WT/DS427/RW/Add.1  
 
18 January 2018  
(18-0445) Page: 1/86 
  Original: English  
 
  
CHINA — ANTI -DUMPING AND COUNTERV AILING DUTY MEASURES  ON 
BROILER PRODUCTS FRO M THE UNITED STATES  
RECOURSE TO ARTICLE 21.5 OF THE DSU BY T HE UNITED STATES  
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to E to the Report of the Panel to be found in document  
WT/DS427/RW . 
 
 
_______________  
 
 WT/DS427/RW/Add.1  
 
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  LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES O F THE PANEL AND INTERIM REVIEW  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  A-2 
Annex  A-2 Additional Working Procedures of the Panel concerning Business Confidential 
Information  A-6 
Annex  A-3 Interim Review  A-8 
ANNEX B  
ARGUMENTS OF THE UNI TED STATES  
Contents  Page  
Annex  B-1 Executive summary of the First Written Submission of the United States  B-2 
Annex  B-2 Executive summary of the Second Written Submission of the United States  B-10 
Annex  B-3 Executive summary of the Opening Oral Statement of the United States at the 
Substantive Meeting of the Panel  B-18 
ANNEX C  
ARGUMENTS OF  CHINA  
Contents  Page  
Annex  C-1 Executive summary of the First Written Submission of China  C-2 
Annex  C-2 Executive summary of the Second Written Submission of China  C-10 
Annex  C-3 Executive summary of the Oral Statements of China at the Substantive Meeting 
of the Panel  C-18 
ANNEX  D 
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex  D-1 Integrated executive summary of the arguments of the European Union  D-2 
Annex  D-2 Integrated executive summary of the arguments of Japan  D-4 
 
ANNEX E  
PRELIMINARY RULING  
Contents  Page  
Annex E -1 Ruling by the P anel on jurisdictional issues dated 22 March 2017  E-2 
 
 
 WT/DS427/RW/Add.1  
 
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  ANNEX  A 
WORKING PROCEDURES O F THE PANEL AND INTERIM REVIEW  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  A-2 
Annex  A-2 Additional Working Procedures of the Panel concerning Business Confidential 
Information  A-6 
Annex  A-3 Interim Review  A-8 
 WT/DS427/RW/Add.1  
 
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  ANNEX  A-1 
WORKING PROCEDURES O F THE PANEL  
Adopted on 9 November 2016  
1. In its proceedings, the Panel shall follow the relevant provisions of the Understanding on 
Rules and Procedures Governing the Settlement of Disputes (DSU). In addition, the following 
Working Procedures shall apply.  
General  
 
2. The deliberations of the Panel and the documents submitted to it shall be kept confid ential. 
Nothing in the DSU or in these Working Procedures shall preclude a party to the dispute (hereafter 
"party") from disclosing statements of its own positions to the public. Members shall treat as 
confidential information submitted to the Panel by ano ther Member which the submitting Member 
has designated as confidential. Where a party submits a confidential version of its written 
submissions to the Panel, it shall also, upon request of a Member, provide a non -confidential 
summary of the information con tained in its submissions that could be disclosed to the public.  
3. The parties shall treat business confidential information in accordance with the procedures 
set forth in the Additional Working Procedures of the Panel Concerning Business Confidential 
Information.  
4. The Panel shall meet in closed session. The parties, and Members having notified their 
interest in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU 
(hereafter "third parties"), shall be present at the meetings only when i nvited by the Panel to 
appear before it.  
5. Each party and third party has the right to determine the composition of its own delegation 
when meeting with the Panel. Each party and third party shall have the responsibility for all 
members of its own delega tion and shall ensure that each member of such delegation acts in 
accordance with the DSU and these Working Procedures, particularly with regard to the 
confidentiality of the proceedings.  
Submissions  
 
6. Before the substantive meeting of the Panel with th e parties, each party shall submit to the 
Panel a first written submission, and subsequently a written rebuttal, in which it presents the facts 
of the case and its arguments, and counter -arguments, respectively, in accordance with the 
timetable adopted by the Panel.  
7. A party shall submit any request for a preliminary ruling at the earliest possible opportunity 
and in any event no later than in its first written submission to the Panel. If the United States 
requests such a ruling, China shall submit its r esponse to the request in its first written 
submission. If China requests such a ruling, the United States shall submit its response to the 
request prior to the substantive meeting of the Panel, at a time to be determined by the Panel in 
light of the reque st. Exceptions to this procedure shall be granted upon a showing of good cause.  
8. Each party shall submit all factual evidence to the Panel no later than during the substantive 
meeting, except with respect to evidence necessary for purposes of rebuttal, answers to questions 
or comments on answers provided by the other party. Exceptions to this procedure shall be 
granted upon a showing of good cause. Where such exception has been granted, the Panel shall 
accord the other party a period of time for comment,  as appropriate, on any new factual evidence 
submitted after the substantive meeting.  
9. Where the original language of exhibits is not a WTO working language, the submitting party 
or third party shall submit a translation into the WTO working language of  the submission at the WT/DS427/RW/Add.1  
 
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  same time. The Panel may grant reasonable extensions of time for the translation of such exhibits 
upon a showing of good cause. Any objection as to the accuracy of a translation should be raised 
promptly in writing, no later than the  next filing or meeting (whichever occurs earlier) following 
the submission which contains the translation in question. The Panel may grant exceptions to this 
procedure upon a showing of good cause, including where the issue concerning translation arises 
later in the dispute. Any objection shall be accompanied by a detailed explanation of the grounds 
of objection and an alternative translation.  
10. To facilitate the maintenance of the record of the dispute, and maximize the clarity of 
submissions, each part y and third party shall sequentially number its exhibits throughout the 
course of the dispute. For example, exhibits submitted by the United States could be numbered 
US-1, US -2, etc. If the last exhibit in connection with the first submission was numbered US-5, the 
first exhibit of the next submission thus would be numbered US -6.  
Questions  
 
11. The Panel may at any time pose questions to the parties and third parties, orally or in 
writing, including prior to the substantive meeting.  
Substantive meeting  
 
12. Each party shall provide to the Panel the list of members of its delegation in advance of the 
meeting with the Panel and no later than 5.00  p.m. on the previous working day.  
13. The substantive meeting of the Panel shall be conducted as follows:  
a. The Panel shall invite the United States to make an opening statement to present its 
case first. Subsequently, the Panel shall invite China to present its point of view. Before 
each party takes the floor, it shall provide the Panel and other participants at th e 
meeting with a provisional written version of its statement. In the event that 
interpretation is needed, each party shall provide additional copies to the interpreters. 
Each party shall make available to the Panel and the other party the final version of  its 
opening statement as well as its closing statement, if available, preferably at the end of 
the meeting, and in any event no later than 5.00  p.m. on the first working day following 
the meeting.  
b. After the conclusion of the statements, the Panel shall  give each party the opportunity to 
ask each other questions or make comments, through the Panel. Each party shall then 
have an opportunity to answer these questions orally. Each party shall send in writing, 
within a timeframe to be determined by the Panel , any questions to the other party to 
which it wishes to receive a response in writing. Each party shall be invited to respond in 
writing to the other party's questions within a deadline to be determined by the Panel.  
c. The Panel may subsequently pose que stions to the parties. Each party shall then have an 
opportunity to answer these questions orally. The Panel shall send in writing, within a 
timeframe to be determined by it, any questions to the parties to which it wishes to 
receive a response in writing.  Each party shall be invited to respond in writing to such 
questions within a deadline to be determined by the Panel.  
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with the Uni ted States presenting its statement first.  
Third parties  
 
14. The Panel shall invite each third party to transmit to the Panel a written submission prior to 
the substantive meeting of the Panel with the parties, in accordance with the timetable adopted by  
the Panel.  
15. Each third party shall also be invited to present its views orally during a session of the 
substantive meeting, set aside for that purpose. Each third party shall provide to the Panel the list WT/DS427/RW/Add.1  
 
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  of members of its delegation in advance of thi s session and no later than 5.00  p.m. the previous 
working day.  
16. The third -party session shall be conducted as follows:  
a. All third parties may be present during the entirety of this session.  
b. The Panel shall first hear the arguments of the third parties in alphabetical order. 
Third parties present at the third -party session and intending to present their views 
orally at that session, shall provide the Panel, the parties and other third parties with 
provisional written versions of their statements before they take the floor. Third parties 
shall make available to the Panel, the parties and other third parties the final versions of 
their statements, preferably at the end of the session, and in any event no later than 
5.00 p.m. of the first working day  following the session.  
c. After the third parties have made their statements, the parties may be given the 
opportunity, through the Panel, to ask the third parties questions for clarification on any 
matter raised in the third parties' submissions or stat ements. Each party shall send in 
writing, within a timeframe to be determined by the Panel, any questions to a third party 
to which it wishes to receive a response in writing.  
d. The Panel may subsequently pose questions to the third parties. Each third p arty shall 
then have an opportunity to answer these questions orally. The Panel shall send in 
writing, within a timeframe to be determined by it, any questions to the third parties to 
which it wishes to receive a response in writing. Each third party shall  be invited to 
respond in writing to such questions within a deadline to be determined by the Panel.  
Descriptive part  
 
17. The description of the arguments of the parties and third parties in the descriptive part of 
the Panel report shall consist of execut ive summaries provided by the parties and third parties, 
which shall be annexed as addenda to the report. These executive summaries shall not in any way 
serve as a substitute for the submissions of the parties and third parties in the Panel's examination 
of the case.  
18. Each party shall submit executive summaries of the facts and arguments as presented to the 
Panel in its written submissions, other than responses to questions, and its oral statements, in 
accordance with the timetable adopted by the Panel.  Each executive summary of a written 
submission shall be limited to no more than 10 pages. A summary submitted by a party of its 
opening and/or closing statements presented at the substantive meeting shall be limited to no 
more than 5 pages. The Panel will  not summarize in a separate part of its report, or annex to its 
report, the parties' responses to questions.  
19. Each third party shall submit an executive summary of its arguments as presented in its 
written submission and statement in accordance with th e timetable adopted by the Panel. This 
summary may also include a summary of responses to questions, where relevant. The executive 
summary to be provided by each third party shall not exceed 6  pages.  
20. The Panel reserves the right to request the parties  and third parties to provide executive 
summaries of facts and arguments presented by a party or a third party in any other submissions 
to the Panel for which a deadline may not be specified in the timetable.  
Interim review  
 
21. Following issuance of the i nterim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel in accordance 
with the timetable adopted by the Panel. The right to request such a meeting shall be exercise d no 
later than at the time the written request for review is submitted.  
22. In the event that no further meeting with the Panel is requested, each party may submit 
written comments on the other party's written request for review in accordance with the ti metable WT/DS427/RW/Add.1  
 
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  adopted by the Panel. Such comments shall be limited to commenting on the other party's written 
request for review.  
23. The interim report, as well as the final report prior to its official circulation, shall be kept 
strictly confidential and shal l not be disclosed.  
Service of documents  
 
24. The following procedures regarding service of documents shall apply:  
a. Each party and third party shall submit all documents to the Panel by filing them with 
the DS  Registry (office No. 2047).  
b. Each party  and third party shall file 3 paper copies of all documents it submits to the 
Panel. However, when Exhibits are provided on CD -ROMS/DVDs, 2 CD -ROMS/DVDs and 
2 paper copies of those exhibits shall be filed. The DS  Registrar shall stamp the 
documents with th e date and time of the filing. The paper version shall constitute the 
official version for the purposes of the record of the dispute.  
c. Each party and third party shall also provide an electronic copy of all documents it 
submits to the Panel at the same t ime as the paper versions, in Microsoft Word format, 
either on a CD -ROM, a DVD or as an e -mail attachment. If the electronic copy is 
provided by e -mail, it should be addressed to DSRegistry@wto.org, and cc'd to 
XXXXXX @wto.org. If a CD -ROM or DVD is provide d, it shall be filed with the DS Registry.  
d. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall, in addition, serve on all third parties its written submissions in advance 
of the substantive meeting w ith the Panel. Each third party shall serve any document 
submitted to the Panel directly on the parties and all other third parties. Each party and 
third party shall confirm, in writing, that copies have been served as required at the time 
it provides each  document to the Panel.  
e. Each party and third party shall file its documents with the DS Registry and serve copies 
on the other party (and third parties where appropriate) by 5.00  p.m. (Geneva time) on 
the due dates established by the Panel. A party or t hird party may submit its documents 
to another party or third party in electronic format only, subject to the recipient party or 
third party's prior written approval and provided that the Panel Secretary is notified.  
f. The Panel shall provide the parties with an electronic version of the descriptive part, the 
interim report and the final report, as well as of other documents as appropriate. When 
the Panel transmits to the parties or third parties both paper and electronic versions of a 
document, the paper version shall constitute the official version for the purposes of the 
record of the dispute.  
g. The Panel reserves the right to modify these procedures as necessary, after consultation 
with the parties.  
 
 
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  ANNEX A -2 
ADDITIONAL WORKING P ROCEDURES OF THE PAN EL CONCERNING  
BUSINESS CONFIDENTIA L INFORMATION  
Adopted on 22 November 2016  
1. The following procedures apply to business confidential information (BCI) submitted in the 
course of the present Panel proceedings.  
 
2. For the purposes of these proceedings, BCI is defined as any information that has been 
designated as such by a party or  a third party submitting the information to the Panel. The 
parties or third parties shall only designate as BCI information that is not available in the 
public domain, the release of which would cause serious harm to the interests of the 
originator(s) of the information. BCI may include (1) information that was previously treated 
as confidential within the meaning of Articles 6.5 of the Anti -dumping Agreement and 12.4 
of the Agreement on Subsidies and Countervailing Measures by the investigating authoritie s 
of China in the anti -dumping and countervailing investigations and subsequent proceedings 
at issue in this dispute, and (2)  information that was previously treated as BCI in the 
original proceeding in this dispute, unless the person who provided the info rmation in the 
course of those investigations or proceedings agrees in writing to make the information 
publicly available.  
 
3. The first time that a party submits to the Panel BCI as defined above from an entity that 
submitted that information in one of the proceedings at issue, the party shall also provide, 
with a copy to the other party, an authorizing letter from the entity. Th at letter shall 
authorize both the United States and China to submit in this dispute, in accordance with 
these procedures, any confidential information submitted by that entity in the course of 
those proceedings. An authorizing letter need not be provided in respect of BCI for which a 
party already submitted an authorizing letter in the original Panel proceedings.  
 
4. If a party or third party considers that information submitted by the other party or a third 
party should have been designated as BCI and ob jects to its submission without such 
designation, it shall forthwith bring this objection to the attention of the Panel, the other 
party, and, where relevant, the third parties, together with the reasons for the objection. 
Similarly, if a party or third pa rty considers that the other party or a third party designated 
as BCI information which should not be so designated, it shall forthwith bring this objection 
to the attention of the Panel, the other party, and, where relevant, the third parties, 
together wi th the reasons for the objection. The Panel shall decide whether information 
subject to an objection will be treated as BCI for the purposes of these proceedings on the 
basis of the criteria set out in paragraph 2.  
 
5. No person may have access to BCI exc ept a member of the Secretariat or the Panel, an 
employee of a party or of a third party, or an outside advisor to a party or third party for the 
purposes of this dispute. A person having access to BCI shall not disclose that information 
other than to pers ons authorized to have access to it pursuant to these procedures. Any 
information designated as BCI shall only be used for the purposes of this dispute. Each party 
and third party is responsible for ensuring that its employees and/or outside advisors compl y 
with these procedures.  
 
6. An outside advisor to a party or third party is not permitted access to BCI if that advisor is 
an officer or employee of an enterprise engaged in the production, sale, export, or import of 
the products that were the subject of  the investigations at issue in this dispute, or an officer 
or employee of an association of such enterprises.  
 
7. Third parties' access to BCI shall be subject to the terms of these procedures. A party 
objecting to a third party having access to BCI it i s submitting shall inform the Panel of its 
objection and the reasons therefor prior to filing the document containing such BCI. The WT/DS427/RW/Add.1  
 
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  Panel may, if it finds the objection justified, request the objecting party to provide a non -
confidential version of the BCI  in question to the third party.  
 
8. Submission of BCI:  
 
(i) The party or third party submitting BCI shall indicate the presence of such information 
in any document submitted to the Panel, as follows: the first page or cover of the 
document shall state "Contains Business Confidential Information on pages xxxxx ", 
and each page of the document shall contain the notice "Contains Business 
Confidential Information " at the top of the page. The specific business confidential 
information in question shall be plac ed between double square brackets, as follows: 
[[xx,xxx.xx]]. A party submitting BCI in the form of, or as part of, an Exhibit shall, in 
addition to the above, so indicate by putting "BCI" next to the exhibit number 
(e.g. Exhibit US -1 (BCI)).  
 
(ii) Where BCI is submitted in electronic format, the file name shall include the terms 
"Business Confidential Information" or "BCI". In addition, where applicable, the label 
of the storage medium shall be clearly marked with the statement "Business 
Confidential Info rmation" or "BCI".  
 
(iii) In the case of an oral statement containing BCI, the party or third party making such 
a statement shall inform the Panel before making it that the statement will contain 
BCI, and the Panel will ensure that only persons authorized  to have access to BCI 
pursuant to these procedures are in the room to hear that statement. The written 
versions of such oral statements submitted to the Panel shall be marked as provided 
for in paragraph 7(i).  
 
9. Where a party submits a document contain ing BCI to the Panel, the other party or third 
party, when referring to that BCI in its documents, including written submissions, and oral 
statements, shall clearly identify all such information in those documents. All such 
documents shall be marked and tr eated as described in paragraph 7.  
 
