to the petition, appendix 59 to the petitioners' supplemental evidence of 1 March 2012, and the appendix to the 
petitioners' supplemental evidence of 29 Ma rch 2012, to remain confidential without 
objectively assessing the petitioners' showing of "good cause" (raised in DS454 and DS460 by China); and 
ii. whether the Panel applied an erroneous stan dard of review and failed to make an 
objective assessment of the facts contrary to the requirements of Article 11 of the 
DSU and Article 17.6(i) of the Anti-Dumpi ng Agreement (raised in DS454 and DS460 
by China); 
d. with respect to the Panel's findings under Article 6.9 of the Anti-Dumping Agreement: 
i. whether the Panel erred in its interpretation and application of Article 6.9 in rejecting 
the European Union's claim that China acted inconsistently with that provision 
because MOFCOM failed to disclose adequately the essential facts in connection with 
the data underlying MOFCOM's determination of dumping concerning SMST and Tubacex (raised in DS460 by the European Union); and 
                                               
66 Pursuant to the Appellate Body communication on "Executive Summaries of Written Submissions in 
Appellate Proceedings" and "Guidelines in Respect of Executive Summaries of Written Submissions in Appellate 
Proceedings". (WT/AB/23, 11 March 2015) WT/DS454/AB/R • WT/DS460/AB/R 
 
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  ii. whether the Appellate Body can complete the legal analysis and find that China acted 
inconsistently with Article 6.9 because MOFCOM failed to disclose adequately the essential facts in connection with the data underlying MOFCOM's determination of dumping concerning SMST and Tubacex (raised in DS460 by the European Union); 
e. with respect to the Panel's findings under Articles 3.1 and 3.2 of the 
Anti-Dumping Agreement: 
i. whether the Panel erred in its interpretation of Article 3.2 in finding that, in its 
consideration of whether there has been a significant price undercutting, an 
investigating authority may consider simply whether dumped imports sell at lower prices than comparable domestic products (raised in DS454 by Japan and in DS460 by the European Union); 
ii. whether the Panel erred by rejecting Japan's and the European Union's claims that 
MOFCOM acted inconsistently with Articles 3.1 and 3.2 by failing to consider whether Grade C subject imports had any price undercutting effect on domestic Grade C 
products, in the sense of placing downward pressure on those domestic prices by 
being sold at lower prices (raised in DS454 by Japan and in DS460 by the European Union);  
iii. whether the Appellate Body can complete the legal analysis and find that MOFCOM's 
assessment of whether there had been a significant price undercutting by Grade C imports from Japan, as compared with the price of domestic Grade C, is inconsistent with Articles 3.1 and 3.2 (raised in DS454 by Japan and in DS460 by the 
European Union); and 
iv. whether the Panel erred by rejecting the European Union's claim that MOFCOM acted 
inconsistently with Articles 3.1 and 3.2 by improperly extending its finding of price 
undercutting in respect of Grades B and C to the domestic like product as a whole, 
including domestic Grade A (raised in DS460 by the European Union); 
f. with respect to the Panel's findings under Articles 3.1 and 3.4 of the 
Anti-Dumping Agreement: 
i. whether the Panel erred in finding that Japan's claim, that MOFCOM failed to 
examine whether dumped imports provided explanatory force for the state of the domestic industry, fell outside the Panel's terms of reference (raised in DS454 by 
Japan); and 
ii. whether the Panel erred in rejecting Japan's and the European Union's claims that 
MOFCOM acted inconsistently with Articles 3.1 and 3.4 because MOFCOM was 
required to, but did not, undertake a segmented impact analysis (raised in DS454 by 
Japan and in DS460 by the European Union); 
g. with respect to the Panel's finding that China acted inconsistently with Articles 3.1 
and 3.5 of the Anti-Dumping Agreement: 
i. whether, in reaching its finding that MOFCOM improperly relied on the market share 
of dumped imports in determining a causal  link between dumped imports and injury 
to the domestic industry, the Panel acted in consistently with Article 6.2 of the DSU 
by addressing a claim by Japan that was outside the Panel's terms of reference 
(raised in DS454 by China); 
ii. whether, in reaching its finding that MOFCOM improperly relied on the market share 
of dumped imports in determining a causal  link between dumped imports and injury 
to the domestic industry, the Panel acted inconsistently with Article 11 of the DSU 
because it ruled on a matter that was not before it, or, in the alternative, made the 
case for the complainant (raised in DS454 and DS460 by China); WT/DS454/AB/R • WT/DS460/AB/R 
 
- 20 - 
 
  iii. whether the Panel erred in finding that MO FCOM improperly relied on the market 
share of dumped imports in determining a causal link between dumped imports and injury to the domestic industry, and made  no finding of cross-grade price effects 
whereby price undercutting by Grade B and C imports might be shown to affect the 
price of domestic Grade A HP-SSST (raised in DS454 and DS460 by China);  
iv. whether the Panel erred in finding that China acted inconsistently with Articles 3.1 
and 3.5 of the Anti-Dumping Agreement because MOFCOM failed to ensure that the 
injury caused by the decrease in apparent consumption and the increase in domestic 
production capacity was not attributed to the dumped imports (raised in DS454 and DS460 by China); and 
v. whether the Panel acted inconsistently with Article 11 of the DSU in finding that the 
complainants had not advanced independent claims concerning MOFCOM's price 
effects and impact analyses, under Articles 3.1 and 3.5 of the Anti-Dumping Agreement, other than those concerning MOFCOM's reliance on market shares and 
MOFCOM's non-attribution analysis (raised in DS454 by Japan and in DS460 by the 
European Union); and 
h. with respect to the Panel's designation of business confidential information (BCI) and its 
adoption of BCI Procedures, whether the Panel erred in its interpretation and application 
of Articles 18.2 and 13.1 of the DSU and Articles 17.7 and 6.5 of the Anti-Dumping Agreement, and, in particular, in finding th at, in the context of a dispute brought under 
the Anti-Dumping Agreement, the phrase "confidential information" in Article 17.7 refers 
to the confidential information previously examined by the investigating authority and 
treated as confidential pursuant to Article 6. 5, and which is then provided to a dispute 
settlement panel pursuant to Article 17.7 (raised in DS460 by the European Union). WT/DS460/AB/R 
 
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 5  ANALYSIS OF THE APPELLATE BODY 
5.1  Data for SG&A amounts – Articles 2.2. 1 and 2.2.2 of the Anti-Dumping Agreement 
5.1.  We begin with China's claims as they relate to the Panel's assessment of MOFCOM's 
determination of dumping for SMST, one of the EU companies that were investigated. We recall, in 
this regard, that MOFCOM calculated the margin of dumping for a particular type of HP-SSST, 
referred to in the Panel Reports as Grade B, on the basis of a comparison between SMST's export 
prices to China and a constructed "normal value"67, that is, the sum of: (i) the cost of production 
(COP) in the country of origin; and (ii) amounts for SG&A costs and profits. With respect to the 
amounts for SG&A costs and profits, the chapeau of Article 2.2.2 of the Anti-Dumping Agreement 
states that these "shall be based on actual data pertaining to production and sales in the ordinary course of trade of the like product by the exporter or producer under investigation."
68 
5.2.  We examine, first, China's claims that the Panel erred in concluding that the 
European Union's panel request, as it relates to  Articles 2.2.1 and 2.2.2 of the Anti-Dumping 
Agreement, provides a "brief summary of the legal basis of the complaint sufficient to present the 
problem clearly", as required by Article 6.2 of th e DSU. Thereafter, we examine China's claim that 
the Panel erred in its interpretation and application of Article 2.2.2 of the Anti-Dumping Agreement, and acted inconsistently with its duties under Articles 11 and 12.7 of the DSU and 
Article 17.6(i) of the Anti-Dumping Agreement when  it found that MOFCOM had failed to determine 
an amount for SG&A costs for SMST on the basis of actual data pertaining to production and sales in the ordinary course of trade of the like product. 
5.1.1  The Panel's terms of reference 
5.1.1.1  The Panel's findings 
5.3.  The European Union alleged in its panel request that China acted inconsistently with: 
Articles 2.2, 2.2.1, 2.2.1.1, and 2.2.2 of  the Anti-Dumping Agreement because China 
did not determine the amounts for [SG&A] costs and for profits on the basis of records 
and actual data by the exporters or producers under investigation. In particular, the amounts for [SG&A] costs and for profits as constructed by China do not reflect the 
records and the actual data of the exporters or producers under investigation.
69  
5.4.  In its first written submission to the Panel, the European Union relied on this language in its 
panel request as the basis for its claims that China acted inconsistently with:  
 Article 2.2 of the Anti-Dumping Agreement because the unrepresentative and rejected 
data used by MOFCOM did not permit a proper comparison, and the amount for SG&A 
was not reasonable; 
 Article 2.2.1 of the Anti-Dumping Agreement because MOFCOM used free samples, which 
by definition are not sales in the ordinary course of trade; 
 Article 2.2.1.1 of the Anti-Dumping Agreement because MOFCOM used unrepresentative 
and rejected data that: (i) did not correspond to the records kept by SMST; (ii) were not 
in accordance with generally accepted accounting principles (GAAP); (iii) did not 
reasonably reflect the costs associated with the product under consideration; and (iv) had not been historically utilized by SMST; and  
                                               
67 We recall that Article 2.1 of the Anti-Dumping Ag reement identifies a product as "dumped" where the 
product is introduced into the commerce of another country at less than its "normal value". "Normal value" is understood by that provision to be th e "comparable price, in the ordinary course of trade, for the like product 
when destined for consumption in the exporting country." 
68 Article 2.2.1.1 of the Anti-Dumping Agreement stipulates that "costs shall normally be calculated on 
the basis of records kept by the expo rter or producer under investigation,  provided that such records are in 
accordance with the generally accepted accounting princi ples of the exporting country and reasonably reflect 
the costs associated with the production an d sale of the product under consideration." 
69 European Union's pane l request, para. 1. WT/DS460/AB/R 
 
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   Article 2.2.2 of the Anti-Dumping Agreemen t because MOFCOM failed to determine an 
SG&A amount for SMST on the basis of actual data pertaining to production and sales in the ordinary course of trade of the like product.
70  
5.5.  China argued that several of these claims were outside the Panel's terms of reference 
because the European Union had not complied with the requirements under Article 6.2 of the DSU 
with respect to those claims. In making this ar gument, China submitted that the European Union 
had presented two sets of claims in its first written submission: (i) main claims under Article 2.2.2; 
and (ii) "additional/support claims" under Articles 2.2, 2.2.1, and 2.2.1.1 in support of its main 
claims.  
5.6.  With regard to the European Union' s "main claims", China accepted that "the 
European Union's claim under Article 2.2.2 that the SG&A amount was not based on actual data 
falls within the Panel's terms of reference."71 However, China contended that "the 
European Union's panel request does not include a claim under Article 2.2.2 that the SG&A amount did not pertain to production and sales in the ordinary course of trade."
72 With regard to what it 
described as the European Union's "additional claims", China accepted that "the European Union's 
claim under Article 2.2.1.1 that data used did not correspond to the records kept by SMST falls within the Panel's terms of reference."
73 However, China maintained that all remaining "additional 
claims" under Articles 2.2, 2.2.1, and 2.2.1.1 were outside the scope of the European Union's 
panel request.74 According to China, "such non-inclusion" was "not a matter of a lack of any clarity 
or precision in the European Union's request for establishment of a panel".75 Rather, China 
asserted that the European Union "clearly specified the claims included in its request for 
establishment", and "expressly limited" its claims under Articles 2.2, 2.2.1, 2.2.1.1, and 2.2.2 to 
the claims that the SG&A amounts used by MOFCOM to construct normal value did not reflect the records kept by SMST, and were not based on "actual data".
76 China contended that the use of the 
term "in particular" in the European Union's panel request clearly defined the claims raised by the 
European Union.77  
5.7.  Citing Appellate Body jurisprudence, the Pa nel recalled that, "when 'a provision contains not 
one single, distinct obligation, but rather multiple obligations, a panel request might need to 
specify which of the obligations contained in the provision is being challenged'"78, and that 
"compliance with the requirements of Article 6.2 [o f the DSU] must be determined on the merits of 
each case, having considered the panel request as a whole, and in the light of attendant 
circumstances."79 The Panel observed that the mere fact that the European Union referred to a 
particular provision in its panel request, allegedly without specifying the particular obligation being 
                                               
70 See EU Panel Report, para. 7.32 (referring to Europe an Union's first written submission to the Panel, 
paras. 167, 170, and 172-174). 
71 EU Panel Report, para. 7.39 (referring to China's fi rst written submission to the Panel, paras. 51-53 
and 71; second written submission to the Panel, para. 5; and opening statement at the second Panel meeting, para. 51). 
72 EU Panel Report, para. 7.39 (referring to China's fi rst written submission to the Panel, paras. 54-55; 
response to Panel question No. 10, paras. 35 and 38; se cond written submission to the Panel, paras. 4, 6-7, 
18, and 27; and opening statement at the second Pane l meeting, paras. 51 and 55-56). China argued that 
Article 2.2.2 contains multiple obligations. According to China, the "actual data" requirement in Article 2.2.2 is distinct from the requirement relating to data pertaining to sales an d production in the ordinary course of 
trade, which is contained in the same provision. (Chi na's first written submission to the Panel, para. 67; 
opening statement at the first Panel meeting, paras. 19- 21; response to Panel ques tion No. 7, paras. 33-34; 
second written submission to the Panel, para. 21; opening statement at the second Panel meeting, paras. 52-55; comments on Euro pean Union's response to Pane l question No. 81, para. 22) 
73 EU Panel Report, para. 7.39 (referring to China's fi rst written submission to the Panel, paras. 52, 55, 
and 71; second written submission to the Panel, para. 5; and opening statement at the second Panel meeting, para. 51). 
74 EU Panel Report, para. 7.39 (referring to China's fi rst written submission to the Panel, paras. 54-55; 
second written submission to the Panel, para. 57; and opening statement at the second Panel meeting, 
para. 51). 
75 EU Panel Report, para. 7.39. 
76 EU Panel Report, para. 7.39. 
77 EU Panel Report, para. 7.39 (referring to China's first written submission to the Panel, para. 65; 
opening statement at the first Panel meeting, para. 19; second written submission to the Panel, paras. 4-7; and comments on European Union's response  to Panel question No. 81, para. 21). 
78 EU Panel Report, para. 7.47 (quo ting Appellate Body Reports, China – Raw Materials , para. 220; and 
referring to Appellate Body Reports, Korea – Dairy , para. 124; and EC – Fasteners (China) , para. 598). 
79 EU Panel Report, para. 7.47 (quoting Appellate Body Report, US – Carbon Steel , para. 127). WT/DS460/AB/R 
 
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  challenged, did not necessarily mean that the European Union's panel request fails to meet the 
requirements of Article 6.2 of the DSU. The Pa nel noted that this was "because the relevant 
WTO obligations may nevertheless be identifiable from a careful reading of the panel request as a whole."
80 The Panel proceeded, therefore, to "examine whether a careful reading of the 
European Union's panel request, including any na rrative explanation contained therein, permits a 
sufficiently clear identification of the legal basis regarding each of the Article 2 claims pursued in 
the European Union's first written submission."81 
5.8.  Regarding the European Union's claim under Article 2.2.1, the Panel described Article 2.2.1 
as containing "one single obligation relating to when sales of the like product may be treated as 
not being in the ordinary course of trade"82, and considered that a "reference" to Article 2.2.1 was, 
therefore, "sufficient to clearly present a problem pertaining to the treatment of below-cost 
sales".83 The Panel concluded that the European Union's panel request, with respect to the claim 
under Article 2.2.1 of the Anti-Dumping Agreem ent, complies with Article 6.2 of the DSU. 
5.9.  With respect to the European Union's claim under Article 2.2.2, the Panel observed that the 
European Union's panel request alleges that "Chi na did not determine the [SG&A amounts] on the 
basis of … actual data by the exporters or prod ucers under investigation", and recalled that China 
had accepted that the European Union's claim under Article 2.2.2 relating to "actual data" was 
properly before the Panel.84 Further, the Panel pointed out that the panel request includes a 
reference to Article 2.2.1 of the Anti-Dumping Agr eement. Relying on the text of that provision, 
which stipulates the conditions under which "sales … at prices below per unit … costs of production 
plus [SG&A costs] may be treated as not being in the ordinary course of trade … and may be 
disregarded in determining normal value", the Panel considered that "a reasonably informed 
reader would understand from the reference to Article 2.2.1 that the European Union also takes issue … with whether or not SG&A amounts are based on data pertaining to the production and 
sales in the ordinary course of trade."
85 Thus, the Panel concluded that the European Union's claim 
under Article 2.2.2 relating to "actual data pertaining to production and sales in the ordinary course of trade" was within the scope of its terms of reference.
86  
5.1.1.2  The relevant legal standa rd under Article 6.2 of the DSU 
5.10.  We begin our analysis by reviewing WTO jurisprudence regarding the requirements of 
Article 6.2 of the DSU. We then address the specific issues raised by China on appeal. 
5.11.  Article 6.2 of the DSU reads, in relevant part: 
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem 
clearly.  
5.12.  Article 6.2 of the DSU sets out two princi pal requirements: (i) the identification of the 
specific measures at issue; and (ii) the provision of a brief summary of the legal basis of the 
complaint sufficient to present the problem clearly.
87 The requirements specified in Article 6.2 are 
significant because, "pursuant to Article 7 of th e DSU, a panel's terms of reference are governed 
                                               
80 EU Panel Report, para. 7.47 (referring to  the preliminary ruling of the panel in US – Countervailing 
and Anti-Dumping Measures (China)  dated 7 May 2013, para. 3.35, contained in document WT/DS449/4). 
81 EU Panel Report, para. 7.47. (fn omitted) 
82 EU Panel Report, para. 7.49. 
83 EU Panel Report, para. 7.49. 
84 EU Panel Report, para. 7.51. 
85 EU Panel Report, para. 7.51. 
86 EU Panel Report, para. 7.51. Taking this view, th e Panel considered it unnecessary to address the 
European Union's and China's arguments relating to whether Article 2.2.2 contains multiple obligations. The Panel also rejected China's argument that the European Union's panel requ est was "expressly limited", by the 
use of the words "in particular", to the obligation for th e SG&A amounts to be based on actual data. (EU Panel 
Report, fn 108 to para. 7.51) 
87 In addition, Article 6.2 contains  two further requirements, namely , that the request be made in 
writing and that it indicate whether consulta tions were held. (See Appellate Body Report, Korea – Dairy , 
para. 120) WT/DS460/AB/R 
 
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  by the request for establishment of a panel."88 In other words, a panel request delimits the scope 
of a panel's jurisdiction.  
5.13.  In assessing whether a panel request is "sufficiently precise" to comply with Article 6.2, 
panels must "scrutinize carefully the panel reques t, read as a whole, and on the basis of the 
language used".89 While submissions and statements made during the course of the panel 
proceedings may be consulted in order to confirm the meaning of the words used in the panel request
90, they cannot "cure" defects in the request.91 Rather, a panel request must be examined 
on its face as it existed at the time of filing.92 The need to examine the panel request "on its face" 
and "on the basis of the language used" makes the narrative in the panel request a significant part of the assessment of whether the request provid es "a brief summary of the legal basis of the 
complaint sufficient to present the problem clearly".
93  
5.14.  With respect to this requirement, the A ppellate Body has explained that the reference in 
Article 6.2 of the DSU to the "legal basis of the complaint" refers to the claims pertaining to a 
specific provision of a covered agreement containing the obligation alleged to be violated94; and 
that it is the claims , and not the arguments , that are to be set out in a panel request in a way that 
is sufficient to present the problem clearly.95 For the purposes of Article 6.2, a "claim" refers to an 
allegation that "the respondent party has violated, or nullified or impaired the benefits arising 
from, an identified provision of a particular agreement."96 "Arguments", by contrast, are 
statements put forth by a complaining party "to demonstrate that the responding party's measure does indeed infringe upon the identified treaty provision".
97 The Appellate Body has stated that the 
"[i]dentification of the treaty provisions claimed to have been violated by the respondent is always 
necessary" and is a "minimum prerequisite if the legal basis of the complaint is to be presented at 
all".98  
5.15.  Regarding the requirement that a complainant provide a "brief summary" that is sufficient 
to "present the problem clearly", the Appellate Body has explained that a panel request must 
"plainly connect the challenged measure(s) with the provision(s) of the covered agreements claimed to have been infringed".
99 Thus, "to the extent that a provision contains not one single, 
distinct obligation, but rather multiple obligations, a panel request might need to specify which of 
the obligations contained in the provision is being challenged."100 
5.16.  A further element relevant to assessing the consistency of a panel request with Article 6.2 of 
the DSU is whether it complies with the due process objective in that provision of notifying the 
respondent and third parties of the nature of the complainant's case.101  
                                               
88 Appellate Body Report, US – Carbon Steel , para. 124. 
89 See Appellate Body Report, EC – Fasteners (China) , para. 562. 
90 Appellate Body Report, US – Carbon Steel , para. 127. 
91 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 787 (referring to 
Appellate Body Reports, EC – Bananas III , para. 143; and US – Carbon Steel , para. 127). 
92 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 787. 
93 See Appellate Body Reports, China – Raw Materials , paras. 230-232. 
94 See Appellate Body Report, EC – Selected Customs Matters , para. 130. 
95 See Appellate Body Report, EC – Selected Customs Matters , para. 153. 
96 Appellate Body Report, Korea – Dairy , para. 139. 
97 Appellate Body Report, Korea – Dairy , para. 139. 
98 Appellate Body Report, Korea – Dairy , para. 124 (referring to Appellate Body Reports, Brazil – 
Desiccated Coconut , fn 21 at p. 22, DSR 1997:I, p. 186; EC – Bananas III , paras. 145 and 147; and India – 
Patents (US) , paras. 89 and 92-93). 
99 Appellate Body Reports, China – Raw Materials , para. 220; US – Countervailing and Anti-Dumping 
Measures (China) , para. 4.8 (both quoting Appellate Body Report, US – Oil Country Tubular Goods Sunset 
Reviews , para. 162). 
100 Appellate Body Reports, China – Raw Materials , para. 220 (referring to Appellate Body Report, Korea 
– Dairy , para. 124); US – Countervailing and Anti-Dumping Measures (China) , para. 4.8. 
101 Appellate Body Report, EC and certain member States – Large Civil Aircraft , paras. 639-640 
(referring to Appellate Body Report, US – Carbon Steel , para. 126, in turn referring to Appellate Body Report, 
Brazil – Desiccated Coconut , p. 22, DSR 1997:I, p. 186). See also Appellate Body Reports, EC – Chicken Cuts , 
para. 155; and US – Zeroing (Japan) (Article 21.5 – Japan) , para. 108. WT/DS460/AB/R 
 
- 25 - 
 
  5.1.1.3  Whether the European Union's clai ms under Articles 2.2.1 and 2.2.2 of the 
Anti-Dumping Agreement were within the scope of the Panel's terms of reference 
5.17.  China contends, as it did before the Panel, that the European Union's panel request was 
expressly limited to two claims: (i) that MOFC OM did not determine SG&A amounts and profits 
on the basis of the records  of the exporters or producers; and (ii) that MOFCOM did not determine 
SG&A amounts and profits on the basis of the actual data  of the exporters or producers.102 For 
China, this was clear, given that the European Union alleged in its panel request that China acted 
inconsistently with the identified provisions of  the Anti-Dumping Agreement "because" China did 
not determine SG&A amounts "on the basis of records and actual data by the exporters or producers under investigation".
103 China adds that the use of the term "in particular", in the 
second sentence of paragraph 1 of the European Union's panel request, further defines the claims 
raised by the European Union.104  
5.18.  The European Union counters that it did not expressly limit its panel request through the 
use of the term "because", but that this term wa s simply used to introduce a brief summary of the 
legal basis of the complaint.105 With respect to the expression "in particular", the European Union 
argues that the Panel correctly found that this language served to highlight that the European Union's claims under the provisions at issue would focus on the manner in which China 
determined the amount for SG&A costs for SMST "as constructed" by MOFCOM.
106 
5.19.  We recall that the European Union's panel request includes specific references to 
Articles 2.2, 2.2.1, 2.2.1.1, and 2.2.2 of the Anti -Dumping Agreement, and a specific listing of the 
grounds for the European Union's claims. The Europe an Union alleged, in order, that: (i) China had 
violated Articles 2.2, 2.2.1, 2.2.1.1, and 2.2.2 of the Anti-Dumping Agreement; (ii) this was so 
"because China did not determine the amounts for [SG&A] costs and for profits on the basis of 
records and actual data by the exporters or producers under investigation"; and 
(iii) "[i]n particular, the amounts for [SG&A] costs and for profits as constructed by China do not 
reflect the records and the actual data of the exporters or producers under investigation".107 
5.20.  We disagree with China to the extent it argues that it is not relevant to assess the nature of 
the provisions cited by the European Union in its panel request, including whether they contain a 
single obligation, or multiple, distinct obligations.108 Contrary to what China suggests, "[w]hether 
or not a general reference to a treaty provision will be adequate to meet the requirement of 
sufficiency under Article 6.2 is to be examined on a case-by-case basis, taking into account the 
extent to which such reference sheds light on the nature of the obligation at issue."109 Moreover, 
Article 6.2 of the DSU does not prohibit a party from including in the panel request statements "that foreshadow its arguments in substantiating the claim"
110, and that the presence of such 
statements "should not be interpreted to narrow the scope of the measures or the claims".111  
5.1.1.3.1  Article 2.2.1 of the Anti-Dumping Agreement 
5.21.  With these considerations in mind, we  turn to examine the nature and scope of 
Articles 2.2.1 and 2.2.2 of the Anti-Dumping Agreement. We start with Article 2.2.1, which reads, 
in relevant part: 
                                               
102 China's appellant's submission, para. 51. 
103 China's appellant's submission , para. 52 (quoting European Un ion's panel request, para. 1, 
first sentence: "This is clear from the fi rst sentence at stake: an alleged violation of 'Articles 2.2, 2.2.1, 2.2.1.1 
and 2.2.2 of the Anti-Dumping Agreement because  China did not determine the amounts for administrative, 
selling and general costs and for profits on the basis of records and actual data by the exporters or producers 
under investigation'"). (e mphasis added by China) 
104 China's appellant's submission, paras. 55-58. 
105 European Union's appellee' s submission, paras. 60-62. 
106 European Union's appell ee's submission, para. 65. 
107 EU Panel Report, para. 7.31 (quoting Eu ropean Union's panel request, para. 1). 
108 See China's appellant's submission, para. 60. 
109 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.17 
(referring to Appellate Body Report, US – Carbon Steel , para. 130, in turn referring to Appellate Body Report, 
Korea – Dairy , para. 124). 
110 Such statements may, as they are here, be introduced by terms such as "because" and "in 
particular". 
111 Appellate Body Report, EC – Selected Customs Matters , para. 153. WT/DS460/AB/R 
 
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  Sales of the like product in the domestic market of the exporting country or sales to a 
third country at prices below per unit (fixed  and variable) costs of production plus 
[SG&A] costs may be treated as not being in the ordinary course of trade by reason of price and may be disregarded in determining normal value only if  the authorities 
determine that such sales are made within an extended period of time in substantial 
quantities  and are at prices which do not provide for the recovery of all costs within a 
reasonable period of time.
112 
5.22.  Under Article 2.2.1, investigating authorities may treat below-cost sales of the like product 
as not being "in the ordinary course of trade" by reason of price, and may disregard such sales in 
determining normal value "only if" the authorities determine that such sales were: (i) made within an extended period of time; (ii) in substantial qu antities; and (iii) at prices which do not provide 
for the recovery of all costs within a reasonable period of time. While an investigating authority 
can act inconsistently with Article 2.2.1 in different ways – e.g. by disregarding below-cost sales without determining whether they were "made wi thin an extended period of time" or "in 
substantial quantities" – this does not mean, however, that Article 2.2.1 contains multiple, distinct 
obligations. Rather, as we see it, Article 2.2.1 sets out a single  obligation whereby an investigating 
authority may disregard below-cost sales of the like product only if  it determines that "such" 
below-cost sales display the three specific characteristics mentioned above. The fact that the 
European Union did not include statements in it s panel request foreshadowing the arguments it 
would make in order to substantiate its claim under Article 2.2.1 does not mean that the European Union's panel request does not comply with the standard set out in Article 6.2 of the 
DSU.
113 
5.23.  In the light of the above, we uphold the Pa nel's finding, in paragraph 7.49 of the EU Panel 
Report, that the European Union's panel request complies with the requirement in Article 6.2 of 
the DSU to "provide a brief summary of the legal basis of the complaint sufficient to present the 
problem clearly" in respect of the European Unio n's claim under Article 2.2.1 of the Anti-Dumping 
Agreement. 
5.1.1.3.2  Article 2.2.2 of the Anti-Dumping Agreement 
5.24.  Turning to China's claim under Article 2.2. 2 of the Anti-Dumping Agreement, we note that 
this provision sets forth how the amounts for SG&A costs and profits are to be calculated for purposes of constructing normal value. The chapeau of Article 2.2.2 provides, in relevant part, that 
"the amounts for [SG&A] costs and for profits shall be based on actual data pertaining to 
production and sales in the ordinary course of trade of the like product by the exporter or producer under investigation." Article 2.2.2 further clarifies that, "[w]hen such amounts cannot be 
determined on this basis" – i.e. "based on actual data pertaining to production and sales in the 
ordinary course of trade of the like product by th e exporter or producer under investigation" – an 
investigating authority may proceed to employ one of the other three methods provided in 
subparagraphs (i)-(iii) of Article 2.2.2.  
5.25.  By its express terms, Article 2.2.2 requires that an investigating authority, when calculating 
constructed normal value under Article 2.2, first attempt to make such a calculation using the "actual data pertaining to production and sales in the ordinary course of trade". Therefore, if actual  
data for SG&A costs and profits in the ordinary course of trade exists for the exporter under 
investigation, an investigating authority may not calculate constructed value using data from other sources.
114  
5.26.  China reads the reference in the chapeau of Article 2.2.2 to "actual data pertaining to 
production and sales in the ordinary course" as setting out multiple, distinct obligations, including an obligation to determine an amount for SG&A costs on the basis of "actual data" that is 
"independent" and "distinct" from the obligation to determine such costs on the basis of data 
"pertaining to production and sales in the ordinary course of trade".
115 Thus, while China accepts, 
based on the narrative explanation contained in the European Union's panel request, that the European Union's claim under Article 2.2.2 relating to "actual data" was within the Panel's terms of 
                                               
112 Fns omitted; emphasis added. 
113 See Appellate Body Report, EC – Selected Customs Matters , para. 153. 
114 See Appellate Body Report, EC – Tube or Pipe Fittings , para. 97. 
115 China's appellant's submission, paras. 61-62. WT/DS460/AB/R 
 
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  reference, China contends that this is not the case for the European Union's claim relating to the 
determination of an SG&A amount on the basis of actual data pertaining to production and sales in 
the ordinary course of trade .116 For its part, the European Union submits that the relevant terms in 
Article 2.2.2 are interlinked.117 Specifically, the European Union argues that the term "pertaining 
to" is a modifier that links the term "actual data" to what follows, so that "it is only the phrase as a 
whole that makes sense."118 
5.27.  Looking at the structure of Article 2.2.2, we note that the noun "data" is immediately 
preceded by the adjective "actual" and followed by  the phrase "pertaining to production and sales 
in the ordinary course of trade". As we see it, the term "actual data" is clearly linked to the language that follows. The phrase "pertaining to production and sales in the ordinary course of 
trade" serves, in particular, to specify the actual data that is to be used in order to calculate an 
amount for SG&A costs for purposes of constructi ng normal value under Article 2.2.2. Thus, read 
as a whole, the relevant phrase imposes a single obligation, set out in the chapeau of Article 2.2.2, for investigating authorities to determine amounts for SG&A costs and profits on the basis of 
actual data that relates to, or concerns, production and sales in the ordinary course of trade. This 
reading of Article 2.2.2 would appear to be confir med by the second sentence of that provision, 
which refers back to the first sentence, and provides that, when SG&A amounts "cannot be 
determined on this basis", thus referring in the singular to the preferred method to be used to 
calculate such SG&A amounts. This is consistent with the Appellate Body having referred to the chapeau of Article 2.2.2 as setting out "a general obligation ('shall') on an investigating authority to use 'actual data pertaining to production and sales in the ordinary course of trade' when 
determining amounts for SG&A and profits."
119 
5.28.  China seeks to overcome the plain language in Article 2.2.2 by referring to the 
Appellate Body report in EC – Bed Linen .120 In that dispute, the Appellate Body explained, in the 
context of examining a substantive claim under Article 2.2.2(ii), that " all of 'the actual amounts 
incurred and realized' by other exporters or pr oducers must be included [when constructing 
normal value], regardless  of whether those amounts are incurred and realized on production and 
sales made in the ordinary course of trade or not."121 In making this statement, the Appellate Body 
did not address the question of whether Article 2.2.2 sets out distinct requirements concerning the 
determination of constructed normal value that would have to be spelt out explicitly in a panel request pursuant to Article 6.2 of the DSU in order to fall within a panel's terms of reference. The 
Appellate Body report in EC – Bed Linen , therefore, does not support China's position that 
Article 2.2.2 sets out distinct requirements with  respect to "actual data", on the one hand, and 
"data pertaining to production and sales in the ordinary course of trade", on the other hand.  
5.29.  China also takes issue with the Panel's reliance on the reference to Article 2.2.1 of the 
Anti-Dumping Agreement in the European Union's panel request in concluding that the European Union's claim under Article 2.2.2 was within the Panel's terms of reference. This 
reference, as China contends, cannot be read to include a claim under Article 2.2.2 being within 
the Panel's terms of reference given that this claim "was not among the two claims to which the [European Union's] panel request was expressly limited".
122 China adds that Article 2.2.1 and 
Article 2.2.2 were listed separately in the Europe an Union's panel request, together with a number 
of other provisions. 
5.30.  In response, the European Union argues that the reference to Article 2.2.1, with its single 
obligation regarding the ordinary course of trade, confirms or provides relevant context for 
                                               
116 China also accepts, as within the Panel's term s of reference, the European Union's claim under 
Article 2.2.1.1 that the data used by MOFCOM to calcul ate an amount for SG&A cost s did not correspond to the 
records kept by SMST, given the reference in the Eu ropean Union's panel reques t to the records of the 
exporters. 
117 European Union's appell ee's submission, para. 52. 
118 European Union's appell ee's submission, para. 53. 
119 Appellate Body Report, EC – Tube or Pipe Fittings , para. 97. 
120 China's appellant's submission, paras. 62-63. 
121 China's appellant's submission, para . 63 (quoting Appellate Body Report, EC – Bed Linen , para. 80). 
(emphasis original) 
122 China's appellant's submission, para. 66. WT/DS460/AB/R 
 
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  understanding the reference to Article 2.2.2 in the panel request, since each of these provisions is 
a development of Article 2.2 "with respect to if and how normal value may be constructed".123  
5.31.  We agree with China that the reference to Article 2.2.1 in the European Union's panel 
request could  be read to suggest that the European Union considered that MOFCOM erred by 
excluding  sales that should have been considered as being in the ordinary course of trade from its 
determination of an SG&A amount for SMST, rather than by including  sales that should have been 
excluded. This does not mean, however, that th e Panel would have been precluded from taking 
into account the reference to Article 2.2.1 in the panel request as relevant context in determining 
whether the European Union's claim under Article 2.2.2 was properly within the Panel's terms of 
reference. Although claims under Article 2.2.1 and Article 2.2.2 require distinct identification, the 
obligations contained in these provisions are related insofar as they pertain to the calculation of 
constructed normal value. Thus, a reference to Article 2.2.1 may be useful to understand the 
scope of the claim raised under Article 2.2.2. We agree, therefore, with the Panel that the reference to Article 2.2.1 can relevantly inform the question of whether the European Union had 
sufficiently articulated a claim under Article 2.2.2. We do not consider that the Panel erred by 
looking at the language contained in the European  Union's panel request as a whole, including the 
reference to Article 2.2.1 of the Anti-Dumping Agreement.  
5.32.  China contends that the Appellate Body's reasoning in EC – Fasteners (China)  lends support 
to its position in this case, referring to a "similarly structured sentence" found in China's panel request in that case.
124 We find China's arguments in this regard to be unavailing. Regardless of 
whether China's panel request in EC – Fasteners (China) may have contained a "similarly 
structured sentence"125, as China argues, the sufficiency of a panel request for the purposes of 
Article 6.2 of the DSU is to be determined on the basis of the language contained in the panel request and the nature of the obligations contained in the provisions at issue. Here, for the 
reasons described above, we consider the narrative provided by the European Union to be 
sufficient to identify a claim under Article 2.2.2 of the Anti-Dumping Agreement regarding "actual 
data pertaining to production and sales in the ordinary course of trade", considering the nature of 
the single obligation contained in that provision.  This was not the basis for the Appellate Body's 
finding in EC – Fasteners (China) , where a claim "regarding the disclosure of the identity of the 
complainants and supporters" was not mentioned explicitly, and not covered by other language 
contained in China's panel request, or captured through a reference to any one of the identified 
treaty provisions by itself.  
5.33.  China asserts that the Panel "distorted" the meaning of the relevant part of the 
European Union's panel request, and failed to make an objective assessment of the term 
"in particular" contained in the European Union's panel request, when it found that the 
European Union had raised more than two claims  under Article 2 of the Anti-Dumping Agreement 
regarding MOFCOM's calculation of a constructed normal value for SMST.
126 China also submits 
that, in finding that the "mere mention" of Arti cle 2.2.1 provides "a brief summary of the legal 
basis of the complaint" in relation to Article 2.2.2, and considering that "a reasonably informed reader" would understand from this reference to Article 2.2.1 that the European Union also takes issue "with whether or not SG&A amounts are based on data pertaining to the production and 
sales in the ordinary course of trade", the Panel failed to make an objective assessment of the 
matter before it, as required under Article 11 of the DSU.
127 Having disagreed with China that the 
European Union's panel request was "expressly limited" to two claims under Article 2 of the 
Anti-Dumping Agreement, and having agreed with the Panel that the reference in the 
European Union's panel request to Article 2.2.1 can relevantly inform the question of whether the European Union had sufficiently articulated a claim under Article 2.2.2, we do not consider it 
necessary to make additional findings regarding China's claims under Article 11 of the DSU. 
                                               
123 European Union's appellee's submission, para. 69. (emphasis original) 
124 China's appellant's submission, para. 53. 
125 We note that, in EC – Fasteners (China) , the Appellate Body found that China's panel request 
referred explicitly to four claims un der Articles 6.2 and 6.4 of the Anti-Dumping Agreement relating to: (i) the 
composition of the domestic industry; (ii) data concerning normal value determination; (iii) information on the adjustments for differences affecting price comparability; and (iv) Eurostat data on which total EU production 
and consumption figures were based; an d that an additional cl aim regarding the "disclosure of the identity of 
complainants and supporters" did not fall "within the scope of any of the four above descriptions". 
(Appellate Body Report, EC – Fasteners (China) , paras. 596-597) 
126 See China's appellant submission, para. 67. 
127 China's appellant submission, para. 80. WT/DS460/AB/R 
 
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  5.34.  In sum, having reviewed the language in Article 2.2.2 of the Anti-Dumping Agreement, we 
do not agree with China that Article 2.2.2 sets out separate obligations regarding "actual data" and "data pertaining to production and sales in the ordinary course of trade". Instead, we consider the narrative in the European Union's panel request – "China did not determine the amounts for 
[SG&A] costs and for profits on the basis of records and actual data by the exporters or producers 
under investigation "
128 – to be broad enough to encompass the European Union's claim regarding 
"actual data pertaining to production and sales in the ordinary course of trade". That the 
European Union did not include further language from  the text of Article 2.2.2 of the Anti-Dumping 
Agreement does not, in our view, limit or redu ce the scope of the European Union's claim to 
"actual data".  
5.35.  For all these reasons, we uphold the Panel's finding, in paragraph 7.51 of the EU Panel 
Report, that the European Union's panel request complies with the requirement in Article 6.2 of 
the DSU to "provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly" in respect of the European Unio n's claim under Article 2.2.2 of the Anti-Dumping 
Agreement.  
5.1.2  The Panel's interpretation and applic ation of Article 2.2.2 of the Anti-Dumping 
Agreement 
5.36.  We now turn to address whether, as China claims, the Panel erred in its interpretation and 
application of Article 2.2.2 of the Anti-Dumpi ng Agreement and acted inconsistently with 
Articles 11 and 12.7 of the DSU and Article 17.6(i)  of the Anti-Dumping Agreement in concluding 
that China acted inconsistently with Article 2.2.2 because MOFCOM did not determine an SG&A 
amount for SMST on the basis of "actual data pertaining to production and sales in the ordinary 
course of trade of the like product". 
5.1.2.1  The Panel's findings 
5.37.  Before the Panel, the European Union claimed that China acted inconsistently with 
Articles 2.2, 2.2.1, 2.2.1.1, and 2.2.2 of th e Anti-Dumping Agreement because "China did not 
determine the amount for [SG&A] on the basis of re cords and actual data kept by the exporter or 
producer under investigation (SMST) or in a manne r that reasonably reflects the costs associated 
with the production and sale of [Grade B]."
129 The European Union argued that "the data from 
table 6-3 of SMST's questionnaire response, which was used by China to construct normal value, was not 'actual data pertaining to production and sales in the ordinary course of trade'."
130 
According to the European Union, this was becaus e: (i) Table 6-3 included SG&A amounts derived 
from planned rates and not the actual  expense; and (ii) the SG&A amounts in Table 6-3 were 
based on "abnormally high" COP, as it included two unrepresentative free sample production 
transactions.131 China, for its part, submitted that MOFCOM determined the SG&A amount on the 
basis of actual data reported by SMST for Grade B HP-SSST sold in the European Union included in 
Table 6-3. Moreover, China argued that "it is irrelevant whether or not the coefficients used to 
determine the SG&A amounts are also actual data, because the SG&A amounts at issue were 
'based on' actual data, i.e. actual [COP], and Article 2.2.2 does not require the SG&A amount to be actual data in itself."
132  
5.38.  The Panel began its assessment with the text of Article 2.2.2, which sets forth how the 
amounts for SG&A are to be calculated for purposes of a constructed normal value. The Panel 
understood the issue to be whether Table 6-3, which China submitted was the basis for the SG&A amounts used in MOFCOM's calculation of normal value, was "based on 'actual data pertaining to 
production and sales in the ordinary course of trade of the like product'".
133 The Panel explained, in 
this regard, that "[i]t is undisputed that the SG&A amounts in table 6-3 consist of the [COP] 
                                               