10. Any person authorized to have access to BCI under the terms of these procedures shall store 
all documents or other media containing BCI in such a manner as to prevent unauthorized 
access to such information.  
 
11. The Panel will not disclose BCI, in its report or in any other way, to persons not authorized 
under these procedures to have access to BCI. The Panel may, however, make statements 
of conclusion drawn from such information. Before the Panel circulates its fi nal report to the 
Members, the Panel will give each party and, where BCI was submitted by a third party, that 
third party an opportunity to review the report to ensure that it does not contain any 
information that the party or third party has designated as  BCI.  
 
12. Submissions, exhibits, and other documents or recordings containing BCI will be included in 
the record forwarded to the Appellate Body in the event of an appeal of the report of the 
Panel.  
 
 WT/DS427/RW/Add.1  
 
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  ANNEX A -3 
INTERIM REVIEW  
1.1.  In accordance with Article 15.3 of the DSU, this section of the Panel Report sets out our 
response to the parties' requests made at the Interim Review stage. Our assessm ent of the 
parties' requests and comments is informed by the following considerations:  
a. The Interim Review stage is not an opportunity for parties to reargue the case or to 
"introduce new legal issues and evidence or to enter into a debate with the Panel ".1 
b. The descriptions of the arguments of the parties in our Report are not meant to and do 
not reflect the entirety of the parties' arguments. Rather, they highlight the principal 
points of those arguments that we considered relevant to our resolution o f the issues in 
dispute and addressed in our findings.2 Finally, we note that, the executive summaries of 
the arguments of the parties, set out in Annexes B1 -B4, were prepared by the parties 
themselves, and reflect, or should reflect, the judgement of each  party as to its main 
arguments. However, as provided for in paragraph 17 of the Panel's Working Procedures, 
"These executive summaries shall not in any way serve as a substitute for the 
submissions of the parties and third parties in the Panel's examinati on of the case."  
c. A panel may develop its own reasoning in reaching its findings, provided that it does so 
consistently with the requirements of due process. A panel is not required to "test" its 
intended reasoning with the parties in advance.3  
1.2.  Where appropriate, we have modified aspects of the Report in the light of the 
parties'  requests and comments. Due to changes as a result of our review, the numbering of 
paragraphs and footnotes in the Final Report has changed from the Interim Report. The tex t below 
refers to the numbers in the Interim Report, with the numbers in the Final Report in parentheses 
for ease of reference, if different.  
1.3.  In addition to the modifications specified below, the Panel also corrected a number of 
typographical and oth er non -substantive errors throughout the Report, including some identified 
by the parties.  
1.1  The United States' request for review of the Interim Report  
1.4.  In respect of paragraph 7.39(e)  (paragraph 7.39(g) in the Final Report) , the 
United  States asks the Panel to clarify this paragraph and proposes two modifications.4 China 
disagrees.5 The proposed US language more clearly reflects our intent; we have therefore modified 
the paragraph to better reflect our intent.  
1.5.  In respect of paragraph 7.51 , the United States requests that the Panel revisit, in 
particular, the second sentence, and either delete or reformulate it to ensure that it addresses the 
specific legal matter at issue in this Article 21.5 proceeding.6 China disagrees with the proposal to 
delete the sentence.7 On reflection, we have modified this paragraph to more clearly express our 
views regarding the specific legal question at issue.  
                                                
1 Panel Report, India – Quantitative Restrictions , para. 4.2.  
2 A panel has "the discretion to address explicitly in [its] reasoning only the arguments and evidence [it] 
deem[s] necessary to resolve a particular claim and support the reasoning [it is ] required to provide." (Panel 
Report, India – Agricultural Products , para. 6.7 (referring to Appellate Body Reports, EC – Poultry , para. 135; 
and US – COOL , para. 414)).  
3 Report of the Appellate Body, U.S. – Tuna II (Mexico), Article 21.5 , para. 177.  
4 United States' request for interim review, paras. 4 -5. 
5 China's comm ents on the United States' request for interim review, para. 2.  
6 United States' request for interim review, paras. 6 -8. 
7 China's comments on the United States' request for interim review, para. 3.  WT/DS427/RW/Add.1  
 
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  1.6.  In respect of paragraph 7.52 , the United States requests that the Panel's reference to its 
original findings more closely track the language of those findings.8 China disagrees, asserting that 
"in this Article 21.5 proceeding the Panel is addressing a particular methodology and the 
paragraph reflects this fact."9 We have modified the text and added t he appropriate reference to 
better reflect the original findings to which we refer.  
1.2  China's request for review of the Interim Report  
1.7.   In respect of paragraph 7.23(e) , China asserts that  footnote 86 (footnote 89 of the 
Final Report)  refers to a d ifferent matter than the text, and asks the Panel to distinguish the two 
by adding a new footnote.10 We agree that the reference in footnote 86 is incorrect, and have 
changed it. We also made a minor consequential modification to footnote 85 (footnote 88 of  the 
Final Report). Having done so, we do not consider it necessary to add the additional footnote 
requested by China.  
1.8.  In respect of paragraph 7.53(b) , China requests that the reference to "MOFCOM" be 
removed from the sentence, asserting that "it is not MOFCOM's quote but is a statement attributed 
to Tyson."11 The United States disagrees, contending that the text is accurate as drafted.12 
1.9.  This paragraph is based on the following passage in MOFCOM's redetermination:  
In the original investigation, c onsidering that meat cost was the main cost constitution 
of the product concerned, and that for feeding live chickens by the Company it was 
not able to distinguish which feeds were specifically used to produce which parts of 
the product concerned , the Inve stigating Authority found that weight -based method 
could be more objective and more reasonable than the value -based method submitted 
by the Company in the questionnaire response to reflect the production cost 
associated with the product concerned, therefor e, the weighted average production 
cost of all product groups was regarded as the production cost of the product 
concerned and the like product.13 
Thus, MOFCOM found "that weight -based method could be more objective and more reasonable" 
on the basis of two considerations: first, that "meat cost was the main cost constitution of the 
product concerned", and second, "that for feeding live chickens by the Company it was not able to 
distinguish which feeds were specifically used to produce which parts of the prod uct concerned". 
We recognize that it is not entirely clear in this translation of the redetermination, submitted by 
China, whether "it" in the second sentence refers to Tyson ("the Company") or to MOFCOM. As the 
United States noted, there is nothing cited or referred to in the redetermination that would 
attribute the statement in question to Tyson.14 The United States translation15 is also pertinent in 
this regard:  
In the original investigation, considering that chicken cost is the main composition of 
cost of  the subject merchandise, when the company raises live chicken, it's hard to 
tell which feed is especially for production of which part of the subject merchandise . 
The investigating authority believes that using the weight -based method can reflect 
the cost  related to production of the subject merchandise more objectively and 
reasonably. Therefore, the weighted average production cost of every group is 
regarded as production cost of the subject merchandise and like product thereof.16 
Moreover, we recall China 's argument in the original case: " After all, the different parts of the live 
bird do not have different costs of production . It does not cost more to grow a kilogram of breast 
                                                
8 United States' request for interim review, para. 9.  
9 China's comments on the United States' request for interim review, para. 5.  
10 China's request for interim review, para. 5.  
11 China's request for interim review, para. 6.  
12 United States' comments on China's request for interim review, para. 9.  
13 Redetermi nation, (Exhibit CHN -1 (translated version)), p. 33. (emphasis added)  
14 United States' comments on China's request for interim review, para. 10.  
15 China has not challenged the accuracy of the United States' translation of the redetermination.  
16 Redetermina tion, (Exhibit USA -9 (translated version)), p. 33. (emphasis added)  WT/DS427/RW/Add.1  
 
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  than it costs to grow a kilogram of paws."17 Taken as a whole, it appears to us that MOFCOM 
accepted and expressly relied upon the proposition that which feeds were specifically used to 
produce which parts of the product concerned could not be distinguished. We therefore consider 
that the text as drafted is accurate. Accordingly we ha ve not modified the text in this regard.  
1.10.   In respect of paragraph 7.54 , China notes that neither the United States nor China made a 
claim that "feathers, blood, and viscera are essential parts of a live broiler, and thus they are 
intrinsic to the pro duction of the subject broiler product models" and asks the Panel to "provide the 
basis for this characterization."18 The United States disagrees that any clarification of or authority 
for this "incontrovertible point" is needed.19  
1.11.   As is clear from t he opening phrase of the sentence quoted by China, we recognized that 
there was no direct evidence before the Panel on this point. At the same time, a panel is entitled, 
in our view, to recognize and refer to incontrovertible facts where relevant. In this case, one such 
fact is that the production of a "whole bird" requires the production of those parts of a bird without 
which the bird cannot be produced. Indeed, China itself, in its submission in the original dispute, 
stated that, "a significant portion of  the total costs of production are incurred on a unitary basis for 
the whole bird ".20 China does not dispute the fact that "feathers, blood, and viscera are essential 
parts of a live broiler, and thus they are intrinsic to the production of the subject broi ler product 
models", but rather asks the Panel to provide a basis for it. We consider this to be a self -evident 
fact, and therefore decline China's request.  
1.12.   In respect of paragraph 7.58 , China argues that, "[i]n light of the Panel's finding of 
inade quate explanation, it should at least refer to MOFCOM's explanation in its Redetermination" 
and requests that the Panel delete the phrase "allowed for the exclusion of certain parts of a live 
broiler (feather, blood and viscera)", because, according to Chi na, "MOFCOM never excluded any 
parts from its cost allocation".21 The United States opposes both requests.22 
1.13.   In respect of the first aspect of this request, we have in fact referred to MOFCOM's 
explanation earlier in this section, in paragraph 7.53. W e consider it unnecessary to do so again in 
this paragraph. Accordingly we have not modified the text in this regard.  
1.14.   In respect of the second aspect of this request, we recall that China argued that MOFCOM 
appropriately distinguished between what it termed "the product concerned" and other products, 
including feathers, blood and viscera. According to China, "MOFCOM specifically noted that the 
'production cost didn't include that of the non -concerned products, such as feather, blood, etc.'."23 
It was  this "product cost", i.e. a product cost excluding feathers, blood, and viscera, that was 
allocated to "the product concerned" on the basis of weight. We note that China has not requested 
review of paragraphs 7.54 and 7.55, in which we also refer to MOFCO M's "exclusion of feathers, 
blood, and viscera". In the light of the foregoing, we decline China's request that we delete the 
phrase in question.  
1.15.   In respect of paragraphs 7.58 and 7.59 , China refers to not only our findings in these two 
paragraphs,  but also to paragraphs 7.50 and 7.51 and the Panel's "remaining discussion", 
asserting that " the Panel does not make clear … whether it views the MOFCOM redetermination to 
have been at odds with the second aspect, the third aspect, or both" of the obligat ion in the 
second sentence of Article 2.2.1.1.24 China suggests that "the Panel appears to take care to avoid 
suggesting anything about whether the MOFCOM approach was proper or not", and asks the Panel 
to "clarify that its findings address the third aspect  of the obligation – the failure to explain – and 
not whether the MOFCOM allocation method was proper or not".25 The United States opposes 
China's request, contending that China has failed to make a "request for review of a precise aspect 
                                                
17 United States' first written submission, para. 91 (quoting China's first written submission in the 
original dispute, para. 133). (emphasis added)  
18 China's request for interim review, pa ra. 7.  
19 United States' comments on China's request for interim review, para. 11.  
20 China's first written submission in the original dispute, para. 133. (emphasis added)  
21 China's request for interim review, para. 8.  
22 United States' comments on China's re quest for interim review, para. 13.  
23 China's first written submission, para. 174 (quoting Redetermination, (Exhibit CHN -1 (translated 
version)), fn 30).  
24 China's request for interim review, para. 9.  
25 China's request for interim review, para. 9.  WT/DS427/RW/Add.1  
 
- A-11 - 
 
  of the interim rep ort" and that "It is clear that the Panel is examining the issue of MOFCOM’s 
explanation as part of MOFCOM’s consideration of all available evidence related to a proper cost 
allocation."26 
1.16.   We consider that China has failed to make a proper request fo r "review of precise aspects of 
the interim report". The paragraphs discussed by China in its request concern different sections of 
the Panel's analysis. Paragraph 7.50 deals specifically with the argument that MOFCOM was 
required to use a single methodolo gy throughout the investigation and rejects that view, while 
paragraph 7.51 concludes that MOFCOM's rejection of a value -based cost allocation in the 
redetermination was not inherently biased or unreasonable.  
1.17.   Paragraphs 7.52 through 7.58 specificall y examine MOFCOM's explanations for and use of a 
weight -based cost allocation, concluding that MOFCOM failed to adequately explain its decision to 
use that allocation, and therefore failed to "consider all available evidence on the proper allocation 
of cos ts", that is, failed to act consistently with the second sentence of Article 2.2.1.1. We are 
unable to determine precisely what aspects of these paragraphs China considers require 
modification, and what changes it considers would be appropriate. We have, n onetheless, made 
minor modifications in paragraphs 7.51 and 7.52.  
1.18.   With respect to paragraphs 7.63 and 7.64 , China argues that, as it contends with respect 
to paragraphs 7.58 -7.59, " the Panel again seems to avoid making any findings about what is 
proper or not " and asks the Panel to "to clarify that its findings address the third aspect of the 
obligation – the failure to explain – and not whether the Tyson allocation method rejected by 
MOFCOM was proper or not."27 The United States considers that, as with r espect to 
paragraphs  7.58-7.59, China's "complaint here does not constitute a request for review of a 
precise aspect of the interim report".28 
1.19.   We consider that China has failed to make a proper request for "review of precise aspects of 
the inte rim report". We are unable to determine precisely what aspects of these paragraphs China 
considers should be modified, and what changes it considers would be appropriate. We do not 
consider that our findings need further clarification as requested by China . Accordingly we have 
not modified the text in this regard.  
1.20.   In respect of paragraphs 7.66 -7.70, China asserts that the Panel failed to explain whether 
its interpretation of the term "historically utilized" in the second sentence of Article 2.2.1.1 w as 
consistent with that of a previous panel report on the same issue, US- Softwood Lumber V , and 
contends that the Panel should "offer some reaction" to the points raised by China in this regard.29 
The United States disagrees, asserting that China has faile d to make a "request for review of a 
precise aspect of the interim report".30 In the United States' view:  
China fails to explain (i) what conclusion or statement in these paragraphs is 
inconsistent with the analysis in particular paragraphs in US – Softwoo d Lumber V ; 
(ii) why, even if there is an inconsistency, it needs to be addressed in this Report; and 
(iii) why the Panel should assess China’s characterization of the U.S. position in 
another  dispute.31  
1.21.   We consider that China has failed to make a p roper request for "review of precise aspects of 
the interim report". We are unable to determine precisely what aspects of these paragraphs China 
considers should be modified, and what changes it considers would be appropriate. We do not 
consider that our f indings need further clarification as requested by China. Accordingly we have 
not modified the text in this regard.  
1.22.   In respect of paragraphs 7.89 -7.99, China argues that the Report leaves "the impression 
that MOFCOM took fewer steps to corroborate and analyse the data from the four domestic 
                                                
26 United  States' comments on China's request for interim review, para. 14.  
27 China's request for interim review, para. 11.  
28 United States' comments on China's request for interim review, para. 17.  
29 China's request for interim review, para. 10.  
30 United States' comments on China's request for interim review, para. 15.  
31 United States' comments on China's request for interim review, para. 15. (emphasis original)  WT/DS427/RW/Add.1  
 
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  producers".32 China describes steps MOFCOM took33 in relation to "the analytical process by which 
MOFCOM analysed th e pricing data of the four re -verified domestic producers" and states that 
these details it describes "warrant further description" in the report.34 The United States opposes 
China's request, contending that China has failed to make a "request for review pr ecise aspects of 
the interim report".35 Moreover, in the United States' view, China has failed:  
a. "to identify how the Panel’s analysis misstates the approach noted in the 
redetermination"36; and  
b. "to explain why the analysis in the interim report is defi cient".37 
1.23.   We make two observations.  
1.24.   First, China does not explain precisely what aspects of these paragraphs it considers should 
be modified and what changes it considers would be appropriate. Rather, it simply contends that a 
more detailed ex position of the facts regarding MOFCOM's reinvestigation and analysis of 
product -specific pricing data is important to its legal position in this case. This is not enough to 
help us determine what precisely should be modified and how.  
1.25.   Second, we hav e carefully considered all of the arguments and evidence put before us; 
there is, however, no requirement that we reflect in our report all the facts that each party may 
consider important to its positions. Rather, we must set out in our report those facts  that are 
important to our resolution of the issues in the dispute before us, in the context of our analysis, 
reasoning, and conclusions. We recall that our findings in the original dispute concerned the 
comparability of two baskets of goods in the light o f differences in the composition of those 
baskets.38 In this proceeding, China argued that MOFCOM verified the prices of individual 
components of the Chinese basket for four of seventeen domestic producers. This argument does 
not address the concerns we had  originally, and again in this proceeding, with respect to the 
comparability of the domestic and imported prices as a consequence of the composition of the 
baskets of broiler products being compared. We fail to see how a more detailed exposition of the 
facts concerning how MOFCOM went about verifying the prices of certain domestic producers 
relates to the issue we were addressing.  
1.26.   We consider that China has failed to make a proper request for "review precise aspects of 
the interim report". We do not  consider that our findings need modification as requested by China. 
Accordingly we have not modified the text in this regard.  
1.27.   In respect of paragraph 7.102 , China asserts that:  
a. "it is important for the Panel to point out that although the two ba skets may have been 
of dissimilar composition, MOFCOM considered that their composition was in fact known 
such that  MOFCOM believed it controlled for product mix"39;  
b. "[t]he current description suggests MOFCOM did not take any steps to understand  the 
respective compositions of the two baskets"40; and  
c. with respect to the "risk that price effects were the effects of competition from product 
models within the domestic basket", "for the same reason of substitutability, there may 
                                                