128 EU Panel Report, para. 7.31 (quoting European Un ion's panel request, para. 1) (emphasis added) 
129 EU Panel Report, para. 7.53 (quoting European Union's first written submission to the Panel, 
para. 160). 
130 EU Panel Report, para. 7.55. 
131 EU Panel Report, para. 7.55 (referring to update d English version of Table 6 annexed to SMST's 
Dumping Questionnaire Response (P anel Exhibit CHN-19-EN (BCI))). 
132 EU Panel Report, para. 7.59. 
133 EU Panel Report, para. 7.65. WT/DS460/AB/R 
 
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  multiplied by certain coefficients" and that these coefficients reflect "the planned internal rates 
used by SMST in preparing price/cost allocations for orders".134  
5.39.  Next, the Panel noted the apparent disa greement between MOFCOM and SMST with respect 
to the source of the data to be used to dete rmine the SG&A amount. While the European Union 
asserted that SMST understood that MOFCOM shou ld have been using the SG&A amount based on 
actual data from Table 6-5, China submitted that MOFCOM made it clear in its disclosures that it was using the data in Table 6-3.
135 Regardless of the parties' differing understandings, the Panel 
found that it was undisputed that SMST requested MOFCOM, and MOFCOM accepted, "not to use in 
the constructed normal value calculations the [COP] in table 6-3 for Grade B sales in the European Union, because such [COP] was distorte d due to the inclusion of the two free sample 
transactions."
136 However, MOFCOM used the SG&A amounts in Table 6-3, even though these had 
been derived by applying certain coefficients to the disregarded COP data.  
5.40.  While noting China's argument that the affected SG&A data could have been corrected by 
the relevant coefficients, the Panel did not consider that "an unbiased and objective investigating 
authority could have assumed the corrective potential of the relevant coefficients without any 
supporting analysis or evidence."137 Instead, the Panel agreed with the European Union that "any 
such assumption would have been 'speculative'."138 Thus, the Panel opined that, "by using SG&A 
data based on the application of coefficients to  data that had already been excluded for the 
purpose of constructing normal value, MOFCOM fail ed to fulfil the requirements of Article 2.2.2."139 
Put differently, the Panel concluded that MOFCOM improperly utilized data relating to two free samples, which MOFCOM had excluded for the purp ose of determining the COP, to establish the 
SG&A amounts. On this basis, the Panel concluded that "China acted inconsistently with 
Article 2.2.2 of the Anti-Dumping Agreement by failing to determine an SG&A amount for SMST on the basis of actual data pertaining to production and sales in the ordinary course of trade of the 
like product."
140 
5.1.2.2  Analysis of the Panel's findings re garding MOFCOM's determination of an SG&A 
amount for SMST  
5.41.  China begins by raising a claim under Articl e 12.7 of the DSU, arguing that the Panel did not 
set out the findings of fact, the applicability of the relevant provisions, and the basic rationale behind its findings. According to China, it is not clear whether the Panel considered the measure at issue to be inconsistent with Article 2.2.2 of the Anti-Dumping Agreement because it is not based 
"on actual data or on data pertaining to producti on and sales in the ordinary course of trade, or 
both".
141 In addition, China argues that the Panel: (i) failed to set out how and why China allegedly 
violated these requirements; (ii) failed to addre ss the interpretation of these requirements and the 
relevant facts that would lead to a conclusion of violation of these requirements; and 
(iii) precluded China from making an informed decision about whether and what to appeal.142 
Moreover, China contends that the Panel acted inconsistently with its obligations under Article 11 
of the DSU by failing to provide an adequate explanation for its findings.143 
                                               
134 EU Panel Report, para. 7.65 (referring to SMST 's Supplemental Dumping Questionnaire Response 
(Panel Exhibits CHN-10-CH and CHN- 10-EN (BCI), and EU-14 (BCI)), internal p. 4; and SMST's Dumping 
Questionnaire Response (Panel Exhibit EU-10 (BCI)), internal p. 69). 
135 See EU Panel Report, para. 7.66 and fn 130 thereto. 
136 EU Panel Report, para. 7.66 (referring to SM ST's Dumping Questionnaire Response (Panel 
Exhibit CHN-5-EN (BCI)), internal p. 17; MOFCOM's  Preliminary Dumping Disclosure to SMST (Panel 
Exhibit CHN-12-EN (BCI)), internal pp. 2-3; MOFCOM's Pr eliminary Determination (Panel Exhibits JPN-7-EN and 
EU-18), internal p. 27; MOFCOM's Fi nal Determination (Panel Exhibits JPN-2-EN and EU-30), internal p. 38; 
European Union's first written submission to the Panel,  para. 168; and China's first written submission to the 
Panel, paras. 98, 107, and 116; response to Panel qu estion No. 22(b)(iii), para. 78; and second written 
submission to the Panel, para. 42). 
137 EU Panel Report, para. 7.66. 
138 EU Panel Report, para. 7.66. 
139 EU Panel Report, para. 7.66. 
140 EU Panel Report, para. 7.66. 
141 China's appellant's submission, para. 94. 
142 China's appellant's submission, para. 96. 
143 China's appellant's submission, para. 97. WT/DS460/AB/R 
 
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  5.42.  In response, the European Union argues that  "the way forward for China is clear", and that 
"China can ensure that the measure taken to comply complies with Article 2.2.2, by ensuring that the amounts for [SG&A] are based on actual data pertaining to production and sales in the ordinary course of trade by SMST"
144 contained in Table 6-5 (Profitability), Table 6-6 (Detailed 
Chart of Allocation of Administrative Expenses), Table 6-7 (Detailed Chart of Allocation of Sales 
Expenses), and Table 6-8 (Detailed Chart of Alloca tion of Financial Expenses) annexed to SMST's 
Dumping Questionnaire Response of 21 November 2011.145 The European Union submits that 
China's arguments are "largely a re-iteration of its arguments concerning the scope of the 
[European Union's] Panel Request, insofar as they attempt to de-link the relevant interlinked terms of Article 2.2.2".
146 The European Union further argues that MOFCOM disregarded SMST's 
repeated statements directing MOFCOM to the actual data pertaining to production and sales in the 
ordinary course of trade by SMST contained in Tables 6-5 through 6-8, and that China had ample 
opportunity to defend itself during the Panel proceedings.147  
5.43.  We consider that China's arguments, although raised in the context of Articles 11 and 12.7 
of the DSU, in fact concern the proper constr uction and application of the requirement in 
Article 2.2.2 of the Anti-Dumping Agreement to determine constructed normal value on the basis 
of "actual data pertaining to production and sales in the ordinary course of trade". We have 
already addressed China's arguments pertaining to  the interpretation of Article 2.2.2 of the 
Anti-Dumping Agreement and disagreed with China's assertion that Article 2.2.2 sets out "independent" and "distinct" obligations in relation to "actual data" and "data pertaining to production and sales in the ordinary course of tr ade". We, therefore, do not consider there to be 
any basis for us to find that the Panel failed to make an objective assessment of the matter before 
it, as required under Article 11 of the DSU, or that  the Panel failed to provide, in its Reports, the 
basic rationale for its findings as required under Article 12.7 of the DSU. 
5.44.  As a second ground of appeal, China asserts that "[t]he Panel misinterpreted Article 2.2.2 
as requiring an investigating authority not to base  the SG&A amount on data that were not used 
for the determination of the [COP] amount."
148 China submits that the Panel "seems to have 
erroneously considered" that it follows from "the fact that SG&A data are derived from [COP] that 
had not been taken into account by MOFCOM for the [COP] calculation in the normal value determination" that such data are, therefore, "not based on actual data and/or that these are not based on data pertaining to production and sale s in the ordinary course of trade of the like 
product".
149  
5.45.  Contrary to what China seems to suggest, the Panel did not make a finding as to whether or 
not the SG&A amount had to be determined on the basis of data that were used for the 
determination of COP amounts. Nor did the Pa nel address the issue of whether or not the 
coefficients reported by SMST, that is, "the planned internal rates used by SMST in preparing price/cost allocations for orders, are 'actual data' for purposes of Article 2.2.2."
150 
5.46.  As a third ground of appeal, China submits that the Panel "should have assessed how, in 
fact, the SG&A amount was determined and how the data underlying this determination were obtained", and whether the SG&A amount used by MOFCOM in its calculation of normal value "was 
'based on' data that: (i) is actual; and (ii) pertai ns to production and sales in the ordinary course 
of trade".
151 In China's view, there was no reason for the Panel "to assume that MOFCOM 
disregarded the [COP] of Grade B sold domestically because it was not actual or did not pertain to production or sales in the ordinary course of trade".
152 According to China, instead, the Panel 
should have analysed this question, and should also have looked into precisely which factual 
circumstances constituted the "certain particularity" referred to by MOFCOM when MOFCOM 
                                               
144 European Union's appellee's submission, para. 187. 
145 Updated English version of Table 6 annexed to SMST's Dumping Questionnaire Response (Panel 
Exhibit CHN-19-EN (BCI)). 
146 European Union's appellee's submission, para. 188. 
147 European Union's appellee's submission, para. 190. 
148 China's appellant's submission, para. 99. 
149 China's appellant's submission, para. 99. 
150 EU Panel Report, fn 137 to para. 7.66. 
151 China's appellant's submission, para. 100. 
152 China's appellant's submission, para. 101. WT/DS460/AB/R 
 
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  explained in its Preliminary Dumping Disclosure that it had "used the [COP] of Grade B sold in the 
Chinese market 'due to [a] certain particularity of the transactions of this model in the EU'".153  
5.47.  The European Union responds that the facts on the Panel record demonstrate that MOFCOM 
accepted SMST's request "not to use in the constructed normal value calculations the COP in 
table 6-3 for Grade B sales in the European Union,  because such COP was abnormally high due to 
the inclusion of the two free samples."154 The European Union maintains that "the only pertinent 
particularity of the transactions" is that "the COP was abnormally high due to the two free 
samples."155 The European Union argues that the Panel was, therefore, "correct to state that it was 
undisputed that SMST requested MOFCOM, and MOFC OM accepted, not to use in the constructed 
normal value calculations the COP in Table 6-3 for Grade B sales in the European Union, because such COP was distorted due to the two free samples."
156 The European Union adds that China had 
many opportunities during the Panel proceedings to step forward and assert that the phrase 
"certain particularity" means something other than the fact that the COP was abnormally high due to the two free samples, yet it failed to do so.
157 The European Union submits that "China is 
precluded at this stage from making any new factual assertions in this respect", and cannot 
"reasonably fault the Panel" for concluding as it  did based on the facts and evidence that were 
before it.158  
5.48.  China appears to conflate the obligations that apply to investigating authorities with those 
that apply to WTO panels. It was not for the Pane l in the present case to determine what MOFCOM 
meant when it referred to a "certain particularity"; rather, this was an issue for MOFCOM to explain  in its written determination. We also do not agree with China that the Panel "assumed" 
that MOFCOM disregarded the COP of Grade B sold  domestically for the reason that "it was not 
actual or did not pertain to production or sales in the ordinary course of trade."
159 Rather, as we 
understand it, the basis for the Panel's finding und er Article 2.2.2 of the Anti-Dumping Agreement 
was, instead, that MOFCOM "assumed the corrective potential of the relevant coefficients" used to 
calculate an SG&A amount for SMST "without supporting analysis or evidence".160 The Panel saw 
error, in particular, in MOFCOM's decision, withou t explanation or analysis, "to disregard the [COP] 
data in table 6-3 for Grade B sales in the European Union", while at the same time using "the SGA 
amounts in table 6-3, even though [those amounts] had been derived by applying certain coefficients to that disregarded [COP] data."
161 
5.49.  As a fourth ground of appeal, China takes issue with the Panel's finding that "it is 
undisputed that … MOFCOM accepted not to use in the constructed normal value calculations the 
[COP] in table 6-3 for Grade B sales in the European Union, because such [COP] was distorted due to the inclusion of the two free sample transactions."
162 China states that "it is undisputed that 
MOFCOM accepted not to use the [COP] in table 6-3 for Grade B sales in the European Union to 
determine the COP in the normal value determination."163 However, China considers that the Panel 
acted inconsistently with Article 11 of the DSU to the extent that it found that "MOFCOM decided 
not to use the [COP] of domestic sales because  these costs were 'distorted due to the inclusion of 
the two free sample transactions' in the sense that they were not 'actual' and/or did not pertain to production and sales 'in the ordinary course of trade'."
164  
                                               
153 China's appellant's submission, para. 107 (quoting MOFCOM's Preliminary Dumping Disclosure to 
SMST (Panel Exhibit CHN-12-EN (BCI)), internal p. 2). 
154 European Union's appellee's submission, para. 194. (fn omitted) 
155 European Union's appellee's submission, para. 195. (fn omitted) 
156 European Union's appellee's submission, para. 195. 
157 European Union's appellee's submission, paras. 196 -197 (referring to China's appellant's submission, 
para. 108). 
158 European Union's appellee's submission, para. 197. 
159 China's appellant's submission, para. 101. 
160 EU Panel Report, para. 7.66. 
161 EU Panel Report, para. 7.66. 
162 China's appellant's submission, para. 109 (quoting EU Panel Report, para. 7.66). 
163 China's appellant's submission, para. 109. 
164 China's appellant's submission, para. 109. (emphasis original) WT/DS460/AB/R 
 
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  5.50.  As noted above, SMST stated in its response to MOFCOM's initial dumping questionnaire 
that: 
[t]he December 2010 production costs for [Grade B was] abnormally high and should 
not be used in BOFT's cost or constructed value calculations. This production relates to 
the zero price samples discussed above with respect to question 9, Item 6 of 
Section 4. These were test orders in very small quantities. This led to abnormally high per-unit raw material costs because, despite the small production quantity, an entire 
hollow had to be used for each order.
165 
5.51.  MOFCOM responded that: 
… due to [a] certain particularity  of the transactions of [Grade B] in the EU, according 
to Article 4 of the Anti-Dumping Regulation of the People's Republic of China 
("AD Regulation"), the Investigating Authority decides to provisionally use the 
production costs of [Grade B] exported to China, SG&A of sales in the EU and reasonable profitability as the basis to determine the constructed value.
166 
5.52.  Regardless of what MOFCOM meant when it referred to a "certain particularity of the 
transactions of [Grade B] in the EU", and whether MOFCOM considered that the COP was distorted or not due to the inclusion of the two free samples, MOFCOM was required, in its determination , to 
explain  why it determined an amount for SG&A costs "based on the application of coefficients to 
data that had already been excluded for the purpose of constructing normal value ".
167 In the 
absence of such an explanation provided by MOFCOM in its written report, we fail to see how the Panel could have found China to have acted consistently with its obligations under Article 2.2.2 of 
the Anti-Dumping Agreement. We do not consider that the Panel erred in finding that "an unbiased 
and objective investigating authority could [not] have assumed  the corrective potential of the 
relevant coefficients without any supporting analysis or evidence ."
168 Contrary to what China 
appears to argue, this does not constitute  a finding, by the Panel, that MOFCOM could not rely  on 
these (rejected) "transactions for the purposes  of determining SG&A amounts"; rather, we 
understand the Panel simply to have found that MOFCOM was required to explain  why it chose to 
do so, and failed to give such explanation. 
5.53.  China argues that the Panel acted contrary to Article 11 of the DSU and Article 17.6(i) of the 
Anti-Dumping Agreement by failing to take into account that "MOFCOM requested SMST to clarify the nature of the coefficients, but did not obtain the requested clarification."
169 China contends 
that an objective assessment of the methodology used by MOFCOM to obtain the SG&A amount 
"would have led the Panel to conclude that China complied with its obligations to ensure that the SG&A amount is 'based on' data that is 'actual' and pertains to 'production and sales in the 
ordinary course of trade'."
170 
5.54.  The European Union responds that "[t]here are no facts or evidence on the record that 
would explain how the use of the planned coefficients might have cancelled out the use of the COP 
of the samples and China has never offered any explanation in this respect."171 The 
European Union further submits that SMST did respond to MOFCOM's request for clarification, and directed MOFCOM to the actual data pertaining to production and sales in the ordinary course of trade by SMST, contained in Tables 6-5 through 6-8.
172 
5.55.  It is well established that a panel must neither conduct a de novo review nor simply defer to 
the conclusions of the investigating authority. Inst ead, panels should test whether the conclusions 
reached by the investigating authority are reasoned and adequate in the light of the explanations 
                                               
165 SMST's Dumping Questionnaire Response (Panel Ex hibits CHN-5-EN (BCI) an d EU-10 (BCI)), internal 
p. 17. 
166 MOFCOM's Preliminary Dumping Disclosure to SMST (Panel Exhibit CHN-12-EN (BCI)), internal p. 2. 
(emphasis added) 
167 EU Panel Report, para. 7.66. (emphasis added) 
168 EU Panel Report, para. 7.66. (emphasis added) 
169 China's appellant's submission, para. 111. 
170 China's appellant's submission, para. 112. 
171 European Union's appellee's submission, para. 203. 
172 European Union's appellee's submission, para. 204. WT/DS460/AB/R 
 
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  provided by the investigating authority in its written determination.173 Contrary to what China 
suggests, it was for MOFCOM to explain why it considered that the relevant coefficients had corrective potential, and why it used SG&A data based on the application of coefficients to data that had already been excluded for the purpose of constructing normal value. Even accepting, as 
China argues, that MOFCOM had "requested SMST to clarify the nature of the coefficients, but did 
not obtain the requested clarification"
174, this does not mean that the Panel erred in finding that 
"an unbiased and objective investigating authority could [not] have assumed the corrective 
potential of the relevant coefficients without any supporting analysis or evidence."175 
5.56.  Finally, with regard to the translation of SMST's request to MOFCOM to exclude the COP in 
Table 6-3 for Grade B sales in the European Union,  China argues that the European Union "distorts 
SMST's response" by claiming that "SMST re quested that MOFCOM not use the December 
production costs in constructed value  calculations", whereas "the correct translation of SMST's 
request refers to 'constructed cost calculation' rather than 'constructed value  calculation'."176  
5.57.  The European Union responds that, although China originally submitted its own translation 
of the relevant phrase in SMST's request as "cost or constructed value  calculations"177, China 
subsequently changed its position and argued that the correct translation of this phrase was "cost 
or constructed cost calculations".178 For the European Union, these submissions are "manifestly 
unreasonable and untenable", since, "[i]f the COP of the free samples was unfit for the purposes of 
determining COP, it was equally unfit for the purposes of determining an amount for SG&A [costs]."
179 The European Union contends that, when the Anti-Dumping Agreement uses the term 
"constructed", it clearly refers to the entire calculation, and not merely to part of it, such as the 
COP.180 Furthermore, the European Union submits that the term "costs" on its own is not limited to 
the COP, to the exclusion of SG&A costs.181  
5.58.  The Panel found, in the light of its finding under Article 2.2.2 of the Anti-Dumping 
Agreement, that it did not need to address the disagreement between the European Union and 
China concerning the correct translation into English of SMST's request to exclude the COP in Table 6-3.
182 We see no error in the approach taken by the Panel in this regard, and certainly no 
error arising to a violation of Article 11 of the DSU or Article 12.7 of the DSU.183 
                                               
173 Appellate Body Report, US – Tyres (China) , para. 123. 
174 China's appellant's submission, para. 111. 
175 Panel Report, para. 7.66. 
176 China's appellant's submission, pa ra. 89 (quoting China's second written submission to the Panel, 
para. 39 (emphasis original)). See also para. 87. Before the Panel, China submitted that there is a difference 
between the Chinese characters for "cost" and "value", and that SMST only requested MOFCOM not to use the 
information in Table 6.3 in the "cost or constructed co st calculation". According to  China, SMST thus never 
requested MOFCOM to disregard the SG&A amounts in that table. (China's second written submission to the Panel, paras. 39-42) 
177 European Union's appellee's submission, para. 163 (referring to SMST's Dumping Questionnaire 
Response (Panel Exhibits CHN-5-EN (BCI) and EU-10 (BCI)), internal p. 16). (emphasis original) 
178 European Union's appellee's submission, para. 163 (ref erring to China's second written submission to 
the Panel, paras. 39-42). (emphasis original) 
179 European Union's appellee's submission, para. 163. 
180 European Union's appellee's submission, para. 163 (referring to Articles 2.3, 2.4, 5.2(ii), and 9.3.3 of 
the Anti-Dumping Agreement). 
181 European Union's appellee's submission, para. 163. The European Union notes that, whereas in some 
instances the Anti-Dumping Agreement re fers specifically to COP (Articles 2.2 and 2.2.1), in other instances it 
refers particularly and expressly to SG&A costs (Art icles 2.2, 2.2.1, and 2.2.2), or to costs generally 
(Articles 2.2.1, 2.2.1.1, fns 5 and 6, and Article 2.4). 
182 EU Panel Report, fn 137 to para. 7.66 (referring to China's opening statement at the first Panel 
meeting, para. 19). See also China's first written submissi on to the Panel, para. 65; second written submission 
to the Panel, para. 6; and comments  on European Union's response to  Panel question No. 81, para. 21. 
183 We also note that certain of China's claims on appeal refer to  both Article 11 of the DSU and 
Article 17.6(i) of the Anti-Dumping Agreement. Chin a, however, does not de velop separate arguments 
concerning the latter in its submissions. We recall,  in this regard, the Appellate Body's finding in US – 
Hot-Rolled Steel  that both Article 17.6(i) of the Anti-Dumping Agreement and Article 11 of the DSU "require[] 
panels to 'assess' the facts and this … clearly necessitat es an active review or examination of the pertinent 
facts", and that "it is inconceivable that Article 17.6(i) should require anything other than that panels make an 
objective  'assessment of the facts of the matter'." (Appellate Body Report, US – Hot-Rolled Steel , para. 55 
(emphasis original)) Accordingly, the two provisions se t out a similar standard of review. We understand that 
this is not in dispute. WT/DS460/AB/R 
 
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  5.1.2.3  Conclusion 
5.59.  In the light of the above, we uphold the Panel's finding, in paragraphs 7.66 and 8.6.a of the 
EU Panel Report, that China acted inconsistently with Article 2.2.2 of the Anti-Dumping Agreement 
by failing to determine an SG&A amount for SMST on the basis of actual data pertaining to 
production and sales in the ordinary course of trade of the like product.  
5.1.3  The European Union's conditional appe al under Articles 2.2 and 2.2.1.1 of the 
Anti-Dumping Agreement 
5.60.  The European Union conditionally appeals the Panel's findings that both the 
European Union's claim under Article 2.2.1.1 of the Anti-Dumping Agreement, as it relates to the obligation to "reasonably reflect the costs associated with the production and sale of the product under consideration", and its claim under Articl e 2.2 of the Anti-Dumpi ng Agreement, do not 
comply with the requirements of Article 6.2 of the DSU and that these claims were, therefore, 
outside the scope of the Panel's terms of reference.
184 The European Union submits, however, that 
we need not consider these aspects of its appeal in the event that we uphold the Panel's findings 
concerning the European Union's claim under Arti cle 2.2.2 of the Anti-Dumping Agreement, or 
complete the legal analysis and confirm its claim under Article 2.2.2.185 
5.61.  Having upheld the Panel's finding that China acted inconsistently with Article 2.2.2 of the 
Anti-Dumping Agreement by failing to determine an SG&A amount for SMST on the basis of actual 
data pertaining to production and sales in the ordina ry course of trade of the like product, we need 
not address this aspect of the European Union's appeal.  
5.2  MOFCOM's alleged failure to take into account certain information provided during 
the verification visit 
5.62.  We now turn to address China's appeal of the Panel's findings that China acted 
inconsistently with Article 6.7 and paragraph 7 of Annex I to the Anti-Dumping Agreement by 
rejecting SMST's request for rectification of information on the sole basis that this request was not 
made before the verification started. 
5.63.  We begin by summarizing the relevant findings of the Panel before addressing specific 
arguments raised by China on appeal. 
5.2.1  The Panel's findings 5.64.  Before the Panel, the European Union cont ended that: (i) SMST submitted to MOFCOM that 
certain financial expenses had been inadve rtently double-counted in SMST's Dumping 
Questionnaire Response; and (ii) SMST "adduced corrected information that was duly verified".
186 
The European Union claimed that China acted inconsistently with Article 6.7 and paragraph 7 of Annex I to the Anti-Dumping Agreement by refusing to take into account the corrected information 
provided during the on-the-spot investigation.
187 Pointing to language in MOFCOM's Final 
Determination and Final Dumping Disclosure to SMST, the European Union argued that the only reason provided by MOFCOM "for refusing to take the corrected information into account was that 
SMST did not raise this point before the verification started".
188 
5.65.  In response, China argued that investigating authorities are not required, under Article 6.7 
and paragraph 7 of Annex I, to accept all information presented during a verification visit. Moreover, while accepting that the purpose  of a verification visit is to verify information provided 
                                               
184 European Union's other appellan t's submission, paras. 70 and 78. 
185 European Union's other appellant's submission, pa ras. 70 and 78 (referring to China's Notice of 
Appeal, para. 5.a.i-ii). 
186 EU Panel Report, para. 7.93. 
187 EU Panel Report, para. 7.93 (referring to European  Union's first written submission to the Panel, 
paras. 98-99 and 109). 
188 EU Panel Report, para. 7.93 and fn 178 thereto. WT/DS460/AB/R 
 
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  or to obtain further details, China asserted that this "does not imply that an investigating authority 
is compelled to verify information pr ovided or to obtain further details".189 
5.66.  The Panel began its analysis by observ ing that the European Union's claim was of a 
procedural nature and concerned the question of whether China acted inconsistently with 
Article 6.7 and paragraph 7 of Annex I to the Anti-Dumping Agreement because MOFCOM refused 
to take into account the information provided by SMST on the sole basis that SMST did not raise this matter before the on-the-spot investigation started.
190 
5.67.  The Panel noted that, in a communication sent to SMST prior to the on-the-spot 
investigation, MOFCOM had requested SMST to prepare certain documents relating to, inter alia , 
Table 6-5 ("Profitability"), which summarized the information concerning SG&A costs contained in 
Tables 6-6 ("Detailed Chart of Allocation of Administrative Expenses") and 6-8 ("Detailed Chart of 
Allocation of Financial Expenses") supplied by SMST as annexes to its initial dumping questionnaire 
response.191 The Panel considered, therefore, that there was "a clear and direct connection" 
between the information that SMST sought to co rrect in Tables 6-6 and 6-8 and the information 
expressly requested by MOFCOM relating to Table 6-5.192 Recalling that, under paragraph 7 of 
Annex I, "the main purpose of the on-the-spot investigation is to verify information", the Panel considered "that an investigating authority would normally welcome the rectification of information 
in these circumstances".
193 The Panel found that, by first requesting SMST to prepare documents 
relating to Table 6-5, but then rejecting potentially relevant information "on the sole ground  that 
SMST did not raise this matter before the verification started", MOFCOM acted contrary to the main purpose of the on-the-spot investigation.
194 Having said this, the Panel agreed with China 
that Article 6.7 and paragraph 7 of Annex I to the Anti-Dumping Agreement do not contain an 
obligation  for an investigating authority "to accept all information presented to it during the 
verification visit".195 The Panel also agreed that an investigating authority "does not necessarily 
have to accept new information during verification"196, and that an investigating authority does not 
"have to accept voluminous amounts of corrected information".197 Turning to the specific facts 
before it, the Panel highlighted, however, th at the European Union's claim concerned the 
rectification of "one piece of information", namely, the financial expenses of SMST's 
headquarters.198 The Panel therefore saw "no valid reason why MOFCOM did not accept the 
rectified information from SMST, particularly since MOFCOM appear[ed] to have understood the matter explained by SMST concerning the financial expenses at issue".
199 In these circumstances, 
the Panel agreed with the European Union that China acted inconsistently with Article 6.7 and 
paragraph 7 of Annex I to the Anti-Dumping  Agreement because MOFCOM rejected this 
                                               
189 EU Panel Report, para. 7.95 (referring to Ch ina's first written submission to the Panel, 
paras. 216-222). 
190 EU Panel Report, para. 7.98 and fn 194 thereto. 
191 EU Panel Report, para. 7.99. MOFCOM requeste d that SMST prepare "two complete sets of 
questionnaire responses and supplemental questionnaire responses for verification including all data, information and manuscripts or original copies of the supporting materials". In pa rticular, MOFCOM requested 
"working sheets of Tables 6-3, 6-4 and 6-5". (MOFCOM's Verification Notification to  SMST (Panel Exhibit CHN-
11-EN), internal pp. 2-3; China's first wr itten submission to the Panel, para. 202) 
192 EU Panel Report, para. 7.99. 
193 EU Panel Report, para. 7.99.  
194 EU Panel Report, para. 7.99. (emphasis added) In  its Final Determination, MOFCOM stated with 
regard to SMST's re ctification request: 
During verification, SMST Italia raised the poin t that certain financial expenses were entered 
more than once in the questionnaire response, and requested for adjustments to be made. On 
the ground that the company did not raise this point before the onsite verification started , the 
Investigation Authority decided to deny the above request. 
(Panel Exhibits JPN-2-EN and EU-30, internal pp. 38-39 (emphasis added)) 
195 EU Panel Report, para. 7.100 (quoting China's first written submission to the Panel, para. 218). 
(emphasis added) 
196 EU Panel Report, para. 7.100 (referring to United States' third party written submission to the Panel, 
paras. 7 and 12). 
197 EU Panel Report, para. 7.100. 
198 EU Panel Report, para. 7.100. 
199 EU Panel Report, para. 7.100. The Panel noted that, in the Verification Disclosure to SMST, MOFCOM 
stated that SMST "provided the relevant materials su pporting that certain expenses were double counted". 
(EU Panel Report, fn 201 to para. 7.100) WT/DS460/AB/R 
 
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  information submitted by SMST on the sole basis th at it was not provided prior to the on-the-spot 
investigation.200 
5.2.2  Whether the Panel erred in finding that  China acted inconsistently with Article 6.7 
and paragraph 7 of Annex I to the Anti-D umping Agreement by rejecting SMST's 
rectification request 
5.68.  On appeal, China contends that the Panel erred in finding that China acted inconsistently 
with Article 6.7 and paragraph 7 of Annex I to the Anti-Dumping Agreement by rejecting SMST's 
request for rectification of information relating to SMST's financial expenses on the sole basis that 
this request was not made before the verification visit started. China maintains that, by creating 
the obligation to act in line with the main purpose of the verification visit, the Panel read into Article 6.7 and paragraph 7 of Annex I words that are not there. For China, Article 6.7 and 
paragraph 7 of Annex I do not contain an obligation for an investigating authority to act in line 
with the main purpose of the verification visit. China also maintains that Article 6.7 does not impose on an investigating authority an obligation to conduct on-the-spot verification in the 
territory of an exporting Member. Rather, for China, Article 6.7 grants an investigating authority 
the right to carry out a verification visit subject to a number of limitations, "provided they obtain 
the agreement of the firms concerned and notify the representatives of the government of the 
Member in question, and unless that Member objects to the investigation".
201 
5.69.  The European Union counters that the Panel correctly found that " th[e] specific fact pattern  
[of the present case] demonstrates an inconsistency with Article 6.7 and paragraph 7".202 
Referring to the language in paragraph 7 of Annex I concerning the main purpose of the 
on-the-spot investigation, the European Union argues that "it is inherently contradictory and 
internally inconsistent to ask for something, receive it, and then later reject it."203 According to the 
European Union, while an investigating authority enjoys a certain margin of appreciation under 
Article 6.7 and paragraph 7 to Annex I, it should decide whether to accept or reject information 
submitted to it "on the basis of objective criteria, such as the risk of undue delay in the conduct of the proceedings".
204  
5.70.  The first sentence of Article 6.7205 stipulates that, "[i]n order to verify information provided 
or to obtain further details, the authorities may carry out investigations in the territory of other Members as required". This right to carry out on-the-spot investigations in the territory of another Member is limited, however, to instances where: (i) the investigating authority has obtained the 
agreement of the firm(s) concerned; (ii) th e investigating authority has notified the 
representatives of the government of the Member  in question; and (iii) that Member has not 
objected to the investigation.
206 The second sentence of Article 6.7 prescribes that the procedures 
described in Annex I "shall apply to investigations carried out in the territory of other Members". 
While Article 6.7 lays out the basic framework for verifications in the territory of another Member, 
Annex I, entitled "Procedures for on-the-spot investigations pursuant to Paragraph 7 of Article 6", 
sets out further parameters for the conduct of such investigations.  
5.71.  Paragraph 7 of Annex I states that, "[a]s the main purpose of the on-the-spot investigation 
is to verify information provided or to obtain further details", such investigation should generally "be carried out" after the investigating authority has received the response to the questionnaire 
that was used in the anti-dumping investigation. Paragraph 7 further provides that "it should be 
                                               
200 EU Panel Report, para. 7.101. 
201 China's appellant's submission, para. 127. 
202 European Union's appellee's submission, para. 124. (emphasis original) 
203 European Union's appellee's submission, para. 125. 
204 European Union's appellee's submission, para. 127. 
205 Article 6.7 reads, in relevant part: 
In order to verify information provided or to ob tain further details, the authorities may carry out 
investigations in the territory of other Members as required, provided they obtain the agreement of the firms concerned and notify the represen tatives of the governme nt of the Member in 
question, and unless that Member objects to the investigation. The procedures described in Annex I shall apply to investigations carrie d out in the territory of other Members. 
206 The third sentence of Article 6.7 further provides: "Subject to the re quirement to protect confidential 
information, the authorities shall make the results of  any [investigations carried out under Article 6.7] 
available, or shall provide disclosure thereof pursuant to  [Article 6.9], to the firms to which they pertain and 
may make such results available to the applicants." WT/DS460/AB/R 
 
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  standard practice" to advise firms in advance abou t the "general nature of the information to be 
verified and of any further information which needs to be provided", but that "this should not preclude requests to be made on the spot for further details to be provided in the light of information obtained." 
5.72.  Moving to the immediate context for Article 6.7 and paragraph 7 of Annex I, we note that 
Article 6.6 of the Anti-Dumping Agreement stipulat es that investigating "authorities shall during 
the course of an investigation satisfy themselves as to the accuracy of the information supplied by 
interested parties upon which their findings are based."
207 The investigating authority can do so in 
several ways, including by conducting on-the -spot investigations, as contemplated under 
Article 6.7, "[i]n order to verify information provided or to obtain further details".208  
5.73.  We further note that Article 6 of the An ti-Dumping Agreement situates the conduct of on-
the-spot investigations within a broader set of provisions regulating the process of identifying and 
gathering evidence for anti-dumping duty investigations.209 In addition to laying down evidentiary 
rules that apply throughout the course of an anti-dumping investigation, Article 6 speaks to the 
due process rights that are enjoyed by interested parties during the investigation. This further 
reinforces the textual directive under Article 6.6 for investigating authorities to satisfy themselves as to the accuracy of the information supplied by interested parties, including in the context of 
carrying out on-the-spot investigations under Article 6.7. 
5.74.  The requirement that investigating authoritie s "satisfy themselves as to the accuracy of the 
information supplied by interested parties" does not mean that they are under an obligation to accept and use all information that is submitted to them. Circumstances will vary, and 
investigating authorities have some degree of latitude in deciding whether to accept and use 
information submitted by interested parties during on-the-spot investigations or thereafter. That latitude is limited, however, by the investigating authority's obligation under Article 6.6 to ensure 
that the information on which its findings are based is accurate, and by the legitimate due process 
interests of the parties to an investigation.
210 An investigating authority must balance these due 
process interests with the need to control and expedite the investigating process.211 This balance 
between the due process interests of the parties and controlling and expediting the investigating 
process applies throughout the investigation, including during on-the-spot investigations. 
5.75.  Depending on the particularities of each case, factors bearing upon the latitude of an 
investigating authority to accept or reject information submitted during an on-the-spot 
investigation may include, for example, the timing of the presentation of new information; whether 
the acceptance of new information would cause undue difficulties in the conduct of the investigation
212; whether the interested party has submitted voluminous amounts of information or 
merely seeks to have an arithmetical or clerical  error corrected; whether the information at issue 
relates to facts that are "essential" within the meaning of Article 6.9 of the Anti-Dumping Agreement; or whether the information supplied by an interested party relates to the information 
                                               
207 We note that Article 6.6 includes the qualification "[e]xcept in circumstances provided for in 
paragraph 8". In this regard, we note that it would no t be possible for investigating authorities to "satisfy 
themselves as to the accuracy of th e information" in circumstances where interested parties refuse access to, 
or otherwise do not provide, such  information. The Appellate Body made a similar statement regarding 
Article 12.5 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement) in US – Carbon 
Steel (India) . (See Appellate Body Report, US – Carbon Steel (India) , fn 1077 to para. 4.418) 
208 Alternatively, an investigating authority may, fo r example, send addition al questionnaires to a 
respondent, as contemplated under Article 6.1 of the Anti-Dumping Agreement, and request written responses to such questionnaires. 
209 See Appellate Body Reports, EC – Tube or Pipe Fittings , para. 138; EC – Bed Linen (Article 21.5 – 
India) , para. 136; and US – Carbon Steel (India) , para. 4.418. 
210 Including the interests of the part y submitting particular information in having that information taken 
into account. (See Article 6.1 of the Anti-Dumping Agreem ent, which reads, in releva nt part: "All interested 
parties in an anti-dumping investigation shall be given … ample opportunity to present in writing all evidence which they consider relevant in respect of the investigation in question.") 
211 See Appellate Body Report, US – Hot-Rolled Steel , para. 86. See also Article 6.14 of the Anti-
Dumping Agreement, which reads, in relevant part: "The  procedures set out above are not intended to prevent 
the authorities of a Member from procee ding expeditiously with regard to in itiating an investigation, reaching 
preliminary or final determinations … or from applying provisional or final measures". 
212 The panel in EC – Salmon (Norwa y) said that it could not "see how the mere fact that … cost 
information was submitted after the on-the-spot investigat ion means that it could not be used without 'undue 
difficulties'." (Panel Report, EC – Salmon (Norwa y), para. 7.367) WT/DS460/AB/R 
 
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  specifically requested by the investigating authorit y. We agree with the Panel that Article 6.7 and 
paragraph 7 of Annex I to the Anti-Dumping Agreement do not contain an obligation for an investigating authority "to accept all information presented to it during a verification visit".
213 We 
also agree with the Panel that an investigating authority does not necessarily "have to accept 
voluminous amounts of corrected information".214 At the same time, an investigating authority 
may accept information provided during the on-the-spot investigation or, in appropriate circumstances, even at a later stage.
215  
5.76.  With these considerations in mind, we recall that MOFCOM requested SMST to prepare 
documents relating to Table 6-5, and that SMST sought to correct information contained in Tables 6-6 and 6-8, which, in turn, were summarized in Table 6-5.
216 The Panel found, therefore, 
that there was a "clear and direct connection" between the information that SMST sought to 
correct and the information expressly requested by MOFCOM.217 China does not contest this 
finding.218 It is also uncontested that SMST's request for rectification concerned one specific piece 
of information, that is, the financial expenses of SMST's headquarters.219 In refusing to take that 
information into account, MOFCOM did not reason that the acceptance of that information would 
have caused undue difficulties in the conduct of the investigation; that SMST would have submitted voluminous amounts of additional information to the investigating authority late in the 
proceedings; or impeded or delayed the conduct of the anti-dumping proceedings in some way. 
Instead, as the Panel found, MOFCOM rejected SMST's rectification request "on the sole ground  
that SMST did not raise this matter before the verification started".
220 China does not contest that 
this was the only reason for the rejection given by MOFCOM in the Final Determination.221 
5.77.  In these circumstances, and in the absence of any further explanation by MOFCOM, we see 
no error in the Panel's finding that there seems to have been no valid reason why MOFCOM did not accept the corrected information provided by SM ST. Moreover, contrary to what China suggests, 
the Panel did not find that China acted inconsiste ntly with Article 6.7 and paragraph 7 of Annex I 
because MOFCOM acted contrary to the main purpos e of the verification visit. Instead, as we 
understand it, the Panel based its findings on the fact that, while MOFCOM expressly requested 
SMST to prepare certain information for the on-the-spot investigation, it then refused to take into 
account corrected information even though it had a "clear and direct connection" to the information that had been requested. MOFCOM re jected the corrected information although it 
consisted of only "one piece of information" regarding the financial expenses of SMST's 
headquarters, and did so solely on the basis that it was not provided prior to the verification visit, 
and without providing other reasons.  
5.78.  In the light of the foregoing, we uphold the Panel's finding, in paragraphs 7.101 and 8.6.c. 
of the EU Panel Report, that China acted inconsistently with Article 6.7 and paragraph 7 of Annex I 
to the Anti-Dumping Agreement by rejecting SMST's request for rectification only on the basis that it was not provided prior to verification. 
5.2.3  The European Union's conditional appe al under Article 6.8 and paragraphs 3 and 6 
of Annex II to the Anti-Dumping Agreement 
5.79.  In the event that we reverse the Panel's findings under Article 6.7 and paragraph 7 of 
Annex I to the Anti-Dumping Agreement, the Euro pean Union appeals the Panel's rejection of the 
European Union's claim under Article 6.8 and paragraphs 3 and 6 of Annex II to the Anti-Dumping 
Agreement.
222 
                                               
213 EU Panel Report, para. 7.100 (quoting China's first written submission to the Panel, para. 218). 
(emphasis added) 
214 EU Panel Report, para. 7.100. 
215 Panel Report, EC – Salmon (Norwa y), para. 7.367. 
216 EU Panel Report, para. 7.99 (referring to MOFCOM's  Verification Disclosure to SMST (Panel Exhibit 
EU-23-EN), internal p. 3; and SMST's Comments on Final Dumping Disc losure (Panel Exhibi t EU-28-EN (BCI)), 
p. 2). 
217 EU Panel Report, para. 7.99. 
218 China's response to questioning at the oral hearing. 
219 EU Panel Report, para. 7.100. 
220 EU Panel Report, para. 7.99. (emphasis added) 
221 China's response to questioning at the oral hearing. 
222 European Union's other appellant's submission, paras. 84 and 107-108. WT/DS460/AB/R 
 
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  5.80.  We recall that the Panel rejected the European Union's claims under Article 6.8 and 
paragraphs 3 and 6 of Annex II that MOFCOM had applied "facts available", and found, instead, 
that "MOFCOM based its determination on evidence contained in the records, which at that time MOFCOM considered were the correct facts submitted by SMST."
223 
5.81.  Having upheld the Panel's finding that China acted inconsistently with Article 6.7 and 
paragraph 7 of Annex I to the Anti-Dumping Agreement by rejecting SMST's rectification request on the sole basis that it was not provided prior to the verification visit, we need not further 
address this aspect of the European Union's appeal. 
                                               
223 EU Panel Report, para. 7.102. WT/DS454/AB/R • WT/DS460/AB/R 
 
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 5.3  Showing of "good cause" under Arti cle 6.5 of the Anti-Dumping Agreement 
5.82.  China claims that the Panel erred in its interpretation and application of Article 6.5 of the 
Anti-Dumping Agreement in finding that China acted inconsistently with its obligations under that provision by permitting the full text of certain reports submitted by the petitioners in the 
underlying investigation "to remain confidential without objectively assessing 'good cause' and 
scrutinizing the petitioners' showing".
224 China further claims, on three grounds, that the Panel 
applied an erroneous standard of review and failed to make an objective assessment of the facts 
before it, contrary to the requirements of Ar ticle 11 of the DSU and Article 17.6(i) of the 
Anti-Dumping Agreement. First, China alleges th at the Panel erroneously limited its review to 
assessing whether MOFCOM had explained why it considered that the full text of the reports at issue warranted confidential treatment. Second, Ch ina contends that the Panel applied internally 
inconsistent reasoning in its analysis of the claims under Articles 6.5 and 6.5.1 of the 
Anti-Dumping Agreement. Third, China asserts th at the Panel improperly made the case for the 
complainants with regard to their claims under Article 6.5 of the Anti-Dumping Agreement.  
5.83.  Before addressing the specific claims raised by China, we first summarize the relevant 
findings of the Panel, and the context in which the Panel made those findings. We then examine Article 6.5 of the Anti-Dumping Agreement, and the disciplines that apply thereunder. 
5.3.1  The Panel's findings 
5.84.  Before the Panel, Japan and the European Un ion argued that China acted inconsistently with 
Article 6.5 of the Anti-Dumping Agreement because MOFCOM permitted the full text of four reports 
to remain confidential without objectively assessing the "good cause" alleged for confidential 
treatment and scrutinizing the petitioners' showing.
225 These reports are contained in: 
(i) appendix V to the petition; (ii) appendix VIII to the petition; (iii) appendix 59 to the petitioners' supplemental evidence of 1 March 2012; and (iv) the appendix to the petitioners' supplemental 
evidence of 29 March 2012. 
5.85.  China responded that "good cause" had be en adequately shown by the petitioners because 
they had provided several substantiated reasons as to why confidential treatment was warranted 
both for the names of the relevant third party institutes and the full text of the four reports at 
issue.
226 In addition, China argued that the Anti-Dumping Agreement does not impose an 
obligation on an investigating authority "to explain why it considers that confidential treatment [of information] is warranted".
227  
5.86.  The Panel identified the issue before it as involving an examination of whether MOFCOM 
permitted the full text  of the four reports to remain confidential without objectively assessing the 
"good cause" alleged for confidential treatmen t and scrutinizing the petitioners' showing to 
determine whether the requests were sufficiently substantiated.228 With regard to China's 
allegation that the European Union had failed to establish a prima facie  case of violation, the Panel 
found that, although the European Union "could have been more specific in setting out its [] claim" 
under Article 6.5 in its first written submission, overall, it considered that the European Union had 
"sufficiently connected its Article 6.5 claim to the relevant appendices".229  
                                               
224 Panel Reports, para. 7.303. 
225 Panel Reports, para. 7.285. The Panel noted that th e complainants accepted that the petitioners had 
demonstrated "good cause" for treating as confidential the names of the third partie s providing the reports and 
considered that the petitioners' concerns could have be en addressed by withholding such names. (Ibid., fn 452 
to para. 7.285) 
226 Panel Reports, para. 7.287. 
227 Panel Reports, para. 7.287. 
228 Panel Reports, para. 7.290. The Panel noted that "the  complainants also argue[d] that the petitioners 
[had] failed to show 'good cause' for treating as confid ential the full text of the fo ur confidential reports at 
issue." The Panel decided to start its review with MO FCOM's assessment of the alleged showing of "good 
cause". (Ibid., fn 461 to para. 7.290) 
229 Panel Reports, fn 460 to para. 7.290. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  5.87.  The Panel noted that, in evaluating the complainants' claims under Article 6.5 of the 
Anti-Dumping Agreement, it would be guided by  the Appellate Body's pronouncements on "good 
cause" in EC – Fasteners (China) .230 Turning to the specific facts before it, the Panel examined the 
petitioners' requests for confidential treatment of  information contained in the four appendices at 
issue, and MOFCOM's statement granting confidential treatment.231  
5.88.  Regarding the scope of MOFCOM's statement, the Panel found that, although it was directed 
at the requests for confidential treatment of appendix V, it could "also be reasonably understood" 
to apply to the appendix to the petitioners' supplemental evidence of 29 March 2012, as the latter 
"builds on" the former.232  
5.89.  The Panel next turned to examine whether MOFCOM's statement was sufficient to 
demonstrate that MOFCOM objectively assessed the petitioners' showing of "good cause" with 
regard to both the names of the third party institutes and the full text of appendix V and the 
appendix to the petitioners' supplemental eviden ce of 29 March 2012. The Panel found that, while 
the petitioners' requests referred to both the na mes of the institutes and the full text of the 
reports, when accepting the petitioners' requests  for confidential treatment, "MOFCOM limited its 
statement to address only 'the legitimacy of the petitioners' application to treat the name  of the 
"authoritative third party institute" as confidential'."233 With respect to the confidential treatment 
of the full text of the two reports at issue, the Panel noted that MOFCOM's statement only 
"summariz[ed] the petitioners' arguments for confidential treatment and requests; rather than [having] reflect[ed] MOFCOM's explanation or reasoning".
234 The Panel concluded that there was 
thus "no evidence" that "MOFCOM objectively assessed the 'good cause' alleged for confidential 
treatment, and scrutinized the petitioners' requests relating to the full text  of appendix V, and 
appendix to the petitioners' supplemental evidence of 29 March 2012."235 With regard to 
appendix VIII to the petition and appendix 59 to the petitioners' supplemental evidence of 
1 March 2012, the Panel found that, in the abse nce of any evidence that MOFCOM objectively 
assessed the "good cause" alleged and scrutinized the petitioners' requests, it had no basis to conclude that MOFCOM had done so.
236 
5.90.  Having upheld the European Union's claim that MOFCOM did not objectively assess the 
"good cause" alleged by the petitioners for confid ential treatment of the full text of the four 
appendices at issue, the Panel noted China's argument that "the 'Anti-Dumping Agreement does not require an investigating authority which found that confidential treatment is warranted to do or 
specify anything, beyond the obligation to treat such information as confidential'."
237 The Panel 
found that, "[i]n the absence of any explanation by MOFCOM", there was "no basis to conclude that MOFCOM properly determined that the petitioners had shown 'good cause' for their requests 
for confidential treatment".
238 The Panel also considered that it had "no basis … to imply that 
MOFCOM properly determined that the petitioners had shown 'good cause' for their requests for confidential treatment from the fact that MOFCOM ultimately granted their request".
239  
5.91.  The Panel concluded that China acted incons istently with Article 6.5 of the Anti-Dumping 
Agreement by permitting the full text of the reports in appendix V and appendix VIII to the petition, appendix 59 to the petitioners' supplemental evidence of 1 March 2012, and the appendix to the petitioners' supplemental evidence of 29 March 2012 "to remain confidential without 
objectively assessing 'good cause' and scrutinizing the petitioners' showing".
240 
                                               
230 Panel Reports, para. 7.291 (referring to Appellate Body Report, EC – Fasteners (China) , 
paras. 537-539). 
231 Panel Reports, paras. 7.292-7.296. 
232 Panel Reports, para. 7.298. The Panel disagreed with  China that MOFCOM's statement also applied to 
the two remaining appendices at issue. (Ibid.) 
233 Panel Reports, para. 7.299 (quoting MOFCOM's Preliminary Determination (Panel Exhibits JPN-7-EN 
and EU-18), internal p. 33; and MOFCOM's Final Determin ation (Panel Exhibits JPN- 2-EN and EU-30), internal 
p. 46). (emphasis a dded by the Panel) 
234 Panel Reports, para. 7.299. 
235 Panel Reports, para. 7.299. (emphasis original) 
236 Panel Reports, para. 7.300. 
237 Panel Reports, para. 7.301 (quoting China's first written submission to the Panel, para. 725). 
238 Panel Reports, para. 7.302 and fn 487 thereto. 
239 Panel Reports, para. 7.302. 
240 Panel Reports, para. 7.303. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  5.3.2  Assessment of the Panel's analysis 
5.92.  On appeal, China argues that the Panel erred in construing Article 6.5 of the Anti-Dumping 
Agreement as imposing an obligation on an investigating authority to explain why it considers that confidential treatment is warranted.
241 China refers to the panel report in Mexico – Steel Pipes and 
Tubes and the Appellate Body report in EC  Fasteners (China)  to argue that, while an 
investigating authority must review and decide whether "good cause" was shown, there is no 
obligation for an investigating authority to provide any explanation regarding its assessment and 
scrutiny of the alleged showing of "good cause".242 
5.93.  Japan and the European Union observe that, contrary to what China suggests, the Panel did 
not find that Article 6.5 of the Anti-Dumping Agre ement contains an obligation for the investigating 
authority to "provide an explanation" for its reasons for granting confidentiality. Rather, the Panel's finding was that, in the absence of any explanation by MOFCOM, the Panel had no basis to 
conclude that MOFCOM undertook an objective assessment and properly determined that the 
petitioners had shown "good cause" for their reques ts for confidential treatment with respect to 
the full text of the four reports at issue.
 243 At the oral hearing, Japan and the European Union 
agreed that the degree of substantiation required from an investigating authority depends on the 
nature of the information for which confidential treatment is sought, noting however that, in the 
absence of any evidence that MOFCOM had obje ctively assessed the "good cause" alleged for 
confidential treatment, the Panel correctly concluded that China had acted inconsistently with 
Article 6.5.244  
5.94.  We begin our analysis by examining the text  of Article 6.5 of the Anti-Dumping Agreement, 
which provides: 
Any information which is by nature confidential (for example, because its disclosure 
would be of significant competitive advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information), or 
which is provided on a confidential basis by parties to an investigation shall, upon 
good cause shown, be treated as such by the authorities. Such information shall not be disclosed without specific permissi on of the party submitting it.[*] 
[*original fn]17 Members are aware that in the territory of certain Members disclosure pursuant 
to a narrowly-drawn protective order may be required. 
5.95.  In EC – Fasteners (China) , the Appellate Body explained that Article 6.5 covers information 
that is "by nature confidential", as well as information that is "provided on a confidential basis", and that a "good cause" showing by the party seek ing confidential treatment is required for both 
of these categories of information.
245 The Appellate Body added that "[t]he 'good cause' alleged 
must constitute a reason sufficient to justify the withholding of information from both the public and from the other parties interested in the investigation."
246 According to the Appellate Body, 
"'[g]ood cause' must be assessed and determined objectively by the investigating authority, and 
cannot be determined merely based on the subj ective concerns of the submitting party."247 The 
Appellate Body further stated: 
                                               
241 China's appellant's submission, paras. 284-286 and 290. 
242 China's appellant's submission, paras. 288-289;  other appellant's submission, paras. 195-196 
(referring to Panel Report, Mexico – Steel Pipes and Tubes , paras. 7.380 and 7.382; and Appellate Body 
Report, EC – Fasteners (China) , para. 539 and fn 784 thereto). 
243 Japan's appellee's submission, para. 61; Euro pean Union's appellee's submission, para. 268 
(referring to Panel Reports, paras. 7.299-7.300 and 7.302). 
244 Japan's and the European Union's response s to questioning at the oral hearing. 
245 Appellate Body Report, EC – Fasteners (China) , paras. 536-537. The Appellate Body also stated that 
the "question of whether information is 'by nature' confidential depends on the content of the information. 
Information that is 'provided on a confid ential basis' is not necessarily confid ential by reason of  its content, but 
rather, confidentiality arises from the circumstances in which it is provided to the authorities. These two 
categories may, in practice, overlap." (Ibid., para. 536 (emphasis original)) 
246 Appellate Body Report, EC – Fasteners (China) , para. 537. 
247 Appellate Body Report, EC – Fasteners (China) , para. 537. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  In practice, a party seeking confidential treatment for information must make its 
"good cause" showing to the investigating authority upon submission of the information. The authority must objectively assess the "good cause" alleged for confidential treatment, and scrutinize th e party's showing in order to determine 
whether the submitting party has sufficiently substantiated its request. In making its 
assessment, the investigating authority must seek to balance the submitting party's interest in protecting its confidential information with the prejudicial effect that the 
non-disclosure of the information may have on the transparency and due process 
interests of other parties involved in the investigation to present their cases and defend their interests. The type of eviden ce and the extent of substantiation an 
authority must require will depend on the nature of the information at issue and the 
particular "good cause" alleged. The obligation remains with the investigating 
authority to examine objectively the justification given for the need for confidential treatment. If information is treated as co nfidential by an authority without such a 
"good cause" showing having been made, the authority would be acting inconsistently 
with its obligations under Article 6.5 to gr ant such treatment only "upon good cause 
shown".
248 
5.96.  The Appellate Body further noted that, "[w] henever information is treated as confidential, 
transparency and due process concerns will nece ssarily arise because such treatment entails the 
withholding of information from other parties to an investigation."249 The Appellate Body stated 
that "Articles 6.5 and 6.5.1 accommodate the conc erns of confidentiality, transparency, and due 
process by protecting information that is by nature confidential or is submitted on a confidential 
basis and upon 'good cause' shown, but establishing an alternative method for communicating its content so as to satisfy the right of other parties to the investigation to obtain a reasonable 
understanding of the substance of the confidential  information, and to defend their interests."
250 
5.97.  The Appellate Body added that an investigating authority "must objectively assess the 'good 
cause' alleged for confidential treatment, and scr utinize the party's showing in order to determine 
whether the submitting party has sufficiently substantiated its request".251 However, the 
Appellate Body did not further say how the sufficiency of a showing of "good cause" is to be 
assessed by an investigating authority, or how it is to be assessed by a reviewing panel. As we see it, a panel tasked with reviewing whether an investigating authority has objectively assessed the 
"good cause" alleged by a party must examine this issue on the basis of the investigating 
authority's published report and its related supportin g documents, and in the light of the nature of 
the information at issue
252 and the reasons given by the submitting party for its request for 
                                               
248 Appellate Body Report, EC – Fasteners (China) , para. 539. (fn omitted) 
249 Appellate Body Report, EC – Fasteners (China) , para. 541. 
250 Appellate Body Report, EC – Fasteners (China) , para. 542. (fns omitted) The Appellate Body noted 
that: 
Article 6.5.1 serves to balance the goal of ensuring that the availability of confidential treatment does not undermine the transparency of the inve stigative process[]. In respect of information 
treated as confidential under Article 6.5, Article 6.5.1 obliges the investigating authority to require that a non-confidential su mmary of the information be furn ished, and to ensure that the 
summary contains "sufficient detail to permit a re asonable understanding of the substance of the 
information submitted in confiden ce". The sufficiency of the summary provided will therefore 
depend on the confidential information at issue, but it must permit a reasonable understanding of 
the substance of the information withheld in order to allow the other parties to the investigation an opportunity to respond an d defend their interests.  
(Ibid. (fns omitted)) 
251 Appellate Body Report, EC – Fasteners (China) , para. 539. 
252 As the Appellate Body in EC – Fasteners (China)  noted, "[t]he confidentiality of information that is 
'by nature' confidential will often be readily apparent. Ar ticle 6.5 provides illustrati ve examples of information 
that falls into the category of 'by nature' confidential , including information that is sensitive 'because its 
disclosure would be of significant co mpetitive advantage to a competitor or because its disclosure would have a 
significantly adverse effect upon a pe rson supplying the information or upon  a person from whom that person 
acquired the information'."  (Appellate Body Report, EC – Fasteners (China) , para. 536) WT/DS454/AB/R • WT/DS460/AB/R 
 
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  confidential treatment.253 The type of evidence and the extent  of substantiation the investigating 
authority must require will depend on the nature of the information at issue and the particular "good cause" alleged.
254 In reviewing whether an investigating authority has assessed and 
determined objectively that "good cause" for confid ential treatment has been shown to exist, it is 
not for a panel to engage in a de novo  review of the record of the investigation and determine for 
itself whether the existence of "good cause" has been sufficiently substantiated by the submitting party.  
5.98.  Turning to the present case, we note that, in finding that there was no evidence that 
MOFCOM objectively assessed the "good cause" al leged for confidential treatment, the Panel 
stressed that it was not concluding that MOFCOM could not have treated the full text of the reports 
contained in appendix V and the appendix to th e petitioners' supplemental evidence of 29 March 
2012 as confidential.
255 Rather, the Panel found that there was "no evidence that MOFCOM ever 
considered whether good cause had been shown for such treatment"256, and thus no evidence of 
an objective assessment.  
5.99.  Pursuant to Article 6.5 of the Anti-Dumping Agreement, it is for the investigating authority 
to require a party that seeks confidential treatm ent of information to explain and provide reasons 
as to why the information at issue should be treated as confidential. The investigating authority, in 
turn, is under an obligation to assess objectively the "good cause" alleged by the submitting party 
for confidential treatment, and to "scrutinize th e party's showing in order to determine whether 
the submitting party has sufficiently substantiated its request".257 As the Appellate Body has 
explained, "'[g]ood cause' must be assessed and determined objectively by the investigating 
authority, and cannot be determined merely based on the subjective concerns of the submitting 
party."258 In the present case, however, MOFCOM mere ly summarized the reasons provided by the 
petitioners for confidential treatment of the full text of two of the four reports at issue.259 
5.100.  Therefore, we see no error in the Panel's finding that, in the absence of any evidence  that 
MOFCOM objectively assessed the "good cause" allege d, it had no basis to conclude that MOFCOM 
undertook an objective assessment and properly determined that the petitioners had shown "good 
cause" for their requests for confidential treatment.260 In these circumstances, we also see no 
error in the Panel's conclusion that there was no basis for it to find that "MOFCOM properly 
                                               
253 In this respect, we note that th e Appellate Body found that "the examples provided in Article 6.5 in 
the context of information that is 'by nature' confidenti al are helpful in interpreting 'good cause' generally, 
because they illustrate the type of ha rm that might result from  the disclosure of sensitive information, and the 
protectable interests involved." The Appellate Body emphasized that "[t]hese examples are only illustrative, however, and … consider[ed] that a wide range of othe r reasons could constitute 'good cause' justifying the 
treatment of information as confidential under Article 6.5." (Appellate Body Report, EC – Fasteners (China) , 
para. 538) 
254 Appellate Body Report, EC – Fasteners (China) , para. 539. 
255 Panel Reports, fn 482 to para. 7.299. 
256 Panel Reports, fn 482 to para. 7.299. 
257 Appellate Body Report, EC – Fasteners (China) , para. 539. 
258 Appellate Body Report, EC – Fasteners (China) , para. 537. 
259 In its Injury Disclosure and Final Determinatio n, MOFCOM summarized in a footnote the reasons 
provided by the petitioners for confidential treatmen t of the full text of th e two reports as follows:  
According to the reason provided by the petitioners for confidential treatment, a certain authoritative institute in the domestic stainless steel tube industry provided information on domestic and international markets for certain high-performance stainless steel seamless tubes. To do this, the institute in question spent a la rge amount of time and energy on the research, 
analysis and selection of  relevant data and information, an d provided the final report to the 
petitioners at a certain price. If the petitioners we re to disclose the full report itself and the name 
of the said institute, it would on the one hand create obstacles for this institute to carry out 
similar research in the future (for example, a third party may not want to cooperate with the institute on its future research es) and on the other hand seriously affect the prospects of the 
institute to sell reports with sa me or similar information and data to other third parties. In 
addition, it would also cause serious negative impacts on the daily operations of the institute. Therefore, at the request of this institute, the petitioners applied for confidential treatment for 
the full text of the report. 
(Panel Reports, para. 7.296 (quoting MOFCOM's Final Determination (Panel Exhibits JPN-2-EN and EU-30), internal p. 46, fn 18;  and MOFCOM's Injury Disclosure (Panel Exhi bits JPN-23-EN and EU-24), internal p. 22, 
fn 17 (translation amended by Panel Exhibit CHN-16-EN, and accepted by the complainants in Panel Exhibits 
JPN-29 and EU-32))) 
260 Panel Reports, paras. 7.299-7.300. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  determined that the petitioners had shown 'goo d cause' for their requests for confidential 
treatment from the fact that MOFCOM ultimately granted their request for confidential treatment."
261 
5.101.  China also submits that, in reaching its findings under Article 6.5 of the Anti-Dumping 
Agreement, the Panel applied an erroneous standard of review and failed to make an objective 
assessment of the facts before it, contrary to the requirements of Article 11 of the DSU and 
Article 17.6(i) of the Anti-Dumping Agreement.262 According to China, the Panel applied an 
incorrect standard of review because it failed to take into account the information on the record 
that was before MOFCOM.263 Although China brings this claim as a separate one, it appears to be 
premised on the same contention as its claim that the Panel erred in the interpretation and application of Article 6.5, namely, that the Panel should have looked into the facts that were 
before MOFCOM in order to determine whether MOFCOM objectively assessed the "good cause" 
alleged.  
5.102.  We do not consider that the Panel would have complied with the applicable standard of 
review if, in the absence of any evidence of an objective assessment by MOFCOM of the "good 
cause" alleged, it had engaged in a de novo  review of evidence on the record of the investigation 
and determined for itself, or on the basis of subjective concerns of the petitioners, whether the 
request for confidential treatment was sufficiently substantiated and that "good cause" for such 
treatment objectively existed. Having rejected China's claim of error under Article 6.5 of the 
Anti-Dumping Agreement, we also do not agree with China that the Panel acted inconsistently with Article 11 of the DSU and Article 17.6(i) of the An ti-Dumping Agreement by failing to take into 
account the information on the record, including the requests for confidential treatment by the 
petitioners.
264 We fail to see how the Panel, having found that there was no  evidence that 
MOFCOM objectively assessed the "good cause" alleged, and that MOFCOM had instead only 
summarized the petitioners' requests an d arguments for confidential treatment265, could have 
concluded that MOFCOM undertook an objective assessment and properly determined that the petitioners had shown "good cause" for their requests for confidential treatment. 
5.3.3  Whether the Panel applied internally  inconsistent reasoning in violation of 
Article 11 of the DSU 
5.103.  We next turn to China's claim that the Panel applied internally inconsistent reasoning in its 
analysis of Japan's and the European Union's claims under Articles 6.5 and 6.5.1 of the 
Anti-Dumping Agreement, contrary to the requirem ents of Article 11 of the DSU. China contends 
that, unlike under Article 6.5, in its analysis under Article 6.5.1 of the Anti-Dumping Agreement, the Panel did not take issue with the absence of explanations by MOFCOM, and focused its 
examination, instead, on the non-confidential summ aries provided by the petitioners, as well as 
the statements provided by the petitioners as to why summarization was not possible.
266 In 
support of its position, China argues that, in EC – Fasteners (China) , in the context of its 
assessment under Article 6.5.1, "the Appellate Body examined the statements provided by certain 
parties who claimed that they could not provide a non-confidential summary of information 
submitted in confidence, and did not requ ire an analysis of statements by the investigating 
authority ."267 In China's view, such internally inconsistent reasoning of the Panel in its analyses 
under Article 6.5 and Article 6.5.1 cannot be reconciled with the Panel's duty to make an objective 
assessment of the facts under Article 11 of the DSU. 
5.104.  Japan and the European Union respond that, while there may be similarities between the 
obligations of an investigating authority under Ar ticle 6.5 and Article 6.5.1 of the Anti-Dumping 
Agreement, a precondition for triggering the obligation under Article 6.5.1 for the investigating 
                                               
261 Panel Reports, para. 7.302. 
262 China's Notice of Appeal, para. 5.e.ii; Notice of Other Appeal, para. 5.c.ii; appellant's submission, 
para. 294; other appellant's submission, para. 201. 
263 China's appellant's submission, para. 295; other appellant's submission, para. 202. 
264 China's appellant's submission, para. 295; other appellant's submission, para. 202 (referring to 
Appellate Body Reports, US – Tyres (China) , para. 329; and US – Countervailing Duty Investigation on DRAMs , 
paras. 187-188); responses to questioning at the oral hearing. 
265 Panel Reports, para. 7.299. 
266 China's appellant's submission, paras. 301-303; other appellant's submission, paras. 208-210. 
267 China's appellant's submission, para. 301; other appellant's submission, para. 208 (referring to 
Appellate Body Report, EC – Fasteners (China) , para. 553). (emphasis original) WT/DS454/AB/R • WT/DS460/AB/R 
 
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  authority "to scrutinize the reasons advanced for not supplying non-confidential summaries" is "the 
existence of a statement by the party pertaining to such reasons".268 According to the 
complainants, the Panel's finding that the record did not contain any reasons advanced by the petitioners for not supplying non-confidential summaries was not a finding on the adequacy of 
the reasons.
269  
5.105.  Article 6.5 and Article 6.5.1 of the Anti-Dumping Agreement each imposes distinct 
obligations on an investigating authority. Under Article 6.5, the investigating authority is required 
objectively to assess the "good cause" alleged by the party requesting confidential treatment. By 
contrast, under Article 6.5.1, the investigating authority is obliged, in respect of information that an investigating authority has decided to treat as confidential under Article 6.5, "to require that a non-confidential summary of the information be furnished, and to ensure that the summary 
contains 'sufficient detail to permit a reasonable understanding of the substance of the information 
submitted in confidence'."
270 When it is not possible to supply a non-confidential summary, 
Article 6.5.1 requires a party "to identify the exceptional circumstances and provide a statement 
explaining the reasons why summarization is not possible".271 For its part, the investigating 
authority must scrutinize such statements to determine whether they establish exceptional circumstances, and whether the reasons given explain why summarization is not possible.
272 Thus, 
although the subject matter of Article 6.5 and Articl e 6.5.1 is similar, the nature of the obligations 
that apply under the two provisions is different. 
5.106.  In the present disputes, the issue before the Panel under Article 6.5 was whether MOFCOM 
permitted the full text of the four appendices to  remain confidential without objectively assessing 
and scrutinizing the petitioners' showing of "good  cause". By contrast, under Article 6.5.1, the 
issue before the Panel was: (i) whether MOFCOM required the petitioners to provide sufficient non-confidential summaries of the confidential information contained in reports found in the four 
appendices at issue; and (ii) whether MOFCOM required the petitioners to provide adequate 
statements as to why summarization was not possible with respect to the remaining 32 appendices.
273  
5.107.  As we have noted above, whether an in vestigating authority has objectively assessed the 
"good cause" alleged by a party under Article 6.5 is to be examined on the basis of the investigating authority's published report and its related supporting documents, and in the light of the nature of the information at issue and the reasons given by the interested party for its request 
for confidential treatment. We have also found th at the Panel did not err in stating that, in the 
absence of any evidence that MOFCOM had object ively assessed whether the petitioners had made 
a showing of "good cause" in the present case, it could not find that MOFCOM had complied with 
its obligation under Article 6.5.
274  
5.108.  In addressing the complainants' claim under Article 6.5.1 that MOFCOM failed to require 
the petitioners to provide sufficient non-confidential summaries of the confidential information, the 
Panel compared confidential versions and the non-confidential summaries of the four appendices 
at issue. We recall that, in EC  Fasteners (China) , the Appellate Body held that the sufficiency of 
the summary provided depends on the confidential information at issue, and that it must permit 
"a reasonable understanding of the substance of the information withheld".275 Thus, in order to 
determine whether MOFCOM ensured that the non-co nfidential summaries of the four reports at 
issue were sufficiently detailed, the Panel compared those summaries with the confidential 
versions of the underlying reports. Further, in assessing whether MOFCOM required the petitioners to provide adequate statements as to why summarization was not possible with regard to the remaining 32 appendices, the Panel examin ed the statements by the petitioners.
276  
                                               
268 Japan's appellee's submission, para. 72; Europe an Union's appellee's submission, para. 278. 
269 Japan's appellee's submission, para. 74; Europe an Union's appellee's submission, para. 281. 
270 Appellate Body Report, EC – Fasteners (China) , para. 542. 
271 Appellate Body Report, EC – Fasteners (China) , para. 544. 
272 Appellate Body Report, EC – Fasteners (China) , para. 544. (fn omitted) 
273 Panel Reports, para. 7.304. 
274 Panel Reports, para. 7.299 and fn 482 thereto. 
275 Appellate Body Report, EC – Fasteners (China) , para. 542. 
276 Panel Reports, para. 7.324. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  5.109.  We do not consider that the Panel's approach to addressing the complainants' claims under 
Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement was "internally inconsistent". Rather, as we see it, the Panel properly reflected the distinct nature of the substantive legal obligation at issue in each case. 
5.110.  China also argues that the Panel's appr oach under Article 6.5 in the present disputes 
contradicts the approach adopted by the Appellate Body in EC – Fasteners (China)  in its analysis of 
the claims under Article 6.5.1 of the Anti-Dumping Agreement. In EC 
 Fasteners (China) , the 
Appellate Body considered whether the investigating authority had ensured that two domestic 
producers – Agrati and Fontana Luigi – had provided adequate statements as to why 
summarization of confidential information wa s not possible. Having examined the Panel's 
assessment of the statements by Agrati and Font ana Luigi, the Appellate Body concluded that 
those statements did not contain sufficient explanations as to why summarization of certain 
information was not possible, and, accordingly, that the European Union had failed to comply with 
its obligations under Article 6.5.1.277 Moreover, the Appellate Body found that the investigating 
authority had failed to scrutinize the reasons provided in the statements of Agrati and Fontana Luigi, in violation of Article 6.5.1. We do not view the approach taken by the Appellate Body in 
EC – Fasteners (China)  to support China's position regarding the alleged application of inconsistent 
reasoning by the Panel in the present disputes. Similarly to what we have noted above, we consider that the difference in the approaches taken by the Panel in its analysis under Article 6.5 
and by the Appellate Body in EC – Fasteners (China)  in its analysis under Article 6.5.1 reflects the 
distinct nature of the substantive legal obligations at issue. For all these reasons, we do not agree with China that the Panel failed to make an objective assessment of the matter before it by 
applying an "internally inconsistent" reasoning in its examination of the claims under Articles 6.5 
and 6.5.1 of the Anti-Dumping Agreement. 
5.3.4  Whether the Panel made a case for the complainants 5.111.  China argues that the Panel acted inconsiste ntly with Article 11 of the DSU by finding that 
China acted inconsistently with Article 6.5 of the Anti-Dumping Agreement on grounds not alleged 
by the complainants in their first written submissions, contrary to paragraph 7 of the Joint Working Procedures of the Panels.
278 More specifically, China explains that it had understood, on the basis 
of the complainants' panel requests, as well as the complainants' first written submissions, that 
they were claiming that China had violated Ar ticle 6.5 of the Anti-Dumping Agreement because 
MOFCOM granted confidential treatment to the four appendices at issue "without 'good cause' 
being shown by the petitioners".279 According to China, it was not until after the parties had 
received question No. 67 from the Panel that the issue arose as to whether or not MOFCOM had objectively assessed and determined the showing of "good cause" by the petitioners.
280  
5.112.  In response, Japan and the European Unio n submit that China's arguments are based on 
its erroneous understanding of the nature of the analysis under Article 6.5.281 According to the 
complainants, an allegation that confidential treatment was extended without "good cause" being shown is merely another way of expressing that the investigating authority failed to undertake an 
objective assessment as to whether "good cause" had been shown by the applicant.
282 
5.113.  We understand China to distinguish betw een what it sees as two distinct issues: 
(i) whether MOFCOM "objectively assessed" and scrutinized the "good cause" alleged for 
confidential treatment in order to determine whether the petitioners' requests were sufficiently 
substantiated; and (ii) whether MOFCOM grante d confidential treatment without a showing of 
"good cause" by the petitioners. China considers that the complainants did not argue – at any stage during the Panel proceedings, and, in any event, not in their first written submissions – the 
                                               
277 Appellate Body Report, EC – Fasteners (China) , paras. 553-554. 
278 China's appellant's submission, para. 304; other ap pellant's submission, para. 211 (referring to Joint 
Working Procedures of the Panels of 22 May 2014, as modified, contained in document WT/DS454/R/Add.1, WT/DS460/R/Add.1, Annex A-1, para. 7). 
279 China's appellant's submission, fn 300 to para . 304; other appellant's submission, fn 210 to 
para. 211. 
280 China's appellant's submission, paras. 274-275; other appellant's submission, paras. 180-181. 
281 European Union's appellee's submission, para . 285; Japan's appellee's submission, para. 78. 
282 European Union's appellee's submission, para . 285; Japan's appellee's submission, para. 78. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  issue of whether MOFCOM objectively assessed the reasons given by the petitioners for their 
requests for confidential treatment.283 
5.114.  We note that, in their panel requests, the complainants alleged that China acted 
inconsistently with Article 6.5 because MOFCOM treated information supplied by the petitioners as 
confidential "without good cause shown".284 We consider this language to have been sufficient to 
put China on notice that the question of whether MOFCOM objectively assessed the "good cause" alleged by the petitioners would be an issue in these disputes.  
5.115.  In their first written submissions, the comp lainants further argued that the petitioners did 
not show "good cause" for treating the full text of the relevant appendices as confidential, and therefore China acted inconsistently with Article 6.5 "in permitting the full texts of these Appendices to remain confidential".
285 The complainants also contended that, by granting the 
confidential treatment to the full texts of the fo ur aforementioned reports "without a showing of 
good cause", China violated Article 6.5.286 Moreover, in response to question No. 67 from the 
Panel, the complainants argued that "the authority must objectively assess the 'good cause' 
alleged for confidential treatment, and scrutin ize the party's showing in order to determine 
whether the submitting party has sufficiently substantiated its request".287  
5.116.  China takes issue with the fact that the complainants referred expressly to the obligation 
of the investigating authority to assess objectively the "good cause" only after having received the 
Panel's question.288 We recall that paragraph 7 of the Joint Working Procedures of the Panels 
provided that, "[b]efore the first substantive meet ing of the Panels with the parties, each party 
shall submit a written submission in which it presents the facts of its case and its arguments, in 
accordance with the timetable adopted by the Panels."289 However, we see no reason why this 
language should be construed to have precluded the complainants from further elaborating on the claims identified in their panel requests in respon se to the Panel's questioning. We also note that 
the Appellate Body has previously found that "pan els are entitled to ask questions of the parties 
that they deem relevant to the consideration of the issues before them."
290 Moreover, it is within 
the competence of a panel "freely to use argume nts submitted by any of the parties – or to 
develop its own legal reasoning – to support its own findings and conclusions on the matter under 
its consideration".291 
5.117.  Accordingly, we disagree with China's argument that the Panel made the case for the 
complainants and thereby acted inconsistently with Article 11 of the DSU. 
5.3.5  Conclusion 
5.118.  In the light of the above, we uphold the Panel's findings, in paragraphs 7.290 
and 7.297-7.303 of the Panel Reports, paragraph 8.1.b. of the Japan Panel Report, and 
paragraph 8.6.e of the EU Panel Report, that Chin a acted inconsistently with Article 6.5 of the 
Anti-Dumping Agreement because MOFCOM permitte d the full text of the reports contained in 
appendix V and appendix VIII to the petition, appendix 59 to the petitioners' supplemental 
evidence of 1 March 2012, and the appendix to  the petitioners' supplemental evidence of 
29 March 2012 to remain confidential without obje ctively assessing the petitioners' showing of 
"good cause". 
                                               
283 China's appellant's submission, para. 276; other appellant's submission, para. 182. 
284 Japan's panel request, p. 2; Euro pean Union's panel request, p. 2. 
285 Japan's first written submission to the Panel, para . 271; European Union's first written submission to 
the Panel, para. 85. 
286 Japan's first written submission to the Panel, paras. 272 and 280; European Union's first written 
submission to the Panel, para. 88. 
287 European Union's response to Panel question No. 67, para. 144; Japan's response to Panel question 
No. 67, para. 49 (quoting Appellate Body Report, EC – Fasteners (China) , para. 539). 
288 China's appellant's submission, para. 274; other appellant's submission, para. 180. 
289 Joint Working Procedures of the Panels of 22 May 2014, as modified, contained in document 
WT/DS454/R/Add.1, WT/DS460/R/Add.1, Annex A-1, para. 7. 
290 Appellate Body Report, Thailand – H-Beams , para. 135 (quoting Appellate Body Report, Canada – 
Aircraft , para. 185). 
291 Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program , para. 5.215 
(quoting Appellate Body Report, EC – Hormones , para. 156; and referring to Appellate Body Report, US – 
Certain EC Products , para. 123). WT/DS460/AB/R 
 
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 5.4  Disclosure of the essential facts co ncerning MOFCOM's dumping determination 
5.119.  The European Union appeals the Panel's rejection of the European Union's claim that China 
acted inconsistently with Article 6.9 of the An ti-Dumping Agreement because MOFCOM failed to 
adequately disclose the essential facts in connection with the data underlying MOFCOM's 
determination of dumping concerning SMST and Tubacex.292 In its appeal, the European Union 
asserts that the Panel erred both in its interpretation and application of Article 6.9.  
5.120.  We begin by recalling the relevant findings by the Panel before addressing the specific 
issues raised by the European Union on appeal, as well as China's contention that the 
European Union's challenge goes to the objectivity of the Panel's assessment of the facts and should therefore have been brought under Article 11 of the DSU.  
5.4.1  The Panel's findings 
5.121.  Before the Panel, Japan and the European Union contended that China acted inconsistently 
with Article 6.9 of the Anti-Dumping Agreement because MOFCOM had not disclosed the essential 
facts that formed the basis for its dumping determinations.
293 In particular, the complainants 
argued that, in its dumping determinations, MOFCOM failed to disclose any information relating to: 
(i) the specific cost and sales data used to calculate normal value and export prices underlying the margin calculations; (ii) adjustments to this data, for instance, to take account of taxes and 
freight; and (iii) information on the calculation methodology, namely, the formulae used in 
calculations, the data applied in these formulae, and how MOFCOM applied these data in constructing normal value, export price, and production costs.
294  
5.122.  In response, China argued that  the complainants failed to make a prima facie  case and, 
instead, relied on general, unsubstantiated allegations without any specific reference to the 
disclosure documents. China further contended that, contrary to the European Union's allegations, MOFCOM had disclosed all essential facts pertaining to its dumping determinations in its 
preliminary and final dumping disclosures. In particular, with regard to production costs, SG&A, 
and profits, China submitted that MOFCOM had "exp lained when it accepted the data submitted by 
the exporters, and when it resorted to constructed normal values or export prices".
295 According to 
China, MOFCOM also indicated when it used the adjustments requested by the exporters, and the 
amount of the adjustments made in other instan ces. In addition, China argued that MOFCOM 
provided the necessary information for the respon dents to understand the methodology used to 
calculate the margins of dumping.296 
5.123.  The Panel started its analysis of the complainants' claims by referring to WTO 
jurisprudence establishing that "the basic data underlying an investigating authority's dumping determination constitute 'essential facts' within the meaning of Article 6.9."
297 Moreover, the Panel 
noted that, in China – Broiler Products , the panel found that "a narrative description of the data 
used cannot ipso facto  be considered insufficient disclosure, provided the essential facts the 
authority is referring to are in the possession of the respondent."298 On this basis, the Panel found 
that Article 6.9 does not require investigating authorities to "prepare disclosures containing the 
entirety of the essential facts under consideration" in cases where the relevant essential facts are in the possession of the respondent.
299 The Panel therefore did not consider that an investigating 
authority would necessarily need to disclose "a spread sheet 'duly completed with the data actually 
                                               