32 China's request for interim review, para. 15.  
33 China's request for interim review, p ara. 16.  
34 China's request for interim review, para. 17.  
35 United States' comments on China's request for interim review, para. 23.  
36 United States' comments on China's request for interim review, para. 24.  
37 United States' comments on China's request for interim review, para. 25.  
38 See paragraph [7.106] above:  
In the original report, we did not find, because Articles 3.2 and 15.2 do not require, that in a price 
comparison, MOFCOM had to adopt the "lower of th e two" price benchmarks; our findings were about 
the comparability of the baskets rather than the relative value of different AUVs . 
(emphasis added)  
39 China's request for interim review, para. 19.  
40 China's request for interim review, para. 19. (emphasis a dded)  WT/DS427/RW/Add.1  
 
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  be price effects resulting f rom product models in the dumped import basket on product 
models within the domestic basket that were not in the dumped import basket".41  
1.28.   The United States opposes any change to this paragraph, asserting that:  
a. "the Panel, in paragraph 7.105 of th e interim report, expressly considered and rejected 
MOFCOM’s argument that it controlled for product mix differences"42; and  
b. "China is essentially asking the Panel revise and dilute its findings", in particular in a 
manner that "would create ambiguity" in these findings.43 
1.29.   We consider that China has failed to make a proper request for "review of precise aspects of 
the interim report." Rather, in our view, China is attempting to re -argue issues that the Panel has 
resolved, rather than clearly indica ting what precise aspects of the report it considers should be 
modified and why. We therefore decline to modify this paragraph.  
1.30.   In respect of footnote 205 (footnote 209 of the Final Report) , China requests that we 
delete the final two sentences, as serting that the "statement that MOFCOM’s price effects 
determination 'might well give rise to an appearance of selecting among domestic producers based 
on their data to ensure a particular outcome' is purely speculative."44 The United States opposes 
China' s request, contending that it reflects a well -supported evaluation of a "key matter before the 
Panel" and noting that it had argued  during the proceeding that one of the principal problems with 
the selection of four firms for reverification was that "their  selection appeared biased in light of the 
lack of any explanation".45 
1.31.   The penultimate sentence of footnote 205 does not state that MOFCOM's "price effects 
determination" itself may give rise to an appearance of selectivity. Rather, it makes clear th at it is 
the "lack of any explanation in the redetermination for the choice" of which producers' prices were 
reverified that may give rise "to an appearance of selecting among domestic producers based on 
their data to ensure a particular outcome". The last  sentence makes clear that the Panel did not 
make any findings on this point. We consider it appropriate to raise such concerns in the course of 
resolving a dispute, in order to assist parties in the course of their efforts to implement DSB 
rulings and rec ommendations, and act consistently with their obligations. We therefore decline 
China's request.  
1.32.   In respect of paragraphs 7.150 -7.162 , China requests that the Panel delete the 
discussion in these paragraphs, and any findings, from the report. China  argues that:  
a. "[T]he Panel analyses two issues under Article 3.4 of the AD Agreement and Article 15.4 
of the SCM Agreement that do not reflect proper claims before the Panel. The issues of: 
(1) whether MOFCOM inadequately focused on the later part of th e POI; and 
(2) potential negative effect and future imports both appear to arise as rebuttal 
responses by the United Sates in its Second Written Submission."46 
b. "It is unclear to China how these issues rise to the level of specific claims for which the 
Panel makes specific findings."47 
c. Paragraph 6 of the Working Procedures "makes clear that any claim raised by the United 
States for purpose of its challenge should be presented in its First Written Submission".48 
                                                
41 China's request for interim review, para. 20. (emphasis added)  
42 United States' comments on China's request for interim review, para. 27.  
43 United States' comments on China's request for interim review, para. 28.  
44 China's request for interim revie w, para. 21.  
45 United States' comments on China's request for interim review, para. 30.  
46 China's request for interim review, para. 22.  
47 China's request for interim review, para. 22.  
48 China's request for interim review, para. 23.  WT/DS427/RW/Add.1  
 
- A-14 - 
 
  d. "As such, these arguments are 'counter ar guments' as contemplated by paragraph 6 of 
the Working Procedures and do not represent claims upon which the Panel should 
rule."49 
e. "For these reasons, the Panel should strike this discussion and any findings from the final 
report."50 
1.33.   The United Sta tes oppos es China's request, noting that : 
a. there is a difference between claims and arguments51; 
b. the arguments (and counterarguments) at issue were properly raised and the Panel 
properly considered them52; and  
c. "That the arguments China itself raised undermined its defence – rather than supported 
it – does not, as China now argues, somehow implicate procedural fairness."53  
1.34.   We consider that China has failed to make a proper request for "review of precise aspects of 
the interim report". Rather, in  our view, China's request amounts to an attempt to re -argue issues 
that the Panel has resolved and does not clearly indicate what precise aspects of the report it 
considers should be modified and why.  
1.35.   In these paragraphs, the Panel is addressing v arious arguments in the context of 
considering the United States' claim that MOFCOM's redetermination is inconsistent with Article  3.4 
of the Anti -Dumping Agreement and Article 15.4 of the SCM Agreement.54 This claim is properly 
before us.55 Over the course of the proceedings, starting with the first written submissions, and 
then in the second written submissions and at the hearing, and finally in responses to questions 
and comments on those responses:  
a. the United States made certain arguments in support of  its claim;  
b. China responded with arguments of its own; and  
c. the United States replied to China's arguments.  
1.36.   Each party in a dispute has the right to make the arguments and submit the evidence it 
wishes in defence of the positions it adopts in respect of a given claim. Having presented its 
arguments and evidence and advanced its position, a party may not, however, seek the assistance 
of the panel to deny to the other party the same right to present its arguments and evidence in 
reply. Nothing in  the Working Procedures contemplates any such departure from basic rules of 
fairness in an adjudicative proceeding.  
1.37.   China seems to be of the view that because some of the United States' arguments in 
support of its claim were first advanced in its se cond written submission, and the Panel considered 
and made findings addressing those arguments, the United States has wrongly been allowed to 
advance claims at a late stage of the proceedings which the Panel then resolved. This is not the 
case. The Panel's  conclusions are in respect of the claims  of the United States under Article 3.4 of 
the Anti -Dumping Agreement and Article 15.4 of the SCM Agreement. To arrive at those 
conclusions, and consistently with our obligations under Article 17.6 of the Anti -Dumpi ng 
Agreement and Article 11 of the DSU, we took into account all the arguments  and the respective 
replies of the parties, and as necessary made findings in respect of those arguments and replies. 
We did so in accordance with our responsibility to "make an objective assessment of the matter 
before [us], including an objective assessment of the facts of the case and the applicability of and 
conformity with the relevant covered agreements".  
                                                
49 China's request for in terim review, para. 23.  
50 China's request for interim review, para. 23.  
51 United States' comments on China's request for interim review, para. 32.  
52 United States' comments on China's request for interim review, para. 33.  
53 United States' comments on China 's request for interim review, para. 33.  
54 United States' panel request, para. 2.  
55 Ruling by the Panel on Jurisdictional Issues dated 22 March 2017, para. 3.10.  WT/DS427/RW/Add.1  
 
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  1.38.   We therefore decline China's request to delete this entire sect ion of the report.  
1.39.   In respect of paragraphs 7.332(e) and 7.335 , China requests that we modify the report 
"to reflect that MOFCOM did not reject Tyson's reported data in its entirety"56 and "did not reject 
all of Tyson's data".57 The United States disa grees because, in its view, China has not shown any 
errors in these paragraphs.58  
1.40.   Paragraph 7.332(e) sets out the factual background to our consideration of the 
United  States' claims regarding use of facts available. Paragraph 7.332 as a whole sets out, in 
sequence, MOFCOM's requests and Tyson's responses on the issue of meat and processing cost 
information. At paragraph 7.332(e), the statement that MOFCOM rejected Tyson's reported data in 
its entirety in the redetermination is immediately followed b y the explanation that "MOFCOM found 
that the reported data, generated by applying the methodology  developed by Tyson using the data 
available in its accounting records, were not the meat and processing costs  actually incurred "59, 
thus making clear what rep orted data were rejected. Moreover, the same paragraph goes on to set 
out MOFCOM's decision not "to accept the meat cost and processing cost data  of each model of the 
product concerned calculated by the ratio method".60 Thus, it is clear that in referring to 
MOFCOM's rejection of "Tyson's reported data in its entirety" and "all of Tyson's data", we were 
referring to the rejection of all of the meat and processing cost data that Tyson had generated and 
provided during the  reinvestigation . In order to avoid any uncertainty in this regard, we have 
modified the text to explicitly state that that data that was rejected in its entirety was Tyson's 
reported meat and processing cost data.  
1.41.   In respect of paragraph 7.335(d) , China requests adjustments to "further reflect" that 
Tyson provided "inconsistent cost data" in every response.61 The United States disagrees, 
contending that the requested changes cannot be drawn from the paragraphs of China's 
first written submission cit ed by the Panel, and China has provided no other citation or justification 
for the request.62  
1.42.   In its request for review China does not indicate where, in its submissions in this 
proceeding, it argued that Tyson provided inconsistent cost data in eve ry questionnaire and 
supplemental questionnaire response in the reinvestigations. We have, nevertheless, modified 
paragraph 7.335(d) to clarify that the asserted inconsistencies were not just between data 
provided in the original investigation and data pro vided in the reinvestigation.  
 
_______________  
 
 
 
                                                
56 China's request for interim review, para. 12.  
57 China's request for interim review, para. 13.  
58 United States' comments on China's request for interim review, paras. 18 -19. 
59 Underlining original, italics added . 
60 Emphasis added.  
61 China's request for interim review, para. 14.  
62 United States' comments on China's request for interim review, para. 21.  WT/DS427/RW/Add.1  
 
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  ANNEX  B 
ARGUMENTS OF THE UNI TED STATES  
Contents  Page  
Annex  B-1 Executive summary of the First Written Submission of the United States  B-2 
Annex  B-2 Executive summary of the Second Written Submission of the United States  B-10 
Annex  B-3 Executive summary of the Opening Oral Statement of the United States at the 
Substantive Meeting of the Panel  B-18 
 WT/DS427/RW/Add.1  
 
- B-2 - 
 
  ANNEX  B-1 
EXECUTIVE SUMMARY OF  THE FIRST WRITTEN SUBMIS SION OF THE UNITED S TATES  
I. INTRODUCTION  
Articles 7 and 11 of the Understanding on Rules and Procedures Governing the Settlement of 1. 
Disputes  (DSU) charge a WTO panel with making those findings that will  assist the DSB in making 
the recommendations provided for in the covered agreements – namely, the recommendation to 
bring a measure found to be inconsistent with a covered agreement into conformity with the 
Member 's WTO obligations under that agreement (D SU Art. 19.1). And that is precisely what the 
Panel did in this dispute, finding that China 's antidumping and countervailing duty determinations 
were inconsistent with numerous basic obligations under the Agreement on Implementation of 
Article VI of the General Agreement on Tariffs and Trade 1994  (AD Agreement) and the Agreement 
on Subsidies and Countervailing Measures  (SCM Agreement). Unfortunately, China did not take 
those findings and recommendations as an opportunity to comply and, thus, to bring abou t a 
positive solution to the dispute (DSU Art. 3.7).  
Both the conduct of the reinvestigation and the findings in the redetermination confirm that 2. 
MOFCOM adheres – without justification – to problematic practices or reasoning – and even moves 
in precise ly the wrong direction: toward less transparency, less du e process, and less objectivity.  
II. PROCEDURAL BACKGROUN D 
On July 15, 2014, the United States and China informed the DSB that the two parties had 3. 
concluded Agreed Procedures under Articles 21 and  22 of the Dispute Settlement Understanding 
("Agreed Procedures"). On May 10, 2016, the United States requested consultations pursuant to 
Article 21.5 of the DSU concerning China 's measures continuing to impose antidumping and 
countervailing duties on broi ler products from the United States, which were held on 
May 24, 2016.  
On May 27, 2016, the United States filed a panel request requesting recourse to Article 21.5 4. 
of the DSU. At the June 22, 2016 meeting of the DSB, the DSB agreed to refer to the origi nal 
panel, if possible, the matter raised by the United States. Brazil, Ecuador, the European Union, and 
Japan reserved their third party rights. On July 18, 2016, the compliance panel was composed with 
the members from the original panel.  
III. FACTUAL BAC KGROUND  
The Panel found that MOFCOM breached Article 6.9 of the AD Agreement by failing to 5. 
disclose margin calculations and data used to determine the existence of dumping.  
The United States contended in the original dispute that MOFCOM breached the 6. 
second  sentence of Article 2.2.1.1, because, inter alia , MOFCOM allocated Tyson 's production costs 
of non -subject merchandise – including blood, feathers, and organs – to subject merchandise, 
thereby inflating normal value. The Panel considered the evidenc e presented by the United States 
regarding the products produced by Tyson and China 's materials and found that the United States 
had established a breach of Article 2.2.1.1. Moreover, the Panel found that one particular aspect of 
MOFCOM 's methodology – straight allocation of total processing costs – was inherently 
unreasonable . 
The Panel found that MOFCOM 's price effects analysis in its injury determination was 7. 
inconsistent with China 's WTO obligations because it failed to account for differences in the product 
mix between subject imports and domestic products. The Panel also noted that MOFCOM 's finding 
of price suppression is "at least partly dependent" on its finding of price undercutting – and that 
"MOFCOM's Determinations do not separately or independ ently discuss the impact of the volume 
and increased market share of subject imports on the ability of domestic producers to sell at prices 
that would cover their costs of production." The Panel also asserted  judicial economy on the WT/DS427/RW/Add.1  
 
- B-3 - 
 
  United  States ' claim co ncerning MOFCOM 's flawed impact and causation analyses – and explicitly 
recognized that MOFCOM would need to revisit such analyses.  
IV. SCOPE OF AN ARTICLE 21.5 PROCEEDING  
Under Article 21.5 of the DSU, measures that negate or undermine compliance with the 8. 
DSB's recommendations and rulings and any measures taken to comply that are inconsistent with 
a covered agreement may come within the scope of an Article 21.5 proceeding.  
V. STANDARD OF REVIEW  
9. An Article 21.5 panel is to engage in an objective assessment to determine the existence or 
consistency of a measure taken to comply. If on a specific issue the underlying evidence and the 
explanations given by the investigating authority have not changed from the original 
determination, then an Article 21 .5 panel would normally reach the same conclusions as the 
original panel. The investigating authority is responsible for ensuring that its explanations reflect 
that conflicting evidence was considered.  
VI. MOFCOM 'S REINVESTIGATION BR EACHED THE PROCEDURA L PROTECTIONS OF THE 
AD AND SCM AGREEMENTS  
MOFCOM 's reinvestigation breached key procedural protections contained within the AD and 10. 
SCM Agreements.  
A. Factual Background  
Before the Reinvestigation Injury Disclosure (RID), U.S. interested parties re ceived no notice 11. 
as to which Chinese firms were being specifically investigated; why they were chosen; what 
questions and information requested were posed to these firms; and what data and information 
the Chinese firms provided in response. The critical qu estions of (i) what information was 
specifically required by MOFCOM from these firms and (ii) what they provided remain entirely 
unanswered.  
B. China Breached  Article 6.1 of the AD Agreement and Article  12.1 of the 
SCM Agreement because MOFCOM Denied Inter ested Parties Notice or 
Knowledge of the Information MOFCOM Required in its Reinvestigation  
Here, it is clear from the RID that MOFCOM required  pricing information from four domestic 12. 
Chinese companies in order to revise its price effects analysis. Spec ifically, these four companies 
provided MOFCOM with sales data concerning chicken feet, chilled chicken cuts with bone, chicken 
wings, and gizzards, which MOFCOM then purportedly used to compare against prices for subject 
imports, and ultimately reach its finding of price undercutting. It is also clear that interested 
parties, such as U.S. respondents and the United States, did not have notice that MOFCOM 
required this information.  
C. China Breached Articles 6.1.2, 6.2, and 6.4 o f the AD Agreement and 
Articles 12.1.2 and 12.3 of the SCM Agreement by Denying Interested Parties 
of Evidence Presented by the Other Interested Parties Participating in the 
Reinvestigation  
It is undisputed that the four Chinese domestic companies that received requests for 13. 
information from MOFCOM during the reinvestigation are "producers of the like product in the 
Importing Member." MOFCOM was thus required to "promptly" make available to U.S. respondents 
the information provided by interested parties in response to MOFCOM 's requests during the 
reinvestigation. Because MOFCOM failed to make the information available at all to respondents, 
China is in breach of AD Agreement Article 6.1.2 and SCM Agreement Article 12.1.2.  
MOFCOM 's failure to permit interested parties acces s to the information relied on by 14. 
MOFCOM and to enable those parties, through review of that information, to prepare their cases is 
also inconsistent with Articles 6.2 and 6.4 of the AD Agreement and SCM Agreement Article 12.3. 
These provisions provide tha t interested parties have both timely opportunities (i) to see "all WT/DS427/RW/Add.1  
 
- B-4 - 
 
  information" that is relevant, non -confidential, and used by competent authorities and (ii) timely 
opportunities to prepare their presentations "on the basis of" that information. In the 
reinvestigation, the information subject to this obligation includes: (1) the pricing information 
provided by the four Chinese domestic enterprises to MOFCOM during the reinvestigation; (2) the 
precise identity of those Chinese enterprises; and (3) the spec ific questionnaires and information 
requests issued by MOFCOM to those Chinese companies.  
First, MOFCOM failed to disclose information "relevant" to the interested parties ' 15. 
presentation of their cases. The information  requested by MOFCOM from the four Chinese domestic 
enterprises during the reinvestigation constitutes product -specific pricing data that MOFCOM 
sought and that MOFCOM considered supported its findings of purported price cutting, as part of 
its price effects injury analysis. Second, as note d previously, MOFCOM has not claimed that any of 
this information is confidential. Third, the information was "used" by MOFCOM in the 
reinvestigation because it is the explicit basis by which MOFCOM maintains its price effects 
findings.  
In addition, C hina breached the obligation under A D Agreement Article 6.4 and 16. 
SCM Agreement Article 12.3 "to provide timely opportunities" for interested parties "to prepare 
presentations  on the basis of this information" because MOFCOM did not permit interested parties  
to see the information. If a party is denied access to information, then it follows that the party was 
also denied an opportunity  to prepare a presentation. Thus, MOFCOM 's failure also constituted a 
breach of Article 6.2 of the AD Agreement.  
D. China, On ce Again, has Breached Article 6.9 of the AD Agreement by Failing 
to Disclose the Margin Calculations and Data Used to Determine the Existence 
of Dumping and to Calculate Dumping Margins  
Despite the original Panel 's finding that China breached Article 6.9 of the AD Agreement by 17. 
failing to disclose essential facts related to the dumping margins for Pilgrim 's Pride, Tyson, and 
Keystone, MOFCOM has, once again, failed to disclose dumping margin calculations and underlying 
data for two of these respondents – Pilgrim 's Pride and Keystone. With respect to Pilgrim 's Pride, it 
was denied access to the data calculations from the original investigation even though MOFCOM 
used a purported error in the data and calculations to increase the margin of Pilgrim 's Pride.  
Similarly, Keystone was denied access to its data and calculations for the new antidumping rate 
that was set following the reinvestigation.  
VII. MOFCOM 'S ANTIDUMPING DUTY F INDINGS ARE INCONSIS TENT WIT H 
ARTICLES  2.2.1.1, 9.4, AND 6.8 AND ANNEX II OF THE AD  AGREEMENT  
A. China Breached the Second Sentence of Article 2.2.1.1 of the AD Agreement  
1. MOFCOM Applied to Tyson a Biased Weight -Based Methodology that 
Improperly Allocated Costs Not Associated with the Production and Sale 
of the Product Under Consider ation  
China has breached the second sentence of Article 2.2.1.1 because MOFCOM did not 18. 
"consider all available evidence on the proper  allocation of costs." The essence of the problem is 
the internal inconsistency of MOFCOM 's logic concerning a weight -based methodology. The position 
advocated by China through its prior WTO submissions and in MOFCOM 's redetermination is that 
apportionment of costs by weight is reasonable because it applies costs of the chicken equally 
across all products. But, und er that logic, an objective investigating authority would need to 
account for all products that derive revenue and then allocate cost by weight to all of them. Thus, 
products that might earn little revenue, particularly in respect to their weight, such as blood, 
organs, feathers, etc., still would need to have costs distributed to them, rather than leave the 
costs focused on the remaining products – which artificially inflates normal value. MOFCOM did not 
do that apportionment in its first determination, an d it has not done so now in its redetermination.  
During the redetermination, Tyson argued that MOFCOM should accept the value -based 19. 
accounting reflected in its books and records. However, Tyson also argued that "in the event that 
MOFCOM incorrectly co ntinues to rely on a weight -based allocation, it must fully account for all 
products that are produced from the live birds that are processed into both subject and WT/DS427/RW/Add.1  
 
- B-5 - 
 
  non-subject merchandise." To that end, Tyson made a straightforward request: if MOFCOM 
erron eously resorts to allocating costs by weight rather than as reflected in Tyson 's books and 
records, then MOFCOM (per its own logic) would need to "divid[e] the total cost  of the live birds by 
their total weight " – and not simply omit products it finds inco nvenient from the calculation. A 
supposed weight -based methodology that fails to actually account for the weight contributed by all 
the products derived from the bird is internally incoherent and therefore cannot be a "proper 
allocation of costs" consisten t with Article 2.2.1.1.  
The reasons proffered by MOFCOM for rejecting Tyson 's position – and the consistency of 20. 
MOFCOM 's own position – are not reasoned or adequate. First, MOFCOM seems to be suggesting 
that it does not apportion costs across all produ cts because some chickens died en route  to the 
processing plant or were otherwise not processed. But that assertion does not speak to the point 
at hand, which is that costs must be allocated across all products that are produced. Moreover, the 
data provide d by Tyson explicitly made proper allowance for "costs of any birds that are not 
processed because they die at the farm or are condemned at the plant. . . ." Second, MOFCOM 
asserts that Tyson confirmed that the costs to produce subject merchandise were exc lusive. That 
position cannot be reconciled with either the data submitted by Tyson referenced above, or 
Tyson 's explicit argument seeking for costs to reflect all products. Third, China is claiming that 
Tyson 's value based cost allocation methodology is pe rfectly reasonable when it comes to products 
that are not subject to the investigation . This reason, again, does not address the point that all 
costs need to be accounted for. Finally, MOFCOM cites as support that the monthly costs for live 
birds changes a nd that Tyson does not specify which are used for subject merchandise and 
non-subject merchandise is misplaced as well. Whether costs change from month to month does 
not obviate the need to ensure costs are properly allocated.  
2. MOFCOM has not Addressed t he Article 2.2.1.1 Findings with respect to 
Pilgrim 's Pride  
Despite the Panel 's findings, MOFCOM 's redetermination refused to consider any alternative 21. 
allocation methodologies for Pilgrim 's Pride. Instead, MOFCOM only investigated and modified the 
dumping margin for Pilgrim 's Pride on the basis of the purported errors in calculation. Thus, 
because China 's redetermination does not contain any additional "evidence of consideration" of 
alternative methodologies, China 's redetermination remains in breac h for the same reasons as in 
the original investigation.  
B. China Breached Article 9.4 of the AD Agreement through the "All Others" 
Rate Set by MOFCOM  
MOFCOM 's arbitrary selection of the highest rate found is not consistent with the disciplines 22. 
of Art icle 9.4, which establishes that the all others ' rate shall not exceed "the weighted average 
margin of dumping established with respect to the selected exporters or producers."  
C. China 's Resort to and Application of Facts Available to Tyson Is Inconsisten t 
with Article 6.8 and Annex II of the AD Agreement  
MOFCOM has not presented any evidence that Tyson refused access to, failed to provide, or 23. 
other otherwise impeded MOFCOM 's ability to obtain requested information. Tyson took 
appropriate steps to use the data available in its records to satisfy MOFCOM 's request for 
information to the fullest extent that it could.  
Over the period of investigation, Tyson recorded, as part of its accounting practice, only the 24. 
aggregate actual costs incurred and the " standard costs," the latter of which reflect Tyson 's 
expectation as to what was incurred at a particular segment. Tyson used the standard costs to 
create allocation percentages, which it then applied to the aggregate actual cost to generate the 
specific co sts MOFCOM requested. Tyson did not track the data requested by MOFCOM as part of 
its standard practice. MOFCOM completely disregarded what Tyson proffered and, instead used the 
best information available. MOFCOM did not present any evidence or explanation  that the costs 
reported by Tyson were not "supplied in a timely fashion" and in the "requested medium" or 
"appropriately submitted so that {they} can be used in the investigation without undue 
difficulties." Moreover, the claims cited by MOFCOM for reject ing Tyson 's reported costs do not WT/DS427/RW/Add.1  
 
- B-6 - 
 
  indicate any efforts by MOFCOM to undertake an "objective process of examination" and to 
attempt to verify their accuracy and reliability.  
MOFCOM 's assertion that Tyson 's costs reported in the reinvestigation do not t ie to those in 25. 
the original investigation is contradicted by the very exhibit relied upon MOFCOM. Moreover, Tyson 
in fact reported costs for each of the combinations. Further, MOFCOM erroneously asserts that 
Tyson failed to report actual meat and processin g costs incurred during the period of investigation. 
In addition, Tyson explained that it used standard costs for the first half of 2009, rather than for 
the entire period of investigation, because those were the only standard costs available during the 
reinvestigation.  
VIII.  MOFCOM 'S FINDINGS IN ITS IN JURY REDETERMINATION  REMAIN INCONSISTENT 
WITH THE AD AND SCM AGREEMENTS  
A. China 's Biased Price Effects Analysis Breached Articles 3.1 and 3.2 of the  
AD Agreement and Articles 15.1 and 15.2 of the SCM Agreement  
MOFCOM purported to control for the "clear differences in product mix that affected price 26. 
comparability" found by the Panel by analyzing product -specific pricing data collected from only 
four of the 17 domestic producers included in the domes tic industry. MOFCOM did not disclose its 
methodology for selecting producers for inclusion in its sample of the domestic industry or for 
collecting product -specific pricing data from these producers, however. Nor did MOFCOM disclose 
the percentage of dome stic industry sales covered by the product -specific data collected. 
Accordingly, MOFCOM failed to establish that the pricing data it collected was sufficiently 
representative to permit an objective underselling analysis.  
Absent any explanation to the c ontrary, MOFCOM was in a position to collect pricing data 27. 
from all members of the domestic industry. MOFCOM thus failed to ensure that its new 
underselling analysis was based on an objective examination of positive evidence. The above facts 
also confirm th at MOFCOM has also breached China 's obligations under Article 6.4 of the AD and 
Article 12.3 of the SCM Agreement.  
MOFCOM also based its finding of price suppression on underselling in the redeterminations. 28. 
Significantly, MOFCOM revised the concluding paragraph of its price section in the redetermination 
to eliminate the references to subject import volume and market share found in the corresponding 
paragraphs of the original determinations, clarifying its view that price suppression resulted from 
subje ct import underselling, not subject import volume. In responding to various arguments raised 
by USAPEEC, MOFCOM likewise resorted to the notion that subject import underselling necessarily 
means that those imports suppressed domestic prices. Given MOFCOM 's reliance on its new 
underselling analysis for its price suppression finding, the deficiencies of that underselling analysis 
render MOFCOM 's price suppression finding inconsistent with AD Agreement Articles 3.1 and 3.2 
and SCM Agreement Articles 15.1 and 1 5.2. Because this deficient underselling analysis is also the 
foundation for MOFCOM 's finding of price suppression, MOFCOM 's price suppression finding is 
inconsistent with AD Agreement Articles 3.1 and 3.2 and SCM Agreement Articles 15.1 and 15.2.  
MOFCOM's reliance on underselling to support its price suppression finding was also 29. 
unsupported by the evidence because the record showed no correlation between underselling and 
price suppression. MOFCOM failed to explain or investigate how subject import und erselling could 
have significantly suppressed domestic prices in the first half of 2009 when the same underselling 
had no "significant" price suppressive effects between 2006 and 2008. Thus, there is no evidence 
to support MOFCOM 's price suppression findin g. By failing to recognize or consider that the 
domestic industry 's prices increased faster than its costs between 2006 and 2008, MOFCOM also 
therefore failed to base its analysis of price suppression on an objective examination of positive 
evidence. By ig noring evidence that factors other than subject imports drove domestic price trends 
in the first half of 2009, MOFCOM failed to properly establish that price suppression was "the 
effect" of subject imports. By ignoring such evidence, MOFCOM also failed to base its price analysis 
on an objective examination of positive evidence.  WT/DS427/RW/Add.1  
 
- B-7 - 
 
  B. China 's Impact Analysis in its Re determination Breached Articles  3.1 and 3.4 
of the AD  Agreement and Articles 15.1 and 15.4 of t he SCM Agreement  
MOFCOM 's finding that subject  imports had an adverse impact on the domestic industry 30. 
does not satisfy the requirement for an objective evaluation of "all relevant economic factors and 
indices having a bearing on the state of the industry." In addressing impact, MOFCOM ignored 
evidence  that the domestic industry 's performance improved according to almost every other 
measure during the period. MOFCOM also ignored evidence that the domestic industry 's rate of 
capacity utilization during the period was dictated by the domestic industry 's decision to increase 
capacity well in excess of demand growth. It also failed to address evidence that domestic industry 
end-of-period inventories were not significant relative to domestic industry production or 
shipments.  
MOFCOM 's finding that subject import competition had an adverse impact on the domestic 31. 
industry 's rate of capacity utilization over the 2006 -2008 period does not reflect an "objective 
examination" because it is clearly contradicted by the record evidence. Capacity utilization was 
increasing at the same time subject imports were also increasing. Critically though, an objective 
examination would consider this trend in conjunction with the record evidence regarding the 
domestic industry 's own capacity expansion in excess of demand, which M OFCOM ignored. 
Moreover, subject import competition could not have reduced domestic industry output between 
2006 and 2008, and by extension domestic industry capacity utilization, because subject imports 
did not increase their share of apparent consumption  at the expense of the domestic industry. Had 
the domestic industry not expanded its capacity in excess of apparent consumption growth, the 
domestic industry 's increase in share of apparent consumption would have translated into a higher 
rate of capacity u tilization. Thus, MOFCOM 's finding was not based on an "objective examination" 
of "positive evidence" in breach of Article 3.1 of the AD Agreement and Article 15.1.  
MOFCOM also found that the increase in the domestic industry 's end -of-period inventori es 32. 
was caused by subject imports. This finding too cannot be the result of an "objective examination". 
What MOFCOM crucially neglected to consider was the significance of that increase relative to the 
domestic industry 's actual performance, including, how that increase related to the domestic 
industry 's production and shipments.  
MOFCOM 's finding that subject imports had an adverse impact on the domestic industry 33. 
from 2006 to 2008 rests primarily on its flawed findings regarding capacity utilization and  
end-of-period inventories, which failed to reflect an objective examination of positive evidence, as 
discussed above. In light of MOFCOM 's dependence on these flawed findings, MOFCOM 's analysis 
that the domestic industry was adversely impacted is unsubsta ntiated. Moreover, in contrast to 
MOFCOM 's finding, the record evidence clearly indicates that the domestic industry 's performance 
improved markedly according to almost every measure during this period, when the bulk of the 
increase in subject import volum e and market share took place. Therefore, MOFCOM 's examination 
and evaluation was not based on an "objective examination" of "positive evidence."  
C. MOFCOM 's Causal Link Analysis in i ts Redetermination Breached Articles 3.1, 
3.5, 12.2, and 12.2.2 o f the AD Agreement and Articles  15.1, 15.5, 22.3, 
and 22.5 of the SCM Agreement  
MOFCOM 's causation analysis in its redeterminations remains as flawed as the one it 34. 
provided in its original determination because MOFCOM continues to (1) ignore record evidence 
that subject import volumes did not increase at the expense of the domestic industry; (2) relies on 
flawed analysis of price undercutting and suppression; and (3) fails to reconcile its analysis with 
evidence that the domestic industry 's performance improve d as subject import volume and market 
share increased.  
Here, MOFCOM cited no evidence that the increase in subject import volume or subject 35. 
import price competition was injurious to the domestic industry. During that same period, the 
domestic industry increased its market share to an even greater degree  than s ubject imports. With 
respect to the price effects of subject imports, MOFCOM relied on its flawed price comparisons and 
finding of price suppression. Further, MOFCOM disregarded evidence that subject import 
competition was significantly attenuated because nearly half of subject import volume consisted of WT/DS427/RW/Add.1  
 
- B-8 - 
 
  chicken paws, which the domestic industry could not produce in quantities sufficient to satisfy 
demand.  
MOFCOM 's findings on import volume and market share are clearly contradicted by evidence 36. 
on the r ecord. For example, MOFCOM failed to address evidence that subject imports could not 
have injured the domestic industry because the small increase in subject import market share did 
not come at the expense of the domestic industry, which also gained  market  share during the POI. 
MOFCOM also failed to address USAPEEC 's argument that subject import competition was 
substantially attenuated by the fact that nearly half of subject imports during the period of 
investigation, and 60 percent of the increase in subje ct import volume, consisted of chicken paws. 
MOFCOM did not address the issue in its final determinations or in its redetermination.  
MOFCOM 's causation analysis is inconsistent with the obligations of Articles 3.1 and 3.5 of 37. 
the AD Agreement and Articl es 15.1 and 15.5 of the SCM Agreement because the analysis 
disregarded evidence that subject import volume did not increase at the expense of the domestic 
industry. In addition, MOFCOM 's causation analysis is inconsistent with Articles 3.1 and 3.5 of the 
AD Agreement and Articles 15.1 and 15.5 of the SCM Agreement because it was based on 
MOFCOM 's flawed price and impact analyses.  
MOFCOM 's determination of a causal link rested on its finding that subject import volume 38. 
and market share increased significa ntly and contemporaneously with certain trends exhibited by 
the domestic industry. But relevant record evidence indicated that the increase in subject import 
volume and market share did not negatively impact the domestic industry because the domestic 
indus try gained market share during the same period. MOFCOM does not examine or explain such 
evidence, contrary to Article 3.5 of the AD Agreement and Article 15.5 of the SCM Agreement. 
Additionally, with no evidence linking the increase in subject import and m arket share to material 
injury, MOFCOM 's causal link analysis also failed to demonstrate that any material injury suffered 
by the domestic industry was the effect of subject import volume, as required under Article 3.5 of 
the AD Agreement and Article 15.5 of the SCM Agreement.  
Because MOFCOM 's deficient underselling analysis is the sole basis for its finding that 39. 
subject imports suppressed domestic like product prices, and other evidence ignored by MOFCOM 
contradicts the finding, MOFCOM 's price suppres sion finding, too, is WTO -inconsistent. Moreover, 
given that domestic like product prices increased over the period examined, there was no evidence 
of price depression. With no evidence that subject imports suppressed or depressed domestic like 
product pri ces, MOFCOM failed to predicate its causal link analysis on an objective examination of 
positive evidence, in breach of Article 3.1 of the AD Agreem ent and Article 15.1 of the 
SCM Agreement for the reasons outlined above.  
MOFCOM 's causal link analysis  was also deficient because it failed to address record 40. 
evidence that the increase in subject import volume coincided with a significant improvement in 
the domestic industry 's performance. MOFCOM does not explain how subject imports could have 
caused any m aterial injury to the domestic industry when the domestic industry 's worst 
performance of the period examined occurred in 2006, before any increase in subject import 
volume and market share. An investigating authority cannot be said to have examined "the 
relationship between subject imports and the state of the domestic industry" by focusing, without 
reasonable explanation, solely on a discrete portion of the period of investigation. By failing to 
reconcile its causation analysis with evidence that the incr ease in subject import volume and 
market share coincided with strengthening domestic industry performance, MOFCOM failed to 
conduct an objective evaluation of positive evidence.    
MOFCOM ignored at least two compelling arguments concerning the absence of any causal 41. 
link between subject imports and material injury. First, both USAPEEC and the United States 
argued that there could be no link between subject imports and material injury because subject 
import market share increased entirely at the expense o f non -subject imports. This issue was 
clearly "material" to MOFCOM 's causal link analysis. MOFCOM necessarily had to resolve the issue 
before relying on the increase in subject import volume and market share to establish a causal 
link. Consequently, MOFCOM  was obligated to provide "all relevant information" on its resolution of 
the issue in the public notice of its final determinations. It was also obligated to provide the 
reasons for its rejection of U.S. respondents ' argument concerning the issue.  WT/DS427/RW/Add.1  
 