292 In particular, the European Union takes issue wi th the Panel's findings in paras. 7.234-7.236 and 
8.7.d.i. of the EU Panel Report. (European Union's Notice  of Other Appeal, para. 10 an d fn 14 thereto) We note 
that Japan has not appealed the Panel's findings unde r Article 6.9 of the Anti-Dumping Agreement regarding 
this aspect of MOFCOM's determination of dumping margins for Kobe and SMI. 
293 In particular, Japan claimed that MOFCOM failed to  disclose the data used to determine the existence 
of dumping and the dumping margins for SMI and Kobe. (Japan's second written submission to the Panel, 
para. 89) The European Union, in turn, argued that MOFCOM  failed to disclose the da ta forming the basis of the 
dumping determination for SMST and Tubacex. (European Union's second written submission to the Panel, para. 53) 
294 EU Panel Report, para. 7.226. 
295 EU Panel Report, para. 7.230. 
296 EU Panel Report, para. 7.230. 
297 EU Panel Report, para. 7.235 (referring to Panel Report, China – X-Ray Equipment , para. 7.402). 
298 EU Panel Report, para. 7.235 (referring to Panel Report, China – Broiler Products , para. 7.95). 
299 EU Panel Report, para. 7.235. WT/DS460/AB/R 
 
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  relied on by the investigating authority'", as the European Union suggested.300 The Panel noted 
that, "[w]hile this would be one way of complying with Article 6.9, a narrative description would also suffice in the appropriate circumstances, provided that such description does not leave 
uncertainty as to the essential facts under consideration."
301 
5.124.  The Panel further observed that MOFCOM  had made both preliminary and final dumping 
disclosures to the exporters at issue, the narrative of which "described the sales data under consideration, the basis for determining normal value and export price, and the adjustments made 
thereto".
302 Moreover, "MOFCOM specified when it used data or made adjustments requested by 
the exporters" and "disclosed actual data when  it departed from the data submitted by the 
exporters".303 The Panel expressed the view that, "[o]ther  than observing that MOFCOM failed to 
provide actual data that was already in the respondents' possession, the complainants ha[d] not 
identified any flaws in MOFCOM's narrative description, or otherwise explained how such 
description would not have been sufficient for the relevant exporters to defend" their interests.304 
Therefore, the Panel saw "no basis … to find that  the narrative descriptions provided by MOFCOM 
do not satisfy the requirements of Arti cle 6.9 of the Anti-Dumping Agreement".305 
5.4.2  Whether the Panel erred in rejecting the European Union's claim under Article 6.9 
of the Anti-Dumping Agreement  
5.125.  As noted, the European Union takes issue with the Panel's interpretation and application of 
Article 6.9 of the Anti-Dumping Agreement wi th respect to the data underlying MOFCOM's 
determination of dumping concerning SMST and Tubacex.306 The European Union submits, as it did 
before the Panel, that the "essential facts supporting an anti-dumping margin determination 
include the data underlying the margin calculations and adjustments to the data"307, as well as 
information on the calculation methodology, such as the formulae used in calculations and the data applied in the formulae. According to the European Union, the lack of disclosure of such facts in 
the underlying investigation impaired the interested parties' ability to defend their interests, 
because the interested parties did not have "an opportunity to 'provide additional information or correct perceived errors, and comment on or make arguments as to the proper interpretation of 
those facts'".
308 The European Union argues, in particular, that Article 6.9 "requires disclosure of 
all the essential facts under consideration which form the basis for the decision whether to apply definitive measures"
309, and submits, contrary to what the Panel's analysis suggests, that the 
"[m]ere possession of the data set from which the facts have been selected is clearly insufficient 
for the interested party to defend its interests."310 
5.126.  In response, China argues that the European Union appears to challenge the Panel's 
examination and weighing of the evidence, rather than the Panel's interpretation and application of 
Article 6.9.311 China notes that the European Union has not raised a claim under Article 11 of the 
DSU concerning this aspect of the Panel's fi ndings, and argues, on this basis, that the 
European Union's appeal concerning the Panel's findings under Article 6.9 should be rejected. In 
the alternative, China submits that the Panel correctly found that "there are several ways in which 
an investigating authority can satisfy" its obligations under Article 6.9.312 China adds that the Panel 
did not find that an investigating authority "is excused  from disclosing  the essential facts if they 
are already in the possession of the interested party".313 For China, the Panel simply distinguished 
                                               
300 EU Panel Report, para. 7.235 (quoting European Union's first written submission to the Panel, 
para. 111). 
301 EU Panel Report, para. 7.235. 
302 EU Panel Report, para. 7.236. 
303 EU Panel Report, para. 7.236. 
304 EU Panel Report, para. 7.236. 
305 EU Panel Report, para. 7.236. 
306 Specifically, the European Union takes issue wi th paras. 7.234-7.236 and 8.7d.i of the EU Panel 
Report. (European Union's Notice of Other Appeal, para . 10 and fn 14 thereto; other appellant's submission, 
fn 155 to para. 179) 
307 European Union's other appellant's submission, para. 181. 
308 European Union's other appellant's submission, para. 187 (quoting Panel Report,  
EC – Salmon (Norway) , para. 7.805). 
309 European Union's other appellant's submission, para. 188. 
310 European Union's other appellant's submission, para. 189. 
311 China's appellee's submission, para. 323. 
312 China's appellee's submission, para. 333. 
313 China's appellee's submission, para. 334. (emphasis original) WT/DS460/AB/R 
 
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  between two possible manners of complyin g with Article 6.9: (i) the actual provision  of specific 
data; and (ii) the inclusion of a narrative description of the data used that is in the possession of the respondents. 
5.127.  Before embarking on our analysis, we note that, in addition to claiming that China acted 
inconsistently with Article 6.9 of the Anti-Dumping Agreement because MOFCOM failed to disclose 
the essential facts underlying MOFCOM's determination of dumping for SMST and Tubacex, the European Union also claimed before the Panel that MOFCOM acted inconsistently with that 
provision because it did not disclose information on the calculation methodology applied by 
MOFCOM to determine the margins of dumping for the investigated companies. The Panel reasoned that an interested party would not be able properly to defend its interests if it were not informed of the methodology applied by the investigating authority to determine the margin of 
dumping. The Panel added that "merely disclosing the underlying data under consideration, 
without also disclosing the methodology under consideration, would be of little use in clarifying the factual basis of the investigating authority's determinations."
314 The Panel concluded that, by 
failing to disclose the methodology used to calculate the margin of dumping, MOFCOM acted 
inconsistently with Article 6.9 of the Anti-Dum ping Agreement. These findings have not been 
appealed. Instead, the European Union's appeal co ncerns MOFCOM's alleged failure to disclose the 
specific cost and sales data used to calculate the normal value and export prices underlying the 
margin calculations, and the adjustments to this data, for instance, to take account of taxes and freight. 
5.128.  Turning to China's contention that the Eu ropean Union ought to have brought this claim 
under Article 11 of the DSU, we recall the Appellate Body's finding that allegations implicating a 
panel's appreciation of facts and evidence fall under Article 11 of the DSU, whereas "[t]he consistency or inconsistency of a given fact or set of facts with the requirements of a given treaty 
provision is … a legal characterization issue" and is, therefore, a legal question.
315 As we 
understand it, the European Union's key contention is that the Panel erred in determining that MOFCOM adequately disclosed the "essential facts" underlying its dumping determinations as 
required under Article 6.9. Although there are aspects of the Panel's analysis that concern the facts 
that were before MOFCOM, we understand the European Union's appeal to focus on the manner in which the Panel interpreted and applied Article 6.9 in its assessment of whether MOFCOM's dumping disclosures complied with the legal standard under that provision. In particular, 
we consider that the European Union's appeal ra ises issues as to the meaning and scope of the 
investigating authority's duty under Article 6.9 to disclose the "essential facts" under consideration. Hence, we do not agree with China that the European Union's appeal merely 
challenges the Panel's examination and weighing of  the evidence, and should therefore have been 
brought under Article 11 of the DSU. We turn, th erefore, to examine the issues raised by the 
European Union on appeal concerning the Panel' s interpretation and application of the legal 
standard under Article 6.9 to MOFCOM's dumping disclosures.  
5.129.  The first sentence of Article 6.9 of the Anti-Dumping Agreement stipulates that "[t]he 
authorities shall, before a final determination is made, inform all interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive 
measures." The second sentence of Article 6.9 provides that "[s]uch disclosure should take place 
in sufficient time for the parties to defend their interests."
316 As to the scope of information that 
must be disclosed, the Appellate Body has expl ained that Article 6.9 "cover[s] 'facts under 
consideration', that is, those facts on the record that may be taken into account by an authority in 
reaching a decision as to whether or not to apply definitive anti-dumping … duties".317 As to what 
kinds of facts are "essential" under Article 6.9, the Appellate Body, in China – GOES , explained 
that: 
                                               
314 EU Panel Report, para. 7.238 (referring to Panel Reports, EC – Salmon (Norway) , para. 7.805; and 
China – Broiler Products , para. 7.91). 
315 Appellate Body Report, EC – Hormones , para. 132. 
316 This suggests that disclosure of facts that are essential in the process of reaching a decision must 
occur in a timely fashion to give in terested parties an oppo rtunity to comment on or challenge the essential 
facts that are "under consideration" by the investigating authority in the process of assessing whether or not to 
apply anti-dumping measures. 
317 Appellate Body Report, China – GOES , para. 240. WT/DS460/AB/R 
 
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  Article[] 6.9 … do[es] not require the disclosure of all the facts that are before an 
authority but, instead, those that are "essential"; a word that carries a connotation of significant, important, or salient. In considering which facts are "essential", the following question arises: essential for wh at purpose? The context provided by the 
latter part of Article[] 6.9 … clarifies that such facts are, first, those that "form the 
basis for the decision whether to apply definitive measures" and, second, those that ensure the ability of interested parties to defend their interests. Thus, we understand 
the "essential facts" to refer to those facts that are significant in the process of 
reaching a decision as to whether or not to apply definitive measures. Such facts are those that are salient for a decision to apply definitive measures, as well as those that are salient for a contrary outcome. An authority must disclose such facts, in a 
coherent way, so as to permit an interested party to understand the basis for the 
decision whether or not to apply definitive measures. In our view, disclosing the essential facts under consideration pursuant to Article[] 6.9 … is paramount for 
ensuring the ability of the parties concerned to defend their interests.
318 
5.130.  Essential facts are, therefore, "those that are salient for a decision to apply definitive 
measures, as well as those that are salient for a contrary outcome."319 In order to apply a 
definitive measure, an investigating authority must find dumping, injury to the domestic industry, 
and a causal link between the dumping and the injury. These findings, in turn, are based on various intermediate findings and conclusions reached by the investigating authority. Whether a particular fact is essential or "significant in the process of reaching a decision"
320 depends on the 
nature and scope of the particular substantive obligations, the content of the particular findings 
needed to satisfy the substantive obligations at i ssue, and the factual circumstances of each case, 
including the arguments and evidence submitted by the interested parties.321 An investigating 
authority must disclose such facts "in a coherent way" that permits an interested party to 
understand the factual basis for each of the intermediate findings and conclusions reached by the authority, such that it is able properly to defend its interests.  
5.131.  Thus, an investigating authority is expected, with respect to the determination of dumping, 
to disclose, inter alia , the home market and export sales being used, the adjustments made 
thereto, and the calculation methodology applied by the investigating authority to determine the margin of dumping. The mere fact that the investigating authority refers in its disclosure to data 
that are in the possession of an interested party does not mean that the investigating authority 
has disclosed the factual basis for its determination in a manner that enables interested parties to comment on the completeness and correctness of the conclusions the investigating authority 
reached from the facts being considered, and to comment on or make arguments as to the proper 
interpretation of those facts.
322 Thus, while Article 6.9 does not prescribe a particular form for the 
disclosure of the essential facts, it does require in  all cases that the investigating authority disclose 
those facts in such a manner that an interested party can understand clearly what data the 
investigating authority has used, and how those data were used to determine the margin of dumping.
323  
5.132.  On appeal, the European Union's challeng e focuses on paragraphs 7.235 and 7.236 of the 
EU Panel Report, where the Panel set out its underst anding of the interpretation and application of 
Article 6.9 of the Anti-Dumping Agreement. The Panel stated: 
                                               
318 Appellate Body Report, China – GOES , para. 240. (fns omitted; emphasis original) 
319 Appellate Body Report, China – GOES , para. 240. 
320 Appellate Body Report, China – GOES , para. 240. 
321 See Appellate Body Report , China – GOES , para. 241. 
322 Appellate Body Report, China – GOES , fn 390 to para. 240; Panel Report, EC – Salmon (Norway) , 
para. 7.805. 
323 While disclosure may take various forms, we no te our agreement with the United States that, 
"[w]ithout a full disclosure of the entirety  of the essential facts under consideration underlying the dumping 
determination, it is difficult to see how a party would be in a position to identify whether the determination 
contains clerical or mathematical erro rs, or whether the investigating authorit y actually did what it purported to 
do. Such failure to provide this info rmation would result in an interested  party being unable to defend its 
interests because it could not identify  in the first instance the particul ar issues that are adverse to its 
interests." (United States' third participant's submission, para. 36 (fn omitted; emphasis original)) WT/DS460/AB/R 
 
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  Previous WTO dispute settlement panels have established that the basic data 
underlying an investigating authority dumping determination constitute "essential facts" within the meaning of Article 6.9. We agree. In addition, the panel in China – 
Broiler Products  found that a narrative description of the data used cannot ipso facto  
be considered insufficient disclosure, provided the essential facts the authority is 
referring to are in the possession of the respondent.[*] We agree. In cases where the relevant essential facts are already in the possession of the respondents, we do not 
consider that Article 6.9 requires investigating authorities to prepare disclosures 
containing the entirety of the essential facts under consideration. In particular, we do not consider that the authority need necessarily disclose a spread sheet "duly completed with the data actually relied on by the investigating authority", as 
suggested by the European Union. While this would be one way of complying with 
Article 6.9, a narrative description would also  suffice in the appropriate circumstances, 
provided that such description does not leave uncertainty as to the essential facts 
under consideration.
324  
[*original fn]396 Panel Report, China – Broiler Products , para. 7.95. 
5.133.  While the Panel's reading of the scope and meaning of Article 6.9 is not entirely clear, it 
appears to us that the Panel considered that a determination of whether an investigating authority 
has complied with its obligations under that provision hinges largely on whether the essential facts 
under consideration by the investigating authority were in the possession of an interested party affected by the determination.
325 However, contrary to what the Panel stated, it does not suffice 
for an investigating authority to disclose "the essential facts under consideration"326 but, rather, it 
must disclose the essential facts under consideration that " form the basis for the decision  whether 
to apply definitive measures". To the extent that the Panel suggested that a narrative description of the data used would constitute sufficient disclosure simply because the essential facts that the 
authority is referring to "are in the possession of the respondent", we disagree. Instead, we agree 
with the European Union that, "when the investigating authority has selected  from amongst the 
facts originally provided by the interested party, [that] party has no way of knowing which facts 
have been selected."
327 We do not see how the mere fact that the investigating authority may be 
referring to data that are in the possession of an interested party would mean that it has disclosed the essential facts "that are salient for a decision to apply definitive measures, as well as those 
that are salient for a contrary outcome … in a coherent way, so as to permit an interested party to 
understand the basis for the decision whether or not to apply definitive measures"
328, and to 
defend its interests.  
5.134.  In the light of the above, we find that the Panel erred in its interpretation of Article 6.9 of 
the Anti-Dumping Agreement set out in paragr aph 7.235 of the EU Panel Report. The Panel 
subsequently relied on this erroneous interpretation of Article 6.9 in finding, in paragraph 7.236 of the EU Panel Report, that, "[o]ther than observing that MOFCOM failed to provide actual data that 
was already in the respondents' possession, the complainants have not identified any flaws in 
MOFCOM's narrative description, or otherwise explained how such description would not have been sufficient for the relevant exporters to defend its interests."
329 We therefore reverse the Panel's 
finding, in paragraphs 7.235 and 7.236, and the Panel's conclusion, in paragraph 8.7.d.i. of the EU Panel Report, rejecting the European Union's claim that China acted inconsistently with Article 6.9 of the Anti-Dumping Agreement because MOFCOM failed to disclose adequately the essential facts in connection with the data underlying MOFCOM's determination of dumping 
concerning SMST and Tubacex. 
                                               
324 EU Panel Report, para. 7.235 and fn 396 thereto. (fns 395 and 397 omitted) 
325 See EU Panel Report, para. 7.235. We agree with the United States that, "to the extent that the 
Panel relied on the fact that such data was already in the possession of a given respondent, this would not 
result in the disclosure of such essential facts to othe r respondents or th e domestic industry ." (United States' 
third participant's submission, fn 27 to para. 36) 
326 EU Panel Report, para. 7.235. 
327 European Union's other appellant's su bmission, para. 189. (emphasis original) 
328 Appellate Body Report, China – GOES , para. 240. 
329 EU Panel Report, para. 7.236. WT/DS460/AB/R 
 
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  5.135.  This brings us to the question of whether we can complete the legal analysis by ruling on 
the European Union's claim that MOFCOM acted inco nsistently with Article 6.9 of the Anti-Dumping 
Agreement by failing to disclose the data underlying MOFCOM's determination of dumping concerning SMST and Tubacex.
330 Having reviewed MOFCOM's Preliminary and Final Dumping 
Disclosures331, we consider that MOFCOM did not disclose the essential facts underlying its 
dumping determinations so as to permit the companies concerned to understand clearly what data MOFCOM had used, and how that data had been used to determine the margins of dumping for 
SMST and Tubacex. Accordingly, we find that Ch ina acted inconsistently with Article 6.9 of the 
Anti-Dumping Agreement because MOFCOM failed to disclose adequately the data underlying its 
determination of dumping concerning SMST and Tubacex. 
                                               
330 European Union's other appellant's submission, para. 190. 
331 See MOFCOM's Final Dumping Disclosure to SMST (P anel Exhibit EU-25-EN (B CI), internal pp. 2-5); 
MOFCOM's Final Dumping Disclosure to the EU (Panel Exhibit EU-27-EN), internal  pp. 14-21; and MOFCOM's 
Preliminary Determination (Panel Exhibits JPN-7-EN and EU-18), internal pp. 25-29. WT/DS454/AB/R • WT/DS460/AB/R 
 
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 5.5  MOFCOM's injury determination 
5.136.  Each of the three participants has appealed different aspects of the Panel's findings 
relating to MOFCOM's injury determination. Before turning to our analysis of the issues raised by the participants on appeal, we first summarize briefly the relevant obligations under Articles 3.1, 
3.2, 3.4, and 3.5 of the Anti-Dumping Agreement regarding the conduct of injury investigations.
332 
5.137.  The Appellate Body has found that Arti cle 3.1 of the Anti-Dumping Agreement "is an 
overarching provision that sets forth a Member's fundamental, substantive obligation" concerning 
the injury determination, and informs the more detailed obligations in the succeeding 
paragraphs.333 Article 3.1 states: 
A determination of injury for purposes of Article VI of GATT 1994 shall be based on 
positive evidence and involve an objective examination of both (a) the volume of the 
dumped imports and the effect of the dumped imports on prices in the domestic 
market for like products, and (b) the consequent impact of these imports on domestic 
producers of such products. 
5.138.  As the Appellate Body has found, the term "positive evidence" focuses on the facts 
underpinning and justifying the injury determination.334 It relates to the quality of the evidence 
that the investigating authorities may rely on in making a determination, and requires the 
evidence to be affirmative, objective, verifiable, and credible.335 Furthermore, the Appellate Body 
has interpreted the term "objective examination" as requiring an injury investigation under Article 3 to "conform to the dictates of the basic principles of good faith and fundamental fairness", 
and to be conducted "in an unbiased manner, without favouring the interests of any interested 
party, or group of interested parties, in the investigation".
336 
5.139.  Several of the remaining paragraphs of Article 3 then elaborate on the elements that must 
be objectively examined, based on positive evidence , pursuant to Article 3.1. Article 3.2 specifies 
the content of an investigating authority's consideration regarding the volume of dumped imports 
and the effect of such imports on domestic prices. Articles 3.4 and 3.5 concern the consequent impact of the dumped imports on the domestic industry. Specifically, Article 3.4 sets out the 
economic factors that must be evaluated in the examination of the impact of the dumped imports 
on the domestic industry, while Article 3.5 requires an investigating authority to demonstrate that dumped imports are causing injury to the domestic industry.
337 
5.140.  These paragraphs of Article 3 thus contem plate a "logical progression" in the investigating 
authority's examination leading to an ultimate determination of whether dumped imports are 
causing material injury to the domestic industry.338 This process entails a consideration of the 
volume of dumped imports and their price effects,  and requires an examination of the impact of 
such imports on the state of the domestic indust ry as revealed by a number of economic factors 
and indices. These various elements are linked through a causation and non-attribution analysis between the dumped imports and the injury to the domestic industry, taking into account all 
factors that must be considered and evaluated.
339 
                                               
332 Footnote 9 of the Anti-Dumping  Agreement defines the word "injury" as "material injury to a 
domestic industry, threat of material injury to a domestic industry or mate rial retardation of the establishment 
of such an industry". 
333 Appellate Body Report, China – GOES , para. 126 (quoting Appellate Body Report,  
Thailand – H-Beams , para. 106). 
334 Appellate Body Report, US – Hot-Rolled Steel , para. 193. 
335 Appellate Body Report, China – GOES , para. 126 (referring to Appellate Body Report,  
US – Hot-Rolled Steel , para. 192). 
336 Appellate Body Report, China – GOES , para. 126 (quoting Appellate Body Report, 
US – Hot-Rolled Steel , para. 193). 
337 Appellate Body Report, China – GOES , para. 127. 
338 Appellate Body Report, China – GOES , para. 128. 
339 Appellate Body Report, China – GOES , para. 128. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  5.141.  Article 3 does not prescribe a specific methodology to be relied on by an investigating 
authority in its determination of injury.340 Nor is there a prescribed template or format that an 
investigating authority must adhere to in making its determination of injury, provided that its determination comports with the disciplines that apply under the discrete paragraphs of Article 3. 
These disciplines are necessary, interlinked elements of a single, overall analysis addressing the 
question of whether dumped imports are causing in jury to the domestic industry. Indeed, by its 
terms, Article 3.5 states that "[i]t must be de monstrated that the dumped imports are, through 
the effects of dumping, as set forth in paragraphs 2 and 4, causing injury" to the domestic 
industry. Thus, the inquiries under Articles 3.2 and 3.4 should not be viewed in isolation, as they 
are necessary components to answering the ultimate question in Article 3.5 as to whether dumped imports are causing injury to the domestic industry.
341 The interpretation of Articles 3.2, 3.4, 
and 3.5 should therefore be consistent with the role  they play in the overall framework of an injury 
determination. 
5.142.  With these considerations in mind, we turn to address the complainants' appeals as they 
relate to the Panel's assessment, under Articles 3.1 and 3.2 of the Anti-Dumping Agreement, of 
MOFCOM's price effects analysis. Thereafter, we examine the complainants' claims that the Panel 
erred in its findings under Articles 3.1 and 3.4 of the Anti-Dumping Agreement regarding 
MOFCOM's impact analysis. Finally, we addre ss the appeals by the complainants and China 
regarding the Panel's assessment of MOFCOM's causation analysis. 
5.5.1  Price effects – Articles 3.1 an d 3.2 of the Anti-Dumping Agreement 
5.143.  Before the Panel, Japan and the European Union submitted that MOFCOM's consideration 
of whether there had been a significant price und ercutting by the imports of Grade B and Grade C 
HP-SSST was inconsistent with Articles 3.1 and 3.2 of the Anti-Dumping Agreement, on three grounds. First, the complainants argued that MO FCOM's analysis of the price effects of Grade C 
dumped imports was analytically and factually fl awed because MOFCOM improperly compared the 
price of Grade C dumped imports with the price of domestic Grade C, despite significant differences between the quantities of imported and domestic products sold. Second, the 
complainants asserted that MOFCOM improperly found price undercutting on the basis that the 
price of Grade C dumped imports was lower than the price of domestic Grade C products, without considering evidence suggesting that Grade C dumped imports did not place downward pressure on domestic prices, or prevent an increase in the prices of those domestic products.
342 Third, the 
complainants submitted that MOFCOM improperly extended, without any analysis or explanation, 
its finding of price undercutting in respect of Grades B and C to the domestic like product as a whole, including domestic Grade A.
343 
5.144.  The Panel addressed the three grounds of the complainants' claims separately. The Panel 
concluded that MOFCOM's failure to account proper ly for differences in quantities when comparing 
the price of Grade C dumped imports with the domestic Grade C price is inconsistent with 
Articles 3.1 and 3.2 of the Anti-Dumping Agreement.344 However, the Panel rejected the 
complainants' claims that MOFCOM acted inconsiste ntly with Articles 3.1 and 3.2 by failing to 
consider whether Grade C dumped imports had any price undercutting effect on domestic Grade C 
products, in the sense of placing downward pressure on those domestic prices by being sold at 
lower prices.345 The Panel also rejected the complainants' claims that MOFCOM acted inconsistently 
with Articles 3.1 and 3.2 by improperly extendin g its finding of price undercutting in respect of 
Grades B and C to the domestic like product as a whole, including domestic Grade A.346  
5.145.  On appeal, Japan and the European Union claim that the Panel erred in rejecting their 
claim that MOFCOM's determination of price undercutting in respect of Grade C imports was inconsistent with Articles 3.1 and 3.2 of the Anti-Dumping Agreement by failing to consider 
whether Grade C dumped imports had any price under cutting effect on dome stic Grade C products, 
                                               
340 Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , paras. 113 and 118. Thus, "it is for the 
investigating authorities in the first instance to determine the analytical methodologies that will be applied in the course of an investigation." (See Panel Report, Thailand – H-Beams , para. 7.159) 
341 Appellate Body Report, China – GOES , para. 128. 
342 Panel Reports, paras. 7.105 and 7.118. 
343 Panel Reports, para. 7.105. See also para. 7.132. 
344 Panel Reports, para. 7.115. 
345 Panel Reports, para. 7.130. 
346 Panel Reports, para. 7.143. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  in the sense of placing downward pressure on those domestic prices by being sold at lower 
prices.347 The European Union also appeals the Panel's assessment of whether MOFCOM's findings 
of price undercutting in respect of Grades B an d C were sufficient to comply with MOFCOM's 
obligation to consider whether or not the prices of the dumped imports had a significant effect on 
the prices of the domestic product as a whole, including Grade A.348 We address each of the issues 
raised on appeal in turn. 
5.5.1.1  The Panel's interpretation of "price  undercutting" in its review of MOFCOM's 
assessment of price effects for Grade C imports 
5.5.1.1.1  The Panel's findings 5.146.  Before the Panel, Japan and the European Union asserted that MOFCOM improperly found 
price undercutting on the basis that the price of Grade C dumped imports was less than the price 
of domestic Grade C, without also considering evidence suggesting that Grade C dumped imports 
did not lead to any effect  on the domestic prices such as lost sales volumes, downward pressure, 
or a prevention in the increase of those domestic prices.
349 The complainants argued that a 
determination of price undercutting cannot be based solely on the existence of a mathematical 
difference between import and domestic prices. Inst ead, given that Article 3.2 is concerned with 
"the effect of the dumped imports on prices", the complainants contended that an investigating 
authority must also consider whether any price di fference enabled the dumped imports to have an 
effect on domestic prices, such as a "loss of domestic sales volumes or at least [having] placed downward pressure on domestic prices".
350 
5.147.  The Panel recalled the Appellate Body's observation that Article 3.2 establishes a "link" 
between the price of subject imports and the price of domestic like products by requiring that a 
comparison be made between the two.351 The Panel considered that the phrase "whether the effect 
of" in Article 3.2 applies only in respect of pric e depression or suppression, on the basis that the 
text of Article 3.2 does not refer to "whether th e effect of subject imports is price undercutting".352 
The Panel considered, therefore, that the questi on of whether there had been significant price 
undercutting within the meaning of Article 3.2 "was a simple factual issue" that could be answered 
by means of "a comparison of prices for domestic and imported product[s]".353  
5.148.  The Panel acknowledged the complainants' references to recognized dictionary definitions 
of the term "undercut" that spoke to the noti on of "supplanting" or "rendering unstable".354 
However, noting that there was no explicit refere nce to the notion of "supplanting" or "rendering 
unstable" in the text or context of Article 3.2, the Panel saw no reason why an investigating 
authority should not simply consider whether dumped imports "sell at lower prices than" comparable domestic products.
355 
5.149.  The Panel further reasoned that, if an investigating authority were required to show that 
price undercutting by dumped imports had the effect of depressing or suppressing prices, as suggested by the complainants, this would duplicate the other price effects considerations 
provided for in Article 3.2. According to the Panel, the fact that Article 3.2 identifies three distinct 
price effects, and distinguishes between price und ercutting, on the one hand, and price depression 
and price suppression, on the other hand, suggest s that there is no need to establish price 
depression or suppression when considering the existence of price undercutting, or vice versa .
356 
                                               
347 Japan's appellant's submission, para. 2; European  Union's other appellant's submission, para. 109. 
348 European Union's other appellant's submission, para. 134. 
349 Panel Reports, paras. 7.105 and 7.118. 
350 Panel Reports, para. 7.117. 
351 Panel Reports, para. 7.124 (quoting Appellate Body Report, China – GOES , para. 137). 
352 Panel Reports, para. 7.126. 
353 Panel Reports, para. 7.126. 
354 Panel Reports, paras. 7.127-7.128 (referring to Ja pan's second written submission to the Panel, 
para. 21; and Oxford English Dictionary  online, definition of "undercut", available at: 
<http://www.oed.com/view/Entry/211547> , accessed 30 January 2014). 
355 Panel Reports, para. 7.128. 
356 In this regard, the Panel noted that Article 6.3(c)  of the SCM Agreement refers separately to price 
undercutting, price depression, price suppression, and "lost sales". In the Panel's view, this provision strongly 
suggests, therefore, that the phenomenon of lost sales is distinct from price underc utting. (See Panel Reports, 
fn 251 to para. 7.129) WT/DS454/AB/R • WT/DS460/AB/R 
 
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  The Panel therefore found that, while price undercutting by imports may lead to lost domestic 
sales, or to price depression or price suppressi on, there is no requirement in Article 3.2 to 
demonstrate the existence of these other phenom ena when considering the existence of price 
undercutting.357 
5.150.  Based on this analysis, the Panel rejected the claims by the complainants that MOFCOM 
acted inconsistently with Articles 3.1 and 3.2 of the Anti-Dumping Agreement by failing to consider 
whether Grade C dumped imports had any price under cutting effect on dome stic Grade C products, 
in the sense of placing downward pressure on those domestic prices by being sold at lower 
prices.358  
5.5.1.1.2  Arguments on appeal 5.151.  On appeal, Japan claims that the Panel erred in its interpretation of Articles 3.1 and 3.2 of 
the Anti-Dumping Agreement by finding that the question of whether price undercutting exists is a 
"simple factual" question that "can be answered  … by a comparison of prices for domestic and 
imported product[s]", and that "the existence of price undercutting itself provides the requisite 
insight into the effect of the dumped imports (and  the relationship of subject import prices with 
domestic prices)".
359 Japan submits that the Panel appears to have considered "that an 
investigating authority may conclude the price effect analysis under Articles 3.1 and 3.2 by simply 
finding that import prices are mathematically lower than the price of a domestic like product."360 
Japan submits that the mere fact of dumped import prices being mathematically lower than comparable domestic prices does not, in and of itself, provide a "meaningful basis" for conducting a further causation analysis under Article 3.5 of the Anti-Dumping Agreement.
361  
5.152.  The European Union, for its part, claims that the Panel erred in finding that the obligation 
in Article 3.2 of the Anti-Dumping Agreement can be met, and was met in this case, on the basis of the fact that, in 2010, the price of the dumped  imports under consideration was below the price 
of the domestic product being compared.
362 Given MOFCOM's decision to conduct a 
grade-by-grade analysis, the European Unio n submits that MOFCOM was required under 
Articles 3.1 and 3.2 to consider more than the "mere juxtaposition" of the price of the dumped 
imports under consideration and the price of the domestic product being compared.363 In 
particular, it was required to consider whether the juxtaposition of the price of the dumped imports under consideration and the price of the domestic product being compared, together with other 
relevant facts  such as specifically identified quantitati ve differences, inverse price movements, a 
sudden and substantial increase in the domestic prices, an increase in the market share of 
domestic Grade C products, and an absence of substitutability – have explanatory force for the 
effect of the prices of the dumped imports under  consideration on the prices of the domestic 
product being compared.
364 
5.153.  By contrast, China agrees with the Panel's interpretation of "price undercutting" in 
Article 3.2, and supports the Panel's finding that an investigating authority can "simply consider 
whether subject imports 'sell at lower prices than' comparable domestic products".365 
                                               
357 Panel Reports, para. 7.129. 
358 Panel Reports, para. 7.130. 
359 Japan's appellant's submission, para. 13 (referring to Panel Reports, para. 7.126). 
360 Japan's appellant's submission, para. 13. 
361 Japan's appellant's submission, para. 31. 
362 European Union's other appellant's submission, para. 113. 
363 European Union's other appellant's submission, para. 114 (referring to Appellate Body Report, China 
– GOES , paras. 129-132). 
364 European Union's other appellant's submission, para. 114. 
365 China's appellee's submission, para. 137 (referring to Panel Reports, para. 7.128). WT/DS454/AB/R • WT/DS460/AB/R 
 
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  5.5.1.1.3  Analysis 
5.154.  The second sentence of Article 3.2 of the Anti-Dumping Agreement reads: 
With regard to the effect of the dumped imports on prices, the investigating 
authorities shall consider whether there has been a significant price undercutting by 
the dumped imports as compared with the price of a like product of the importing 
Member, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which otherwise would have occurred, to 
a significant degree. 
5.155.  The second sentence of Article 3.2 begins with the clause "[w]ith regard to the effect of 
the dumped imports on prices". The definition of the word "effect" is,  inter alia , "something 
accomplished, caused, or produced; a result, a consequence".
366 By referring to "the effect of the 
dumped imports", Article 3.2 postulates certain inquiries with regard to the effect  of those imports 
on domestic prices.367 In particular, an investigating authority is required to consider whether 
there has been a " significant price undercutting " by the dumped imports as compared with the 
price of a like product of the importing Member; or "whether the effect of such imports is 
otherwise to depress prices to a significant degree or prevent price increases, which otherwise would have occurred, to a significant degree."
368 With regard to the latter inquiry, the 
Appellate Body has noted that, to examine whether the effect  of dumped imports "is otherwise to 
depress prices to a significant degree or prevent price increases ", "an investigating authority is 
required to consider whether a first variable – that is, subject imports – has explanatory force for the occurrence of significant depression or suppression of a second variable – that is, domestic 
prices."
369  
5.156.  The Appellate Body has further noted that the two inquiries under the second sentence of 
Article 3.2 are separated by the words "or" and "otherwise".370 The elements that are relevant to a 
consideration of whether there has been "significant price undercutting" may, therefore, "differ 
from those relevant to the consideration of significant price depression and suppression".371 We do 
not read Article 3.2 as suggesting that the "effect" of price undercutting must either be price 
depression or price suppression. Instead, we agr ee with the Panel that, while price undercutting by 
imports may lead to price depression or price suppression, "there is no requirement  in Article 3.2 
to demonstrate the existence of these other phen omena when considering the existence of price 
undercutting."372 
5.157.  Having said this, we recall that the focus of these appeals is on the meaning and scope of 
an investigating authority's obligation to consider whether there has been "significant price undercutting" within the meaning of the second sentence of Article 3.2 of the Anti-Dumping 
Agreement.  
5.158.  Beginning with the ordinary meaning of the term "price undercutting", we note that 
dictionary definitions of the word "undercut" include: "sell at lower prices than"; and "make 
unstable or less firm, undermine".
373 These definitions cover a range of possible meanings. 
However, in order to determine the ordinary meanin g of the term "price undercutting", it should be 
read in the context in which it appears in Article 3.2. With this in mind, we recall that the introductory part of the second sentence – i.e. "With regard to the effect  of the dumped imports on 
prices" – requires an investigating authority to consider whether there has been a significant price 
undercutting  by the dumped imports as compared with the price of a like product of the importing 
                                               
366 Appellate Body Report, China – GOES , para. 135 (quoting Shorter Oxford English Dictionary , 
6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 1, p. 798). 
367 Appellate Body Report, China – GOES , para. 135. 
368 Appellate Body Report, China – GOES , para. 136. 
369 Appellate Body Report, China – GOES , para. 136. 
370 Appellate Body Report, China – GOES , para. 137. 
371 Appellate Body Report, China – GOES , para. 137. 
372 Panel Reports, para. 7.129. (emphasis added) 
373 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (O xford University Press, 2007), 
Vol. 2, p. 3423. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  Member. The meaning of "effect" is  "a result" of something else.374 In the context of Article 3.2, 
this suggests inquiries as to the "effect" of dumped imports on domestic prices, and each inquiry links the dumped imports with the prices of the like domestic products.
375 With respect to "price 
undercutting", the Appellate Body has found that Article 3.2 thus expressly establishes "a link 
between the price of subject imports and that of  like domestic products" by requiring that a 
comparison be made between the two.376  
5.159.  Still in this regard, we observe that the te rm "price undercutting" in Article 3.2 is used in 
present participle, suggesting that the inquiry under Article 3.2 concerns pricing conduct that 
continues over time. Hence, Article 3.2 does not ask the question of whether an investigating authority can identify an isolated instance of the dumped imports being sold at lower prices than the domestic like products. Rather, a proper reading of "price undercutting" under Article 3.2 
suggests that the inquiry requires a dynamic assessment of price developments and trends in the 
relationship between the prices of the dumped im ports and those of domestic like products over 
the entire period of investigation (POI). An examination of such developments and trends includes 
assessing whether import and domestic prices are moving in the same or contrary directions, and 
whether there has been a sudden and substantial increase in the domestic prices. 
5.160.  We note that the Panel described the investigating authority's obligation to consider 
whether there has been price undercutting as consisting of "a simple factual issue – is there price 
undercutting or not? – which can be answered, as Article 3.2 suggests, by a comparison of prices 
for domestic and imported product[s]."
377 The Panel also found that an investigating authority 
should " simply consider whether subject imports 'sell at lower prices than' comparable domestic 
products ".378 As we see it, the Panel appears to have assumed that price undercutting, under 
Article 3.2, is merely concerned with the question of whether there is a mathematical difference, at any point in time during the POI, between the pr ices of the dumped imports and the comparable 
domestic products. We disagree. As discussed above, while price undercutting involves situations 
where imports are being sold at prices lower than  the domestic like products, an inquiry into price 
undercutting under Article 3.2 is not satisfied by  a static examination of whether there is a 
mathematical difference at any point in time during the POI without any assessment of whether or 
how these prices interact over time. Rather, as noted above, Article 3.2 requires a dynamic assessment of price developments and trends in  the relationship between the prices of the 
dumped imports and those of domestic like products over the duration of the POI.  
5.161.  Moreover, we note that the term "price undercutting" in Article 3.2 is qualified by the word 
"significant", which is relevantly defined as "important, notable, consequential".
379 As noted above, 
with respect to "price undercutting", Article 3.2 expressly establishes a link between the price of 
subject imports and that of like domestic produc ts, by requiring that a comparison be made 
between the two.380 This comparison contemplates a dynamic assessment of price developments 
and trends in the relationship between the prices  of the dumped imports and those of domestic 
like products over the duration of the POI. The significance  of the price undercutting found on the 
basis of that dynamic assessment is a question  of the magnitude of the price undercutting.381 
What amounts to significant  price undercutting – that is, whether the undercutting is important, 
notable, or consequential – will therefore necessari ly depend on the circumstances of each case. In 
order to assess whether the observed price undercutting is significant, an investigating authority 
may, depending on the case, rely on all positive evidence relating to the nature of the product or product types at issue, how long the price undercu tting has been taking place and to what extent, 
and, as appropriate, the relative market shares  of the product types with respect to which the 
authority has made a finding of price undercutting. In all cases, an investigating authority must, pursuant to Article 3.1, objectively examine all positive evidence, and may not disregard relevant 
                                               