- B-9 - 
 
  USAPEEC also argued that subject imports could not have had an adverse impact on the 42. 
domestic industry because over 40 percent of subject imports consisted of chicken paws, which 
Chinese producers were incapable of supplying in adequate quantities. By failin g to provide the 
reasons for its rejection of USAPEEC 's argument concerning chicken paws, MOFCOM breached 
Article 12.2.2 of the AD Agreement and Article 22.5 of the SCM Agreement. MOFCOM 's misplaced 
response to USAPEEC 's chicken paws argument also ignores evidence that the substantial 
proportion of subject imports consisting of chicken paws could not have been injurious. MOFCOM 
thus failed to base its causation analysis on an objective examination of positive evidence and an 
examination of all relevant evidence . 
IX. CONCLUSION  
For the reasons set forth in this submission, the United States respectfully requests the 43. 
Panel to find that the challenged measures are inconsistent with China 's obligations under the 
AD Agreement a nd SCM Agreement and that China has failed to implement the recommendations 
of the DSB to bring its antidumping and countervailing measures on broiler chickens from the 
United States into co nformity with those agreements.  
 
 WT/DS427/RW/Add.1  
 
- B-10 - 
 
  ANNEX B -2 
EXECUTIVE SUMMARY OF  THE SECOND WRITTEN SUB MISSION OF THE UNITE D STATES  
I. INTRODUCTION  
The aggressive rhetoric found in China 's rebuttal does not address – no less refute – the 1. 
many flaws in MOFCOM 's reinvestigation and redeterminations explained in the U.S. First Written 
Submission. Instead of addressing the legal issues in this dispute, China 's rebuttal often focuses 
on irrelevant or extraneous matters. These types of arg uments do not engage with the main task 
in this proceeding – namely, to determine whether China has brought its measures into 
compliance with the recommendations of the Dispute Settle ment Body (DSB). In this 
second  submission, the United States will contin ue to focus on demonstrating – through reference 
to record evidence – that MOFCOM failed to abide by China 's WTO obligations.  
II. CHINA CANNOT DEFEND MOFCOM 'S PROCEDURAL FAILING S DURING THE 
INVESTIGATION  
A. China Breached Article 6.1 of the AD Agreement and Article  12.1 of the 
SCM Agreement  through MOFCOM 's Failure to Provide Notice to All Interested 
Parties of the Pricing Information It Required from Domestic Producers  
The United States ' claims under Article 6.1 of the AD Agreem ent and Article 12.1 of  the 2. 
SCM Agreement are straightforward. MOFCOM sought and obtained pricing data from domestic 
firms, which it then used to underpin its findings for its pricing analysis in its injury 
redetermination. In this process, MOFCOM failed to provide known i nteres ted parties, such as 
U.S. respondents, with any notice as to what specific data it required the domestic industry to 
produce. Without notice of what MOFCOM was requiring, U.S. respondents were not in a position 
to address effectively the significance of th e pricing information – and therefore were denied the 
"ample opportunity to present evidence." Thus, MOFCOM breached China 's obligations under 
Article 6.1 of the AD Agreement and Article 12.1 of the SCM Agreement because it failed to 
provide affirmatively to U.S. interested parties both (1) notice of the information it requ ired from 
Chinese firms and (2)  concomitantly, opportunity to present in  writing all evidence that 
U.S. interested parties might consider relevant.  
1. Notice 88  
Notice 88 is simply the notice of initiation for the reinvestigation. It does not provide any 3. 
details as to the specifics of the information that the investigating authority will be requesting, nor 
does it explain in detail the conduct of the investigation , including any opportunities for interested 
parties to present evidence.    
2. The General Verification Letter  
The General Verification Letter is deficient in both form and substance as to MOFCOM 's 4. 
obligations to provide notice. With respect to form, MOFCOM did not notify  U.S. interested parties 
of the General Verification Letter. Although it appears the letter is made out as "To Whom it May 
Concern," China 's rebuttal clarifies that the letter is a ddressed to Chinese domestic producers. 
Accordingly, the interested parties MOFCOM put on notice – i.e., to "alert or warn" – were Chinese 
domestic producers. Substantively, China fares no better. An investigating authority 's notation that 
it intends to co nduct "on spot verifications," without any specifics regarding the precise information 
it requires from participating parties, falls far short of the requirements to provide notice to 
interested parties of information required  by MOFCOM.  
3. Chinese Produc ers' Summaries  
The Chinese producer summaries suffer from two significant deficiencies, each of which 5. 
preclude China establishing that it provided notice consistent with AD Agreement Article 6.1 and WT/DS427/RW/Add.1  
 
- B-11 - 
 
  SCM Agreement Article 12.1: (1) China did not provide interested parties notice of the summaries, 
and (2) the content of the summaries themselves does not inform interested parties of the 
information MOFCOM required. First, to the extent China points to Exhibit CHN -14, a webpage that 
lists what China deems pu blic documents, there is no indication as to when the materials were 
loaded on the webpage or that China provided any notice to interested parties that such 
information could be found there. Second, the summaries cannot be construed as notice of the 
inform ation that MOFCOM required . They are summaries of what information Chinese producers 
purportedly provided . Knowledge of the precise parameters that MOFCOM required for this 
information is of course necessary to understanding the significance of and potenti al errors in the 
responses. Further, China glosses over the fact that these May 20 documents were submitted  
one day before  release of the RID.  
B. China Breached Articles 6.1.2 and 6.4 o f the AD Agreement and 
Articles  12.1.2 and 12.3 of the SCM Agreement b y Denying U.S. Interested 
Parties the Evidence Presented by the Domestic Producers Participating in 
the Reinvestigation  
The Chinese producer summaries do not satisfy China 's obligations as to AD Agreement 6. 
Article 6.1.2 and SCM Agreement Article 12.1.2 because, once again, (1) China did not provide 
U.S. interested parties notice of the summaries, and (2) the content of the summaries themselves 
does not inform U.S. interested parties of the information MOFCOM required. Even assuming the 
notice was not def icient, the only information it provided to interested parties consisted of 
summaries  of the pricing information. They do not convey  the context surrounding what positions 
were advocated by the domestic producers providing the information, and the correspo nding 
issues that MOFCOM sought to resolve during the reinvestigation.  
C. China Breached AD Agreement Articles 6.4 and 6.2 and SCM Agreement 
Article 12.3 Because it Failed to Permit Access to Evidence that would have 
Enabled the Interested Parties to Prep are their Cases  
China acted inconsistently with AD Agreement Articles 6.4 and 6.2 and SCM Agreement 7. 
Article 12.3 because it failed to permit access to information to interested parties that would have 
enabled them to prepare their cases and defend their  interests. MOFCOM failed, per AD Agreement 
Article 6.4 and SCM Agreement Article 12.3, to provide interested parties timely opportunities to 
see information that is relevant, non -confidential, and used by authorities in their investigation. 
China 's public  release of summaries does not excuse its failure to provide the context for these 
data, including the specific products for which pricing data was requested, that clearly fall within 
the scope of the articles. The same deficiencies apply to China 's failur e to provide the precise 
identity of the four Chinese domestic enterprises that provided information to MOFCOM. Moreover, 
although an oral "hearing" took place on June 13, 2014, that "hearing" in no way provided 
interested parties with an opportunity to pr epare presentations in defense of their interests. U.S. 
respondents were told by MOFCOM during this meeting that the re -investigation was closed, and 
that no further comments could be submitted by in terested parties.  
D. China 's Failure to Disclose the Marg in Calculations and Data Used to 
Determine the Existence of Dumping and to Calculate Dumping Margins was 
Inconsistent with AD Agreement Article 6.9  
China 's failure to disclose "essential facts," i.e., the margin calculations and data it relied 8. 
upon to d etermine the existence of dumping by U.S. respondents Pilgrim 's Pride and Keystone, 
was inconsistent with AD Agreement Article 6.9. Pilgrim 's Pride was denied access to the data 
calculations from the original investigation in the reinvestigation while MOFC OM used a purported 
error in the data and calculations from the original investigation to increase the margin of Pilgrim 's 
Pride. Without the original  calculations and data, Pilgrim 's Pride had no ability to identify precisely 
what had changed – which entirely denied Pilgrim 's the opportunity to defend its interests. 
Similarly, MOFCOM did not abide by the obligation to ensure that a disclosure was made "in 
sufficient time for … [Pilgrim 's] to defend … [its] interests." Likewise, Keystone was denied acce ss 
to its data and calculations for the new antidumping rate that was set following the reinvestigation. 
Although Keystone did not cooperate in the reinvestigation, and MOFCOM applied facts available to 
it, Keystone was an "interested party," and its data and calculations were "essential facts" 
underlying MOFCOM 's decision to maintain the duties.  WT/DS427/RW/Add.1  
 
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  III. CHINA CANNOT DEFEND MOFCOM 'S ANTIDUMPING REDETE RMINATION  
A. China Has Not Rebutted U.S. Claims That MOFCOM Failed to Properly Allocate 
Tyson 's Costs Under t he Second Sentence of AD Agreement Article 2.2.1.1  
The substantive obligation in the second sentence of AD Agreement Article 2.2.1.1  demands 9. 
that investigating authorities deliberate and evaluate the "proper" allocation of costs based on its 
considerati on of the evidence presented. The Panel recognized this fact. China 's suggestion to the 
contrary is wholly unsupported and should be rejected.  
China failed to meet the requirement in the second sentence of AD Ag reement 10. 
Article  2.2.1.1 to "consider all available evidence on the proper allocation of costs" because of 
MOFCOM 's decision to adhere to a weight -based methodology while failing to allocate costs by 
weight to all products that derive revenue from the production of the product under consideration 
– including a failure to allocate costs to blood, organs, feathers, and other viscera. China itself 
recognized this problem in its prior WTO submissions and its redetermination, which explicitly 
noted, in support of its weight -based methodology, that appor tionment of costs by weight is 
reasonable because it applies costs of the chicken equally across all products. Yet China chose to 
ignore these distortions and allocate costs over a more limited range of products – resulting in 
artificially inflated normal values for those products.  
B. MOFCOM 's Failure to Consider Any Alternative Allocation Methodologies for 
Pilgrim 's Pride was Inconsistent with AD Agreement Article 2.2.1.1  
China 's suggestion that the general findings were exclusive of Pilgrim 's Pride is not 11. 
supported by the plain text of the Panel 's decision. Moreover, China 's suggestion that it did not 
need to consider Pilgrim 's data at all because it believed the data to be flawed is flatly inconsistent 
with the original panel 's finding that China fa iled to explain why its methodology led to a "proper" 
allocation of costs. The only way that China could have engaged in a neutral, fact -driven 
consideration of the "proper" allocation of costs, as required unde r the second sentence of 
AD Agreement Article  2.2.1.1, is if it had considered data submitted by Pilgrim's Pride.  
C. China Acted Inconsistently with Article 9.4 of the AD Agreement on Account 
of MOFCOM 's "All Others" Rate  
China ignored its obligation under the general rule of Article 9.4 to calculate an all -others 12. 
rate that "shall not exceed . . . the weighted average margin of dumping established with respect 
to the selected exporters or producers" and, instead, arbitrarily applied the highest antidumping 
duty rate found, as a result of the reinvestigation of Pilgrim Pride 's rate. MOFCOM 's investigation 
was limited to three companies: Tyson, Pilgrim 's Pride, and Keystone. In the present 
circumstances, there were no new respondents that MOFCOM could potentially add to the 
investigation – nor w ere there any respondents who failed to cooperate. The exporters subject to 
MOFCOM 's all-others rate were not asked to cooperate in MOFCOM 's reinvestigation, and to apply 
the highest antidumping duty rate to them is inconsistent with Article 9.4.  
D. China 's Application of Facts Available to Tys on Is Inconsistent with 
Article  6.8 and Annex II of the AD Agreement.  
China 's use of facts available instead of Tyson 's reported cos ts is inconsistent with 13. 
Article  6.8 and Annex II of the AD Agreement. Contrary to  China 's suggestions, Tyson did not 
refuse access to, fail to provide, or other otherwise impede MOFCOM 's ability to obtain requested 
information – such that MOFCOM could justify the application of facts available under Article 6.8. 
China 's claims that Tys on made unexplained changes in its data during the redetermination 
proceedings are baseless. Rather, all changes made by Tyson during the reinvestigation were 
made at the specific request of MOFCOM and because MOFCOM altered its approach compared 
with the original investigation. China 's argument rests on its belief that it can make an 
unreasonable and unrealistic demand for data in a reinvestigation that is fundamentally at odds 
with its requests during the original investigation, and that the investigating  authority knows will 
be impossible for a respondent to provide in light of its standard accounting and business practice. 
Tyson made every effort that it could to comply with MOFCOM 's requests for information, and 
cooperated to the best of its ability.  WT/DS427/RW/Add.1  
 
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  IV. MOFCOM 'S INJURY REDETERMINA TION BREACHED THE AD  AND SCM AGREEMENTS  
A. MOFCOM 's Analysis of Underselling and Price Suppression Remains 
Inconsistent with AD Agreement Articles 3.1 and 3.2 and SCM Agreement 
Articles 15.1 and 15.2  
There is nothing in MO FCOM 's redetermination that establishes MOFCOM actually controlled 14. 
"for differences in physical characteristics affecting price comparability" – a deficiency the Panel 
found in its report with respect to the original determination. In its redetermination, MOFCOM 
apparently sought and collected product -specific pricing data from only four of 17 domestic 
producers that in its view justified its original average unit value comparisons, without ensuring 
that its sample of domestic industry sales prices was repr esentative. MOFCOM 's redetermination 
fails to explain why MOFCOM chose these four producers, how it ensured their data was reliable, 
and how it could ensure that this limited data could be extrapolated to support MOFCOM 's findings.  
1. MOFCOM 's Undersellin g Analysis Remains WTO -Inconsistent  
MOFCOM based its finding that subject import underselling was significant on the very same 15. 
comparisons of the average unit value of subject imports to the average unit value of domestic 
industry sales that the original panel found deficient. China readily acknowledges that MOFCOM 's 
AUV comparisons remain the sole basis for its finding that subject imports undersold the domestic 
like product significantly, and that MOFCOM took no steps to adjust these data or oth erwise control 
for differences in product mix in its redetermination.  
Because the average unit value of subject imports differed dramatically by product, changes 16. 
in the product mix of subject imports during the period of investigation would have direc tly 
influenced the average unit value of all subject imports during the period; for example, an increase 
in the proportion of lower -priced products from one year to the next would have caused the 
average unit value of all subject imports to decline. By fai ling to control for changes in the product 
mix of subject imports, MOFCOM 's underselling analysis relied on subject import underselling 
margins that reflected not only differences in product mix between subject imports and domestic 
industry sales but also changes in the product mix of subject imports over time.  
China argues that MOFCOM was justified in relying on its original average unit value 17. 
comparisons because the product -specific pricing data it collected from four of the 17 domestic 
producers com prising the domestic industry suggested that the product mix of subject imports 
contained a higher proportion of high -value products than the product mix of domestic producers. 
But MOFCOM 's AUV comparisons cannot be deemed objective or reliable. Specifical ly, both the 
magnitude and the trend of subject import underselling margins calculated from AUV comparisons 
would have reflected differences in product mix and changes in the product mix of subject imports 
over time. In other words, MOFCOM cannot proceed t o compare and draw conclusions because no 
controls had been applied to ensure the underlying data – which by nature was in flux – was in 
fact comparable. Furthermore, MOFCOM 's analysis of product -specific pricing data did not establish 
that subject imports  were comprised of a higher proportion of high -value products because 
MOFCOM failed to ensure that its sample of domestic producers and their sales prices on specific 
products was representative.  
2. MOFCOM 's Price Suppression Finding Remains WTO -Inconsist ent 
As the panel and Appellate Body found in China – GOES , "merely showing  the existence of 18. 
significant price depression does not suffice for the purpose of Article 3.2 of the [AD] Agreement 
and Article 15.2 of the SCM Agreement . . . Thus . . . it is not sufficient for an authority to confine 
its consideration to what is happening to domestic prices alone for purposes of the inquiry 
stipulated in Articles 3.2 and 15.2." As the Appellate Body explained in China – GOES , the 
obligation of investigating au thorities to consider whether subject imports have "explanatory force" 
for price depression and suppression, under AD Agreement Articl e 3.2 and SCM Agreement 
Article  15.2, and "the state of the domestic industry," under A D Agreement Article 3.4 and 
SCM Agreement Article 15.4, is an integral part of an authority 's cons ideration of causation under 
AD Agreement Article 3.5 and SCM Agreement Article 15.5. Thu s, MOFCOM was required under 
AD Agreement Article 3.2 and SCM Agreement Article 15.2 to establish that s ubject imports 
caused the significant suppression of domestic like product prices.  WT/DS427/RW/Add.1  
 