374 The definition of the word "effect" is,  inter alia , "something accomplished, caused, or produced; a 
result, a consequence".  (Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University 
Press, 2007), Vol. 1, p. 798) See also Appellate Body Report, China – GOES , para. 135. 
375 Appellate Body Report, China – GOES , para. 135. 
376 Appellate Body Report, China – GOES , para. 136. 
377 Panel Reports, para. 7.126. 
378 Panel Reports, para. 7.128. (emphasis added) 
379 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (O xford University Press, 2007), 
Vol. 2, p. 2833. See also Appellate Body Report, US – Upland Cotton , para. 426; and Panel Report, US – 
Upland Cotton , para. 7.1326. 
380 Appellate Body Report, China – GOES , para. 136. 
381 See e.g. Panel Report, EC – Salmon (Norway) , para. 7.638. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  evidence suggesting that prices of dumped imports have no, or only a limited, effect on domestic 
prices.382 
5.162.  Furthermore, we recall that Article 3 contemplates a "logical progression" in the 
investigating authority's examination leading to an ultimate determination of whether dumped 
imports are causing material injury to the domestic industry.383 Indeed, as the Appellate Body has 
explained, the outcome of the price effects inquir y under Article 3.2 must be one that enables the 
investigating authority to advance its analysis so as to serve as a meaningful basis for its 
determination as to whether subject imports, throug h such price effects, are causing injury to the 
domestic industry.384 A proper assessment of price effects under Article 3.2 is, therefore, a 
necessary building block for the ultimate determination of injury. 
5.163.  Turning to the case before us, we observe th at the Panel, in its interpretation, focused only 
on the term "price undercutting" in Article 3.2, and appears not to have accorded any importance 
to the word "significant" or its implications for the inquiry required under Article 3.2. We are not persuaded that an outcome of a price effects inquiry under Article 3.2 that consists of a mere 
mathematical comparison is one that could serve as a meaningful basis for an investigating 
authority's determination of injury and causation.  The fact that Article 3.2 expressly establishes 
"a link between the price of subject imports and that  of like domestic products, by requiring that a 
comparison be made between the two"
385, does not mean that an investigating authority can 
comply with its obligations under Article 3.2 by simply considering "whether subject imports 'sell at lower prices than' comparable domestic products".
386 While an examination of whether there is a 
price differential between imported and domestic products may be a useful starting point for an 
analysis of price undercutting, it does not provide a sufficient basis for an investigating authority to 
satisfy its obligation under Article 3.2. 
5.164.  In the light of the above, we find that the Panel erred in its interpretation of Article 3.2 of 
the Anti-Dumping Agreement in finding that, in its consideration of whether there has been a 
significant price undercutting, an investigating authority may "simply consider whether subject imports 'sell at lower prices than' comparable domestic products".
387 The Panel's finding rejecting 
the complainants' claims regarding MOFCOM's analysis of whether there was significant price 
undercutting by Grade C dumped imports was base d on the Panel's erroneous interpretation of 
Article 3.2.388 We therefore reverse the Panel's findings, in paragraphs 7.130 and 7.144 of the 
Panel Reports, paragraph 8.2.a.i of the Japan Pa nel Report, and paragraph 8.7.b.i. of the EU 
Panel Report, regarding MOFCOM's finding of price undercutting with respect to Grade C HP-SSST. 
5.165.  This brings us to the question of whether we can complete the legal analysis, as requested 
by the complainants, and find that MOFCOM's consideration of price undercutting in respect of 
Grade C HP-SSST is inconsistent with Articles 3.1 and 3.2 of the Anti-Dumping Agreement, 
including because MOFCOM failed to consider whether Grade C dumped imports had any price undercutting effect on domestic Grade C products . In previous cases, the Appellate Body has 
completed the legal analysis with a view to facilitating the prompt settlement and effective 
resolution of the dispute.
389 The Appellate Body has completed the legal analysis when sufficient 
factual findings by the panel and undisputed facts on the panel record allowed it to do so.390 
                                               
382 In this respect, the Appellate Bo dy also clarified that, although there is no explicit requirement in 
Article 3.2, a failure to ensure price comparability is in consistent with the requirement under Article 3.1 that a 
determination be based on "positive evidence" and involve an "objective examination" of the effect of dumped 
imports on the prices of domestic li ke products. (Appella te Body Report, China – GOES , para. 200) 
383 Appellate Body Report, China – GOES , para. 128. 
384 Appellate Body Report, China – GOES , para. 154. 
385 Appellate Body Report, China – GOES , para. 136. 
386 Panel Reports, para. 7.128. 
387 Panel Reports, para. 7.128. 
388 See Panel Reports, paras. 7.116 and 7.121. 
389 See Appellate Body Reports, US – Countervailing Measures (China) , para. 4.82; Australia – Salmon , 
paras. 117-136; US – Wheat Gluten , paras. 80-92; and Canada – Aircraft (Article 21.5 – Brazil) , paras. 43-52. 
390 See Appellate Body Reports, US – Countervailing Measures (China) , para. 4.82; US – Gasoline , 
p. 19, DSR 1996:I, p. 18; Canada – Periodicals , p. 24, DSR 1997:I, p. 469; EC – Poultry , para. 156; EC – 
Hormones , para. 222; US – Shrimp , paras. 123-124; Japan – Agricultural Products II , para. 112; US – FSC , 
para. 133; Australia – Salmon , paras. 117-118; US – Lamb , paras. 150 and 172; US – Section 211 
Appropriations Act , para. 352; EC and certain member States – Large Civil Aircraft , paras. 1174-1178; and 
US – Large Civil Aircraft (2nd complaint) , paras. 1272-1274. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  5.166.  Turning to the case before us, we note China's assertion that, to the extent that the 
complainants have made arguments challenging the comparability of the prices between the Grade C dumped imports and domestic Grade C, we should exclude such arguments from our 
consideration.
391 However, we see no reason why, in our assessment of the claims on appeal, we 
would be precluded from taking into account the totality of the parties' legal arguments to the 
extent that they are relevant to the issue raised on appeal. 
5.167.  We note the Panel's finding that China acted inconsistently with Articles 3.1 and 3.2 of the 
Anti-Dumping Agreement because MOFCOM did not pr operly establish that the prices of imports 
and domestic like products were "comparable" fo r the purpose of considering price undercutting by 
imports of Grade C products given that it failed "to properly account for differences in quantities when comparing the price of Grade C subject imports with the domestic Grade C price".
392 This 
finding by the Panel, not appealed by China, implies that MOFCOM could not have had an objective 
basis to determine the existence of price undercutting for Grade C HP-SSST. 
5.168.  Moreover, we note, as did the Panel, that "MOFCOM failed to account for record evidence 
that trends in domestic prices by grade had no apparent relationship in terms of magnitude or 
direction with trends in import prices."393 The Panel stated that this was particularly apparent in 
respect of domestic Grade C, "the price of which increased by 112.80% from 2009-2010, without 
any corresponding movement in prices for subject imports" of Grade C, "which actually fell over 
that period".394 As explained above, in order properly to carry out an analysis of whether there had 
been significant price undercutting by dumped imports of Grade C, MOFCOM would have been required, pursuant to Articles 3.1 and 3.2 of the Anti-Dumping Agreement, to undertake a dynamic 
assessment of price developments and trends in  the relationship between the prices of the 
dumped imports of Grade C and those of the domest ic Grade C over the duration of the POI. Yet, 
we note that MOFCOM did not explain the basis for its finding that imports of Grade C were 
underselling domestic Grade C despite the fact that the price of domestic Grade C "increased 
by 112.80% from 2009-2010", while the prices of dumped imports  of Grade C " actually fell over 
that period ".
395 
5.169.   As explained above, the inquiry under Ar ticle 3.2 is concerned with the effect of the 
dumped imports on the prices of domestic like products. It was therefore not sufficient for MOFCOM to make a finding of price undercutting based only on the fact that, in 2010, there was a mathematical difference between the prices of the imports of Grade C HP-SSST and those of 
domestic Grade C HP-SSST. Instead, MOFCOM ought to have taken into account whether that 
mathematical difference amounted to significan t price undercutting in the light of the facts 
underlying the investigation and the considerations we explained above. To our minds, an 
objective examination would have taken into account all the positive evidence relating to, 
inter alia , the contrary price movements of the Grade C imports and domestic Grade C, as well as 
the limited period during which the perceived mathematical difference occurred. 
5.170.   We further recall that the provisions of Article 3 of the Anti-Dumping Agreement 
contemplate a "logical progression" in the investigating authority's examination leading to an ultimate determination of whether dumped imports are causing material injury to the domestic industry.
396 Accordingly, the outcome of the price effects inquiry under Article 3.2 must be one 
that enables the investigating authority to advance its analysis and to have a meaningful basis for 
its determination as to whether dumped imports, through such price effects, are causing injury to the domestic industry.
397 We do not see how MOFCOM, under the specific facts of this case, could 
have provided a "meaningful basis" for an analys is of whether the dumped imports were causing 
injury without considering "record evidence that trends in domestic prices by grade had no apparent relationship in terms of magnitude or direction with trends in import prices".
398  
                                               
391 China's appellee's submission, paras. 139-140 and 174-175. 
392 Panel Reports, para. 7.115. 
393 Panel Reports, para. 7.186. 
394 Panel Reports, para. 7.186. 
395 Panel Reports, para. 7.186. (emphasis added) 
396 Appellate Body Report, China – GOES , para. 128. 
397 Appellate Body Report, China – GOES , para. 154. 
398 Panel Reports, para. 7.186. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  5.171.  In the light of the above, we find that  MOFCOM's assessment of whether there had been a 
significant price undercutting by Grade C imports from Japan and the European Union, as 
compared with the price of domestic Grade C, is inconsistent with Articles 3.1 and 3.2 of the Anti-Dumping Agreement. 
5.172.  Having addressed the first issue raised on appeal under Articles 3.1 and 3.2 of the 
Anti-Dumping Agreement, we now turn to the European Union's claim that the Panel erred in finding that MOFCOM was not required to make a finding of price undercutting for the product as a 
whole, including Grade A HP-SSST. WT/DS460/AB/R 
 
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 5.5.1.2  Whether MOFCOM was required to ma ke a finding of price undercutting for the 
product as a whole 
5.5.1.2.1  The Panel's findings 5.173.  Before the Panel, the complainants submitted that China acted inconsistently with 
Articles 3.1 and 3.2 of the Anti-Dumping Agreemen t because MOFCOM extended its finding of price 
undercutting in respect of imports of Grades B an d C HP-SSST to the domestic like product as a 
whole, including domestic Grade A HP-SSST.
399  
5.174.  The Panel did not agree with the complainants that MOFCOM was required under 
Articles 3.1 and 3.2 to find price undercutting in respect of the domestic like product  as a whole , 
encompassing the three product types (Grades A, B, and C).400 The Panel noted that, when an 
investigating authority considers the existence of price undercutting for the purpose of Article 3.2, 
it need only consider the existence of price undercutting in respect of the dumped imports at issue. 
For the Panel, where dumped imports are of different grades, it is appropriate to consider price undercutting with respect to the comparable domestic grades.
401  
5.175.  The Panel noted the complainants' argument that Article 3.1 refers to "the effect of the 
dumped imports on prices in the domestic market for like products".402 According to the 
complainants, the use of the definite article "the" in conjunction with "domestic market for like 
products" necessarily constitutes a reference to the entire domestic market and, therefore, the like 
product as a whole. The Panel disagreed and sa w nothing in Article 3.1 to suggest that the 
existence of price undercutting must be considered  in respect of the entire range of the like 
product in the domestic market of the importin g Member. For the Panel, the reference to "the" 
domestic market simply meant that prices in the domestic market should be used, rather than 
those in any other market. The Panel noted, in that context, that there can be one or more domestic like products corresponding to the imports subject to an anti-dumping investigation. 
Thus, the Panel found that, while the text of Articl e 3.1 "leaves open the possibility of more than 
one like product, it does not … establish that pric e undercutting must be found with respect to the 
entire range of goods making up  the domestic like product(s)."
403 
5.176.  The Panel also rejected the complainants' argument that MOFCOM improperly found the 
relevant price undercutting to be "significant", given that the majority404 of domestic production 
(of Grade A products) was unaffected by such price undercutting. In the Panel's view, this argument was predicated on the complainants' understanding that MOFCOM was required by 
Article 3.2 to establish that dumped imports ha d a price undercutting effect in respect of the 
domestic like product as a whole , including domestic Grade A. Relying on the panel's finding in US 
– Upland Cotton , the Panel considered that the signific ance of price undercutting by dumped 
imports of Grades B and C should be assessed in relation to the price of domestically produced 
Grades B and C, and not in relation to other factors, such as the proportion of domestic production for which no price undercutting was found.
405 Furthermore, the Panel recalled that price 
undercutting must be established on the basis of a comparison of the prices of comparable goods. 
As a result, there may well be domestic product models or grades for which no price undercutting 
is established. The Panel considered that this fact should not preclude a finding of "significant" 
                                               
399 Panel Reports, para. 7.105. See also para. 7.132. 
400 Panel Reports, para. 7.139. 
401 Panel Reports, para. 7.139. 
402 Panel Reports, para. 7.141. (emphasis original) 
403 Panel Reports, para. 7.141. 
404 At fn 270 to para. 7.142 of the Panel Reports, the Panel highlighted that the complainants' estimate 
that only about 20% of domestic pr oduction concerned Grade B or C products, with the remaining +/-80% 
concerning Grade A products. (Japan's first written subm ission to the Panel, para. 148; European Union's first 
written submission to the Panel, para. 243) The Panel also  noted that China challenged the accuracy of Japan's 
estimates, but did not provide actual numbers. The Panel considered it unnecessary to examine this 
discrepancy in any detail, si nce China, in any event, acknowledged that "the majority" of domestic HP-SSST 
production related to Grade A. (China's comments on Japan's response to Panel question No. 84, para. 31) 
405 Panel Reports, para. 7.142 (referring to Panel Report, US – Upland Cotton , paras. 7.1325 
and 7.1328). WT/DS460/AB/R 
 
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  price undercutting. The Panel noted, however, that this fact may become relevant in the 
consideration of causation of injury, pursuant to Article 3.5 of the Anti-Dumping Agreement.406 
5.5.1.2.2  Arguments on appeal 5.177.  On appeal, the European Union notes that  there "were no relevant imports of Grade A", 
and that most of the domestic sales were of Grade A.
407 Y e t ,  M O F C O M  f o u n d  t h a t  p r i c e  
undercutting by imported Grades B and C had a sign ificant effect on the domestic product, without 
conducting any cross-grade analysis. In the European Union's view, the Panel accepted this 
conclusion solely on the basis of its erroneous find ing that Articles 3.1 and 3.2 of the Anti-Dumping 
Agreement do not require any consideration of the effect of the price of the dumped product on the price of the domestic product.
408  
5.178.  China counters that the Panel correctly note d that MOFCOM did not make a finding of price 
undercutting with respect to the domestic like product as a whole, and that, instead, it found 
undercutting only for Grades B and C.409 In addition, China submits that the European Union's 
argument is predicated on the contention that an investigating authority is always  to consider price 
undercutting for the domestic like product as a whole, and that the Panel properly rejected that 
proposition.410 
5.5.1.2.3  Analysis 
5.179.  Turning to the facts of the present dispute, we note that MOFCOM defined the domestic 
like product as certain HP-SSST, encompassing three product types or grades referred to by the Panel as Grades A, B, and C.
411 The Panel noted that MOFCOM "conducted grade-by-grade price 
comparisons" and found "price undercutting in respect of Grades B and C".412 The Panel also noted 
that "MOFCOM did not make any finding of price undercutting in respect of Grade A, because this 
product was only imported in 2008, in very small quantities."413 
5.180.  We agree with the Panel that an investigating authority is not required, under Article 3.2 of 
the Anti-Dumping Agreement, to establish the ex istence of price undercutting for each of the 
product types under investigation, or with respec t to the entire range of goods making up the 
domestic like product.414 That said, an investigating authority is under an obligation to examine 
objectively the effect of the dumped imports on domestic prices. As discussed above, with respect 
to its consideration of whether there has been a significant price undercutting, an investigating authority must undertake a dynamic assessment of price developments and trends in the 
relationship between the prices of the dumped impo rts and those of the domestic like product over 
the duration of the POI, taking into account all relevant evidence including, where appropriate, the 
relative market share of each product type. Impo rtantly, and as discussed above, an investigating 
authority's consideration of price effects under Article 3.2 must provide a meaningful basis for 
subsequently determining whether the dumped imports are causing injury to the domestic industry 
within the meaning of Article 3.5 of the Anti-Dumping Agreement.
415 We therefore disagree with 
the Panel that MOFCOM was not required to assess  the significance of price undercutting by the 
dumped imports in relation to "the proportion of domestic production for which no price 
undercutting was found".416 
                                               
406 Panel Reports, para. 7.142 and fn 273 thereto. 
407 European Union's other appellant's submission, para. 138. 
408 European Union's other appellant's submission, para. 138 (referring to Panel Reports, para. 7.138). 
409 China's appellee's submission, para. 197 (quoting Panel Reports, para. 7.137). 
410 China's appellee's submission, para. 207. 
411 MOFCOM's Final Determination (Panel Exhibits  JPN-2-EN and EU-30), internal pp. 23-28. In 
MOFCOM's Final Determination, Grade A corresponds  to TP347HFG, Grade B corresponds to S30432, and 
Grade C corresponds to TP310HNbN. We note that MOFCOM's definition of the domestic like product was not the subject of a claim by the complainants before the Panel. 
412 Panel Reports, para. 7.137. 
413 Panel Reports, para. 7.137. 
414 Panel Reports, para. 7.141. 
415 Appellate Body Report, China – GOES , paras. 149 and 154. 
416 Panel Reports, para. 7.142. WT/DS460/AB/R 
 
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  5.181.  In its investigation, MOFCOM observed that, during the POI, the dumped imports and 
domestic sales were concentrated in di fferent segments of the HP-SSST market.417 On the one 
hand, the majority of Chinese domestic HP-SSST production related to Grade A.418 As such, the 
majority of domestic sales was of Grade A. The market share held by Grade A dumped imports in 
2008 was only 1.45%.419 There were no Grade A dumped imports thereafter. On the other hand, 
during the POI, the dumped imports of Grades B and C each held a market share of around 90% 
of its respective market segment.420 We further recall that Japan argued before the Panel, and 
China did not dispute, that Grade B is approximat ely double the price of Grade A, and Grade C is 
approximately triple the price of Grade A.421 In the case before us, we consider that an objective 
examination by MOFCOM of whether there had been a significant price undercutting by the 
dumped imports as compared with the prices of the domestic like product (encompassing all three 
product types) should have taken into account the relevant market shares of the respective 
product types. Likewise, a proper analysis of price effects ought to have taken into account the fact that there were significant differences in the prices of these product types.
 As discussed 
above, an investigating authority may not disregard evidence suggesting that the dumped imports 
have no, or only a limited, effect on domestic prices. 
5.182.  In the light of the above, we reverse the Panel's finding, in paragraphs 7.143, 
7.144, and 8.7.b.i. of the EU Panel Report; and fi nd instead that MOFCOM's assessment of whether 
there had been a significant price undercutting by  t h e  d u m p e d  i m p o r t s ,  a s  c o m p a r e d  w i t h  t h e  
prices of the domestic like product, is inconsistent with Articles 3.1 and 3.2 of the Anti-Dumping Agreement. 
                                               
417 Panel Reports, para. 7.182. 
418 Panel Reports, fn 270 to para. 7.142. 
419 Panel Reports, para. 7.182 (referring to MOFCOM's Final Determination (Panel Exhibits JPN-2-EN and 
EU-30), internal p. 65). 
420 Panel Reports, para. 7.182 (referring to MOFCOM's Final Determination (Panel Exhibits JPN-2-EN and 
EU-30), internal p. 66 (translation amended by Panel Exhibit CHN-16-EN, an d accepted by the complainants in 
Panel Exhibits JPN-29 and EU-32)). 
421 Panel Reports, fn 333 to para. 7.184. WT/DS454/AB/R • WT/DS460/AB/R 
 
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 5.5.2  MOFCOM's impact analysis – Articles  3.1 and 3.4 of the Anti-Dumping Agreement 
5.183.  Japan and the European Union claim that the Panel erred in its interpretation and 
application of Articles 3.1 and 3.4 of the Anti-Dumping Agreement in rejecting their claims that MOFCOM was required to undertake a segmented analysis of the impact of dumped imports on the 
state of the domestic industry, having found no significant increase in the volume of dumped 
imports, and having found price effects with respect to Grades B and C only. In addition, Japan asserts that the Panel erred in finding that Japan's claim that MOFCOM failed to examine whether 
dumped imports provided explanatory force for the state of the domestic industry fell outside the 
Panel's terms of reference. 
5.184.  Before the Panel, the complainants submitted that MOFCOM's impact analysis was 
inconsistent with Articles 3.1 and 3.4 of the Anti-Dumping Agreement on several grounds. The 
Panel addressed three of the claims pursued by the complainants. The Panel rejected the 
complainants' claims that MOFCOM acted incons istently with Articles 3.1 and 3.4 of the 
Anti-Dumping Agreement by assessing the impact of dumped imports on the domestic industry 
producing all three grades of HP-SSST, even though it found no significant increase in the volume 
of dumped imports
422, and found price effects with respect to  Grades B and C only. The Panel also 
disagreed with the complainants that MOFCOM acte d inconsistently with Articles 3.1 and 3.4 by 
failing to weigh properly the positive and negative injury factors. However, the Panel agreed with 
the complainants that MOFCOM failed to evalua te the magnitude of the margins of dumping, 
contrary to Articles 3.1 and 3.4 of the Anti-Dum ping Agreement. The latter two findings of the 
Panel are not the subject of these appeals. 
5.185.  We begin by addressing Japan's claim under Article 6.2 of the DSU. Thereafter, we will 
review the complainants' appeal of the Panel's legal findings and conclusions concerning the interpretation and application of Articles 3.1 and 3.4 of the Anti-Dumping Agreement. 
                                               
422 In its Final Determination, MOFCOM noted:  
Based on data provided by foreign producers in their Response to Questionnaire for 
Producers/Exporters of Other Countries/Regions  and relevant subsequent supplemental 
materials, during the period of investigation, the import volumes of the subject products from 
the EU and Japan decreased year by year from 20,100 tons in 2008 to 16,400 tons in 2009, a decrease of 18.49% from 2008, and to 4500 tons in 2010, a decrease of 72.79% from 2009. 
From January to June 2011, the import volume of the subject products was 2600 tons, down 
21.89% year on year. 
(Panel Exhibits JPN-2-EN and EU-30, internal p. 43) WT/DS454/AB/R 
 
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 5.5.2.1  Japan's claim under  Article 6.2 of the DSU 
5.186.  Japan contends that the Panel acted inconsistently with Article 6.2 of the DSU in finding 
that Japan's claim regarding MOFCOM's allege d failure to examine whether dumped imports 
provided explanatory force for the state of the dome stic industry under Articles 3.1 and 3.4 of the 
Anti-Dumping Agreement was outside its terms of reference. The Panel made this finding on the 
basis that the claim was not sufficiently identified in Japan's panel request. 
5.187.  China requests that we uphold the Panel's finding. In addition, China takes issue with what 
it views as Japan's attempt to rely on the argu ments concerning the absence of any explanatory 
force in support of its claim on appeal that the Panel erred in rejecting the complainants' claims that MOFCOM was required by Articles 3.1 and 3. 4 of the Anti-Dumping Agreement to undertake a 
segmented impact analysis. China submits that, gi ven that the Panel found Japan's "explanatory 
force" claim to be outside its terms of referenc e, this aspect of Japan's appeal should be 
rejected.
423  
5.188.  Japan's panel request states, in relevant part: 
Japan considers that the measures at issue are inconsistent with, at least, China's 
obligations under the following provisions of the Anti-Dumping Agreement: 
1. Articles 3.1, 3.2, 3.4, and 3.5 because China's injury determination was not 
based on positive evidence and did not involve an objective examination of the 
volume of the dumped imports under investigation, the effect of those imports on prices in the domestic market for like products, and the consequent impact of those imports on domestic producers of such products. Specifically: 
(a) … 
(b) China's analysis of the impact of the dumped imports on the domestic industry: 
(i) failed to make an objective examination,  based on positive evidence, of the impact 
of subject imports on the domestic industry  based on the volume of such imports and 
their effect on prices; (ii) failed to evaluate the magnitude of the margin of dumping; and (iii) failed to objectively determine the relative importance and weight to be 
attached to relevant economic factors an d indices, and improperly disregarded the 
majority of those factors and indices indica ting that the domest ic industry did not 
suffer material injury. Accordingly, China acted inconsistently with Articles 3.1 and 3.4 of the Anti-Dumping Agreement.
424  
5.189.  We recall our discussion in section 5.1.1.2 of these Reports425 of the requirements that a 
complainant must satisfy in its panel request purs uant to Article 6.2 of the DSU. Based on our 
reading of the plain language in Japan's panel request, we understand Japan to have made three 
claims under Articles 3.1 and 3.4 of the Anti-Dumping Agreement – namely that, in conducting its 
impact analysis, China: "(i) failed to make an objective examination, based on positive evidence, of the impact of subject imports on the domestic  industry based on the volume of such imports 
and their effect on prices; (ii) failed to evalua te the magnitude of the margin of dumping; and 
(iii) failed to objectively determine the relative importance and weight to be attached to relevant economic factors and indices, and improperly disr egarded the majority of those factors and indices 
indicating that the domestic industry did not suffer material injury."
426 
5.190.  Japan contends that its statement in the panel request, that "China's analysis of the 
impact of the dumped imports on the domestic  i n d u s t r y  …  f a i l e d  t o  m a k e  a n  o b j e c t i v e  
examination, based on positive evidence, of th e impact of subject imports on the domestic 
industry based on the volume of such imports and their effect on prices", encompassed two 
separate claims – namely: (a) that MOFCOM failed to examine "the consequent impact", and thus 
                                               
423 China's appellee's submission, para. 243 (referring to Japan's appellant's submission, paras. 49, 
55-61, and 63-66). 
424 Japan's panel request, pp. 1-2. 
425 Supra , paras. 5.11-5.16. 
426 Japan's panel request, para. 1(b). WT/DS454/AB/R 
 
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  a logical connection with its volume and price effects conclusions; and (b) that MOFCOM failed to 
examine the "explanatory force" of dumped imports.427  
5.191.  We do not see, in Japan's panel request, a claim under Articles 3.1 and 3.4 of the 
Anti-Dumping Agreement regarding MOFCOM's alleged failure to examine whether dumped 
imports provided "explanatory force" for the state of the domestic industry.428 The reference to 
"explanatory force" is drawn from the Appellate Body's interpretation of Article 3.4 in its report in China – GOES . This reference formed part of the Appellate Body's reasoning in interpreting 
Article 3.4 in that dispute and should not be read to  create an obligation that is distinct from that 
expressed in Article 3.4. Accordingly, we view Japan's submissions, insofar as they refer to 
"explanatory force", as setting out arguments, based on the Appellate Body's reasoning in China – 
GOES , in support of Japan's claims under Article 3.4. These claims were properly within the Panel's 
terms of reference, and were addressed by the Panel. 
5.192.  Further, we note that China takes issue with what it views as Japan's attempt to rely on 
new arguments concerning the absence of any explan atory force in support of its claim on appeal 
that the Panel erred in rejecting the complainants' claims that MOFCOM was required by 
Articles 3.1 and 3.4 of the Anti-Dumping Agreement to undertake a segmented impact analysis. We recall that, before the Panel, Japan argued that MOFCOM improperly considered the impact of 
dumped imports on the domestic industry as a whole, in respect of all three product grades, even 
though it had only found price effects in respect of Grades B and C. In its claim under Article 3.4, Japan argued that MOFCOM's reliance on its flawed and partial price effects analysis for purposes of its impact examination does not constitute "an objective examination 'of the explanatory force  
of subject imports for the state of the domestic industry' as a whole".
429 We therefore disagree 
with China to the extent that it contends that Japan's arguments concerning "explanatory force" under Article 3.4 are new arguments. 
5.193.  In sum, we do not consider that Japan's arguments regarding "explanatory force" could 
constitute grounds for a separate "claim" under  Articles 3.1 and 3.4 of the Anti-Dumping 
Agreement. Accordingly, there was no basis for the Panel to consider, as it did, whether such 
"claim" was properly within the scope of its terms of reference. Consequently, we declare the 
Panel's findings, in paragraphs 6.29-6.31 and footnote 274 of the Japan Panel Report, to be moot 
and of no legal effect. 
                                               
427 Japan's appellant's submission, para. 73. 
428 See Panel Reports, paras. 6.29-6.31. 
429 Japan's first written submission to the Pane l, para. 165. (emphasis added; fn omitted) WT/DS454/AB/R • WT/DS460/AB/R 
 
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 5.5.2.2  The Panel's assessment of MOFCOM's impact analysis  
5.194.  We begin by recalling the relevant findings of the Panel, before turning to the specific 
issues raised by the complainants on appeal. 
5.5.2.2.1  The Panel's findings 
5.195.  Before the Panel, Japan and the European Union submitted that MOFCOM's impact analysis 
was at odds with, and did not follow from, its volume and price effects analyses. The complainants asserted that, having found no significant increase in volume whatsoever and price effects with 
respect to only Grades B and C, to ensure a logical progression of inquiry, MOFCOM should have 
analysed the impact of the dumped imports on ly on the segment of the domestic industry 
producing Grades B and C. China disagreed, argu ing that Article 3.4 requires MOFCOM to have 
assessed the impact of dumped imports on the domestic industry as a whole . Moreover, China 
argued that the two domestic producers making up  the domestic industry are "producers of all 
three grades of the like product"
430, such that it is not possible to distinguish any part of the 
domestic industry that is producing only Grade A.431  
5.196.  The Panel considered that the complain ants' claims regarding the scope of MOFCOM's 
impact analysis were premised on their interp retation of Article 3.2 of the Anti-Dumping 
Agreement, and reiterated its finding that, "in finding price undercutting in respect of Grades B 
and C, MOFCOM was not required by Article 3.2 to consider the effect  of subject Grade B and C 
imports on domestic Grade A."432 The Panel considered on this basis that MOFCOM's failure to 
conduct such a cross-grade price analysis did not preclude a finding that the segment of the domestic industry producing Grade A products co uld be impacted by dumped imports. The Panel 
further reasoned that the complainants' approach to  Article 3.4 was overly "focused on the causal 
connotations of the term 'impact'"
433, and overlooked the obligation in Article 3.4 to evaluate the 
state of the "domestic industry" as defined by Article 4.1 of the Anti-Dumping Agreement. The 
Panel recalled that, in the present case, "MOFCOM defined the domestic industry as comprising 
two domestic producers accounting for a major proportion of total domestic production of the domestic product like the subject imports."
434 According to the Panel, an evaluation of the state of 
the domestic industry envisaged by Article 3. 4 must therefore consider the state of those 
two producers, with respect to their production of all types of HP-SSST. Thus, the Panel saw no basis in Article 3.4 "for limiting this evaluation to the state of those two domestic producers with 
respect to their production of only Grades B and C".
435 
5.197.  The Panel clarified that it was not suggesting that the scope of MOFCOM's price effects 
conclusions was of "no relevance to the remainder of MOFCOM's injury analysis".436 Instead, it 
noted that "a limited finding of price undercutting will have obvious implications for an authority's 
assessment of whether dumped imports caused material injury to the domestic industry."437 
However, for the Panel, this was "an assessment to be made pursuant to Article 3.5, rather than 3.4, of the Anti-Dumping Agreement."
438  
5.198.  Based on the foregoing, the Panel rejected the complainants' claims that China acted 
inconsistently with Articles 3.1 and 3.4 of the Anti-Dumping Agreement because MOFCOM was 
required to, but did not, undertake a segmented impact analysis and, instead, assessed the impact o f  d u m p e d  i m p o r t s  o n  t h e  d o m e s t i c  i n d u s t r y  a s  a  w h o l e ,  e v e n  t h o u g h  i t  f o u n d  n o  s i g n i f i c a n t  
increase in the volume of dumped imports and found price effects with respect to HP-SSST of 
Grades B and C only.
439  
                                               
430 China's second written submission to the Panel, para. 179. 
431 Panel Reports, paras. 7.148-7.149. 
432 Panel Reports, para. 7.152. (emphasis original) 
433 Panel Reports, para. 7.153. 
434 Panel Reports, para. 7.153. 
435 Panel Reports, para. 7.153. 
436 Panel Reports, fn 281 to para. 7.152. 
437 Panel Reports, fn 281 to para. 7.152. 
438 Panel Reports, fn 281 to para. 7.152. 
439 Panel Reports, para. 7.170. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  5.5.2.2.2  Arguments on appeal 
5.199.  On appeal, Japan and the European Union argue that the Panel erred in its interpretation 
and application of Articles 3.1 and 3.4 of the Anti-Dumping Agreement because the Panel failed 
properly to take into account the logical progression of inquiry contemplated under the various 
paragraphs of Article 3. In partic ular, Japan argues that, if an investigating authority, pursuant to 
the inquiry under Article 3.2, finds no increase in the volume of imports, and finds price effects only for certain, but not all, grades of the product, the investigating authority should conduct its 
analysis under Article 3.4 on the premise that those grades for which no price effects were found 
were not impacted by the dumped imports. In Japan's view, failing to do so would violate an investigating authority's obligation to make an objective examination of the consequent impact of the dumped imports based on positive evidence. 
5.200.  The European Union, for its part, argues that the Panel failed to take into consideration 
what the European Union refers to as a "unitary analysis": one which recognizes that it is "highly problematic" to distinguish between the concept of injury and the concept of causation, given that 
only what is caused by the dumped imports is correctly characterized as "injury" within the 
meaning of footnote 9 of the Anti-Dumping Agreement.
440 Accordingly, if, in the application of 
Article 3.5 of the Anti-Dumping Agreement, an inve stigating authority determines that a particular 
thing is a non-attribution factor, then, at the same time, anything caused by that non-attribution 
factor is not "injury" within the meaning of footnote 9 of the Anti-Dumping Agreement. The European Union argues that "[t]his necessarily means that it is not part of the 'impact of the dumped imports on the domestic industry' within the meaning of Article 3.4."
441 According to the 
European Union, in the present case, given that MOFCOM did not find volume and price effects 
arising out of imports of Grade A HP-SSST, Grade A should have been considered as a "non-attribution factor" within the meaning of Article 3. 5, and should therefore not have formed part of 
the impact analysis under Article 3.4.
442  
5.201.  China requests that we reject the appeals by the complainants and uphold the Panel's 
findings. China notes that Article 3.4 contemplates that an investigating authority must derive an 
understanding of the impact of dumped imports on the basis of the examination of the state of the 
industry. China considers that the obligation to derive an understanding of the impact of the dumped imports on the domestic industry must be  distinguished from the obligation to determine 
that the dumped imports are causing injury. China emphasizes that "the 'requirement to conduct a 
non-attribution analysis regarding all factors causing injury to the domestic industry' is laid down 
in Article 3.5, rather than in Article 3.4."
443 Furthermore, China highlights that Article 3.4 requires 
an investigating authority to derive an understanding of the impact of dumped imports on the 
state of the domestic industry as defined in Ar ticle 4.1 of the Anti-Dumping Agreement. This 
requirement applies irrespective of whether the consideration under Article 3.2 reveals price undercutting with respect to all domestic like products, or only with respect to some of such 
domestic like products.
444 
5.5.2.2.3  Analysis 5.202.  Article 3.4 of the Anti-Dumping Agreement provides:  
The examination of the impact of the du mped imports on the domestic industry 
concerned shall include an evaluation of all relevant economic factors and indices 
having a bearing on the state of the industry, including actual and potential decline in sales, profits, output, market share, producti vity, return on investments, or utilization 
of capacity; factors affecting domestic prices; the magnitude of the margin of 
dumping; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor 
can one or several of these factors necessarily give decisive guidance. 
                                               
440 European Union's other appellant's submission, para. 154. 
441 European Union's other appellant's submission, para. 155. 
442 European Union's response to qu estioning at the oral hearing. 
443 China's appellee's submission, para. 249 (quoting Appellate Body Report,  
China – GOES , paras. 128 and 149-150). 
444 China's appellee's submission, para. 251. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  5.203.  As discussed at paragraph 5.140 above, the various paragraphs of Article 3 contemplate a 
"logical progression" in the investigating authority's inquiry leading to an ultimate determination of whether dumped imports are causing material injury to the domestic industry.
445 As part of this 
logical progression of inquiry, Article 3.4 requires an investigating authority to examine 
"the impact of the dumped imports on the domestic industry". This examination must include 
"an evaluation of all relevant economic factors and indices having a bearing on the state of the industry". Article 3.4 then lists certain factors that "are deemed to be relevant in every 
investigation and which must always be evaluated by the investigating authorities".
446 Importantly, 
the Appellate Body has stressed that the evaluation of the relevant factors must respect the overarching principles set out in Article 3.1, requiring investigating authorities to conduct an objective examination based on positive evidence.
447  
5.204.  While the second sentence of Article 3.2 re quires an investigating authority to consider the 
effect of the dumped imports on prices , the focus of Article 3.4 is on the state of the domestic 
industry .448 The Appellate Body has clarified that it would be compatible with Article 3.4 for 
investigating authorities to evaluate factors having a bearing on the state of the domestic industry 
on the basis of an evaluation of specific part s, sectors, or segments within the domestic 
industry.449 Such a sectoral analysis "may be highly pertinent, from an economic perspective, in 
assessing the state of an industry as a whole ".450 As we see it, while there is no exclusive 
methodology prescribed for an investigating authority to conduct an examination under Article 3.4, an investigating authority's examination of the relationship between the dumped imports and the state of the domestic industry must be one that enables the investigating authority to derive an 
understanding about the impact of the dumped imports on the domestic industry as a whole .  
5.205.  Article 3.4 does not merely require an ex amination of the state of the domestic industry, 
but contemplates that "an investigating authority must derive an understanding of the impact of  
subject imports on the basis of such an examination".
451 Consequently, Article 3.4 is concerned 
with "the relationship between subject imports an d the state of the domestic industry, and this 
relationship is analytically akin to the type of link contemplated by the term 'the effect of' under 
Article[] 3.2".452 In other words, Article 3.4 requires an examination of the "explanatory force" of 
subject imports for the state of the domestic industry.453 As noted, the Appellate Body stated in 
China – GOES  that the inquiries under Article 3.2, and the examination required under Article 3.4, 
are necessary in order to answer the ultimate question in Article 3.5 as to whether dumped 
imports are causing injury to the domestic industry. The Appellate Body has clarified that, similar 
to the consideration under Article 3.2, the examination under Article 3.4 " contributes to , rather 
than duplicates, the overall determination required under Article[] 3.5".454 However, whilst an 
investigating authority is required to examine  the impact of dumped imports on the domestic 
industry pursuant to Article 3.4, it is not required to demonstrate  that dumped imports are causing 
injury to the domestic industry, which is an analysis specifically mandated by Article 3.5.455 
5.206.  Turning to the specific facts of this case, we recall that there were no imports of Grade A 
HP-SSST after 2008, and that MOFCOM did not make a finding of price undercutting in respect of Grade A.
456 We also recall that MOFCOM defined the domestic industry as comprising two domestic 
                                               
445 Appellate Body Report, China – GOES , para. 128. 
446 Appellate Body Report, US – Hot-Rolled Steel , para. 194 (referring to Appellate Body Report, 
Thailand – H-Beams , fn 36 to para. 128). 
447 Appellate Body Report, US – Hot-Rolled Steel , paras. 196-197. 
448 We observe that Article 4.1 of the Anti-Dumping Agreement defines the term  "domestic industry" as 
the "domestic producers as a whole of the like products" or "[domestic producers] whose collective output of 
the products constitutes a major proportion of the total domestic production". 
449 Appellate Body Report, US – Hot-Rolled Steel , para. 195. 
450 Appellate Body Report, US – Hot-Rolled Steel , para. 195 (referring to Panel Report, Mexico – Corn 
Syrup , fn 30 to para. 7.154). (emphasis added) 
451 Appellate Body Report, China – GOES , para. 149. (emphasis original) 
452 Appellate Body Report, China – GOES , para. 149.  
453 Appellate Body Report, China – GOES , para. 149. 
454 Appellate Body Report, China – GOES , para. 149. (emphasis original) 
455 Appellate Body Report, China – GOES , para. 150. 
456 Panel Reports, para. 7.137 (referring to MOFCOM's Final Determination (Panel Exhibits JPN-2-EN and 
EU-30), internal p. 53). WT/DS454/AB/R • WT/DS460/AB/R 
 
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  producers accounting for a major proportion of total domestic production of the domestic product 
comprising Grades A, B, and C.457  
5.207.  As noted, Article 3.4 requires the evaluation of all relevant economic factors and indices 
having a bearing on the state of the industry. These factors include actual and potential decline in 
sales, market share, and factors affecting domestic prices. Article 3.4, read together with 
Article 3.1, instructs investigating authorities to evaluate, objectively and on the basis of positive 
evidence, the importance and the weight to be a ttached to all the relevant factors. In every 
investigation, this evaluation turns on the "bearing" that the relevant factors have on the state of 
the domestic industry.458  
5.208.  In the present case, MOFCOM found that dumped imports of Grades B and C each held a 
market share of around 90% of its respective market segment.459 The majority of domestic sales, 
however, were of Grade A. The market share held by Grade A dumped imports in 2008 was only 
1.45%, and there were no Grade A imports thereafter.460 In the light of these factual findings by 
MOFCOM, we note the following finding by the Panel: 
We do not mean to suggest that the scope of MOFCOM's price effects conclusions is of 
no relevance to the remainder of MOFCOM's injury analysis. As previously noted, a limited finding of price undercutting will have obvious implications for an authority's 
assessment of whether dumped imports caused material injury to the domestic 
industry. However, this is an assessment to be made pursuant to Article 3.5, rather than 3.4, of the Anti-Dumping Agreement.
461  
5.209.  We agree with the Panel that the results of the inquiries, pursuant to Article 3.2, relating to 
the volume of the dumped imports and the effects of  the dumped imports on prices are relevant to 
the causation analysis required under Article 3.5. However, unlike the Panel, we consider that the results of these inquiries are also relevant to the impact analysis required under Article 3.4, given 
that this provision requires the evaluation of all relevant economic factors and indices having a 
bearing on the state of the industry, including ma rket share and factors affecting domestic prices. 
Significantly, as discussed at paragraph 5.141 above, the disciplines that apply under Article 3, 
while distinct, are interlinked and logically prog ress to answering the question of whether the 
dumped imports are causing injury to the domestic industry. As the Appellate Body stated in 
EC 
 Tube or Pipe Fittings , "Article 3.1 and the succeeding paragraphs of Article 3 clearly indicate 
that volume and prices, and the consequent impact on the domestic industry, are closely 
interrelated for purposes of the injury determination."462 Accordingly, we do not agree with the 
Panel that, because the results of the inquiry under Article 3.2 are relevant for an investigating 
authority's causation and non-attribution analyses under Article 3.5, they are not relevant for the impact analysis under Article 3.4.
463 
5.210.  We recall that, in the present case, the majority of Chinese domestic production consisted 
of Grade A HP-SSST464, but Chinese producers also produced Gr ades B and C. We further note that 
MOFCOM "defined the domestic industry as comp rising two domestic producers accounting for the 
major proportion of total domestic production" of HP-SSST.465 We agree with the Panel that it was 
therefore appropriate for MOFCOM to examine the impact of the dumped imports on the state of 
"those two producers, with respect to th eir production of all types of HP-SSST".466 Contrary to 
                                               
457 MOFCOM's Final Determination (Pan el Exhibits JPN-2-EN and EU-30), internal p. 28. See also Panel 
Reports, para. 7.153. The two domestic producers are Jiangsu Wujin Stainless Steel Pipe Group Co., Ltd. and Changshu Walsin Specialty Steel Co., Ltd. 
458 Appellate Body Report, US – Hot-Rolled Steel , paras. 196-197. 
459 Panel Reports, para. 7.182 (referring to MOFCOM's Final Determination (Panel Exhibits JPN-2-EN and 
EU-30), internal p. 66 (translation amended by Panel Exhibit CHN-16-EN, an d accepted by the complainants in 
Panel Exhibits JPN-29 and EU-32)). 
460 Panel Reports, para. 7.182 (referring to MOFCOM's Final Determination (Panel Exhibits JPN-2-EN and 
EU-30), internal p. 65). 
461 Panel Reports, fn 281 to para. 7.152. 
462 Appellate Body Report, EC – Tube or Pipe Fittings , para. 115. 
463 We note, moreover, that the Pane l's reading of Article 3.4 appears to have been premised on its 
interpretation of Article 3.2 of the Anti-Dumping Ag reement, which we have re versed above. (See Panel 
Reports, para. 7.152) 
464 Panel Reports, fn 270 to para. 7.142, and fn 324 to para. 7.182. 
465 Panel Reports, para. 7.153. 
466 Panel Reports, para. 7.153. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  what the European Union appears to suggest, such an approach would not necessarily mean that 
the investigating authority's ultimate  determination of injury will include injury that is not 
attributable  to the dumped imports.467 Moreover, Article 3.5 expressly requires an investigating 
authority to "also examine any known factors other than the dumped imports which at the same 
time are injuring the domestic industry, and the in juries caused by these other factors must not be 
attributed to the dumped imports."  
5.211.  Having said this, we note that Article 3.4 does not merely require an examination of the 
state of the domestic industry, but contemplates that an investigating authority "must derive an 
understanding of the impact of  subject imports on the basis of such an examination."468 The 
evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including market share and factors affecting domestic prices, must be such that it 
provides a "meaningful basis"
469 for an analysis of whether the dumped imports are, through the 
effects of dumping, as set forth in Articles 3.2 and 3.4, causing injury to the domestic industry. Depending on the particular circumstances of each case, an investigating authority may therefore 
be required to take into account, as appropriate, the relative market shares of product types with 
respect to which it has made a finding of price undercutting; and, for example, the duration and extent of price undercutting, price depression or price suppression, that it has found to exist. 
5.212.  In the light of the above, we find that the Panel erred in its interpretation of Articles 3.1 
and 3.4 of the Anti-Dumping Agreement to the exte nt it found that the results of the inquiries 
under Article 3.2 are not relevant to the impact analysis under Article 3.4. We understand the Panel to have relied on its erroneous interpretation of Articles 3.1 and 3.4 in rejecting, in 
paragraphs 7.170 of the Panel Reports, paragraph 8.2.a.ii of the Japan Panel Report, and 
paragraph 8.7.b.ii of the EU Panel Report, the complainants' claims that China acted inconsistently with Articles 3.1 and 3.4 of the Anti-Dumping Agreement because MOFCOM was required to, but 
did not, undertake a segmented impact analysis. Accordingly, we reverse these findings by the 
Panel. Having found that China acted inconsistently with its obligations under Articles 3.1 and 3.2 
of the Anti-Dumping Agreement, and in the light of  the Panel's finding that MOFCOM's analysis of 
the impact of dumped imports on the domestic industry is inconsistent with China's obligations 
under Articles 3.1 and 3.4 because MOFCOM faile d to evaluate properly the magnitude of the 
margin of dumping, we do not consider that additional findings under Articles 3.1 and 3.4 are required to resolve these disputes. 
5.5.3  MOFCOM's causation analysis  – Articles 3.1 and 3.5 of the 
Anti-Dumping Agreement 
5.213.  Before the Panel, Japan and the European Union claimed that MOFCOM's causation 
analysis is inconsistent with Articles 3.1 and 3.5 of the Anti-Dumping Agreement for several 
reasons. The Panel found that MOFCOM's reference to the market shares held by subject imports was "not sufficient to establish that subject imports, through price undercutting, had 'a relatively 
big impact on the price of the like domestic produc ts', and therefore caused injury to the domestic 
industry through their price effects."
470 In addition, the Panel concluded that, because it had found 
that certain aspects of MOFCOM's price effects and impact analyses were inconsistent with Articles 3.2 and 3.4 of the Anti-Dumping Agr eement, MOFCOM's subsequent reliance on those 
analyses in the context of its causation determination was inconsistent with Article 3.5 of the 
Anti-Dumping Agreement.
471 The Panel also found that China acted inconsistently with Articles 3.1 
and 3.5 of the Anti-Dumping Agreement because MOFC OM failed properly to ensure that the injury 
caused by the decrease in apparent consumption and the increase in domestic production capacity 
was not attributed to the dumped imports.472 
5.214.  Each of the participants appeals different aspects of the Panel's findings. China alleges that 
the Panel erred in concluding that Japan's panel request, as it relates to MOFCOM's reliance on the 
market share of dumped imports in order to dete rmine causation, provides a "brief summary of 
                                               
467 See European Union's other appellant's submission, paras. 154-156. 
468 Appellate Body Report, China – GOES , para. 149. (emphasis original) 
469 Appellate Body Report, China – GOES , paras. 145 and 154. 
470 Panel Reports, para. 7.188. 
471 Panel Reports, para. 7.191. 
472 Panel Reports, para. 7.204. We note that the Panel referred interchangeably in its discussion to the 
"decline" or "decrease in apparent consumption" and th e "drop" or "decline in domestic demand". (See e.g. 
Panel Reports, paras. 7.169, 7.196, and 7.203) WT/DS454/AB/R • WT/DS460/AB/R 
 
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  the legal basis of the complaint sufficient to present the problem clearly", as required by 
Article 6.2 of the DSU.473 China submits that the Panel incorrectly interpreted and applied 
Article 3.5 of the Anti-Dumping Agreement in fi nding that MOFCOM improperly relied on the 
market share of dumped imports in determining that such imports, through price undercutting, 
caused injury to the domestic industry. China also asserts, in this regard, that the Panel acted 
inconsistently with Article 11 of the DSU by ruling on a claim for which the complainants failed to make a prima facie  case.
474 For their part, Japan and the European Union contend that the Panel 
acted inconsistently with Article 11 of the DSU in finding that the complainants had not brought 
independent claims under Article 3.5 of the Anti-Dumping Agreement other than those concerning MOFCOM's reliance on the market share of du mped imports, and MOFCOM's non-attribution 
analysis. We begin by recalling the Panel's findings before turning to the specific issues raised in 
these appeals. 
5.5.3.1  The Panel's assessment of MOFCOM's causation analysis 5.5.3.1.1  The Panel's findings 
5.215.  The Panel summarized MOFCOM's causation analysis as follows:
  
MOFCOM determined that "the large quantiti es of imports of the subject products … 
dumped into China at low prices" caused material injury to the domestic industry. The 
determination was based on the price effects of the subject imports. MOFCOM did not 
find that subject imports had any volume effects on the domestic industry, in light of the fact that the absolute volume of subject imports declined during the period of investigation. However, MOFCOM did find that the market share of subject imports as 
a whole "remained high at around 50%". MOFCOM also found that the market share 
held by subject imports of both Grade B and C was around 90%. MOFCOM considered this market share relevant in assessing the price undercutting effect of subject 
imports. After considering the market share data and pricing information, MOFCOM 
found that "the imports of the subject products had a relatively big impact on the price of domestic like products".
475 
5.216.  Based on its review of MOFCOM's analysis, the Panel found that "MOFCOM [had] failed to 
account for the fact that the market share of subject imports had actually dropped from around 90% in 2008 and 2009 to around 50% in 2010 and [the first half of] 2011, and that domestic market shares increased correspondingly."
476 The Panel observed that, "[w]hile an investigating 
authority might properly determine, given the necess ary facts, that high market shares exacerbate 
the price effects of dumped imports, an objective and impartial investigating authority would also consider whether the fact that import market shares are declining significantly indicates that the 
price effects are in fact somewhat attenuated."
477  
5.217.  The Panel recalled that the market share of imported Grade B fluctuated, the market share 
of imported Grade C decreased during the POI, and the majority of domestic sales were of 
Grade A.478 The Panel also found that the market share held by Grade A dumped imports in 2008 
was only 1.45%, and that there were no Grade A dumped imports thereafter.479 The Panel noted 
that, although dumped imports and domestic sales were concentrated in different segments of the HP-SSST market, "MOFCOM made no finding of  cross-grade price effects, whereby price 
                                               
473 China's other appellant' s submission, para. 57. 
474 China's appellant's submission, para. 165; other appellant's submission, para. 70. 
475 Panel Reports, para. 7.171 (quoting MOFCOM's Final Determination (Panel Exhibits JPN-2-EN and 
EU-30), internal pp. 65-67 (transl ation amended by Panel Exhibit CHN-16-EN and accepted by the 
complainants in Panel Exhibits JPN-29 and EU-32); and referring to China's first written submission to the 
Panel, paras. 516-518). See also Panel Reports, para. 7.172 (referring to MOFCOM's Final Determination (Panel 
Exhibits JPN-2-EN and EU-30), internal p. 66. 
476 Panel Reports, para. 7.181 (referring to MOFCOM's Final Determination (Panel Exhibits JPN-2-EN and 
EU-30), internal pp. 43-49). 
477 Panel Reports, para. 7.181. 
478 Panel Reports, para. 7.182 (referring to MOFCOM's Final Determination (Panel Exhibits JPN-2-EN and 
EU-30), internal pp. 44 and 66). 
479 Panel Reports, para. 7.182 (referring to MOFCOM's Final Determination (Panel Exhibits JPN-2-EN and 
EU-30), internal p. 65). WT/DS454/AB/R • WT/DS460/AB/R 
 
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  undercutting by subject imports of Grades B and C might be shown to affect the price of domestic 
sales of Grade A."480 The Panel stated that it: 
… would [have] expect[ed] an objective and impartial investigating authority to have 
examined and explained how the 90% market shares of Grade B and C subject imports 
enabled those imports, through price effects, to cause injury to the domestic industry 
as a whole, notwithstanding the fact that the bulk of domestic production was of Grade A, the sales and market share of domestic Grade A increased, the negligible 
market share of subject imports of Grad e A and the absence of cross-grade price 
effects, and despite the decline in the absolute volume of those imports and the declining market share of Grade C imports and the fluctuating market share of Grade B.
481 
5.218.  The Panel added that, in the absence of any such examination or analysis, it remained 
"unclear" how the market shares of imports of Grade B and Grade C HP-SSST were "relevant in assessing whether subject imports caused injury to a domestic industry producing primarily 
Grade A".
482  
5.219.  Responding to China's argument that the existence of cross-grade price correlation is a 
"normal feature" for a single product consisti ng of high-end and low-end grades, the Panel 
observed that there was no "meaningful analysis" in MOFCOM's Final Determination of whether or 
how this feature manifests itself in the specific circumstances of this case.483 Instead, MOFCOM left 
open the degree of impact that movements of prices of imported Grades B and C might have on the price of domestic Grade A, and made no assessment of whether the effect would be minimal, 
or sufficiently pronounced to cause prices for domestic Grade A to fall by the amounts that they 
did.
484  
5.220.  The Panel also found that MOFCOM had failed to evaluate record evidence indicating that 
trends in domestic prices by grade had no apparent  relationship in terms of magnitude or trends in 
import prices, noting that "[a]n objective and impartial investigating authority would not have 
found price correlation without at least addressing, and explaining, such contrary price 
movements."485 The Panel added that, in addition to not making a finding that the prices of 
imported Grades B and C had "pushed down" the price of domestic Grade A, "MOFCOM never considered, and certainly failed to exclude, the equally logical possibility that Grade B and C 
subject import prices declined in response to the decline in domestic Grade A prices in 2009 and 
2010, in order to maintain the price differential between the various grades."
486  
5.221.  For these reasons, the Panel concluded that "MOFCOM's reference to the market shares 
held by subject imports was not sufficient to establish that subject imports, through price 
undercutting, had 'a relatively big impact on the pr ice of the domestic like products', and therefore 
caused injury to the domestic industry through their price effects."487 Having found that MOFCOM's 
reliance on the market share of dumped imports was "central" to its ultimate determination that 
dumped imports, through their price effects, caus ed injury to the domestic industry, the Panel 
concluded that the flaws in MOFCOM's analysis of  the market share of dumped imports rendered 
its causation determination inconsistent with Articles 3.1 and 3.5 of the Anti-Dumping Agreement.
488 
                                               
480 Panel Reports, para. 7.182. 
481 Panel Reports, para. 7.182. 
482 Panel Reports, para. 7.182. 
483 Panel Reports, paras. 7.183-7.184. 
484 Panel Reports, para. 7.185 (referring to MOFCOM's Final Determination (Panel Exhibits JPN-2-EN 
and EU-30), internal p. 48). 
485 Panel Reports, para. 7.186 and fn 335 thereto (referring to China's second written submission to the 
Panel, para. 155). 
486 Panel Reports, para. 7.187. 
487 Panel Reports, para. 7.188. 
488 Panel Reports, paras. 7.188 and 7.205. WT/DS454/AB/R 
 
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 5.5.3.1.2  Japan's panel request and Article 6.2 of the DSU 
5.222.  We begin by examining China's claim that the Panel erred in concluding that Japan's panel 
request, as it relates to MOFCOM's reliance on the market share of dumped imports in order to determine causation, provides a "brief summary of the legal basis of the complaint sufficient to 
present the problem clearly", as required by Arti cle 6.2 of the DSU. According to China, Japan's 
panel request, as it relates to MOFCOM's analysis of causation, was limited to "claims" regarding the lack of volume effects and flaws in MOFCOM's  price effects and impact analyses, and did not 
include a claim regarding MOFCOM's reliance on the market share of dumped imports.
489 
5.223.  In response, Japan argues that it properly raised a claim regarding MOFCOM's reliance on 
the market share of dumped imports. Japan further disputes China's contention that its claims under Articles 3.1 and 3.5 of the Anti-Dumping Agreement were limited to a "volume analysis 
based claim" and claims based on MOFCOM's pric e effects and impact analyses, which are "purely 
consequential" to the alleged violations of Arti cles 3.2 and 3.4 of the Anti-Dumping Agreement.
490 
5.224.  Japan's panel request states, in relevant part: 
Japan considers that the measures at issue are inconsistent with, at least, China's 
obligations under the following provisions of the Anti-Dumping Agreement:  
1. Articles 3.1, 3.2, 3.4, and 3.5 because China's injury determination was not based 
on positive evidence and did not involve an objective examination of the volume of the 
dumped imports under investigation, the effect of those imports on prices in the domestic market for like products, and the consequent impact of those imports on domestic producers of such products. Specifically:  
… 
(c) China's demonstration of the alleged causal relationship between the imports under 
investigation and the alleged injury to the domestic industry was not based on an 
objective examination of all relevant evidence before the authorities. In particular, 
China determined that the allegedly dumped imports are causing injury despite an absence of a significant increase in the vo lume of dumped imports, and based on its 
flawed price effects and impact analyses. Accordingly, China acted inconsistently with 
Articles 3.1 and 3.5 of the Anti-Dumping Agreement.
491 
5.225.  As discussed, the obligations that apply to  an investigating authority's determination of 
injury are found in Article 3 of the Anti-Dumping Agreement. The first two sentences of Article 3.5 
identify the causal link that must be shown in reaching an injury determination. These sentences 
expressly require investigating authorities to demonstrate that the dumped imports are causing injury, and stipulate that such "demonstration of a causal relationship between the dumped 
imports and the injury to the domestic inju ry shall be based on an examination of all relevant 
evidence  before the authorities".
492 Moreover, the disciplines under Article 3.5 are linked to the 
fundamental obligations set out in Article 3.1, namely, that an investigating authority must 
conduct an "objective examination" based on "positive evidence". 
5.226.  In relation to its claims under Article 3. 5 of the Anti-Dumping Agreement, Japan stated in 
its panel request that MOFCOM's injury determination "did not involve an objective examination of the volume of the dumped imports under investigation, the effect of those imports on prices in the 
domestic market for like products, and the consequent impact of those imports on domestic 
producers of such products."
493 Japan submitted, "[i]n particular", that MOFCOM "determined that 
the allegedly dumped imports are causing injury despite an absence of a significant increase in the 
                                               
489 China's other appellant's submission, para s. 58-59 and 61 (referring to Panel Report, 
US – Corrosion-Resistant Steel Sunset Review , para. 7.53; and Japan Panel Report, para. 7.188). China also 
argues that Japan's subsequent submissions to the Pane l confirm the limited scope of Japan's panel request. 
(China's other appellant' s submission, para. 66) 
490 Japan's appellee's submission, para. 16 (referring to China's other appellan t's submission, para. 49). 
491 Japan's panel request, pp. 1-2. 
492 Emphasis added. 
493 Japan's panel request, para. 1. WT/DS454/AB/R 
 
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  volume of dumped imports, and based on its flawed price effects and impact analyses."494 
With regard to MOFCOM's allegedly "flawed price effects and impact analyses", we recall that paragraphs 1(a) and 1(b) of Japan's panel request read as follows: 
(a) In its price effects analysis, China failed to conduct proper analyses with respect to 
the three different grades of HP-SSST products under investigation and the HP-SSST 
products as a whole, and China improperly concluded that the imports under investigation had an overall significant effect on the prices of like domestic products. 
Accordingly, China acted inconsistently with  Articles 3.1 and 3.2 of the Anti-Dumping 
Agreement. 
(b) China's analysis of the impact of the dumped imports on the domestic industry: 
(i) failed to make an objective examination, based on positive evidence, of the impact 
of subject imports on the domestic industry  based on the volume of such imports and 
their effect on prices; (ii) failed to evaluate the magnitude of the margin of dumping; and (iii) failed to objectively determine the relative importance and weight to be 
attached to relevant economic factors and indices, and improperly disregarded the 
majority of those factors and indices indicating that the domestic industry did not suffer material injury. Accordingly, China acted inconsistently with Articles 3.1 and 3.4 
of the Anti-Dumping Agreement. 
5.227.  We are of the view that this language in  Japan's panel request, when read together with 
the reference to Articles 3.1 and 3.5 of the Anti -Dumping Agreement, is sufficiently clear to 
present, in a manner consistent with Article 6.2 of the DSU, a problem concerning MOFCOM's 
analysis of whether "the dumped imports are, th rough the effects of dumping, as set forth in 
paragraphs 2 and 4, causing injury" to the domestic industry, as required under Article 3.5 of the Anti-Dumping Agreement. We do not see why Japan would have been obliged to present a 
separate  "problem" regarding MOFCOM's "reliance on the market share of subject imports" on 
separate  grounds, distinct from the other issues it raised with regard to MOFCOM's determination 
of causation. 
5.228.  As we understand it, the Panel characterized the issues raised by the complainants 
(including Japan), under Article 3.5 of the Anti-Dumping Agreement, as a problem relating to whether MOFCOM's "reliance on the market share of subject imports" constituted a sufficient basis for MOFCOM's finding of causation under Article 3.5. In addressing this question, the Panel noted, 
for example, that MOFCOM had not explained: 
… how the 90% market shares of Grade B and C subject imports enabled those 
imports, through price effects, to cause injury to the domestic industry as a whole, 
notwithstanding the fact that the bulk of domestic production was of Grade A, the 
sales and market share of domestic Grade A increased, the negligible market share of subject imports of Grade A and the absence of cross-grade price effects, and despite 
the decline in the absolute volume of thos e imports and the declining market share of 
Grade C imports and the fluctuating market share of Grade B imports. MOFCOM failed 
to provide any such explanation. In the absence of any such examination or analysis, it remains unclear how the market shares of imports of Grade B and C HP-SSST are 
relevant in assessing whether subject imports caused injury to a domestic industry 
producing primarily Grade A HP-SSST.
495 
5.229.  The Panel's reasoning quoted above makes clear, in our view, that the Panel referred to 
the issues raised by the complainants, both in the context of MOFCOM's price effects and impact 
analyses, as well as in the context of causation , as questions going to whether MOFCOM erred in 
relying on the "market share" of dumped imports. Rather than referring directly  to factors that 
MOFCOM did not rely on (or explain) in the context of its causation analysis, the Panel referred to 
what MOFCOM, in the Panel's view, did rely on – i.e. the "market share" of dumped imports. The 
fact that the Panel described Japan's claim (and the European Union's claim) in this manner does not mean that it was, therefore, addressing a claim that was outside the scope of its terms of 
reference. Nor does it mean that Japan's panel request does not comply with the standard set out 
in Article 6.2 of the DSU.  
                                               
494 Japan's panel request, para. 1(c). 
495 Japan Panel Report, para. 7.182. WT/DS454/AB/R 
 
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  5.230.  China asserts that the expression "in particular", in Japan's panel request, limits the 
coverage of the panel request to claims  regarding the lack of volume effects, and flaws in 
MOFCOM's price effects and impact analyses.496 We recall that compliance with the requirements 
of Article 6.2 of the DSU must be assessed in the light of the language contained in Japan's panel 
request as a whole . The second sentence of paragraph 1(c) of the panel request starts with the 
expression "in particular", and refers to MOFCOM's determination that "the allegedly dumped imports are causing injury despite an absence of a significant increase in the volume of dumped 
imports, and based on its flawed price effects an d impact analyses". We understand the expression 
"in particular" to indicate that Japan's claims under Articles 3.1 and 3.5 of the Anti-Dumping Agreement focused  on the manner in which MOFCOM determined that the dumped 
imports were causing injury, "despite an absence of a significant increase in the volume of dumped 
imports, and based on its flawed price effects and impact analyses".  
5.231.  China also argues that the reference in Japan's panel request to MOFCOM's causation 
determination being "based on" MOFCOM's flawed price effects analysis "unambiguously shows 
that the claim is purely consequential to the claim of violation of Article 3.2 as regards the price 
effects analysis".
497 In addition, China submits that "the reference to 'flawed' presupposes  a 
finding that the price effects analysis is found to be violating Article 3.2."498 
5.232.  As noted above, Japan's panel request refers to MOFCOM's determination that "the 
allegedly dumped imports are causing injury despite an absence of a significant increase in the volume of dumped imports, and based on its flawed price effects and impact analyses ."
499 As the 
Appellate Body has explained, while being "nec essary" and forming the "basis" for the overall 
causation analysis, the inquiries under Articles 3.2 and 3.4 do not result in duplicating, but rather 
contribute to, the causation analysis under Article 3.5.500 While we understand Japan's claims 
under Article 3.2 to have concerned MOFCOM's consideration of the relationship between the 
prices of the dumped imports and domestic prices , we read the language in Japan's panel request 
to indicate that its claims under Article 3.5 were more broadly  concerned with MOFCOM's alleged 
failure to demonstrate properly the existence of a "causal relationship" between the dumped 
imports and injury to the domestic industry501 on the basis of an examination of "all relevant 
evidence" before the investigating authority including : (i) the volume of the dumped imports and 
their price effects listed under Article 3.2; as well  as (ii) the results of the evaluation of all the 
relevant economic factors and indices having a bearing on the state of the domestic industry, as 
required under Article 3.4. Thus, while Japan ma y have also brought consequential claims under 
Article 3.5 flowing from errors under Articles 3.2 and 3.4 of the Anti-Dumping Agreement, we understand Japan's primary claim under Article 3.5 to have related to MOFCOM's failure to make 
an overall determination of causation in the light of record evidence regarding the volume, price 
effects, and impact of dumped imports (consisting mainly of Grades B and C) on the domestic 
industry (producing mainly Grade A HP-SSST). 
5.233.  In the light of the above, we find that the Panel did not act inconsistently with Article 6.2 
of the DSU by addressing Japan's claims under  Article 3.5 of the Anti-Dumping Agreement 
regarding "MOFCOM's reliance on the market shar e of subject imports", in paragraphs 7.180-7.188 
of the Japan Panel Report. 
                                               
496 China's other appellant's submis sion, para. 62. We have discussed  the legal standard applicable 
under Article 6.2 of the DSU at paras. 5.11-5.16 of these Reports. 
497 China's other appellant' s submission, para. 64. 
498 China's other appellant's submis sion, para. 64. (emphasis added) 
499 Japan's panel request, pa ra. 1(c). (emphasis added) 
500 Appellate Body Report, China – GOES , paras. 147 and 149. 
501 Appellate Body Report, China – GOES , paras. 147 and 149. WT/DS454/AB/R • WT/DS460/AB/R 
 
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 5.5.3.1.3  Whether the Panel made the case for the complainants 
5.234.  China argues that, in making findings re garding "MOFCOM's reliance on the market share 
of subject imports", the Panel acted inconsistently with Article 11 of the DSU by ruling on a claim that had not been articulated by the complainants, and in relation to which the complainants had 
raised no arguments. In the alternative, China argues that the Panel deprived China of its due 
process rights and "made the case" for both Japan and the European Union by ruling on a claim in 
respect of which the complainants had failed to make a prima facie  case.
502  
5.235.  Referring to their first and second written submissions to the Panel and opening 
statements at the first and second meetings of th e Panel, the complainants submit that they made 
a prima facie  case regarding MOFCOM's reliance on the market share of dumped imports, factoring 
in the same aspects of MOFCOM's price effects and impact analyses that the Panel considered in its 
assessment of the matter at paragraphs 7.181 to 7.188 of the Panel Reports.503 The complainants 
submit that they presented "evidence and legal argument" to establish that MOFCOM's failure to 
consider the market share of dumped imports in the context of all relevant evidence, including 
evidence relating to price effects and impact, resulted in a causation determination that is 
inconsistent with Articles 3.1 and 3.5 of the Anti-Dumping Agreement.504 They argue that China 
appears to divide improperly and artificially  their overarching claim and arguments under 
Articles 3.1 and 3.5 "into pieces", when these claims and arguments should instead be considered 
"as a whole ".505 
5.236.  In US – Gambling , the Appellate Body specified that "[a] prima facie  case must be based 
on 'evidence and legal argument' put forward by the complaining party in relation to each of the 
elements of the claim."506 The Appellate Body further stated that "[a] complaining party may not 
simply submit evidence and expect the panel to divine from it a claim of WTO-inconsistency. Nor may a complaining party simply allege facts without relating them to its legal arguments."
507 
Moreover, the evidence and legal argumentation put forward in a prima facie  case must be 
sufficient to identify the challenged measure and its basic import, to identify the relevant WTO provision and obligation contained therein, and to explain the basis for the claimed inconsistency 
of the measure with that provision.
508 In Canada – Renewable Energy / Canada – Feed-in Tariff 
Program , the Appellate Body explained that, "while a panel cannot make the case for a 
complainant, it has the competence 'freely to us e arguments submitted by any of the parties – or 
to develop its own legal reasoning – to support its own findings and conclusions on the matter 
under its consideration'."509 Once a complainant has made out a prima facie  case, a panel is 
required to develop its own reasoning in order to make an objective assessment of the matter before it and is required to set out in its report the basic rationale behind any findings and 
recommendations that it makes.
510 Panels and the Appellate Body are not constrained by the 
parties' arguments in developing legal reasoning. 
5.237.  In their first written submissions to the Panel, the complainants argued that MOFCOM's 
causation determination lacks any foundation in its analysis of the volume, price effects, and 
impact of dumped imports, and stated that "a finding of causation is  dependent  upon the 
outcomes of the investigating authority's analyses of the previous steps – namely, the volume and price effects of dumped imports and their impact on the domestic industry producing like 
                                               
502 See China's appellant's submission, para. 165; an d other appellant's submission, paras. 91 and 98. 
503 Japan's appellee's submission, para. 25; Europe an Union's appellee's submission, para. 241. 
504 Japan's appellee's submission, para. 25 (emphasis or iginal; fn omitted); European Union's appellee's 
submission, para. 241.  
505 Japan's appellee's submission, para. 26; European Union's appellee's submission, para. 242 (quoting 
Appellate Body Reports, US – Carbon Steel , para. 127; Korea – Dairy , paras. 124-127; and Thailand – 
H-Beams , para. 95). (emphasis added by Japan and the European Union) 
506 Appellate Body Report, US – Gambling , para. 140 (quoting Appellate Body Report,  
US – Wool Shirts and Blouses , p. 16, DSR 1997:I, p. 336). (emphasis added in US – Gambling ) 
507 Appellate Body Report, US – Gambling , para. 140 (referring to Appellate Body Report, Canada – 
Wheat Exports and Grain Imports , para. 191). 
508 Appellate Body Report, US – Gambling , para. 141. 
509 Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program , para. 5.215 
(quoting Appellate Body Report, EC – Hormones , para. 156). 
510 See Articles 11 and 12.7 of the DSU. Article 12.7 provides in relevant part: "[T]he report of a panel 
shall set out the findings of fact, the applicability of relevant provisions and the basic rationale behind any findings and recommenda tions that it makes." WT/DS454/AB/R • WT/DS460/AB/R 
 
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  products."511 The complainants further referred to alleged flaws in MOFCOM's (i) volume analysis, 
(ii) price effects analysis, and (iii) impact analysis to argue that, "by grounding its causation determination on its volume, price effects, and impact analyses, which did not support a finding of injury, [MOFCOM/China] failed to conduct an objective examination, based on positive evidence, of 
the existence of a causal link between [the su bject imports/HP-SSST impo rts] and [the injury 
itself/injury], inconsistently with Articles 3.1 and 3.5 of the Anti-Dumping Agreement."
512 Both 
complainants also referred to MOFCOM's determination of causation on the basis of the "market 
share" held by dumped imports at the end of the POI.513 
5.238.  In the light of the above, we consider  that Japan and the European Union put forward 
sufficient evidence and legal argument to support their claims under Article 3.5 of the 
Anti-Dumping Agreement. Accordingly, we find that the Panel did not act inconsistently with 
Article 11 of the DSU by ruling on a matter that was not before it, or making the case for the complainants. 
5.5.3.1.4  Whether the Panel erred in find ing that MOFCOM's causation analysis is 
inconsistent with Articles 3.1 and 3.5 of the Anti-Dumping Agreement 
5.239.  China alleges that the Panel erred in its interpretation and application of Articles 3.1 
and 3.5 of the Anti-Dumping Agreement, and acted inconsistently with Article 11 of the DSU, in 
concluding that MOFCOM's reliance on the market share of dumped imports was not sufficient to 
establish that these imports had "a relatively big impact on the price of the domestic like 
products", and that they caused injury to the domestic industry through their price effects.
514 
5.240.  China challenges, in essence, two aspects of the Panel's assessment. First, China takes 
issue with the Panel's review of MOFCOM's analysis of the market share of dumped imports. In this 
context, China raises a claim under Article 11 of the DSU as its primary claim. China then raises a claim regarding the Panel's interpretation and application of Articles 3.1 and 3.5 of the Anti-
Dumping Agreement, alleging that the Panel erred to the extent that it found that "MOFCOM was 
required to assess the nature and extent of th e injurious effects of the dumped imports (as 
distinguished from those of other known factors), in order to find that the imports of the subject 
products had an impact on the domestic industry through their price effects."
515  
5.241.  Second, China asserts that the Panel erred in dismissing MOFCOM's finding of "price 
correlation" as a sufficient basis for a demonstration of cross-grade price effects, including, in particular, the requirement to assess how the ma rket shares of Grade B and C dumped imports 
enabled those imports, through price effects, to ca use injury to the domestic industry as a whole, 
which produces mainly Grade A products.
516 As further analysed below, we understand that most 
of China's arguments raised in this context relate to the objectivity of the Panel's assessment of 
the matter before it, rather than going to the question of whether the Panel correctly applied the 
legal standard under Articles 3.1 and 3.5 of the An ti-Dumping Agreement to the facts of the case.  
5.242.  In our following analysis, we begin, therefore, by briefly setting out WTO jurisprudence 
regarding the requirements of Article 11 of the DSU. We then analyse the arguments raised by 
China in the context of its claim of error under Article 11 of the DSU. For each issue raised by 
                                               
511 Japan's first written submission to the Panel, para . 190; European Union's first written submission to 
the Panel, paras. 280-282. (emphasis original) 
512 Japan's first written submission to the Panel, para . 209; European Union's first written submission to 
the Panel, para. 299. 
513 See e.g. Japan's first written submission to th e Panel, paras. 198-201. See also European Union's 
oral statement at the first Panel meeting, paras. 117-119 and 122-123). In their second written submissions to the Panel, the complainants  referred back to their first written su bmissions, reiterating that "MOFCOM's 
causation analysis was flawed because it did not logica lly progress from its volume, price effects, and impact 
analyses"; and "China's causation determination lacks any foundation in its analysis of the volume, price effects, and impact of HP- SSST imports." (See Japan's second written submission to the Panel, para. 56; and 
European Union's second written submission to the Panel, para. 176) 
514 China's appellant's submission, para. 207; other appellant's submission, para. 114. 
515 China's appellant's submission, para. 216; other appellant's submission, para. 123. According to 
China, such an obligation may exist in the context of a non-attribution analysis, but does not apply in the 
context of the first step of the causation analysis, which is the subject of this aspect of China's appeal. 
516 See China's other appellant's submission, para. 125. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  China, we will also examine separately any arguments that implicate the Panel's application of the 
law to the facts. 
5.5.3.1.4.1  Arti cle 11 of the DSU 
5.243.  In previous disputes, the Appellate Body has noted that a panel is required to "consider all 
the evidence presented to it, assess its credibility, determine its weight, and ensure that its factual 
findings have a proper basis in that evidence".517 Within these parameters, "it is generally within 
the discretion of the [p]anel to decide which evidence it chooses to utilize in making findings."518 
5.244.  A claim that a panel has failed to conduct an "objective assessment of the matter before it" 
is "a very serious allegation".519 An appellant may not effectively recast its arguments before the 
panel under the guise of a claim under Article 11 of the DSU, but must identify specific errors520 
that are so material that, "taken together or singly"521, they undermine the objectivity of the 
panel's assessment of the matter before it.522 A challenge under Article 11 of the DSU must "stand 
by itself and be substantiated with specific arguments, rather than merely being put forth as a subsidiary argument or claim in support of a cl aim of a panel's failure to construe or apply 
correctly a particular provision of a covered agreement."
523 
5.245.  With these considerations in mind, we turn to consider the two specific elements of China's 
challenge to the Panel's assessment of MOFCOM's findings on causation. 
5.5.3.1.4.2  The Panel's assessment regarding MOFCOM's findings concerning the market 
share of imports 
5.246.  With regard to the market share of dumped imports, the Panel found that: 
… although MOFCOM relied on the fact that the market share of subject imports 
"remained high at around 50%", MOFCOM failed to account for the fact that the 
market share of subject imports had actual ly dropped from around 90% in 2008 and 
2009 to around 50% in 2010 and [the first half of] 2011, and that domestic market 
shares increased correspondingly. While an investigating authority might properly 
determine, given the necessary facts, that high market shares exacerbate the price 
effects of dumped imports, an objective and impartial investigating authority would 
also consider whether the fact that import  market shares are declining significantly 
indicates that the price effects are in fact somewhat attenuated.524 
5.247.  China takes issue with these findings by the Panel, arguing that the Panel "disregard[ed] 
the part of MOFCOM's Final Determination addressing causation and distorts the findings reached 
by MOFCOM".525 China points to an excerpt of MOFCOM's Final Determination, stating that, in 
2008, 2009, and 2010, dumped imports held a market share of 86.20%, 87.03%, and 47.23%, respectively, and that, although the market share of imports fluctuated, it remained high at around 
                                               
517 Appellate Body Reports, China – Rare Earths , para. 5.178 (quoting Appellate Body Report, Brazil – 
Retreaded Tyres , para. 185). 
518 Appellate Body Reports, US – COOL , para. 299 (quoting Appellate Body Report, EC – Hormones , 
para. 135). 
519 Appellate Body Reports, China – Rare Earths , para. 5.227 (quoting Appellate Body Report, EC – 
Poultry , para. 133). 
520 Appellate Body Report, EC – Fasteners (China) , para. 442. 
521 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 1318.  
522 Appellate Body Reports, China – Rare Earths , para. 5.179. See also Appellate Body Report, EC – 
Fasteners (China) , para. 499. 
523 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 337 (referring to 
Appellate Body Reports, US – Steel Safeguards , para. 498; and Australia – Apples , para. 406). See also 
Appellate Body Report, Peru – Agricultural Products , para. 5.66. In case of similarly overlapping claims of error 
in the application of a legal standard to the relevant fact s of a case and under Article 11 of the DSU, there is no 
basis to have an additional examinat ion of whether a panel has conducted an objective assessment of the facts 
under Article 11 of the DSU. (Appellate Body Reports, China – Rare Earths , para. 5.174 (referring to 
Appellate Body Report, China – GOES , para. 184)) 
524 Panel Reports, para. 7.181. (fns omitted) 
525 China's appellant's submission, para. 213; other appellant's submission, para. 120. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  50% in 2010.526 China states that it fails to see how any objective assessment of the quoted 
paragraph can lead to a conclusion that MOFCOM relied on a remaining high market share of 50%, but did not account for the declining market share of imports.
527 China also argues that the 
expression "remained high at around 50%" in itself shows that MOFCOM took into account the 
evolution of the market share, contrary to what the Panel suggested.528 
5.248.  We do not agree with China's characterization of the Panel's reasoning. Contrary to what 
China appears to suggest, the Panel in fact agreed with China that "an investigating authority 
might properly  determine, given the necessary facts, that  high market shares exacerbate the price 
effects of dumped imports."529 The Panel added, however, that an objective and impartial 
investigating authority would "consider whether the fact that import market shares are declining significantly indicates that the price effects are in fact somewhat attenuated".
530  
5.249.  Other than pointing to the expression "r emained high at around 50%" in MOFCOM's Final 
Determination to argue that this " in itself  … shows that MOFCOM took into account the evolution of 
the market share"531, China has not pointed to any analysis or explanation in the passage quoted 
above or elsewhere in the Final Determination regarding whether or not such declining market 
shares of imports indicated that the price effect s are in fact somewhat attenuated. We therefore 
see no error, nor failure to make an objective asse ssment of the matter, in this part of the Panel's 
analysis.  
5.250.  We also do not understand the Panel to have suggested that MOFCOM was required to 
assess the nature and extent of dumped imports, as opposed to other known factors, when it noted that MOFCOM had provided no explanation or analysis of declining market shares of dumped 
imports when considering the price effects of such  imports. This aspect of the Panel's analysis 
related to MOFCOM's assessment of the market sh are of the dumped imports, and not to "other 
known factors" that may also be injuring the domestic industry, which must be considered in the 
context of a non-attribution analysis. 
5.5.3.1.4.3  MOFCOM's find ing of price correlation  
5.251.  China also takes issue with several aspects of the Panel's assessment of MOFCOM's finding 
of price correlation, asserting that this finding was sufficient to demonstrate cross-grade price 
effects and, consequently, to satisfy MOFCOM's obligation to assess "how the 90% market shares of Grade B and C subject imports enabled those imports, through price effects, to cause injury to the domestic industry as a whole, notwithstanding the fact that the bulk of domestic production 
was of Grade A [and] the negligible market share of subject imports of Grade A and the absence of 
cross-grade price effects".
532 We address each of China's arguments in turn below. 
Whether price correlation can be assumed for a single product consisting of multiple 
product grades 
5.252.  With regard to cross-grade price effects, China argues that price correlation is a "normal 
feature" for a single product consisting of high-end and low-end grades; hence, China fails to see 
why an investigating authority would have been required to do more than MOFCOM did – that is, 
to state that Grade A products belong to the sa me category of products as Grade B and Grade C 
products and that "the price changes of the three [grades] are to a certain extent correlated with one another."
533 According to China, there was no eviden ce before MOFCOM to suggest that this 
"normal feature" did not manifest itself in relation to HP-SSST.534 Moreover, China submits that 
the Final Determination included a brief discussion of the basis on which MOFCOM found price 
                                               