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  Because the principal basis for MOFCOM 's finding that subject imports caused price 19. 
suppression in the redetermination was its deficient underselling analysis, the Panel should find 
that MOFCOM 's price suppression finding remains WTO -inconsistent. Although China also claims 
that MOFCOM supported its price suppression finding with reference to subject import volume, 
MOFCOM did not find in its redetermination that subject im port volume alone suppressed domestic 
like product prices to a significant degree. On the contrary, MOFCOM emphasized in the section of 
its redetermination titled "Impact of the Import Price of the Subject Merchandise to the Price of the 
Domestic Like Prod ucts" that it was subject import underselling, not subject import volume, that 
suppressed domestic like product prices. It was MOFCOM 's reliance on its deficient underselling 
analysis in finding price suppression that led the original panel to find MOFCOM 's price suppression 
finding inconsistent. MOFCOM 's continued reliance on its deficient underselling analysis in finding 
price suppression in the redetermination is likewise inconsistent with those articles.  
MOFCOM also failed to establish that the alle ged underselling by subject imports caused the 20. 
significant suppression of domestic like product prices. Most of the alleged underselling by subject 
imports, which occurred between 2006 and 2008, was not accompanied by the "prevent[ion of] 
price increases, which otherwise would have occurred, to a significant degree," contrary to 
MOFCOM 's finding that subject imports significantly suppressed domestic like product prices. 
MOFCOM not only ignored this evidence that contradicted its analysis of price suppressio n, but also 
failed to explain how subject imports could have suppressed domestic like product prices in the 
first half of 2009 when most of the increase in subject import volume and market share, and most 
of the alleged subject import underselling, did not  suppress domestic like product prices between 
2006 and 2008.  
B. MOFCOM 's Impact Analysis Breached AD Agreement Articles 3.1 and 3.4 and 
SCM Agreement Articles 15.1 and 15.4  
MOFCOM was required under AD Agreement Article 3.4 and SCM Agreement Article 15.4 to 21. 
not only examine the domestic industry 's performance during the period of investigation but to 
also examine "the consequent impact" of subject imports on that performance. Furthermore, an 
investigating authority cannot examine the impact of subject  imports on the domestic industry 
during the period of investigation without considering the relationship between subject imports and 
domestic industry performance over the entire  period of investigation. Doing so would not be an 
"objective examination," a s required under AD Agreement Article 3.1 and SCM Agreement 
Article  15.1, because it would ignore periods in which subject imports coincided with improving or 
stable domestic industry performance, thereby making an affirmative determination more likely. 
Such an analysis would also ignore "relevant economic factors," namely the industry 's improving 
performance over most of the period of investigation. Here, it was particularly important that 
MOFCOM examine the impact of subject imports on the domestic indust ry over the entire period of 
investigation because most of the increase in subject import volume and market share occurred 
between 2006 and 2008.  
Yet, by China 's own admission, MOFCOM 's impact analysis focused on the first half of 2009, 22. 
when the domestic industry 's performance lagged, while failing to account for the impact of 
subject imports on the domestic industry between 2006 and 2008, when the domestic industry 's 
performance strengthened. The record before MOFCOM established that during the t hree full years 
of the period of investigation, which coincided with most of the increase in subject import volume 
and most of the alleged underselling by subject imports, the domestic industry 's performance 
improved substantially according to most measure s. Although the domestic industry 's end -of-
period inventories increased, they remained insignificant relative to industry production and sales 
(equivalent to around 3 percent of both), as China concedes. By failing to account for the bulk of 
the record evi dence showing that subject imports had no adverse impact on the domestic industry 
between 2006 and 2008, MOFCOM failed to conduct an evaluation of all relevant economic factors, 
contrary to AD Agreement Articles 3.1 and 3.4 and SCM Agreement Articles 15.1 and 15.4.  
None of the factors cited by China in its first written submission excuse these deficiencies in 23. 
MOFCOM 's impact analysis. MOFCOM was required to consider the impact of subject imports on 
the domestic industry during the entire period of inve stigation, including those periods in which the 
industry 's performance improved. Nor was MOFCOM entitled to "focus" its impact analysis "on the 
financial indicators that were consistently weak throughout the period of investigation," to the 
exclusion of ot her contradictory factors. That the domestic industry had pre -tax losses throughout 
the period of investigation says nothing about the changes or trends in the industry 's financial WT/DS427/RW/Add.1  
 
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  performance. Nor does it take into consideration the multiple other "releva nt economic factors" 
enumerated in AD Agreement Article 3.4 and SCM Agreement Article 15.4. The record before 
MOFCOM showed that the domestic industry 's worst financial performance during the 2006 -2008 
period occurred in 2006, before the increase in subjec t import volume and market share. The data 
show that most of the increase in subject import volume and market share coincided with an 
improvement in the industry 's financial performance, according to every measure. By ignoring 
these trends, just as it disc ounted all other positive trends in the industry 's performance, MOFCOM 
failed to objectively evaluate "all relevant economic factors," in vi olation of AD Agreement 
Article  3.1 and 3.4 and SCM Agreement Articles 15.1 and 15.4. The third factor that China ci tes in 
defense of MOFCOM 's impact analysis, alleged future subject import volume, was completely 
irrelevant to MOFCOM 's analysis of the impact of subject imports on the domestic industry during 
the period of investigation. MOFCOM found that "U.S. producers  of chicken products or broiler 
products are likely to expand exports to China, and cause further adverse effects to China 's 
industry." China 's argument has two fundamental problems. First, this finding on likely future 
trends was not supported by the reco rd. Second, future subject imports could have no impact 
whatsoever on the domestic industry during the period of investigation.  
Finally, China is incorrect that MOFCOM 's analysis of the domestic industry 's capacity 24. 
utilization supported its finding th at subject imports adversely impacted the domestic industry 
during the 2006 -2008 period. China argues that the domestic industry 's capacity did not grow in 
excess of demand between 2006 and 2008 because the increase in capacity, at 780,700 MT, was 
less tha n the increase in demand, at 955,600 MT. The increase in the domestic industry 's capacity 
between 2006 and 2008, equivalent to 81.7 percent of the increase in apparent consumption, was 
not proportionate to the industry 's share of apparent consumpt ion, whic h increased from 
37.81  percent to 42.42 percent during the period. Only the domestic industry 's 26.2 percent 
increase in capacity, in excess of the 17.0 percent increase in apparent consumption, prevented 
the industry 's capacity utilization rate from impro ving just as dramatically as other measures of 
industry performance.  
C. MOFCOM 's Causation Analysis Breached AD Agreement Articles 3.1, 3.5, 12.2 
and 12.2.2 and SCM Agreement Articles 15.1, 15.5, 22.3 and 22.5  
MOFCOM 's reliance on a flawed analysis of the effects of subject imports to demonstrate a 25. 
causal link breaches the first sentence of AD Agreement Article 3.5 and SCM Agreement 
Article 15.5. Moreover, MOFCOM acted inconsistently with the second sentence of these articles by 
failing to base its caus ation analysis on "an examination of all relevant evidence." Specifically, 
MOFCOM ignored evidence that the increase in subject import volume and market share was not at 
the expense of the domestic industry, which increased its market share by an even grea ter 
amount.  
1. MOFCOM Failed to Examine All Relevant Evidence in Breach of 
AD  Agreement Articles 3.1 and 3.5 and SCM Agreement Article 1 5.1 
and 15.5 
MOFCOM explicitly predicated its finding of a causal link between subject imports and injury 26. 
on "the increase of the import volume" and "the large volume of dumped imports originating in the 
U.S.," yet ignored that the 3.92 percentage point increase in subject import market share during 
the period of investigation did not prevent the domestic industry fro m increasing its market share 
by an even greater 4.38 percentage points. This evidence that subject imports captured no market 
share from the domestic industry during the period of investigation, and did not prevent the 
industry from growing its market sha re during the period, was clearly "relevant evidence" within 
the meaning of AD Agreement Article 3.5 and SCM Agreement Article 15.5 that MOFCOM was 
required to "objectively examine" under AD Agreement Articl e 3.1 and SCM Agreement 
Article  15.1. That MOFCOM  "noted" the increase in the domestic industry 's market share 
somewhere in the redetermination does not remedy this deficiency.  
MOFCOM 's isolated reliance on the increase in subject import volume and market share in 27. 
finding a causal link between subje ct imports and injury also ignored that 40 percent of subject 
imports, and 60 percent of the increase in subject imports, consisted of chicken paws that could 
not, as a factual matter, have injured the domestic industry. An uncontested fact on the record 
before MOFCOM, which China does not dispute, was that domestic producers were incapable of 
producing more chicken paws without increasing production of other chicken products to WT/DS427/RW/Add.1  
 
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  uneconomic levels. The clear implication of this irrefutable fact is that subje ct imports of chicken 
paws could not have injured the domestic industry.  
China asserts that MOFCOM 's reference to its preliminary finding that chicken feet were 28. 
within the scope of the investigation somehow satisfied its obligation. MOFCOM 's observati on that 
chicken feet were within the scope was a complete non sequitur . By ignoring that subject imports 
of chicken feet could not have injured the domestic industry, MOFCOM 's causation analysis relied 
on an increase in subject import volume and market sha re that was greatly inflated by the 
inclusion of non -injurious chicken feet. Relying on its defective impact analysis, MOFCOM 's finding 
of a causal link between subject import and injury also ignored evidence that most of the increase 
in subject import vol ume and market share coincided with a strengthening of the domestic 
industry 's performance between 2006 and 2008. By limiting its causation analysis to those 
portions of the period of investigation in which the industry 's performance weakened while 
ignorin g those portions coinciding with most of the increase in subject imports, MOFCOM failed to 
base its causation analysis on an "objective examination," and "all relevant evidence."   
Contrary to China 's claim that the United States has made no challenge to MOFCOM 's 29. 
analysis of adverse volume effects, the United States continues to argue, as it did before the 
original panel, that MOFCOM ignored evidence that the increase in subject import volume and 
market share coincided with strengthening domestic indust ry performance between 2006 and 
2008, and did not prevent the domestic industry from increasing its own market share to an even 
greater degree. These deficiencies in MOFCOM 's volume eff ects finding underscore the 
WTO-inconsistency of MOFCOM 's causation ana lysis.  
2. MOFCOM 's Failure to Address Key Cau sation Arguments Raised by 
U.S. Respondents Violated AD Agreement Articles 12.2 and 12.2.2 and 
SCM Agreement Articles 22.3 and 22.5  
MOFCOM 's approach manifestly failed to provide "in sufficient det ail . . .  the reasons for the 30. 
. . . rejection of relevant arguments." Specifically, China argues that MOFCOM "addressed" 
USAPEEC 's and the United States ' argument that subject imports had no adverse volume effects 
because they captured no market share from the dome stic industry by stating that "[d]uring the 
whole injury investigation period, the quantity of the produce concerned had increased 
sustainably, and the imports prices were at a low level, which resulted in significant undercutting 
and suppression to the do mestic like product . . . ." Conspicuously absent from MOFCOM 's 
response is any mention or consideration of market share, and specifically the record evidence 
highlighted by USAPEEC and the United States showing that subject imports captured no market 
share from the domestic industry. Having failed to address the very point raised by USAPEEC and 
the United States, MOFCOM cannot be said to have provided "in sufficient detail" its reasons for 
rejecting the argument.  
China also argues that MOFCOM "address ed" USAPEEC 's argument that the 40 percent of 31. 
subject imports consisting of chicken paws could not have injured the domestic industry by 
referencing its finding from the preliminary determination that "the scope of the investigated 
products includes Paw; t herefore, the investigation authority proceeds by investigating the import 
of all the investigated products including Paw as a whole . . . ." That MOFCOM included the words 
"chicken paws" in its response to USAPEEC 's argument revealed nothing about the "re asons" why 
MOFCOM decided to ignore completely uncontested evidence on the record that 40 percent of 
subject imports, and 60 percent of the increase in subject imports, consisted of non -injurious 
chicken paws.  
V. CHINA 'S TERMS OF REFERENCE  ARGUMENTS ARE WITHOUT MERIT  
The United States ' Panel Request provides more information than is required under the DSU 32. 
to present the claims at issue in this dispute. In particular, the United States often previewed 
some of the specific arguments it intended to advan ce by providing indicative examples of how 
China breached its WTO obligations. In each of the instances China complains of, the U.S. Panel 
Request has clearly stated the measures and claims at issue – and is thus entitled to have the 
Panel consider them. C hina's position essentially demands that Members not only identify claims, 
but that they must also provide in the Panel Request the precise arguments that will be presented 
in their submissions. The DSU does not compel this result.  WT/DS427/RW/Add.1  
 
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  The Panel Request c learly identifies that the measures at issue are those leading to the 33. 
continued imposition of AD and CVD duties on U.S. broiler products – and further clarifies for 
China that the United States is concerned with MOFCOM 's conduct during the reinvestigation.  For 
each of its claims, the United States has identified the relevant obligation in the covered 
agreement. The United States has done so not only by identifying treaty provisions, but also by 
providing appropriate narrative descriptions when necessary. Mo reover, the United States has also 
provided in some instances precise examples of how it might seek to demonstrate breach. The 
Appellate Body 's prior analysis has correctly recognized that Members may provide indicative 
examples of how the claim might be e stablished. Such an examples are simply foreshadowed 
arguments; they do not detract from the claim itself.  
VI. CHINA HAS BREACHED A D AGREEMENT ARTICLE 1, SCM AGREEMENT ART ICLE 10, 
AND GATT ARTICLE VI  
Because China has not rebutted the foregoing claims  demonstrated by the United States, 34. 
China as a consequence is also unable to rebut that it has breac hed AD Agreement Article 1, 
SCM Agreement Article 10, and Article VI of the GATT 1994.  
VII. CONCLUSION  
For the reasons set forth in this submission and its first written submiss ion, the 35. 
United  States respectfully requests the Panel to find that China 's measures are inconsistent with 
China 's obligations under the AD Agreement, SCM Agreement, and the GATT 1994, and thus that 
China has failed to comply with the DSB recommendations in this dispute.  
 