526 China's appellant's submission, para. 210; other appellant's submission, para. 117 (referring to 
MOFCOM's Final Determination (Panel Exhibits  JPN-2-EN and EU-30), internal pp. 65-66). 
527 China's appellant's submission, para. 211; other appellant's submission, para. 118. 
528 China's appellant's submission, para. 212; other appellant's submission, para. 119. 
529 Panel Reports, para. 7.181. (emphasis added) 
530 Panel Reports, para. 7.181. 
531 China's appellant's submission, para. 212; othe r appellant's submission, para. 119. (emphasis 
added) 
532 Panel Reports, para. 7.182. 
533 China's appellant's submission, para. 228; other appellant's submission, para. 135 (quoting 
MOFCOM's Final Determination (Panel Exhibi ts JPN-2-EN and EU-30), internal p. 48). 
534 China's appellant's submission, para. 228. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  correlation. In any event, China submits that Arti cles 3.1 and 3.5 of the Anti-Dumping Agreement 
cannot be interpreted as requiring MOFCOM to set out the "obvious", that is, that price correlation follows as a matter of logic from the fact that the high-end products (Grades B and C) can substitute for the low-end products (Grade A).
535 
5.253.  Japan the European Union contend that MOFCOM's finding of cross-grade price effects was 
based solely on assertions made by the petitioner s, without any proper evaluation or analysis of 
those assertions. The complainants argue that, if such a finding were sufficient to justify 
affirmative causation determinations, it would render meaningless the requirements for an 
investigating authority to provide "reasoned and adequate" explanations of its findings and to conduct an "unbiased and objective" analysis.
536 
5.254.  With respect to China's assertion that th e existence of cross-grade price correlation is a 
"normal feature" for a single product consisti ng of high-end and low-end grades, the Panel 
observed that there was "no meaningful analysis in MOFCOM's Final Determination of whether or how this feature manifests itself in the specific circumstances of the product at issue".
537 Instead, 
after recording the petitioners' argument that pr ice correlation existed, MOFCOM seemed to have 
simply accepted that view "without any consideration of the accuracy thereof".538 The Panel added 
that MOFCOM had asserted that prices of the different grades were to a "certain extent" correlated 
with one another, leaving open the degree of im pact that movements of prices of imported 
Grades B and C might have on the price of domestic Grade A, and making no assessment of whether the effect would be minimal, or sufficiently pronounced to cause prices for domestic Grade A to fall by the amounts that they did.
539  
5.255.  We recall that the task of a WTO panel is  to examine whether the investigating authority 
has adequately performed its investigative function, and has adequately explained how the evidence supports its conclusions. It follows from  the requirement that the investigating authority 
provide a "reasoned and adequate" explanation for its conclusions that the entire rationale for the 
investigating authority's decision must be set out in its report on the determination. This is not to say that the meaning of a determination cannot be explained or buttressed by referring to 
evidence on the record. Yet, in all instances, it is the explanation provided in the written report of 
the investigating authorities (and supporting documents) that is to be assessed in order to determine whether the determination was sufficiently explained and reasoned. 
5.256.  In the present case, we disagree with Chin a to the extent it suggests that MOFCOM could 
simply "assume" that price correlation between diff erent grades of HP-SSST is a "normal feature" 
for a single product consisting of high-end and lo w-end grades on the basis of assertions made by 
domestic applicants, and without any further discussion that would be reflected in its 
determination of whether substitutability of lower- and higher-end HP-SSST actually exists. Nor do 
we consider that it was sufficient for MOFCOM merely to state, in its Final Determination, that the prices of the different grades "were to a certain extent correlated with one another" without any 
analysis or explanation, or supporting evidence, of  the degree of impact that movements of prices 
of imported Grades B and C might have on th e price of domestic Grade A, and without an 
assessment of whether the effect would be sufficiently pronounced to cause prices of domestic Grade A to fall by the amounts that they did. We fail to see how a mere statement by MOFCOM 
regarding a "certain extent" of price correlation between different grades of HP-SSST, without any 
further explanation, provides a "meaningful basis"
540 for an analysis of whether the subject 
imports are, through the effects of dumping, as set forth in Articles 3.2 and 3.4, causing injury to 
the domestic industry.  
                                               
535 China's appellant's submission, para. 230; other appellant's submission, para. 137. 
536 Japan's appellee's submission, para. 33; Europe an Union's appellee's submission, para. 251. 
537 Panel Reports, para. 7.184. 
538 Panel Reports, para. 7.184. 
539 Panel Reports, para. 7.185 (referring to MOFCOM's Final Determination (Panel Exhibits JPN-2-EN and 
EU-30), internal p. 48). 
540 Appellate Body Report, China – GOES , paras. 145 and 154. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  5.257.  Furthermore, we find no merit in China's assertion that the Panel should have inferred , 
"in line with its duties under Article 11 of the DSU", from certain references in MOFCOM's Final Determination, that MOFCOM had "evaluate[d]" the petitioners' argument and had "concluded that it agreed with the argument".
541 China argues, in this regard, as follows: 
The Panel acknowledges MOFCOM's reference to the Applicants' argument that 
"[a] large margin decrease of the prices of [Grade C] and [Grade B] products, both high-end products, will certainly drive down the price of [Grade A] products, so that a 
certain price difference among the three can be maintained" before concluding that 
"[Grade A] products belong to the same category of products as [Grade C] and [Grade B] products; that the price changes of the three are to a certain extent correlated with one another; that while assessing the impact on the domestic industry 
by imports of each individual grade, the Investigation Authority shall also consider the 
three grades of products collectively as belonging to the same product category".
542  
5.258.  Beyond a reference to the petitioners' arguments and MOFCOM's statement that the prices 
of the three types of HP-SSST "to a certain extent correlated", we are unable to identify, in the 
passage referred to by China, any explanation or  reasoning indicating that MOFCOM actually 
examined the degree of impact that movements of prices of imported Grades B and C might have 
on prices of domestic Grade A, including whether the effect would be sufficiently pronounced to 
cause prices for domestic Grade A to fall by th e amounts that they did. In assessing the WTO-
consistency of a decision by an investigating authority, it is not for a panel to develop an 
explanation of the basis for the investigating authority's conclusions, nor to "infer" the existence of 
such a basis as China seems to suggest from some general economic logic. Rather, it is the task of 
a panel to examine whether the investigating authority  has adequately performed its investigative 
function, and has adequately explained in its published report (and its related supporting 
documents) how the evidence supports its conclusions. We therefore do not agree with China to 
the extent it suggests that the Panel should have  sought to find a basis, in MOFCOM's Final 
Determination, for MOFCOM's statement that the prices of the three types of HP-SSST are "to a 
certain extent correlated". 
5.259.  China also argues that the Panel acted inconsistently with Article 11 of the DSU by 
characterizing, as ex post  rationalization, China's argument that higher-grade imports can 
"obviously" substitute for lower-grade domestic products.543 Referring to the oral statements made 
by the complainants before the Panel, China argues that even Japan and the European Union 
seemed to agree that it is "obvious that the high end products (B and C) can substitute the low-end grade (Grade A)". We recall MOFCOM's finding that "the price changes of the three 
[grades] are to a certain extent correlated with one another"
544, and that there was no discussion, 
in MOFCOM's Final Determination, of the basis on which MOFCOM made that finding. We also note the Panel's finding that there was "no evidence" on the record that there had been "any 
consideration" by MOFCOM of whether higher-gra de imported products can substitute for the 
lower-grade domestic products.
545 In the absence of any analysis and explanation by MOFCOM 
regarding substitutability of the different grades of HP-SSST, we see no error in the Panel's finding 
that China's argument regarding "'obvious' substitutability" constituted an " ex post  rationalization" 
provided by China in the Panel proceedings, "r ather than an element of MOFCOM's analysis".546 
Instead, we are of the view that the Panel pr operly focused on the language and reasoning 
contained in MOFCOM's Final Determination regarding price correlation between the different 
grades of dumped products, rather than on ex planations provided by China during the Panel 
proceedings.  
5.260.  China further argues that the Panel dismissed China's reference to substitutability  on the 
basis that MOFCOM did not analyse the extent of actual substitution .547 While acknowledging that 
the Panel's focus on actual substitution would be correct if it were analysing the consistency of a finding of causation based on volume effects, China emphasizes that MOFCOM's causation analysis 
                                               
541 China's appellant's submission, para. 229; other appellant's submission, para. 136. 
542 China's appellant's submission, para. 229; other appellant's submission, para. 136. (fns omitted) 
543 China's appellant's submission, paras. 234-235; other appellant's submission, paras. 140-141. 
544 MOFCOM's Final Determination (Panel Exhibi ts JPN-2-EN and EU-30), internal p. 48. 
545 Panel Reports, para. 7.184. 
546 Panel Reports, para. 7.184. 
547 China's appellant's submission, para. 232; other appellant's submission, para. 139. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  was based on price effects.548 China submits that, as an investigating authority has discretion as to 
how it carries out its causation analysis, there was no need for MOFCOM to carry out any additional analysis regarding the actual degree of substitution .
549  
5.261.  The complainants submit that, notwithsta nding whether "actual or logical evidence of 
substitutability or price correlation" may exist, the Panel correctly found that there was 
"[no] consideration by MOFCOM of how this unspeci fied degree of substitutability, and resultant 
price correlation, might enable Grade B and C subject imports to cause injury  to the domestic 
industry's Grade A operations."550 The complainants also note that, for dumped imports to have an 
"effect" on domestic prices, such imports must be "in fact", or "actually", substitutable for the domestic like products.
551  
5.262.  The Appellate Body has explained that "[ a]n examination of the competitive relationship 
between products is … required so as to determine whether such products form part of the same 
market."552 It also noted that a set of products are in the same market when they "are in actual or 
potential competition with each other"553, that "a market comprises only those products that 
exercise competitive constraint on each other", and that products would be in the same market 
"when the relevant products are substitutable".554 While the Appellate Body made these 
statements in the context of examining claims  brought under the Agreement on Subsidies and 
Countervailing Measures (SCM Agreement), we read them as supporting the proposition that an 
analysis of "substitutability" or "price correlation " may well be required in cases, such as here, 
involving a dumped product and a like domestic product consisting of a range of different product types that are distinguished by considerable price differences. We note, in particular, that, in order 
to make a finding of present material injury under  Article 3.5 of the Anti-Dumping Agreement, the 
investigating authority must demonstrate that the dumped imports (consisting of Grades B and C) have the "effect" of causing material injury to the domestic industry (producing mainly Grade A). 
We do not see how such a finding could be made if the relevant imports are not substitutable for 
the domestic like products. Moreover, as note d above, we do not see how MOFCOM, under the 
specific facts of this case, could provide a "meaningful basis" for an analysis of whether the 
dumped imports are causing injury, without consid ering the degree of impact that movements of 
prices of imported Grades B and C might have on the price of domestic Grade A. 
5.263.  With regard to substitutability of different product types, we note the Appellate Body's 
explanation that "whether two products compete in  the same market is not determined simply by 
assessing whether they share particular physical characteristics or have the same general uses"; 
and that "it may also be relevant to consider whether customers demand a range of products or whether they are interested in only a particular product type."
555 We consider these findings to be 
pertinent to the present disputes, where Japan argued before the Panel, and China did not dispute , 
that "Grade B is about double the price of Grade A, and Grade C is about triple the price of Grade A."
556 We also note the physical differences in the dumped products, including, for example, 
that the higher-grade products B and C are capable of enduring the greater pressures and 
temperatures produced in ultra-supercritical boilers, and that the lower-grade product A is used in lower pressure and temperature environments in supercritical boilers.
557 Given the considerable 
price and physical differences between the different product grades at issue, MOFCOM should, at 
the very least, have assessed the existence and the extent of substitutability of lower- and 
higher-end HP-SSST in order to show that "alleged substitutability demonstrates price correlation" between each product type. As noted by the Pane l, there was no "consideration by MOFCOM of 
how [the] unspecified degree of substitutability, an d the resultant price correlation, might enable 
Grade B and C subject imports to cause injury of the domestic industry's Grade A operations."
558  
                                               
548 China's appellant's submission, para. 236; other appellant's submission, para. 142. 
549 China's appellant's submission, para. 237; other appellant's submission, para. 143. 
550 Japan's appellee's submission, para. 35; European Union's appellee's submission, para. 253 (quoting 
Panel Reports, para. 7.184). (emphasis added by Japan and the European Union) 
551 Japan's appellee's submission, para. 36; Europe an Union's appellee's submission, para. 255. 
552 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 1119. 
553 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 1119. 
554 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 1120. 
555 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 1120. 
556 Panel Reports, fn 333 to para. 7.184. 
557 See Japan's oral statement at the second Panel meeting, para. 35. 
558 Panel Report, para. 7.184. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  5.264.  Additionally, China argues that there was evidence on the record of actual substitution, 
and asserts that the Panel acted contrary to Article 11 of the DSU by disregarding this evidence simply because it was not referred to in the Final Determination.
559 China points, in particular, to 
the following statements made by the investigated Japanese exporters: 
Due to significant differences in their mechanical and chemical properties, steel tubes 
used in ultra-supercritical power plant boilers ([Grade B] and [Grade C]) significantly 
outperform steel tubes used in supercritical power plant boilers ([Grade A]) in the 
aspects of steam resistance oxidation thickness and fly ash corrosion resistance. 
Consequently, their usages are different. [Gra de B] and [Grade C] products are used 
in the superheaters and reheaters of ultra-supercritical power plant boilers (as well as in the superheaters and reheaters of supercritical power plant boilers), while [Grade A] 
products can only be used in the superheaters and reheaters of supercritical power 
plant boilers.
560  
5.265.  China also notes that it referred the Panel to SMI's Injury Questionnaire Response561, 
where SMI states that "the boiler manufacturers in China primarily  use … steel products other than 
[Grades B and C] to produce the super-heater and re-heater of the supercritical power plant boiler".
562 The passages to which China refers do not establish that MOFCOM actually explained 
and analysed whether imported Grades B and C are substitutable for domestic Grade A HP-SSST, 
and the extent of such substitutability. It was not for the Panel to provide such an explanation, nor 
to "infer" the existence of one, contrary to what China seems to suggest.  
5.266.  Furthermore, China submits that the Pane l erred in suggesting that MOFCOM was required 
to assess the extent  of the effect of the dumped imports in order to find a causal link, including 
whether such effect would be "sufficiently pronounced to cause prices for domestic Grade A to fall by the amounts that they did".
563 Referring to the Appellate Body's findings in US – Hot-Rolled 
Steel, China argues that "[a]n investigating authority's 'explanation of the nature and extent of the 
injurious effects of the other factors, as distinguished from the injurious effects of the dumped imports' should be provided in the non-attribution analysis, not in the first part of the causation 
determination."
564 
5.267.  We note that China raised a similar argument regarding MOFCOM's treatment of declining 
import volumes, which we have addressed at paragraphs 5.248-5.249 above. With respect to China's argument as it relates to price correlation , we do not understand the Panel to have 
suggested that MOFCOM was required to assess th e nature and extent of dumped imports, as 
opposed to other known factors, when it noted that MOFCOM had provided no assessment of the 
degree of impact that movements in the prices of imported Grades B and C might have on the 
price of domestic Grade A, including whether it would be "minimal, or sufficiently pronounced to 
cause prices for domestic Grade A to fall by the amounts they did".
565  
                                               
559 China's appellant's submission, paras. 238-239; other appellant's submission, paras. 144-145. 
560 China's appellant's submission, para. 238; other appellant's submission, para. 144 (quoting Request 
for Considering Public Interest in the Anti-Dumping In vestigation on Certain High-P erformance Stainless Steel 
Seamless Tubes by Sumitomo Metal Industries, Ltd. & Kobe Special Tube Co., Lt d., February 2012 (Panel 
Exhibit JPN-25-EN), internal p. 4; as  referred to in China's responses to Panel questions after the second Panel 
meeting, para. 16). (emp hasis added by China) 
561 SMI's Injury Questionnaire Response (question 8)  (Panel Exhibits CHN-20- CH (BCI) and CHN-20-EN 
(BCI)). 
562 China's appellant's submission, para. 239; other appellant's submission, para. 145 (quoting SMI's 
Injury Questionnaire Response (Panel Exhibit CHN- 20-EN (BCI)), p. 10 (emphasis added by China); and 
referring to China's second written submission to the Panel, paras. 149-150; and responses to Panel questions 
following the second Panel meeting, para. 18). 
563 China's appellant's submission, para. 242; other appellant's submission, para. 148 (quoting Panel 
Reports, para. 7.185). 
564 China's appellant's submission, para. 244; other appellant's submission, para. 150 (quoting 
Appellate Body Report, US – Hot-Rolled Steel , para. 226). 
565 Panel Reports, para. 7.185. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  Contrary price movements 
5.268.  The Panel found that "MOFCOM failed to account for record evidence that trends in 
domestic prices by grade had no apparent relationship in terms of magnitude or direction with trends in import prices."
566 The Panel stated that this was particularly apparent in respect of 
domestic Grade C, "the price of which increased by 112.80% from 2009-2010, without any 
corresponding movement in prices for subject imports of Grades B and C, which actually fell over that period."
567 The Panel also noted that the price of domestic Grade A "increased by 9.35% from 
2010 to [the first half of] 2011, whereas the price of imported Grade B fell by 10.63% during that 
period".568 The Panel expressed concern, noting that "[a]n objective and impartial investigating 
authority would not have found price correlation without at least addressing, and explaining, such contrary price movements."
569  
5.269.  China takes issue with the Panel's finding, arguing that the Panel erred in its interpretation 
and application of Articles 3.1 and 3.5 of the Anti-Dumping Agreement and acted contrary to 
Article 11 of the DSU "by finding that MOFCOM should have addressed contrary price movement to 
be able to find price correlation that it could rely on to assess the impact of imports of Grades B 
and C on the price of domestic Grade A sales".570 
5.270.  In particular, China asserts that the Panel erred "in law" in finding that the contrary price 
movements "precluded" MOFCOM from finding price correlation.571 China further asserts that the 
fact that price movements may not be in line does not detract from the conclusion that they were influenced by one another.
572 Furthermore, China contends that the Panel ignored the nature of 
MOFCOM's finding of price correlation, which related to the effect of the prices of Grades B and C 
on the prices of domestic Grade A and was ex pressly linked to MOFCOM's assessment of the 
impact on the domestic industry by imports of each individual grade.573  
5.271.  We have examined China's arguments regarding the Panel's assessment of MOFCOM's 
finding of price correlation above. There, we disa greed with China to the extent it suggests that 
MOFCOM could simply assume price correlation be tween different grades of HP-SSST on the basis 
of assertions made by domestic applicants, and without any further discussion by MOFCOM that 
would be reflected in its Final Determination of whether such substitutability of lower- and 
higher-end HP-SSST actually exists. Moreover, cont rary to what China suggests, the Panel did not 
find that MOFCOM was precluded from findin g price correlation given the contrary price 
movements. Instead, the Panel found that "MOFCO M failed to account for record evidence that 
trends in domestic prices by grade had no apparent relationship in terms of magnitude or direction 
with trends in import prices."574 We therefore do not agree with China to the extent it argues that 
the Panel erred in its examination of this aspect of MOFCOM's analysis. Rather, as we see it, the 
contrary price movements that MOFCOM had determined to exist between import and domestic 
prices of HP-SSST would have called for some  explanation as to why MOFCOM nonetheless 
considered that the prices of the three types of HP-SSST "to a certain extent correlated".  
The possibility that Grade B and Grade C dump ed imports declined in response to the 
decline in domestic Grade A prices  
5.272.  The Panel found that, in addition to not making a finding that the prices of imported 
Grades B and C had pushed down the prices of domestic Grade A, MOFCOM "never considered, 
and certainly failed to exclude, the equally logical possibility" that the opposite might be true, 
namely that "Grade B and C subject import prices declined in response to the decline in domestic 
                                               
566 Panel Reports, para. 7.186 (referring to China's second written submission to the Panel, para. 155). 
567 Panel Reports, para. 7.186. 
568 Panel Reports, para. 7.186. 
569 Panel Reports, para. 7.186. 
570 China's appellant's submission, para. 252; other appellant's submission, para. 158. 
571 China's appellant's submission, para. 249; other appellant's submission, para. 155. 
572 China's appellant's submission, para. 249; other appellant's submission, para. 155. 
573 China's appellant's submission, paras. 250-251; other appellant's submission, paras. 156-157. 
574 Panel Reports, para. 7.186 (referring to China's second written submission to the Panel, para. 155). WT/DS454/AB/R • WT/DS460/AB/R 
 
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  Grade A prices in 2009 and 2010, in order to main tain the price differential between the various 
grades."575 
5.273.  According to China, this reasoning by th e Panel distorts MOFCOM's finding and disregards 
the wording of MOFCOM's Final Determination, contrary to Article 11 of the DSU. While 
acknowledging that MOFCOM's reasoning might be brief, China argues that this does not imply 
that MOFCOM did not "explore this issue meaningfully".576 Taking into account that: (i) MOFCOM 
found price correlation on the basis of the applicants' arguments; (ii) "as a matter of logic", the 
low-end Grade A cannot substitute Grades B and C; and (iii) MOFCOM found price correlation in 
the sense that imported Grades B and C could have  an impact on the price of domestic Grade A, 
China submits that it fails to see how an objective assessment of the facts could lead to a conclusion that MOFCOM did not find that the price correlation concerned the impact of the prices 
of imported Grades B and C on domestic Grade A prices.
577  
5.274.  We agree with China that, "as a matter of logic", it would appear that lower-grade 
domestic products cannot substitute for higher-grade imported products, while the opposite could 
be true. Moreover, we note that, having found price undercutting for Grades B and C, MOFCOM 
examined the impact of dumped imports on China's domestic industry, which produces mainly Grade A. Contrary to what China seems to sugge st, this does not mean, however, that MOFCOM 
"meaningfully" evaluated and explained whether, as argued by the petitioners, the prices of 
imported Grades B and C had pushed down the pr ices of domestic Grade A. We understand the 
Panel to have merely observed that, by not evalua ting this issue, MOFCOM failed to exclude the 
possibility that imported Grade B and C prices declined in response to declines in domestic Grade A 
prices in 2009 and 2010.
578 We see no error in this statement by the Panel, and do not consider 
that the Panel distorted MOFCOM's findings in making this statement. 
5.275.  China argues that, "to the extent that the Appellate Body considers that the Panel found 
that MOFCOM did not examine the fact that the sales and market share of Grade A increased as 
set out above, the Panel acted cont rary to Article 11 of the DSU."579 In the alternative, China 
submits that, "to the extent that the Appellate Bo dy considers that the Panel found that MOFCOM 
was obliged to examine the fact that the sales and market share of Grade A increased in more 
detail than MOFCOM did, the Panel erred in its interpretation and application of Articles 3.1 and 3.5."
580 In addition, with respect to MOFCOM's a ssessment of "the decline in the absolute 
volume of those imports and the declining market  share of Grade C imports and the fluctuating 
market share of Grade B imports", China argues that the Panel erred to the extent that it 
considered that MOFCOM did not take these factors into account.581  
5.276.  Contrary to what China seems to suggest, the Panel did not find that MOFCOM "failed to 
take into account", or failed to examine "in sufficient detail", the increase in sales and market 
share of domestic Grade A, the negligible market share of dumped imports of Grade A, the decline 
in the absolute volume of those imports, the declining market share of Grade C imports, and the 
fluctuating market share of Grade B imports. Instea d, the Panel considered that, in the absence of 
any examination or analysis provided by MOFCOM in its Final Determination, it remained "unclear how the market shares of imports of Grade B and C HP-SSST are relevant in assessing whether subject imports caused injury to a domestic industry producing primarily Grade A HP-SSST."
582 We 
see no error in the Panel's finding in this regard. 
                                               
575 Panel Reports, para. 7.187 (referring to MOFCOM's Final Determination (Panel Exhibits JPN-2-EN and 
EU-30), internal p. 66). 
576 China's appellant's submission, para. 257; other appellant's submission, para. 163. 
577 China's appellant's submission, paras. 254-256; other appellant's submission, paras. 160-162. 
578 Panel Reports, para. 7.187 (referring to MOFCOM's Final Determination (Panel Exhibits JPN-2-EN and 
EU-30), internal p. 66). 
579 China's appellant's submission, para. 260; other appellant's submission, para. 166. 
580 China's appellant's submission, para. 261; other appellant's submission, para. 167. 
581 See China's appellant's submission, paras.  262-263; and other appellant's submission, 
paras. 168-169. 
582 Panel Reports, para. 7.182. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  5.5.3.1.4.4  Conclusion 
5.277.  For all these reasons, we uphold the Panel's findings, in paragraphs 7.188 and 7.205 of the 
Panel Reports, paragraph 8.1.a.iii of the Japa n Panel Report, and paragraph 8.6.d.iii of the 
EU Panel Report, that China acted inconsistently with Articles 3.1 and 3.5 of the Anti-Dumping 
Agreement because MOFCOM improperly relied on the market share of dumped imports, and its 
flawed price effects and impact analyses, in de termining a causal link between dumped imports 
and material injury to the domestic industry, an d made no finding of cross-grade price effects 
whereby price undercutting by Grade B and C imports might be shown to affect the price of 
domestic Grade A HP-SSST. 
5.5.3.1.5  MOFCOM's non-attribution analysis 5.5.3.1.5.1  The Panel's findings 
5.278.  Before the Panel, Japan and the European Union argued that MOFCOM failed properly to 
ensure that injury caused by two known "other factors" – namely: (i) the decline in apparent 
consumption; and (ii) the increase in domestic production capacity – was not attributed to the 
dumped imports. The complainants submitted that MOFCOM conducted its non-attribution analysis 
regarding these two factors with respect to al l grades of HP-SSST taken together, without 
considering any possibility that these other factors may have influenced different segments of the 
market differently, despite record evidence before MOFCOM demonstrating that imported and 
domestic HP-SSST were concentrated in differe nt segments of the market, and despite the 
absence of any cross-grade price effects of dumped imports of Grades B and C on the prices of domestic Grade A. The complainants also contended that MOFCOM's non-attribution analysis would 
necessarily be flawed if its initial determination of the causal link between dumped imports and 
material injury to the domestic industry itself were flawed.  
5.279.  The Panel observed that MOFCOM sought to comply with the non-attribution requirement 
contained in Article 3.5 of the Anti-Dumping Agreement by considering whether certain other 
factors broke the causal link between dumped import s and material injury to the domestic industry 
it had found, stating that such methodology provides an appropriate basis for ensuring non-
attribution.
583 Referring to previous jurisprudence by th e Appellate Body, the Panel observed that, 
"before it becomes relevant or necessary for an investigating authority to separate and distinguish the injury caused by other factors from the injury caused by subject imports, the investigating authority must first properly establish that the dumped imports have caused material injury, and 
the 'nature and extent' of the injury caused by su bject imports and the injury caused by the other 
factor(s)."
584 Recalling its prior conclusion that MOFCOM had failed properly to establish the causal 
link between dumped imports and material injury to the domestic industry, the Panel held that 
"MOFCOM could not have meaningfully assessed whether or not injury caused by other factors was 
sufficient to break that wrongly-determined causal link."585 The Panel therefore considered that it 
was not necessary to address every aspect of the parties' non-attribution arguments in detail.586 
5.280.  In the light of the above, the Panel conc luded that MOFCOM's examination of the injury 
caused by the decrease in apparent consumption and the increase in domestic production capacity was "flawed and not objective".
587 Consequently, the Panel held that MOFCOM's non-attribution 
analysis of these factors was insufficient, and that its determination was thus inconsistent with 
Articles 3.1 and 3.5 of the Anti-Dumping Agreement.588 
5.5.3.1.5.2  Arguments on appeal 5.281.  China argues on appeal that the Panel's findings relating to MOFCOM's non-attribution 
analysis relied entirely on MOFCOM's alleged failure to determine properly the causal link between 
dumped imports and material injury to the domestic industry.
589 Referring to its contention that 
                                               
583 Panel Reports, para. 7.200. 
584 Panel Reports, para. 7.201 (referring to Appellate Body Report, US – Hot-Rolled Steel , para. 226). 
585 Panel Reports, para. 7.201. 
586 Panel Reports, para. 7.202. 
587 Panel Reports, para. 7.204. 
588 Panel Reports, para. 7.204. 
589 China's appellant's submission, paras. 268-269; other appellant's submission, paras. 174-175. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  the Panel's findings in relation to MOFCOM's determination of the causal link (including those made 
in respect of MOFCOM's finding of price correlation) should be reversed, China contends that the Panel's finding that MOFCOM's non-attribution analysis is inconsistent with Articles 3.1 and 3.5 of the Anti-Dumping Agreement should, as a consequence, also be reversed.
590 
5.282.  Japan and the European Union disagree with  China that the Panel's non-attribution findings 
in paragraphs 7.200-7.204 of the Panel Reports are "entirely based" on the Panel's findings regarding MOFCOM's determination of causation.
591 Referring to paragraphs 7.202-7.203 of the 
Panel Reports, the complainants submit that the Panel independently addressed certain additional 
aspects of their non-attribution arguments, and that China presented no argument as to why these additional reasons do not support the Panel's conclusion that MOFCOM's non-attribution analysis is inconsistent with Articles 3.1 and 3.5 of the Anti-Dumping Agreement.
592 On this basis, the 
complainants contend that, even if the Appellate Body were to reverse the Panel's causation 
findings based on China's arguments in these appeals, it would have no basis to reverse the Panel's finding that MOFCOM's non-attribution analysis is inconsistent with Articles 3.1 and 3.5, 
due to the additional reasons provided by the Panel at paragraphs 7.202-7.203 of the Panel 
Reports.
593 
5.5.3.1.5.3  Analysis 
5.283.  Article 3.5 of the Anti-Dumping Agreement provides that an investigating authority must, 
in its analysis, "examine any known factors other than the dumped imports which at the same time are injuring the domestic industry" and must ensure that "the injuries caused by these other 
factors [are not] attributed to the dumped imports."
594 Article 3.5 therefore requires an 
assessment that involves "separating and distinguishing the injurious effects of the other factors 
from the injurious effects of the dumped imports".595 Further, if the injurious effects of the dumped 
imports are not appropriately separated and distin guished from the injurious effects of the other 
factors, "the authorities will be unable to conclude  that the injury they ascribe to dumped imports 
is actually caused by those imports, rather than  by the other factors" and they "would have no 
rational basis to conclude that the dumped imports are indeed causing the injury".596  
5.284.  We have upheld the Panel's findings that China acted inconsistently with Articles 3.1 
and 3.5 of the Anti-Dumping Agreement because MO FCOM improperly relied on the market share 
of dumped imports, and its flawed price effects and impact analyses, in determining a causal link between dumped imports and material injury to the domestic industry. As we understand it, 
China's claims on appeal concerning the Panel's non-attribution analysis are purely consequential 
in the sense that they rely on China's argument s made in the context of challenging the Panel's 
finding regarding MOFCOM's causation determination. We have rejected those arguments above, 
and therefore we also reject China's appeal insofar as it relates to the Panel's findings regarding 
MOFCOM's non-attribution analysis.  
5.285.  In any event, we do not agree with China that the Panel's findings concerning MOFCOM's 
non-attribution analysis relied entirely on MOFCOM's alleged failure to determine properly the 
causal link between dumped imports and material injury to the domestic industry. Instead, the 
Panel also found that "MOFCOM's analyses of the injurious effects of both the decline in apparent consumption and the increase in domestic production capacity failed to address the fact that 
subject imports were comprised almost exclusively of Grades B and C, while the domestic 
industry's operations were focused on Grade A" and that "[t]hose analyses also failed to account 
                                               
590 China's appellant's submission, para. 270; other appellant's submission, para. 176. 
591 Japan's appellee's submission, para. 44 (quoting China's other appellant's submission, para. 175); 
European Union's appellee's submission, para. 263 (quo ting China's appellant's submission, para. 269). 
592 Japan's appellee's submission, paras. 44-46 ; European Union's appellee's submission, 
paras. 263-265. 
593 Japan's appellee's submission, para. 46; Europe an Union's appellee's submission, para. 265. 
594 See Appellate Body Report, China – GOES , para. 151. Pursuant to the fourth sentence of Article 3.5, 
these other factors include the volume and prices of imports not sold at dumped or subsidized prices; 
contraction in demand or changes in the patterns of consumption; trade-restrictive practices of, and 
competition between, the foreign and domestic produc ers; developments in te chnology; and the export 
performance and productivity of the domestic industry. (Ibid., fn 241 to para. 151) 
595 Appellate Body Report, China – GOES , para. 151 (referring to Appellate Body Report, US – 
Hot-Rolled Steel , para. 223). 
596 Appellate Body Report, US – Hot-Rolled Steel , para. 223. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  for the fact that MOFCOM had not established that subject imports of Grades B and C had injurious 
price effects on domestic Grade A."597 
5.286.  In the light of the foregoing, we uphold the Panel's findings, in paragraphs 7.204 
and 7.205 of the Panel Reports, paragraph 8.1.a.iv of the Japan Panel Report, and 
paragraph 8.6.d.iv of the EU Panel Report, that China acted inconsistently with Articles 3.1 and 3.5 
of the Anti-Dumping Agreement because MOFCOM fail ed to ensure that the injury caused by the 
decrease in apparent consumption and the increase in domestic production capacity was not 
attributed to the dumped imports. 
5.5.3.1.6  Additional "independent" clai ms under Articles 3.1 and 3.5 of the 
Anti-Dumping Agreement 
5.287.  We now turn to the question of whether Japan and the European Union advanced 
independent claims under Article 3.5 of the An ti-Dumping Agreement, concerning MOFCOM's 
reliance on its Article 3.2 price effects and Article 3.4 impact analyses, or whether such claims were merely consequential, as found by the Pane l. Having set out the Panel's findings and the 
parties' arguments before the Panel, we provide a summary of the claims and arguments on 
appeal, followed by an analysis of the complainants' claims on appeal. 
5.5.3.1.6.1  The Panel's findings 
5.288.  The Panel summarized what it referred to as the complainants "consequential claims" 
under Article 3.5 of the Anti-Dumping Agreement as follows:  
The complainants have made consequential Article 3.5 claims based on alleged 
inconsistencies in MOFCOM's Article 3.2 price effects and Article 3.4 impact analyses. 
The complainants recall their claims that MOFCOM's price effects and impact analyses 
are respectively inconsistent with Articles 3.2 and 3.4 of the Anti-Dumping Agreement. 
They submit that, as a consequence, MOFCOM's reliance on those price effects and 
impact analyses to determine causation is inconsistent with Article 3.5 of the Anti-
Dumping Agreement.
598 
5.289.  Having recalled its prior findings that certain aspects of MOFCOM's price effects analysis 
are inconsistent with Article 3.2, and that one aspect of its impact analysis is inconsistent with 
Article 3.4 of the Anti-Dumping Agreement, the Panel found that MOFCOM's subsequent reliance 
on the WTO-inconsistent aspects of its price effects and impact analyses in determining that dumped imports caused material injury to the domestic industry undermined MOFCOM's causation 
analysis, and rendered MOFCOM's causation determination inconsistent with Article 3.5 of the 
Anti-Dumping Agreement.
599  
5.290.  The Panel emphasized, however, that it "had not upheld all aspects" of the complainants' 
claims under Articles 3.2 and 3.4, and that those aspects of the complainants' claims under 
Articles 3.2 and 3.4 that it had rejected "[could not] form the basis for any consequential Article 3.5 claims".
600 While the Panel was of the view that  many of the issues raised by the 
complainants in the context of their Article 3.2 and Article 3.4 claims could  have formed "the basis 
for independent claims" under Article 3.5, it considered that the complainants had neither identified any relevant independent Article 3.5 claims in their written submissions, nor identified arguments explaining how alleged flaws in MOFCOM's price effects and impact analyses resulted in 
independent violations of Article 3.5 as distinct from violations of Article 3.2 or 3.4.
601 Accordingly, 
the Panel found that the complainants "ha[d] not advanced any independent Article 3.5 claims, other than those concerning MOFCOM's reliance on market shares, and MOFCOM's non-attribution 
analysis, concerning MOFCOM's price effects and impact analyses."
602 
                                               
597 Panel Reports, para. 7.202. 
598 Panel Reports, para. 7.189. (fns omitted) 
599 Panel Reports, para. 7.191. 
600 Panel Reports, para. 7.192. 
601 Panel Reports, para. 7.192. 
602 Panel Reports, para. 7.192. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  5.5.3.1.6.2  Arguments on appeal 
5.291.  On appeal, Japan and the European Union take issue with the Panel's findings in 
paragraph 7.192 of the Panel Reports, submitting that the Panel failed to make an objective assessment of the matter before it, as required by Article 11 of the DSU, by failing to examine the 
complainants' claims of independent violations of Articles 3.1 and 3.5 of the Anti-Dumping 
Agreement arising from MOFCOM's price effects and impact analyses.
603 The complainants further 
request us to complete the legal analysis and evaluate on the basis of the Panel's factual findings 
and undisputed facts on the record whether independent violations of Articles 3.1 and 3.5 arise in 
those instances where the complainants' claims under Articles 3.2 and 3.4 were rejected by the Panel or the Appellate Body.
604 M o r e  s p e c i f i c a l l y ,  J a p a n  r e q u e s t s  u s  t o  f i n d  t h a t  C h i n a  v i o l a t e d  
Articles 3.1 and 3.5 of the Anti-Dumping Agreement because: (i) MOFCOM improperly found that 
imports of Grade C had explanatory force for price undercutting effects on domestic Grade C; (ii) 
MOFCOM improperly extended its findings of price undercutting in respect of Grades B and C to the domestic like product as a whole; (iii) MOFCOM improperly found the domestic industry as a whole 
to be impacted by dumped imports despite finding no price effects with respect to Grade A; and 
(iv) MOFCOM failed to examine whether dumped im ports had explanatory force for the state of the 
domestic industry.
605 
5.292.  In response, China submits that the Panel correctly concluded that the complainants did 
not raise independent claims under Article 3.5 (other than those concerning MOFCOM's reliance on market shares and MOFCOM's non-attribution analysis). China further argues that the Panel did not fail to make an objective assessment of the matter before it, as required by Article 11 of the 
DSU, and requests us to reject the complainants' appeals.
606 
5.5.3.1.6.3  Analysis 5.293.  In order to determine whether the Panel erred in finding that "the complainants have not 
advanced any independent claims under Article 3.5 of the Anti-Dumping Agreement, other than 
those concerning MOFCOM's reliance on market shares, and MOFCOM's non-attribution analysis, concerning MOFCOM's price effects and impact an alyses", we begin by reviewing the language 
found in the complainants' panel requests.
607 
5.294.  As noted above, after claiming the inconsistency of China's price effects and impact 
analyses under, respectively, Articles 3.1 and 3. 2 and Articles 3.1 and 3.4 of the Anti-Dumping 
Agreement, Japan stated in paragraph 1(c) of its panel request that: 
China's demonstration of the alleged causal relationship between the imports under 
investigation and the alleged injury to the domestic industry was not based on an objective examination of all relevant evidence before the authorities. In particular, 
China determined that the allegedly dumped imports are causing injury despite an 
absence of a significant increase in the vo lume of dumped imports, and based on its 
flawed price effects and impact analyses. Accordingly, China acted inconsistently with 
Articles 3.1 and 3.5 of the Anti-Dumping Agreement. 
5.295.  In paragraph 5 of its panel request, after claiming the inconsistency of China's price effects 
and impact analyses under, respectively, Articles 3.1 and 3.2 and Articles 3.1 and 3.4 of the Anti-Dumping Agreement, the European Union specified its relevant claims under Articles 3.1 
and 3.5 as follows: 
                                               
603 Japan's appellant's submission, paras. 82 and 84 ; European Union's other appellant's submission, 
paras. 165 and 167. 
604 Japan's appellant's submission, para. 104; European  Union's other appellant's submission, para. 178. 
605 Japan's appellant's submission, para. 104 (referring to Japan's comments on the Interim Reports, 
para. 61). 
606 China's appellee's submission, para. 318. 
607 Panel Reports, para. 7.192. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  Articles 3.1 and 3.5 of the Anti-Dumping Agreement because China failed to conduct 
an objective examination, based on positive evidence, of the causal relationship between the imports under investigation and the alleged injury to the domestic industry. China determined that the allegedly dumped imports are causing injury 
despite an absence of a significant increase in the volume of dumped imports, based 
on improper price effects analyses and based on flawed impact analyses, including improper evaluation of or failure to consider relevant economic factors and indices 
having a bearing on the state of the domestic industry. 
5.296.  In the light of this language in the complainants' panel requests, we understand the 
complainants to have sought to challenge MOFCOM's causation analysis on several grounds, including  on the basis of alleged flaws in MOFCOM's price effects and impact analyses. While the 
complainants raised many of the same arguments in support of their claims under Article 3.5 as 
they did in support of their claims under Arti cles 3.2 and 3.4 of the Anti-Dumping Agreement
608, 
we see no error in the Panel's finding that the complainants had not claimed, before the Panel, 
that MOFCOM's price effects and impact analyses, taken alone, resulted in independent  violations 
of Article 3.5 of the Anti-Dumping Agreement. We therefore uphold the Panel's finding, in 
paragraph 7.192 of the Panel Reports, that the complainants had not advanced independent 
Article 3.5 claims – other than those concerning MOFCOM's reliance on market shares and 
MOFCOM's non-attribution analysis – concerning MOFCOM's price effects and impact analyses. 
5.297.  Having said that, we understand the key contention  underlying the complainants' overall 
claims under Article 3.5 to relate to MOFCOM's failure to conduct a cross-grade price analysis . In 
particular, we understand the complainants to have claimed that MOFCOM did not address or 
explain how the volume and price effects of imports of Grade B and Grade C HP-SSST were relevant in assessing whether such imports (of Grades B and C) caused material injury to the 
domestic industry producing primarily Grade A HP -SSST. The complainants raised the same overall 
concern in the context of their claims under Arti cles 3.2 and 3.4 of the Anti-Dumping Agreement, 
arguing, inter alia , that: (i) MOFCOM improperly extended its findings of price undercutting in 
respect of Grades B and C to the domestic like product as a whole; (ii) MOFCOM improperly found 
the domestic industry as a whole to be impacted by dumped imports despite its finding that there was no price undercutting with respect to Grade A; and (iii) MOFCOM failed properly to examine whether the dumped imports (consisting primarily of Grades B and C) had explanatory force for 
the state of the domestic industry (producing primarily Grade A HP-SSST).
609 While the Panel did 
not find that the concerns expressed by the complainants were the subject of "independent claims" under Article 3.5, the Panel observed in the context of its Article 3.5 analysis, inter alia , that 
"MOFCOM made no finding of cross-grade price effects, whereby price undercutting by subject 
imports of Grades B and C might be shown to a ffect the price of domestic sales of Grade A"
610, and 
found that the flaws in MOFCOM's analysis of the market share of dumped imports rendered its 
causation determination inconsistent with Articl es 3.1 and 3.5 of the Anti-Dumping Agreement.611 
We have agreed with the Panel's reasoning in this regard. 
5.5.3.2  Conclusions 5.298.  In sum, we find that the Panel did not act inconsistently with Article 6.2 of the DSU by 
addressing Japan's claims under Article 3.5 of the Anti-Dumping Agreement regarding "MOFCOM's 
reliance on the market share of subject imports" , in paragraphs 7.180-7.188 of the Japan Panel 
Report. We also find that the Panel did not act inconsistently with Article 11 of the DSU by ruling 
on a matter that was not before it, or making the case for the complainants. We uphold the Panel's 
findings, in paragraphs 7.188 and 7.205 of the Panel Reports, paragraph 8.1.a.iii of the Japan 
Panel Report, and paragraph 8.6.d.iii of the EU Pa nel Report, that China acted inconsistently with 
Articles 3.1 and 3.5 of the Anti-Dumping Agreem ent because MOFCOM improperly relied on the 
market share of the dumped imports, and its flawed price effects and impact analyses, in determining a causal link between dumped imports and material injury to the domestic industry, 
and made no finding of cross-grade price effects whereby price undercutting by Grade B and C 
                                               
608 See Japan's first written submission to the Panel, paras. 186-209; and European Union's first written 
submission to the Panel, paras. 277-299. See also Japan' s second written submission to the Panel, para. 56; 
and European Union's second written submission to the Panel, para. 176. 
609 Japan's comments on the Interim Reports, para. 61. 
610 Panel Reports, para. 7.182. 
611 Panel Reports, paras. 7.188 and 7.205. WT/DS454/AB/R • WT/DS460/AB/R 
 
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  imports might be shown to affect the price of domestic Grade A HP-SSST. We also uphold the 
Panel's findings, in paragraphs 7.204 and 7.205 of the Panel Reports, paragraph 8.1.a.iv of the 
Japan Panel Report, and paragraph 8.6.d.iv of the EU Panel Report, that China acted inconsistently with Articles 3.1 and 3.5 of the Anti-Dumping  Agreement because MOFCOM failed properly to 
ensure that the injury caused by the decrease in apparent consumption and the increase in 
domestic production capacity was not attributed to  the dumped imports. Finally, we find that the 
Panel did not act inconsistently with Article 11 of the DSU in concluding, in paragraph 7.192 of the 
Panel Reports, that the complainants had not advanced independent Article 3.5 claims – other 
than those concerning MOFCOM's reliance on market shares and MOFCOM's non-attribution analysis – concerning MOFCOM's price effects and impact analyses. WT/DS460/AB/R 
 
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 5.6  Additional working procedures concerning BCI 
5.299.  We now turn to address the European Union's claim that the Panel erred in its 
interpretation and application of Articles 17.7 and 6.5 of the Anti-Dumping Agreement and Article 18.2 of the DSU, when ruling on certain preliminary issues raised by the European Union 
regarding the additional working procedures adopte d by the Panel to protect business confidential 
information (BCI).
612 We start by setting out the relevant findings by the Panel and the context in 
which the Panel made these findings.  
5.6.1  The Panel's findings 
5.300.  Following consultations with the parties, on 27 September 2013, the Panel adopted 
additional working procedures concerning BCI (BCI Procedures).613 Paragraphs 1 and 2 of the 
BCI Procedures originally provided: 
(1) These procedures apply to any business co nfidential information (BCI) that a party 
wishes to submit to the Panels. For the purposes of these procedures, BCI is defined as any information that has been designated as such by the Party submitting the 
information, that is not available in the public domain, and the release of which could 
seriously prejudice an essential interest of  the person or entity that supplied the 
information to the Party. In this regard, BCI shall include information that was 
previously submitted to China's Ministry  o f  C o m m e r c e  ( " M O F C O M " )  a s  B C I  i n  t h e  
anti-dumping investigation at issue in these disputes . However, these procedures do 
not apply to information that is available in the public domain. In addition, these procedures do not apply to any BCI if the person who provided the information in the 
course of the aforementioned investigation agrees in writing to make the information 
publicly available. 
(2) The first time that a party submits to the Panels BCI as defined above from an 
entity that submitted that information in the anti-dumping investigation at issue in 
these disputes, the party shall also provide, with a copy to the other parties, an authorizing letter from the entity . That letter shall authorize China, the 
European Union and Japan to submit in these disputes, in accordance with these 
procedures, any confidential information submitted by that entity in the course of the investigation at issue.
614  
5.301.  The European Union objected to two aspects of the BCI Procedures adopted by the 
Panel.615 First, the European Union took issue with the language in paragraph 1, quoted above, 
according to which BCI, in the WTO panel proceedings, "shall include information that was previously submitted  to … MOFCOM[] as BCI in the anti-dumping investigation at issue in these 
disputes ."
616 The European Union argued that the effect of this language was to delegate, in 
absolute terms, to non-WTO entities or persons (i.e. the parties involved in a domestic anti-dumping investigation) the issue of whether or not certain information should be granted 
additional protection in the context of WTO dispute settlement.
617 Disagreeing with this 
proposition, the European Union claimed that it is for WTO Members  to request, or not, additional 
protection for information that they submit in the context of WTO panel proceedings, and for WTO 
panels  to rule on such requests. The European Union observed, in this regard, that a WTO Member 
may indicate to a panel, for example, that certain information that was previously treated as 
confidential by an investigating authority is no longer sensitive, or, conversely, that information submitted by another WTO Member to a panel should be designated as confidential.
618  
                                               
612 Panel Reports, para. 1.10. No request for BCI pr ocedures was made in these appellate proceedings. 
613 Panel Reports, para. 1.10. 
614 Panel Reports, para. 7. 10. (emphasis original) 
615 Japan did not challenge separately the BCI Procedur es adopted by the Panel.  However, in response 
to the Panel's questioning, Japan indicated that it ge nerally agreed with the Eu ropean Union's request to 
modify paragraphs 1 and 2 of the BC I Procedures. (Panel Reports, para . 7.14; Japan's response to Panel 
question No.1) 
616 Panel Reports, para. 7. 18. (emphasis original) 
617 See Panel Reports, para. 7.12. 
618 European Union's first written submission to the Panel, paras. 56-57. WT/DS460/AB/R 
 
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  5.302.  The European Union also objected to the language in paragraph 2 of the Panel's 
BCI Procedures, whereby a WTO Member providin g information to the panel that had been 
previously submitted to the authority in the underlying anti-dumping investigation as confidential was required to obtain and provide  to the panel evidence of prior written authorization from the 
entity that had originally submitted that information to the domestic investigating authority. The 
European Union argued that such a requirement wo uld mean that a particular firm, or submitting 
entity involved in a domestic anti-dumping proceeding, could "simply withhold the authorization 
and effectively limit the information that may be submitted in WTO dispute settlement".
619 The 
European Union submitted that Article 17.7 of the Anti-Dumping Agreement makes clear that a 
Member is not required to obtain authorization before providing confidential information to WTO panels.
620 
5.303.  China responded that the aspects of the Panel's BCI Procedures challenged by the 
European Union added to, rather than detracted from, the protection provided by the DSU, and 
that the additional protection provided by th e Panel for information previously submitted to 
MOFCOM as BCI was in consonance with the conf identiality requirements in Article 6.5 of the 
Anti-Dumping Agreement. China further submitted that "an authorizing letter is a necessary instrument to ensure compliance by the investigating authority with its obligations under 
Article 6.5 of the Anti-Dumping Agreement"
621, and that it is not uncommon to require the 
presentation of such a letter in WTO dispute settlement proceedings concerning trade remedies. 
5.304.  The Panel agreed with the European Union that the original wording of the first paragraph 
of the BCI Procedures suggested that BCI designat ion is determined by the entity submitting the 
information to MOFCOM. The Panel therefore amende d paragraph 1 of the BCI Procedures to read, 
in relevant part, that "BCI shall include information that was previously  treated  by … MOFCOM … 
as BCI in the anti-dumping investigation at issue in these disputes."622 However, insofar as the 
European Union had argued that the designation of BCI should not depend on the investigating 
authority's determination to treat information as confidential in the underlying anti-dumping proceedings, the Panel considered that the procedures it had adopted did not detract from the 
ability of WTO Members to designate information as confidential under Article 18.2 of the DSU. The 
Panel considered that, even though the designation of confidential information in anti-dumping proceedings under Article 6.5 of the Anti-Dumping Agreement is distinct from the designation of 
BCI for purposes of DSU proceedings, as contemplated in Article 18.2 of the DSU, these 
designations are "closely related".
623 According to the Panel, this relationship finds support in the 
text of Article 17.7 of the Anti-Dumping Agreement624, which, as a special or additional rule and 
procedure in Appendix 2 to the DSU, prevails over  the DSU to the extent that there is a difference 
between these two sets of provisions.625 The Panel further stated that it understood the term 
"confidential information" in Article 17.7 to refer to "the confidential information previously examined by the investigating authority and treate d as confidential pursuant to Article 6.5" and 
subsequently provided to a dispute settlement panel pursuant to Article 17.7.
626 The Panel 
considered, therefore, that "Article 17.7 envi sages that confidential information on the 
investigating authority's record – obtained from a 'person, body or authority' – may be provided to a panel, and imposes on the panel a non-disclosure obligation similar to that imposed on the 
                                               
619 Panel Reports, para. 7.13. 
620 Panel Reports, para. 7.13 and fn 33 thereto. 
621 Panel Reports, para. 7.15 (quoting China's re sponse to Panel question No. 3, para. 13). 
622 Panel Reports, para. 7.18. (empha sis added by the Panel)  The Panel noted that China did not oppose 
this amendment. (Ibid., fn 46 to para. 7.18 (referring to  China's response to Panel question No.1, paras. 3-5)) 
623 Panel Reports, para. 7.20. 
624 Article 17.7 of the Anti-Dumping Agreement provides: 
Confidential information provided to the panel shall not be disclosed without formal authorization from the person, body or authority providing su ch information. Where such information is 
requested from the panel but release of such info rmation by the panel is not authorized, a non-
confidential summary of the info rmation, authorized by the person, body or authority providing 
the information, shall be provided. 
625 Panel Reports, para. 7.21 (referri ng to Article 1.2 and Appendix 2 to the DSU; and Appellate Body 
Report, Guatemala – Cement I , para. 66). 
626 Panel Reports, para. 7.21. WT/DS460/AB/R 
 
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  authority by the last sentence of Article 6.5."627 Based on this reasoning, the Panel declined to 
modify further paragraph 1 of the BCI Procedures in the manner proposed by the European Union. 
5.305.  With regard to paragraph 2 of the orig inal BCI Procedures, the Panel found that the 
provision  of confidential information to the Panel did not amount to its disclosure  to the public, and 
rejected, on this basis, China's argument that  WTO Members must provide an authorizing letter 
from the entity that submitted the confidenti al information in the underlying anti-dumping 
proceedings before they can "provide" such information to a WTO panel in the context of a dispute 
under the Anti-Dumping Agreement.628 The Panel therefore accepted the European Union's request 
to delete paragraph 2 of the BCI procedures, whic h set out a requirement for parties to provide an 
authorizing letter from the entity that submitted confidential information in the underlying proceedings, when submitting such informat ion to the Panel. The Panel communicated the 
amended BCI Procedures to the parties on 22 May 2014.
629  
5.6.2  Arguments 5.306.  Although the Panel agreed to make certain amendments to its original BCI Procedures, on 
appeal, the European Union submits that the Panel nonetheless erred in its interpretation and 
application of Articles 6.5 and 17.7 of the Anti-Dumping Agreement.
630 The European Union 
considers, in particular, that the Panel delegated, "in absolute terms", to MOFCOM the power to 
decide what information will be granted additi onal protection in the context of WTO dispute 
settlement proceedings "without any possibility of review by the Panel".631 In doing so, the Panel 
effectively found that designation of information as confidential by an investigating authority in the context of municipal anti-dumping proceedings pursuant to Article 6.5 is determinative  of 
designation pursuant to Article 17.7 in the context of WTO panel proceedings.
632 The 
European Union submits, in this regard, that the principles articulated by the panel and the 
Appellate Body in EC and certain member States – Large Civil Aircraft , according to which the 
question of designation is to be settled by the WT O adjudicator, are grounded in the provisions of 
the DSU and "do not vary according to the particular covered agreement that is under consideration".
633 The European Union also maintains that, contrary to the Panel's suggestion that 
there may be a difference between Article 17.7 of  the Anti-Dumping Agreement and Article 18.2 of 
the DSU such that the special or additional rule in Article 17.7 prevails, the phrase "person, body 
or authority" in Article 17.7 of the Anti-Dumping  Agreement and the term "Member" in Article 18.2 
of the DSU do not mean that there is a difference or conflict between these provisions. For the 
European Union, "[t]hese terms are simply consistent with the fact that, pursuant to Article 13.1 of 
the DSU, a panel has the authority to seek information or technical advice from any individual or body which it deems appropriate."
634 The European Union further contends that the Panel acted 
inconsistently with Article 11 of the DSU insofar as it foreclosed, through the adoption of the BCI 
Procedures, "the possibility for the Panel to make an objective assessment of a relevant matter, within the meaning of that provision."
635  
                                               
627 Panel Reports, para. 7.21. (fn om itted) The Panel further considered  that, since a panel's review is 
limited to the investigating authority's record, in practice, the designation of information under Article 18.2 of the DSU should generally not arise in a case brought under the Anti-Dumping Agreement, because this issue is already addressed by Articles 6.5 and 17.7 of the Anti-Dumping Agreement. (Ibid.) 
628 Panel Reports, para. 7.28. See also  para. 7.27 (referring to China's response to Panel question No. 4, 
paras. 25-30). 
629 Panel Reports, para. 1.10. The amended Additional Working Proced ures of the Panels Concerning 
Business Confidential Information can be found in Annex A-2 of the Addendum to the Panel Reports. 
630 In particular, the European Union takes issue with the Panel's statement that "the phrase 
'confidential information' in Article 17.7 refers to the confidential information previously examined by the 
investigating authority and treated as confidential purs uant to Article 6.5 – and which is now provided to a 
dispute settlement panel pursuant to Article 17.7." (Europ ean Union's Notice of Other Appeal, fn 2 to para. 1) 
631 European Union's other appellant's submission , para. 40. See also para. 35 (referring to 
Appellate Body Report, EC and certain member States – Large Civil Aircraft , Annex III, Procedural Ruling of 
10 August 2010, paras. 7-11 and 13). 
632 European Union's other appellan t's submission, paras. 41 and 43. 
633 European Union's other appe llant's submission, para. 57. 
634 European Union's other appe llant's submission, para. 55. 
635 European Union's other appellant's submission, para. 59. The European Union also submits that it 
sought certain specific rulings on designation fro m the Panel, which the Panel did not give. (Ibid.) WT/DS460/AB/R 
 
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  5.307.  The European Union also objects to the Panel's analysis of the requirement set out in 
paragraph 2 of the Panel's original BCI Procedur es regarding the requirement that a WTO Member 
provide an authorizing letter from the entity that submitted confidential information in the underlying anti-dumping proceedings when su bmitting such information to the panel.
636 Even 
though the Panel deleted this requirement from its original BCI Procedures, the European Union 
submits that the Panel's reasoning effectively implies that, in order for a WTO Member to designate information previously found to be confidential within the meaning of Article 6.5 as 
non-confidential , within the meaning of Article 17.7, a prior written authorizing letter would be 
necessary.
637  
5.308.  China responds that the term "confidential information" under Article 17.7 of the 
Anti-Dumping Agreement "refers to information submi tted as confidential pursuant to Article 6.5 of 
the Anti-Dumping Agreement"638, and that, regardless of whether or not "good cause" is shown 
within the meaning of Article 6.5, an investigating authority may not disclose any information provided on a confidential basis by a party to an investigation without its authorization.
639 
Therefore, in China's view, "as a matter of WTO law" and "regardless of whether or not this is 
confirmed in a panel's BCI Procedures", information submitted as confidential to an investigating authority should be designated as confidential before the panel examining the underlying 
anti-dumping proceedings, and should not be di sclosed without "specific permission or formal 
authorization" from the party that submitted such information in the underlying anti-dumping proceedings.
640 
5.309.  China further submits that the BCI Procedur es did not preclude the possibility to have a 
review of the question of designation by a WTO adjudicator on the basis of objective criteria.641 
China observes that a WTO adjudicator can review whether it is information that is  designated as 
confidential, rather than arguments, claims, or reasoning, and whether additional protection  is 
warranted for that information. China, however, does not consider that the question of 
"designation  of information as confidential is subject to review by a WTO adjudicator"642, in 
particular, given the absence of a reference to a showing of "good cause" in either Article 17.7 of 
the Anti-Dumping Agreement, or Articles 18.2 an d 13.1 of the DSU. China also argues that the 
balance between competing interests in the context of designation of information is struck by: (i) the ability to designate  information as confidential; and (ii) the obligation to provide a 
non-confidential summary of such information.  
5.6.3  Analysis 
5.310.  As a preliminary matter, we note China's argument that it may not be necessary for us to 
examine the issues raised by the European Un ion on appeal as such examination would not 
contribute to the prompt and satisf actory settlement of this dispute.
643 Article 17.12 of the DSU 
stipulates that the Appellate Body shall address each of the issues of law and legal interpretations raised during the appellate proceedings. As we see it, the Panel's analysis of the meaning and 
scope of Articles 6.5 and 17.7 of the Anti-Dum ping Agreement and Article 18.2 of the DSU are 
clearly issues of law, which, if properly raised on appeal, we are required to address. We consider the Panel's finding that "the phrase 'confidential information' in Article 17.7 refers to the confidential information previously examined by the investigating authority and treated as 
confidential pursuant to Article 6.5 – and whic h is now provided to a dispute settlement panel 
pursuant to Article 17.7"
644 – to be a core element of the Panel's interpretation of Articles 6.5 
                                               
636 European Union's other appellant's submission, pa ra. 61 (referring to Panel Reports, paras. 7.21 
and 7.26-7.29, particularly the finding that "the phrase 'confidential inform ation' in Article 17.7 refers to the 
confidential information previously examined by the investigating authority and treated as confidential pursuant to Article 6.5 – and which is now provided to  a dispute settlement panel pursuant to Article 17.7"; 
and the interpretation of the terms "person, body or authority"). 
637 European Union's other appellant's submission, para. 67 (referring to Panel Reports, fn 50 to 
para. 7.21). 
638 China's appellee's submission, para. 367. 
639 China's appellee's submission, para. 369. 
640 China's appellee's submission, para. 371. 
641 China's appellee's submission, para. 374 (referring to European Union's other appellant's submission, 
para. 42). 
642 China's appellee's submission, para. 374. (emphasis original) 
643 China's appellee's submission, paras. 361-362. 
644 Panel Reports, para. 7.21. WT/DS460/AB/R 
 
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  and 17.7 of the Anti-Dumping Agreement. As such, it is a "legal interpretation developed by the 
Panel" in the sense of Article 17.6 of the DSU and,  therefore, can be subject to appellate review. 
5.311.  Turning to our analysis of the issues rais ed by the European Union on appeal, we recall the 
general rule in Article 18.2 of the DSU that provides, inter alia , that written submissions to the 
Appellate Body "shall be treated as confidential".  We further note that, under Article 12.1 of the 
DSU, WTO panels are required to follow the Working Procedures in Appendix 3 to the DSU, unless they decide otherwise "after consulting the pa rties to the dispute". Panels may decide that 
additional procedures are appropriate in a given case and adopt, for example, procedures 
providing for additional protection of sensitive business information in order to allow a participant to present its arguments and evidence without undu e risk of disclosure of such information. In 
determining the scope and content of such proced ures, the panel must consider the effect they 
may have on the exercise by the panel of its adjudicative duties under the DSU and other covered 
agreements, the parties' rights to due process, th e rights of the third parties, and the rights and 
systemic interests of other WTO Members.
645 Any additional procedures adopted by a panel to 
protect the confidentiality of sensitive business information should go no further than necessary to 
guard against a determined risk of harm (actual or potential) that could result from disclosure, and 
must be consistent with the relevant provisions of the DSU and other covered agreements 
(including the Anti-Dumping Agreement).646 The obligation rests upon the panel to adjudicate any 
disagreement or dispute that may arise under those procedures regarding the designation or the treatment of information as business confidential. In addition, where necessary, a panel must draw appropriate inferences from a party's failure to provide requested information to the panel.  
5.312.  Having said that, we note that the framew ork for the treatment of confidential information 
in municipal anti-dumping proceedings is set ou t in Articles 6.5, 6.5.1, and 6.5.2 of the 
Anti-Dumping Agreement.
647 In the context of such domestic proceedings, it is for the 
investigating authorities  to assess objectively whether a submitting party  has adequately 
substantiated a request to treat certain information as "confidential" within the meaning of Article 6.5. If the investigating authority determines that an interested party has made a proper 
showing of "good cause", the information at issue "shall not be disclosed without specific 
permission of the party submitting it". Footnote 17 to Article 6.5 further clarifies that "Members 
are aware that in the territory of certain Members disclosure pursuant to a narrowly-drawn protective order may be required."  
5.313.  A different set of rules regulates conf idential treatment of information provided by a WTO 
Member to a panel or the Appellate Body  in the  context of WTO dispute settlement proceedings . As 
noted, Article 18.2 of the DSU specifically provides  that "[w]ritten submissions to the panel or the 
Appellate Body shall be treated as confidential, but shall be made available to the parties to the 
dispute." Parties to a dispute are free to disclose statements of their own positions to the public, but "shall treat as confidential information submitted by another Member to the panel or the 
Appellate Body which that Member has designated as confidential".
648  
5.314.  Article 13.1 of the DSU further provides that "[a] panel shall have the right to seek 
information and technical advice from any individual or body which it deems appropriate". WTO Members "should respond promptly and fully to any request by a panel for such information as the 
panel considers necessary and appropriate". Confidential information that is provided to a panel 
under Article 13.1 "shall not be revealed without fo rmal authorization from the individual, body, or 
authorities of the Member providing the information". These provisions apply generally in WTO 
dispute settlement proceedings.  
                                               
645 See Appellate Body Report, EC and certain member States – Large Civil Aircraft , Annex III, 
Procedural Ruling of 10 August 2010, paras. 8-9. 
646 See Appellate Body Report, EC and certain member States – Large Civil Aircraft , Annex III, 
Procedural Ruling of 10 August 2010, para. 9. 
647 See section 5.3 of these Reports.  
648 Article 18.2 of the DSU.  WT/DS460/AB/R 
 
- 102 - 
 
  5.315.  In EC and certain member States – Large Civil Aircraft , the Appellate Body observed that 
the confidentiality requirements in Articles  17.10 and 18.2 of the DSU, as well as in 
paragraph VII:1 of the Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes
649, are set out "at a level of generality that may need to be 
particularized in situations in which the nature of the information provided requires more detailed 
arrangements to protect adequately the confidentiality of that information."650 Whether a panel 
would consider that there is a need to adopt, based on the authority it enjoys under Article 12 of 
the DSU, special procedures for the additional protec tion of BCI, will therefore vary from case to 
case. Nevertheless, it is important to distinguish between the general layer of confidentiality that applies in WTO dispute settlement proceedings, as foreseen in Articles 18.2 and 13.1 of the DSU, and the additional layer of protection of sensitive business information that a panel may choose to 
adopt, usually at the request of a party. In the context of WTO disputes brought under the 
Anti-Dumping Agreement, Article 17.7 of that Agr eement stipulates that "[c]onfidential information 
provided to the panel shall not be disclosed without formal authorization from the person, body or 
authority providing such information."
651 Thus, while Article 6.5 of the Anti-Dumping Agreement 
regulates the issue of designation of information in domestic anti-dumping duty proceedings, Article 17.7 deals with the issue of confidentiality in an anti-dumping proceeding before a WTO 
panel.  
5.316.  As we see it, in its reasoning, the Panel conflated: (i) the confidentiality obligations under 
the Anti-Dumping Agreement setting the framework for confidential treatment of information that is applicable in the context of domestic  anti-dumping proceedings; and (ii) the confidentiality 
obligations applicable in WTO dispute settlement proceedings. In addition, the Panel also 
conflated: (i) confidentiality requirements generally applicable in WTO proceedings or in anti-dumping proceedings as foreseen in the above-mentioned provisions of the DSU and the 
Anti-Dumping Agreement; and (ii) the additional  layer of protection of sensitive business 
information provided under special procedures adopted by a panel for the purposes of a particular dispute.
652 Contrary to what the Panel appears to have suggested, whether information treated as 
confidential pursuant to Article 6.5 of the Anti-D umping Agreement, and submitted by a party to a 
WTO panel under the confidentiality requirements generally applicable in WTO dispute settlement, should receive additional confiden tial treatment as BCI is to be determined in each case by the 
WTO panel.  
5.317.  For these reasons, we declare moot and of no legal effect the Panel's findings and legal 
reasoning developed in paragraphs 7.21-7.25 and 7.27-7.29 of the EU Panel Report. We do not 
consider it necessary to make further findings on this matter in order to resolve the present 
dispute. 
 
                                               
649 The Rules of Conduct, as adopted by the DSB on 3 December 1996 (WT/DSB/RC/1), are directly 
incorporated into the Working Procedures for Appell ate Review (WT/AB/WP/6), as Annex II thereto. (See 
WT/DSB/RC/2, WT/AB/WP/W/2) 
650 Appellate Body Report, EC and certain member States – Large Civil Aircraft , Annex III, Procedural 
Ruling of 10 August 2010, para. 8. 
651 We note that Article 17.7 is a special or additional rule that prevails to the extent that there is a 
difference between the rules and procedures in the DSU (such as Articles 13 and 18 thereof) and Article 17.7 of the Anti-Dumping Agreement. (See Article 1.2 and Appendix 2 to the DSU) 
652 We note, in particular, the Panel' s finding that "the phrase 'confide ntial information' in Article 17.7 
refers to the confidential information previously examined by the investigating authority and treated as confidential pursuant to Article 6.5." (Panel Reports, para. 7.21) The Panel's conflation of the two regimes for 
the protection of confidential information is also refl ected in its statement that "the European Union has not 
explained how another type of 'disag reement about designation' under the BCI Procedures could occur when 
information was properly  treated as confidential in the underlying anti-dumping proceedings."
 (Panel Reports, 
fn 52 to para. 7.22 (emphasis original)) WT/DS454/AB/R 
 
- JPN-103 - 
 
  6  FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT WT/DS454/AB/R 
6.1.  In the appeal of the Panel Report, China – Measures Imposing Anti-Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan , WT/DS454/R and 
Add.1 (Japan Panel Report), for the reasons set out in this Report: 
a. with respect to the Panel's findings under Article 6.5 of the Anti-Dumping Agreement, 
the Appellate Body: 
i. finds that the Panel did not err in its interpretation and application of Article 6.5 of 
the Anti-Dumping Agreement; 
ii. finds that the Panel did not act inconsistently with Article 11 of the DSU and 
Article 17.6(i) of the Anti-Dumping Agreement; and, consequently, 
iii. upholds the Panel's findings, in paragraphs 7.290, 7.297-7.303, and 8.1.b. of the 
Japan Panel Report, that China acted inconsistently with Article 6.5 of the 
Anti-Dumping Agreement because MOFCOM permitted the full text of the reports contained in appendix V and appendix VIII to the petition, appendix 59 to the 
petitioners' supplemental evidence of 1 March 2012, and the appendix to the 
petitioners' supplemental evidence of 29 Ma rch 2012 to remain confidential without 
objectively assessing the petitioners' showing of "good cause"; 
b. with respect to the Panel's findings under Articles 3.1 and 3.2 of the Anti-Dumping 
Agreement, the Appellate Body: 
i. finds that the Panel erred in its interpretation of Article 3.2 of the 
Anti-Dumping Agreement in finding that, in  its consideration of whether there has 
been a significant price undercutting, an investigating authority may simply consider 
whether dumped imports sell at lower prices than comparable domestic products; 
ii. reverses the Panel's findings, in paragraphs 7.130, 7.144, and 8.2.a.i of the Japan 
Panel Report, rejecting Japan's claim that MOFCOM acted inconsistently with 
Articles 3.1 and 3.2 of the Anti-Dumping Agreement by failing to consider whether Grade C dumped imports had any price undercutting effect on domestic Grade C 
products, in the sense of placing downward pr essure on those domestic prices by being 
sold at lower prices; and 
iii. completes the legal analysis and finds that MOFCOM's assessment of whether there 
had been a significant price undercutting by  Grade C imports, as compared with the 
price of domestic Grade C, is inconsistent with Articles 3.1 and 3.2 of the 
Anti-Dumping Agreement;  
c. with respect to the Panel's findings under Articles 3.1 and 3.4 of the Anti-Dumping 
Agreement, the Appellate Body: 
i. finds that Japan's argument, that MOFCOM failed to examine whether dumped 
imports provided explanatory force for the state of the domestic industry, did not 
constitute a separate claim under Articles 3.1 and 3.4 of the Anti-Dumping 
Agreement; and consequently declares moot and of no legal effect the Panel's 
findings in paragraphs 6.29-6.31 and footnote 274 of the Japan Panel Report; and 
ii. finds that the Panel erred in its interpretation of Articles 3.1 and 3.4 of the 
Anti-Dumping Agreement to the extent it found that the results of the inquiries under 
Article 3.2 are not relevant to the impact analysis under Article 3.4; and consequently reverses the Panel's findings in paragraphs 7.170 and 8.2.a.ii of the 
Japan Panel Report; WT /DS454/ AB/R 
-JPN-104 -
d. with respect to the Panel's findings under Articles 3.1 and 3.5 of the 
Anti-Dumping Agreement, the Appellate Body: 
i. finds that the Panel did not act inconsistently with Article 6.2 of the DSU by 
addressing Japan's claims under Article 3.5 of the Anti-Dumping Agreement 
regarding "MOFCOM's reliance on the market share of subject imports", in 
paragraphs 7 .180-7 .188 of the Japan Panel Report; 
ii. finds that the Panel did not act inconsistently with Article 11 of the DSU by ruling on 
a matter that was not before it, or making the case for Japan; 
iii. upholds the Panel's findings, in paragraphs 7.188, 7.205, and 8.1.a.iii of the Japan 
Panel Report, that China acted inconsistently with Articles 3.1 and 3.5 of the 
Anti-Dumping Agreement because MOFCOM improperly relied on the market share of 
dumped imports, and its flawed price effects and impact analyses, in determining a 
causal link between dumped imports and material injury to the domestic industry, 
and made no finding of cross-grade price effects whereby price undercutting by 
Grade Band C imports might be shown to affect the prices of domestic Grade A 
HP-SSST; 
iv. upholds the Panel's finding, in paragraphs 7.204, 7.205, and 8.1.a.iv of the Japan 
Panel Report, that China acted inconsistently with Articles 3.1 and 3.5 of the 
Anti-Dumping Agreement because MOFCOM failed to ensure that the injury caused 
by the decrease in apparent consumption and the increase in domestic production 
capacity was not attributed to the dumped imports; and 
v. finds that the Panel did not act inconsistently with Article 11 of the DSU, in 
concluding, in paragraph 7.192 of the Japan Panel Report, that Japan had not 
advanced independent Article 3.5 claims -other than those regarding MOFCOM's 
reliance on market shares and MOFCOM 's non-attribution analysis -concerning 
MOFCOM's price effects and impact analyses. 
6.2. The Appellate Body recommends that the DSB request China to bring its measures found in 
this Report, and in the Japan Panel Report as modified by this Report, to be inconsistent with the 
Anti-Dumping Agreement and the GATT 1994, into conformity with its obligations under those 
Agreements. 
Signed in the original in Geneva this 25th day of September 2015 by: 
Peter Van d ossche 
Presiding Member 
G:~~ 
Ricardo Ramirez-Hernandez 
Member WT/DS460/AB/R 
 
- EU-105 - 
 
  6  FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT WT/DS460/AB/R 
 6.1.  In the appeal of the Panel Report, China – Measures Imposing Anti-Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from the European Union , 
WT/DS460/R and Add.1 (EU Panel Report), for the reasons set out in this Report: 
a. with respect to the Panel's findings under Articles 2.2.1 and 2.2.2 of the Anti-Dumping 
Agreement, the Appellate Body: 
i. upholds the Panel's findings, in paragraphs 7.49 and 7.51 of the EU Panel Report, 
that the European Union's panel request complies with the requirement in Article 6.2 
of the DSU to provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly in respect of the European Union's claims under 
Articles 2.2.1 and 2.2.2 of the Anti-Dumping Agreement; and that these claims were 
thus within the Panel's terms of reference; 
ii. finds that the Panel did not err in its interpretation and application of Article 2.2.2 of 
the Anti-Dumping Agreement; 
iii. finds that the Panel did not act inconsistently with Articles 11 and 12.7 of the DSU 
and Article 17.6(i) of the Anti-Dumping Agreement; and consequently 
iv. upholds the Panel's finding, in paragraphs 7.66 and 8.6.a. of the EU Panel Report, 
that China acted inconsistently with Articl e 2.2.2 of the Anti-Dumping Agreement by 
failing to determine an SG&A amount for SMST on the basis of actual data pertaining to production and sales in the ordinary course of trade of the like product;  
b. with respect to the Panel's findings under Article 6.7 and paragraph 7 of Annex I to the 
Anti-Dumping Agreement, the Appellate Body upholds the Panel's finding, in 
paragraphs 7.101 and 8.6.c. of the EU Panel Report, that China acted inconsistently with 
Article 6.7 and paragraph 7 of Annex I by rejecting SMST's request for rectification only 
on the basis that it was not provided prior to verification; 
c. with respect to the Panel's findings under Article 6.5 of the Anti-Dumping Agreement, 
the Appellate Body: 
i. finds that the Panel did not err in its interpretation and application of Article 6.5 of 
the Anti-Dumping Agreement; 
ii. finds that the Panel did not act inconsistently with Article 11 of the DSU and 
Article 17.6(i) of the Anti-Dumping Agreement; and consequently 
iii. upholds the Panel's finding, in paragraphs 7.290, 7.297-7.303, and 8.6.e. of the 
EU Panel Report, that China acted inconsistently with Article 6.5 of the Anti-Dumping 
Agreement because MOFCOM permitted the fu ll text of the reports contained in 
appendix V and appendix VIII to the petition, appendix 59 to the petitioners' supplemental evidence of 1 March 2012, an d the appendix to the petitioners' 
supplemental evidence of 29 March 2012 to remain confidential without objectively 
assessing the petitioners' showing of "good cause"; 
d. with respect to the Panel's findings under Article 6.9 of the Anti-Dumping Agreement, 
the Appellate Body:  
i. finds that the Panel erred in its interpretation and application of Article 6.9 of the 
Anti-Dumping Agreement; and consequently reverses the Panel's findings, in 
paragraphs 7.235, 7.236, and 8.7.d.i. of the EU Panel Report, rejecting the 
European Union's claim that China acted inconsistently with Article 6.9 of the 
Anti-Dumping Agreement because MOFCOM failed to disclose adequately the essential facts in connection with the data underlying MOFCOM's determination of 
dumping concerning SMST and Tubacex; and WT/DS460/AB/R 
 
- EU-106 - 
 
  ii. completes the legal analysis and finds that China acted inconsistently with Article 6.9 
of the Anti-Dumping Agreement because MOFC OM failed to disclose adequately the 
essential facts in connection with the data underlying MOFCOM's determination of dumping concerning SMST and Tubacex; 
e. with respect to the Panel's findings under Articles 3.1 and 3.2 of the Anti-Dumping 
Agreement, and in connection with MOFCOM's price effects analysis, the Appellate Body: 
i. finds that the Panel erred in its interpretation of Article 3.2 of the 
Anti-Dumping Agreement in finding that, in  its consideration of whether there has 
been a significant price undercutting, an investigating authority may simply consider whether dumped imports sell at lower prices than comparable domestic products; 
ii. reverses the Panel's findings, in paragraphs 7.130, 7.144, and 8.7.b.i. of the 
EU Panel Report, rejecting the European Union's claim that MOFCOM acted 
inconsistently with Articles 3.1 and 3.2 by failing to consider whether Grade C 
dumped imports had any price undercutting effect on domestic Grade C products, in 
the sense of placing downward pressure on those domestic prices by being sold at 
lower prices; 
iii. completes the legal analysis and finds that MOFCOM's assessment of whether there 
had been a significant price undercutting by  Grade C imports, as compared with the 
price of domestic Grade C, is inconsistent with Articles 3.1 and 3.2 of the Anti-Dumping Agreement; and 
iv. reverses the Panel's findings, in paragraphs 7.143, 7.144, and 8.7.b.i. of the EU 
Panel Report; and finds instead that MOFCOM's assessment of whether there had 
been a significant price undercutting by th e dumped imports, as compared with the 
prices of the domestic like product, is inconsistent with Articles 3.1 and 3.2 of the 
Anti-Dumping Agreement; 
f. with respect to the Panel's findings under Articles 3.1 and 3.4 of the 
Anti-Dumping Agreement, and in connection with MOFCOM's impact analysis, the 
Appellate Body finds that the Panel erred in it s interpretation of Articles 3.1 and 3.4 of 
the Anti-Dumping Agreement to the extent it found that the results of the inquiries 
under Article 3.2 are not relevant to the impact analysis under Article 3.4; and consequently reverses the Panel's findings in paragraphs 7.170 and 8.7.b.ii of the 
EU Panel Report; 
g. with respect to the Panel's finding that China acted inconsistently with Articles 3.1 
and 3.5 of the Anti-Dumping Agreement, the Appellate Body: 
i. finds that the Panel did not act inconsistently with Article 11 of the DSU by ruling on 
a matter that was not before it, or, making the case for the European Union; 
ii. upholds the Panel's findings, in paragraphs 7.188, 7.205, and 8.6.d.iii of the 
EU Panel Report, that China acted inconsistently with Articles 3.1 and 3.5 of the 
Anti-Dumping Agreement because MOFCOM impr operly relied on the market share of 
dumped imports, and its flawed price effects and impact analyses, in determining a causal link between dumped imports and material injury to the domestic industry, 
and made no finding of cross-grade price effects whereby price undercutting by 
Grade B and C imports might be shown to affect the price of domestic Grade A HP-SSST;  
iii. upholds the Panel's finding, in paragraphs 7.204, 7.205, and 8.6.d.iv of the EU Panel 
Report, that China acted inconsistently with Articles 3.1 and 3.5 of the 
Anti-Dumping Agreement because MOFCOM fa iled to ensure that the injury caused 
by the decrease in apparent consumption and the increase in domestic production 
capacity was not attributed to the dumped imports; and  WT /DS460/ AB/R 
-EU-107 -
iv. finds that the Panel did not act inconsistently with Article 11 of the DSU, in 
concluding, in paragraph 7.192 of the EU Panel Report, that the European Union had 
not advanced independent Article 3.5 claims -other than those concerning 
MOFCOM's reliance on market shares and MOFCOM's non-attribution analysis -
concerning MOFCOM's price effects and impact analyses; and 
h. with respect to the Panel's designation of business confidential information (BCI) and its 
adoption of BCI Procedures, the Appellate Body declares moot and of no legal effect the 
Panel's findings and legal reasoning developed in paragraphs 7.21-7.25 and 7.27-7.29 of 
the EU Panel Report, and does not find it necessary to make further findings on this 
matter in order to resolve the present dispute. 
6.2. The Appellate Body recommends that the DSB request China to bring its measures found in 
this Report, and in the EU Panel Report as modified by this Report, to be inconsistent with the 
Anti-Dumping Agreement and the, GATT 1994, into conformity with its obligations under those 
Agreements. . 
Signed in the original in Geneva this 25th day of September 2015 by: 
TI---~ 
Ricardo Ramirez-Hernandez 
Member