 WT/DS427/RW/Add.1  
 
- B-18 - 
 
  ANNEX B -3 
EXECUTIVE SUMMARY OF  THE OPENING ORAL STA TEMENT OF THE UNITED  STATES  
AT THE SUBSTANTIVE M EETING OF THE PANEL  
I. INTRODUCTION  
We are here today because China, notwithstanding the clear findings earlier in this dispute – 1. 
and other disputes – has breached the basic procedural and substantive obligations of the AD and 
SCM Agreements in maintaining antidumping and  countervailing duties on U.S. broiler products. To 
a large extent, China has not addressed the legal and factual arguments of the United States, but 
rather relies on rhetoric and conclusory statements. Rather, China 's arguments are primarily, as 
this Pane l put it in the original proceeding, simply post-hoc rationalizations that are "irrelevant for 
the purposes of our assessment of MOFCOM 's actions."  
II. MOFCOM 'S FLAWED INJURY REDE TERMINATION BREACHES  THE AD AND 
SCM AGREEMENTS  
China 's defense of MOFCOM 's injury redetermination centers on the assertion that the 2. 
United States is seeking to substitute its judgment for MOFCOM 's. The issue is not whether 
MOFCOM has discretion, but whether the exercise of that discretion comports with the obligations 
in the AD  and SCM Agreements.   
A. China Cannot Defend MOFCOM 's Price Effects Analysis  
An objective examination of pricing data requires that the prices the investigating authority 3. 
compares must correspond to comparable products. Tellingly, MOFCOM 's price effec ts analysis in 
the redetermination continues to rely on its original flawed analysis of AUVs, rather than make any 
of the requisite adjustments to ensure comparability.  
First, MOFCOM 's determination does not explain why its approach of using domestic pricing 4. 
data from these four particular firms would resolve the issue of product mix. As is evident, we 
have no understanding how this data was applied to ensure that product mix is not an  issue. 
Second, there is nothing in the redetermination about why or how these firms were selected. Nor 
does the record indicate the coverage of their product -specific data. Even the post hoc  
rationalization offered by China in its submissions suggests the  only reason these firms were 
chosen was that it was convenient for MOFCOM since it was already familiar with these four firms 
and decided it lacked the time and resources to examine all 17 firms. It is important to keep in 
mind that the data from these fo ur firms is a sample of a sample. As the Panel may recall, in 
defending against the U.S. challenge on how MOFCOM defined its domestic industry in the original 
proceeding, China stressed the large number of firms that comprised its domestic industry. 
Partic ularly, in the absence of any explanation as to the methodology employed by MOFCOM to 
select these firms, it is clear that MOFCOM 's attempt to remedy the AUV deficiency is not an 
"objective examination" based on "positive evidence." Third, as our submissio ns explain, the 
record demonstrated that the product mix of subject imports was dynamic in that it changed over 
time. China 's attempted response is that MOFCOM 's "spot check" confirmed that this was not an 
issue. China 's argument, which lacks any citation to the record or the determinations, is a 
non-sequitur . It ignores that a "spot check" cannot, by definition, examine a changing market 
situation. Fourth, China fails to address that MOFCOM did not even attempt to examine the 
product mix pricing for import s. The limited data indicated that paws tended to be ranked 3rd or 
4th in terms of price, and the sales price index for paws was little higher than the sales price index 
for breast meat, which China characterizes as a "lowest price product." The products ranked 1st 
and 2nd in terms of price, wings and gizzards, were sold by the four domestic producers, but not 
imported from the United States in appreciable quantities. In light of this, MOFCOM could not 
objectively conclude that the product mix sold by the domestic industry was comparable to that of 
the imported subject merchandise.  WT/DS427/RW/Add.1  
 
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  China 's defense of MOFCOM 's price suppression finding appears to rest on two points. First, 5. 
China appears to argue that a price suppression finding does not need to be well ex plained under 
the relevant obligations. This position has no legal basis. Second , China asserts that the 
United  States is misreading the record. But the relevant portions of the record are clear, and the 
United States has accurately described MOFCOM 's reas oning: MOFCOM predicated its finding that 
subject imports significantly suppressed prices for the domestic like product on its deficient 
underselling analysis. In addition, MOFCOM failed to address record evidence that prices for the 
domestic like product were not, in fact, suppressed during the 2006 -2008 period. In particular, 
even as subject imports allegedly undersold the domestic like product, the Chinese domestic 
industry was able to increase its prices by more than the increas e in its costs between 20 06 
and 2008.  
B. China Cannot Defend MOFCOM 's Impact Analysis  
China has confirmed that MOFCOM 's analysis on the impact of subject imports on the 6. 
domestic industry in the redetermination remains completely unchanged  from that in the original 
determinati on. Accordingly, MOFCOM has taken no steps to address any of the arguments 
concerning why its impact analysis is deficient under the AD and SCM Agreements.  
First, MOFCOM 's examination of the impact of subject imports on the domestic industry 7. 
failed to consider the numerous factors attesting to the overall health of the industry. Almost every 
metric during the period of investigation improved . China claims MOFCOM "systematically 
addressed" these factors. But the text of the redetermination indicates othe rwise. Only two factors 
in the Chinese broiler industry did not appear to improve over the period of investigation: the 
domestic industry 's rate of capacity utilization and end -of period inventories. With respect to 
inventories, MOFCOM failed to consider t he increase in inventories in relation to the domestic 
industry 's production and shipments. Also, the industry 's inventories were objectively small, 
equivalent to only around three percent of industry output and shipments. Likewise, MOFCOM 's 
findings on ca pacity utilization fail to address evidence indicating that the level was not due to 
subject imports. As our submissions explain, capacity utilization actually increased slightly during 
the 2006 -2008 period corresponding to most of the increase in subject import volume. The only 
reason the industry 's capacity utilization did not increase dramatically during the period was the 
industry 's own decision to increase capacity far beyond growth in domestic demand.  
C. China Cannot Defend MOFCOM 's Causal Link Analy sis  
Our submissions highlight that MOFCOM 's causation analysis in its redetermination remains 8. 
flawed for precisely the same reasons as the original determination. With respect to the first point, 
the redetermination failed to address that the increase in subject import market share during the 
period of investigation failed to prevent the domestic industry from increasing its market share by 
an even greater amount. The second reason MOFCOM 's finding of causation is inconsistent with 
the AD and SCM agreem ents is because it relies on MOFCOM 's price underselling analysis, which 
remains flawed for the reasons already discussed. The third flaw in MOFCOM 's finding of a causal 
link between subject import and injury is that MOFCOM ignored evidence that most of the increase 
in subject import volume and market share coincided with a strengthening of the domestic 
industry 's performance between 2006 and 2008.  
III. MOFCOM 'S FLAWED REINVESTIGA TION BREACHES THE PR OCEDURAL 
PROTECTIONS OF THE A D AND SCM AGREEMENTS   
A. MOFCOM Failed to Provide Notice to Interested Parties of the Pricing 
Information it Required from Chinese Domestic Producers and Denied Them 
Ample Opportunity  
As the Panel has noted in its Preliminary Ruling, "MOFCOM required, sought, and obtained 9. 
additional information from Chinese domestic producers in the course of its reinvestigation." And, 
because MOFCOM failed to afford both notice and opportunity to interested parties in connection 
with the information that it required from Chinese producers, Chin a is in breach of AD Agreement 
Article 6.1 and SCM Agreement Article 12.1. Indeed, the United States notes that it is striking that 
even after two rounds of submissions, no one other than China still knows the precise requests 
that were actually posed to t he Chinese producers.  WT/DS427/RW/Add.1  
 
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  B. MOFCOM Failed to Permit Interested Parties Timely Access to Information 
Such that they could Defend Their Interests  
China has also breached Article 6.4 of the AD Agreem ent and Article 12.3 of the 10. 
SCM Agreement, which requires  investigating authorities to permit timely  access to information to 
interested parties, to enable them to prepare their cases, and defend their interests.  China failed 
to afford those opportunities as to the data MOFCOM requests from China 's domestic prod ucers, 
including the identity of those producers and the specific information requests issued by MOFCOM. 
China asserts that its supposed deposit of documents to the public information room at China 's 
Ministry of Commerce satisfied its obligations. The depo sit of documents in the reading room is not 
meaningful, absent notice to interested parties.  
C. China 's Failure to Disclose the Anti -dumping Calculations and Data  
In the reinvestigation, Pilgrim 's Pride was denied access to the data calculations from the 11. 
original investigation, even though MOFCOM cited a purported error in the data and calculations 
from the original determination to increase the margin of Pilgrim 's Pride by 20 points. Keystone 
likewise was denied access to its margin calculations and d ata from the original investigation. 
Keystone, as a foreign producer, was indeed an "interested party" as defined under Article 6.11, 
whether or not it chose to participate by submitting new data. In addition, China 's explanation 
concerning Keystone 's supp osed lack of an authorized representative is without merit. Keystone 's 
duly appointed representative indicated through a memorandum that it was authorized to "act on 
behalf of Keystone and to receive any document on Keystone 's behalf."  
IV. MOFCOM 'S FLAWED  ANTI -DUMPING DETERMINATIO N BREACHES THE 
AD AGREEMENT  
A. China Cannot Point to Any Record Evidence to Support MOFCOM 's Assertion 
that U.S. Producers ' Recorded Costs Were Unreasonable  
1. The Methodology Applied to Tyson is Not Proper  
The Panel found in  the original dispute that China bre ached the second sentence of 12. 
AD Agreement Article 2.2.1.1 by relying upon a distortive weight -based allocation methodology for 
Tyson. In its redetermination, MOFCOM did not address this error. China 's attempt to manipula te a 
value -based allocation method to distinguish total meat costs into categories, but then rely on a 
separate weight -based method to allocate total meat costs for only one of those categories into 
specific products, is not consistent with Article 2.2.1.1 . Furthermore, if China indeed wanted to use 
a weight -based methodology, it by necessity needed to allocate costs across all products – and not 
just to broiler products. To allocate costs selectively introduces substantial distortions.  
Further, China 's claim that the scope of its investigation only included chicken for "human 13. 
consumption" must be rejected. China 's own response submission implicitly recognizes such, in 
stating that "Tyson 's normal books and records demonstrated that the little cost [sic ] was assigned 
to feathers and blood because the sales revenues of these items were very low." All parts of a 
chicken, including both those for human consumption and those that are rendered, are 
co-products, and a consistent, reasonable methodology must be  used to allocate production costs 
to all co -products.  
2. The Methodology Applied to Pilgrim 's Pride is Not Proper  
China similarly failed to give any consideration of the "proper" allocation of costs with 14. 
respect to Pilgrim 's Pride. The Panel 's decision made two findings that applied to all respondents – 
specifically, that China failed to give proper consideration to "alternative allocation methodologies 
presented by the respondents," and that China "improperly allocated all processing costs to  all 
products." MOFCOM failed to do any evaluation with respect to Pilgrim 's Pride 's costs, and for this 
reason alone breached Article 2.2.1.1 's obligation to "consider all available evidence on the proper 
allocation of costs," and resulted in a failure to  provide a reasoned and adequate explanation for 
its determination.  WT/DS427/RW/Add.1  
 
- B-21 - 
 
  B. MOFCOM 's "All -Others" Rate  
The plain text of Article 9.4 establishes a cap on the duty that may be applied to imports 15. 
from "exporters or producers not included in the examination."  Here, MOFCOM 's investigation was 
limited to only three companies; no other exporter was examined. Article 9.4 does not allow for 
distinctions between classes of exporters or producers "not included in the examination". Any 
exporters or producers not inclu ded in the examination are entitled to a ra te consistent with 
AD Agreement Article 9.4.  
C. China 's Reliance on Facts Available fo r Tyson was Unsupported because 
Tyson Fully Cooperated to the Best of its Ability  
MOFCOM 's use of facts available is incon sistent with Art icle 6.8 and Annex II of the 16. 
AD Agreement. China has failed to present any evidence that Tyson refused access to, failed to 
provide, or other otherwise impeded MOFCOM 's ability to obtain requested information – such that 
could justify the a pplication of facts available. Rather, MOFCOM during the reinvestigation sought 
information that simply did not exist, and Tyson still made every reasonable effort to use the data 
available in its business records to satisfy MOFCOM 's request. Contrary to C hina's assertion, Tyson 
did not make unexplained changes to its data during the redetermination proceedings. Rather, 
Tyson used the standard costs data it had to breakdown these total actual costs for each 
product -brand code into meat and processing costs for each cost center. Tyson was forthcoming 
with MOFCOM on why and how it was proceeding in this manner. Yet China completely rejected 
this information provided by Tyson in the reinvestigation, without engaging in an objective process 
of examining the submitted data or an effort to verify its accuracy or reliability.  
Finally, China 's reliance on the Panel report findings, at paragraph 7.196 with regard to 17. 
"pure meat" and "pure processing" costs is disingenuous.  In fact, Tyson provided this information 
in the only way that it could. And it is obvious why the processing costs changed: those processing 
costs were embedded in the total meat costs during the original investigation, and Tyson had to 
disaggregate those  processing costs during the reinvestigation, using the data Tyson had at its 
disposal. Such extensive efforts by Tyson do not reflect a failure to cooperate.  
V. CHINA HAS BREACHED A D AGREEMENT ARTICLE 1, SCM AGREEMENT ART ICLE 10, 
AND GATT ARTICLE VI  
These claims are consequential and therefore do not require any independent evidence to be 18. 
established – they simply result from breaches of other provisions of the AD and SCM Agreements. 
Accordingly, the Panel may issue findings on these claims if it find s breaches on the foregoing 
claims we have discussed.  
VI. CONCLUSION  
For these reasons and those set forth in our submissions, the United States respectfully 19. 
requests the compliance panel to find that China 's measures taken to comply with the 
recommen dations and rulings of the DSB are inconsistent with China 's obligations under the 
AD Agreement, the  SCM Agreement, and GATT 1994.  
 
 
_______________  
 
 
 WT/DS427/RW/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF CHINA  
Contents  Page  
Annex  C-1 Executive summary of the First Written Submission of China  C-2 
Annex  C-2 Executive summary of the Second Written Submission of China  C-10 
Annex  C-3 Executive summary of the Oral Statements of China at the Substantive Meeting 
of the Panel  C-18 
 WT/DS427/RW/Add.1  
 
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  ANNEX  C-1 
EXECUTIVE SUMMARY OF  THE FIRST WRITTEN SU BMISSION OF CHINA  
I. INTRODUCTION  
1. The United States seriously mischaracterized the factual context and the findings made by 
MOFCOM during the redetermination proceedings that bring the antidumping and countervailing 
duty measures at issue in DS427 into compliance with China 's obligations under the WTO. First, 
the United States seeks to pursue several specific claims that are beyond this Panel 's Terms of 
Referen ce. In other areas, the U.S. First Written Submission drops any argument about provisions 
that were included in the Panel Request. Second, the United States argues for other approaches to 
issues that would have also been permissible, had MOFCOM decided to adopt them, but that 
simply were not required given the Panel findings. Third, when focusing on the specifics of each 
U.S. claim, it is important not to lose sight of what the United States has not challenged and 
therefore concedes to be WTO -consistent. Th e Panel focus, of course, will be on the U.S. claims, 
but the evaluation of those claims needs to take into account the factual and legal context that has 
not been challenged.  
II. THE FACTUAL BACKGROU ND PROVIDED BY THE U NITED STATES CONCERN ING 
MOFCOM 'S INV ESTIGATIVE PROCESS O MITS OR MISSTATES KE Y FACTS  
2. The United States has presented a somewhat self -serving summary of the redetermination 
proceeding, omitting or misstating key facts that are important for the Panel 's consideration.  
3. China promptly began  the procedure to implement the Panel findings in this dispute. O n 
25 December 2013, MOFCOM issued its Announcement No.88 of 2013 notifying its intention to 
reinvestigate the anti -dumping and countervailing measures on imports of broiler products 
originati ng in the United States. The purpose of the reinvestigation was to implement the findings 
of the Panel in DS427.  
4. Questionnaires were issued to those U.S. exporters for which the Panel findings required 
some reconsideration by MOFCOM on 7 January 2014. I nvestigative procedures were tailored 
appropriately, seeking specific information regarding the issues about which the Panel had made 
findings. No company was asked to prepare entirely new responses for a new period of time or for 
a new product. U.S. expor ters had a typical due date of two weeks to respond to the initial 
questionnaire. They requested more time, and MOFCOM granted the requests to the extent 
practicable, as well as multiple opportunities to clarify their responses.  
5. MOFCOM also reinvestiga ted the Chinese domestic producers. On 19 February 2014, the 
MOFCOM released its Notification on On -spot Verifications in the Anti -dumping and Anti -subsidy 
Re-investigation on Broiler Products, which provided the schedule and the methodology of the 
investi gations to be carried out. Given the Panel Report findings on MOFCOM 's failure to ensure 
price comparability with regard to its analysis of price effects, the parties had a clear sense of what 
was expected from them through the Notice.  
6. MOFCOM conducted  on-site verifications of the same three producers whose questionnaire 
responses had been verified in the original verification, as well as the largest producer that was 
visited before the original final determination. Product -specific price data were sour ced using 
standard verification methodologies and on the basis of the companies ' questionnaire responses 
from the original investigation. MOFCOM requested a breakdown of the sales quantity and value 
reported to show product -specific pricing data. MOFCOM also verified these data by requesting 
product coding, sales ledgers and sampled i nvoices.  
7. On 16 May 2014 MOFCOM issued disclosures to Pilgrim 's Pride, Tyson, and the U.S. 
Government. These disclosures covered all issues for the two U.S. exporters. Keystone had not 
designated an agent and was otherwise not cooperating with the reinve stigation, so MOFCOM tried WT/DS427/RW/Add.1  
 
- C-3 - 
 
  reaching out to Keystone directly and through the U.S. Embassy, but MOFCOM was not able to 
provide any disclosure directly to Keystone.  
8. On 20 May 2014, the four domestic producers filed the public versions of their 
Post-Verification Supplemental Information. The names of these producers were disclosed in the 
public version. On 21 May 2014, MOFCOM released its injury disclosure and the essential facts to 
all known interested parties, and provided an opportunity for comment.  
9. On May 23, 2014, the Investigating Authority issued its Notification on Hearing and o n 
May 30, 2014, the hearing was held. The domestic parties declined to attend the hearing . The U.S. 
Government, Tyson Foods Inc and Pilgrim 's Pride Corporation attended the  hearing. At the 
hearing, the U.S. Government gave a presentation. The U.S. exporters choose not to make their 
own presentations, but they attended.  
III. MOFCOM ABIDED BY ITS  PROCED URAL OBLIGATIONS UND ER THE 
ANTI -DUMPING  AGREEMENT AND THE SC M AGREEMENT  
A. China Did Not Act Inconsistently with Article 6.1 of the 
Anti-Dumping  Agreement and Article 12.1 of the SCM Agreement  
10. This U.S. claim falls outside the Panel Request. The U.S. claim cites to documents that do 
not even exist, and does not "present the problem clearly" as required by Article 6.2 of the DSU. It 
only identifies MOFCOM 's alleged failure to disclose questionnaires submitted to the domestic 
industry and it is preceded by the phrase "for example". Although such language might serve to 
specify a previously generally identified measure, it does not reference any specific part of the 
Redetermination, and instead references only "questionnaires" that do not even exist.  
11. Even if the claim were properly raised, it nevertheless fails on its merits  as factually 
incorrect and legally baseless. The U.S. argument simply ignores all of the disclosure, including the 
initiation notice of re -investigation, the general verification letter, and the public versions of 
verification exhibits, that took place ea rlier in the process and was more than sufficient to satisfy 
Article 6.1 of the Anti -Dumping Agreement and Article 12.1 of the SCM Agreement.  
B. China Did Not Act Inconsistently with Article 6.4 and Article 6.5 of the 
Anti-Dumping Agreement and Articles 12 .3 and 12.4 of the SCM Agreement  
12. This U.S. claim is outside the Panel 's Terms of Reference because it does not identify the 
"specific measures" at issue nor does it provide a "brief summary of the legal basis" for its claim. 
The U.S. purports to have identified the "specific measures" at issue and to have provided a "brief 
summary of the legal basis" but there are several key aspects of this language that ignore the 
requirements of Article 6.2 of the DSU. In its First Written Submission, the U.S. conte nds that 
China acted inconsistently with certain specific provisions, yet paragraph 5 of the Panel Request 
does not even mention Article 6.1.2 of the Anti -Dumping Agreemen t and Article 12.1.2 of the 
SCM Agreement at all. Nor do the claims under Articles 6. 4 and 12.3 present the problem clearly. 
To include these provisions now would be contrary to Article 6.2 of the DSU.  
13. Even if the Panel were to consider such claim as within its Terms of Reference, t he U.S. 
claim that MOFCOM acted inconsistently with th ese provisions  is without merit . These provisions 
require that relevant information provided by one party in an investigation is promptly made 
available to other participating parties.  China promptly made available evidence in writing to the 
interested par ties participating in the investigation in accordance with these provisions by 
releasing as timely as possible – that is on the very same day of receipt – the Public Versions of 
the Post-Verification Exhibits by the domestic producers and by providing to a ll interested parties 
in the reinvestigation access to the file s in the Public Information Room.  
14. The United States has dropped its claim under Article 6.5 of the Anti -Dumping Agreement 
and Article 12.4 of the SCM Agreement. But even if considered, this claim fails. MOFCOM provided 
the parties with access to all relevant information through notice and public summaries. The 
parties had sufficient time to prepare their defenses  and in fact did so.  WT/DS427/RW/Add.1  
 
- C-4 - 
 
  C. China Did Not Act Inconsistently with Article 6.9 of the 
Anti-Dumping  Agreement by Failing to Disclose the Essential Facts  
15. MOFCOM in fact disclosed the "essential facts" to Pilgrim 's Pride. The U.S. narrative is 
factually inaccurate. MOFCOM not only provided Pilgrim 's Pride with all of the data and calculations 
used in the reinvestigation, which included the data from the original investigation, but also 
discussed its corrections with Pilgrim 's Pride. In fact, MOFCOM made additional adjustments to its 
calculations based on Pilgrim 's Pride input, further evidencing that Pilgrim 's Pride in fact had all of 
the essential facts necessary to have a meaningful pa rticipation.  
16. The other objection raised by the United States is that Pilgrim 's Pride received the essential 
facts too late. This statement is factually wrong. MOFCOM disclosed the essential facts to Pilgrim 's 
Pride at the opportune moment and before i ts decision was final. Moreover, MOFCOM discussed its 
corrections with Pilgrim 's Pride. By indicating calculation errors and corresponding corrections, 
Pilgrim 's Pride was fully aware of the data and calculations of dumping margin from the original 
investi gation. Consequently, there is no factual basis to argue that MOFCOM acted inconsistently 
with Article 6.9 as regards Pilgrim 's Pride.  
17. MOFCOM also disclosed essential facts to Keystone. The U.S. argument fails to note that 
although Keystone was duly no tified of the reinvestigation through the publication of Notice No. 88 
on MOFCOM 's website, and that MOFCOM also attempted to contact Keystone directly, as well as 
through the U.S. Embassy, Keystone refused to participate in the reinvestigation proceedings . The 
precise calculations were business confidential information, and could not be released publicly. 
Since Keystone did not duly appoint any representative, there was no one to whom MOFCOM could 
have disclosed such confidential information and so MOFCOM was limited in its ability to disclose. 
Nonetheless, it is clear in the Redetermination that MOFCOM did comply with its obligation to 
disclose essential facts to Keystone.  
IV. MOFCOM 'S REDETERMINATION IS  CONSISTENT WITH ARTI CLES 2.2.1.1, 6.8, 9 .4, 
AND ANNE X II OF THE ANTI -DUMPING AGREEMENT  
A. China Did Not Act Inconsistently with the Second Sentence of Article 2.2.1.1 
of the Anti -Dumping Agreement  
18. In terms of Pilgrim 's Pride, the U.S. claim is outside the Panel 's terms of reference because 
nothing in th e Panel request provided a summary sufficient to understand this particular claim. But 
even if the U.S. claim is within the Terms of Reference, it fails because it depends on a finding that 
the Panel in fact never made. The Panel finding under the second s entence of Article 2.2.1.1 
applied only to Tyson and Keystone, not to Pilgrim 's Pride. MOFCOM made no change in the 
redetermination proceedings with regard to Pilgrim 's Pride on cost allocations because the Panel 
had made no finding that MOFCOM needed to a ddress in its Redetermination.  
19. With regard to the Tyson claim, the United States misstates the nature of the obligation 
under the second sentence of Article 2.2.1.1. This provision requires only that the authority 
"consider all available evidence". MOF COM did in fact "consider all available evidence" on the 
alternative cost allocation proposed by Tyson, including whether they were "historically utilized" by 
Tyson, as required by Article 2.2.1.1. MOFCOM reasonably rejected the Tyson alternative cost 
methodology as not correctly reflecting costs and instead applied a weight -based cost allocation to 
Tyson for the products under investigation.  
20. MOFCOM made the reasonable choice to adopt a weight allocation for the meat cost of the 
product under considera tion, and not to include products not under consideration, and explained 
its rationale for doing so in some detail. The U.S. claim that Tyson 's costs of blood and feathers 
were not allocated appropriately under MOFCOM 's weight based allocation method is fl awed.  
21.  First, the Redetermination confirms the original determination that MOFCOM reasonably 
replaced Tyson 's flawed value -based allocation method with a weight -based allocation method to 
allocate meat cost among different models of the product concerned – the edible parts of the 
broiler products. Tyson had misused the price of offal (waste products) to estimate unreasonably 
the cost of paws (edible products), which led to distorted costs for each model of the product 
concerned. The Redeterminati on confirms MOFCOM 's reasonable rejection of Tyson accounting WT/DS427/RW/Add.1  
 
- C-5 - 
 
  records for allocating the cost of each model of the product concerned. The United States does not 
challenge it under the first sentence of Art. 2.2.1.1.  
22. Second, Tyson treated the inedibl e part of the broiler product – blood and feather s – as 
waste products under its cost allocation. Unlike the treatment of edible products, the 
Redetermination finds that the use of prices of waste products to allocate the cost of inedible 
products did not unr easonably reflect costs, which also means that Tyson 's accounting records on 
this specific point could be accepted. The United States does not challenge MOFCOM 's finding 
under the first sentence of Art. 2.2.1.1.  
23. Third, the essence of the U.S. claim is to challenge appropriateness of the MOFCOM 's 
rejection of Tyson 's alternative by using a total live -chicken weight -based method under second 
sentence of Art.2.2.1.1. This U.S. alternative, however, is not based on any cost allocation that 
had been historic ally utilized by Tyson, and cannot be considered as evidence under 
second sentence of Art. 2.2.1.1.  
24. Fourth, Tyson tried to obfuscate the nature of the different products to distort the costs. For 
instance, at the beginning, Tyson tried to confuse offa l and broiler products such as paws; later, 
Tyson tried to equate the waste products, such as feathers and blood, with edible products 
including the products concerned; finally, Tyson even tried to treat dead birds equally with live 
chicken. Tyson argued f or all these alternatives for the same purpose – to obscure the nature of 
different products to distort the costs. The Tyson approaches that the United States now defends 
could not reasonably reflect the cost of the product concerned, nor appropriately all ocate the costs 
for the product concerned. It would depart from common sense notions about edible products and 
non-edible products, primary products and waste products, and basic antidumping rules to 
distinguish the product concerned and the non -product co ncerned.  
25. The U.S. argument is little more than a disagreement with MOFCOM 's determination on this 
issue. The United States is essentially asking the Panel to second -guess MOFCOM and substitute 
the Panel 's opinion about the proper cost allocation for t he decision that MOFCOM made on this 
issue.  
B. China Did Not Act Inconsistently with Article 6.8 of the 
Anti-Dumping  Agreement with Respect to Tyson  
26.  The United States focuses exclusively on the MOFCOM`s decision to apply "facts available", 
but present s no argument at all about MOFCOM`s choice of particular facts. The Appellate Body 
and several panels have concluded that Article 6.8 and Annex II impose a particularly high 
standard on responding parties, explaining that a respondent is required to act "t o the best of its 
ability". Failing that, the investigating authority is entitled to resort t o facts available under 
Article  6.8. Furthermore, even if an interested party cooperates and acts "to the very best of its 
ability", if the requested information i s not obtained, investigating authorities may resort to facts 
available.  
27. Tyson did not meet this high standard during the reinvestigation. There were significant 
discrepancies between what Tyson said about costs in the original proceedings and what Tys on 
was saying in the redetermination proceedings. In the original Panel proceeding, the United States 
claimed that MOFCOM did not allocate Tyson 's product -specific processing cost as they were 
actually incurred in the production of those specific products.  MOFCOM made repeated efforts 
during the reinvestigation to obtain the cost of raw material used to grow broiler chickens, without 
any processing costs. Yet, Tyson never satisfactorily provided this information and did not 
participate in the original inves tigation and reinvestigation proceedings to the "best of its ability". 
Instead, Tyson provided MOFCOM with unreliable and inconsistent answers to several 
questionnaires. For instance, the meat cost was discovered containing processing costs, while 
some pro cessing costs became negative. Under these circumstances, MOFCOM was completely 
justified in applying "facts available" under Article 6.8 and Annex II.  WT/DS427/RW/Add.1  
 
- C-6 - 
 
  C. China Did Not Act Inconsistently with Article 9.4 of the 
Anti-Dumping  Agreement Through the "All Oth ers" Rate Assigned to 
Exporters or Producers that did Not Identify Themselves  
28. The United States argues that China acted inconsistently with Article 9.4 of the 
Anti-Dumping Agreement by setting a rate for those exporters who did not identify themselves  for 
purposes of the proceeding based on the rate applied to Pilgrim 's Pride rather than the weight 
average of rates for individually investigated companies.  
29. The argument is mistaken because Article 9.4 does not apply to the "all others" rate set in 
the underlying proceeding. In the underlying proceeding "all others" pertained to producers and 
exporters who did not cooperate in the selection of respondents. Thus, the facts involved in 
MOFCOM 's reinvestigation do not implicate Article 9.4 of the Anti -Dumping Agreement. The flaw in 
the U.S. argument is in its apparent assumption that "all others" as used by MOFCOM in the 
reinvestigation has the same meaning the U.S. Department of Commerce assigns to "all others" in 
its own domestic proceedings. In U.S. De partment of Commerce cases, "all others" refers to those 
parties not asked to cooperate in the investigation. But this term was used differently by MOFCOM. 
In the reinvestigation "all others" referred to those companies that chose not to register and 
provide information as requested in MOFCOM 's Notice of Initiation.  
V. MOFCOM 'S REDETERMINATION IS  CONSISTENT WITH ARTI CLES 3 AND 12 OF THE  
ANTI -DUMPING AGREEMENT AN D ARTICLES 15 AND 22  OF THE SCM AGREEMENT  
A. China's Price Effects Analysis Was Consistent with Articles 3.1 and 3.2 of the 
Anti-Dumping Agreement and Articles 15.1, 15.2, and 15.4 of the 
SCM Agreement  
30. The United States makes two specific and relatively narrow claims concerning MOFCOM 's 
price effects analysis, focused on: (i)  the way that MOFCOM found price undercutting, and (ii)  the 
implications of that price undercutting for the price suppression analysis. Both claims should be 
dismissed.  
31. First, the United States claims that MOFCOM failed to ensure objective price comparisons in 
its undersel ling analysis because the product -specific price data relied upon for that purpose were 
not representative. But this argument fundamentally misstates MOFCOM 's analysis to create the 
false issue of representativeness . In its original determination MOFCOM analyzed annual trends in 
the average unit price of subject imports and in the price of the domestic like product. The Panel 
found that differences in product mix risked affecting price comparability and distorting any price 
effects analysis if steps were not taken to control for product mix, or if necessary adjustments 
were not made. Consistent with the Panel 's findings and conclusions, MOFCOM 's Redetermination 
took steps to control for differences in physical characteristics affecting price comparability to 
determine  if any adjustments were necessary.  
32. Specifically, MOFCOM performed an additional round of on -site verifications of the domestic 
industry in order to collect supplemental price data with which to distinguish among product 
specifications. MO FCOM also analyzed product -specific import statistics from Chinese Customs and 
cross-checked it with export data from the respondents. MOFCOM 's approach was sufficiently 
representative for the limited purposes to which it was applied.  MOFCOM found that imp orts from 
the United States were concentrated in products that the Chinese market valued at the high end of 
the value chain. As such, any bias existing in its aggregate AUV price comparison in fact favored 
U.S. producers, not the domestic industry, since U .S. imports were shown to be concentrated in 
high value products whereas the domestic industry sold the full spectrum of domestic like product. 
Therefore, MOFCOM 's use of AUVs to reflect price undercutting was a cautious and conservative 
approach given the  specific facts of this case.  
33. Having met its obligations to take additional steps to ensure that product mix and price 
comparability were not problems in this specific case, MOFCOM reasonably relied on price 
undercutting based on overall annual AUVs f or the domestic industry. These AUVs reflected all 
products for all 17 domestic firms that were part of the domestic industry as defined by MOFCOM, 
and as previously upheld by the Panel.  WT/DS427/RW/Add.1  
 
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  34. Second, the United States also claims that China failed to estab lish that subject import 
prices had the effect of suppressing domestic like product  prices. But this U.S. claim also relies 
upon a mischaracterization of the record and MOFCOM 's approach in the redetermination. 
MOFCOM did not rely solely or principally on its price undercutting findings, and presented various 
other reasons in support of its price suppression analysis.  
B. China Properly Analyzed Impact as Required by Articles 3.1 and 3.4 of the 
Anti-Dumping Agreement and Articles 15.1 and 15.4 of the SCM Ag reement  
35. At the outset, we note this claim is outside the Panel 's Terms of Reference. There were no 
changes in the MOFCOM determination on this issue and therefore no measure taken to comply 
with regard to this issue now before the Panel. To find otherw ise would sanction China for not 
making changes when no changes were required, and would deny China any chance to bring its 
findings into conformity with regard to this issue.  
36. The United States accuses MOFCOM of ignoring the positive evidence, and focu sing on a few 
isolated indicia of injury. By doing so the United States ignores the totality of the evidence before 
MOFCOM , and selectively picks time periods to create the illusion of a domestic industry doing 
well, when it in fact was suffering material injury.  
37. The United States makes three analytical errors. First, it focuses on an earlier period, the 
period from 2006 -2008, and ignores the sharp declines in various indicators during the most 
relevant and most recent period, the first half of 2009. Second, it also ignores MOFCOM 's findings 
that U.S. exporters may expand  exports to China, causing continued adverse effects to the 
domestic industry. Material injury at the end of an investigative period reinforced by expected near 
term trends is still material injury. Third, it focuses on volume indicators, and ignores the w eak 
financial indictors over the entire period. A domestic industry with net operating losses every year 
is suffering material injury.  
38. The U.S. arguments regarding two specific injury indicators, production capacity utilization 
and end -of-period inven tories, are similarly flawed. Note that although Articles 3.4 of the 
Anti-Dumping Agreement and 15.4 of the SCM Agreement list numerous factors to be considered 
in the examination of the impact of the subject imports, the United States raises claims about only 
two. MOFCOM 's Redetermination included "an evaluation of" these two factors, and thus complied 
with the relevant obligation. That the United States disagrees with how MOFCOM evaluated these 
two factors does not mean the MOFCOM evaluation was not an "o bjective examination".  
C. China Properly Demonstrated the Causal Li nk Required by Articles 3.1 
and 3.5 of the Anti -Dumping Agreement and Articles 15.1 and 15.5 of the 
SCM Agreement  
39. At the outset, China notes that certain aspects of this U.S. claim are beyond the Panel 's 
Terms of Reference. The third part of the U.S. claim – that MOFCOM did not reconcile its causation 
analysis with the improving domestic industry performance – was excluded from the Panel Request 
and cannot be included now.  
40. The Appell ate Body has repeatedly made clear that a causation requirement in the context 
of a trade remedy proceeding requires only that the imports under investigation have contributed 
in some meaningful way to the injury being suffered by the domestic industry. Th e Appellate Body 
was careful to clarify that the authority need not show that the subject imports were the only 
cause, or the major cause, of the injury.  
41. Thus, the burden on the United States in making a prima facie claim under Articles 3.5 
and 15.5 i s to demonstrate that MOFCOM failed to show that subject imports were making a 
meaningful contribution to the material injury. On the other hand, China can defeat the U.S. claim 
simply by showing that MOFCOM reasonably found that subject imports were contr ibuting in some 
way to the material injury.  
42. Second, MOFCOM did not rely on a flawed analysis of price effects as the sole basis of its 
discussion of causal relationship. Rather, MOFCOM reasonably relied on both a proper price 
undercutting analysis and a proper price suppression analysis as legally independent bases for WT/DS427/RW/Add.1  
 
- C-8 - 
 
  adverse price effects. Moreover, in the Redetermination, MOFCOM also proved that the differences 
in the product specifications alleged by the United States has not distorted the price und ercutting 
reflected in the average prices comparison, and the price undercutting reflected in the average 
prices comparison was not caused by differences in the specifications. Even without any finding of 
price undercutting, MOFCOM established a causal lin k based on increasing subject import volume 
and price suppression.  
43. Third, MOFCOM did not fail to reconcile its causation analysis with trends over the period. 
Rather, it is the U.S. argument that tries to ignore and downplay the sharp declines in the first half 
of 2009 and the dismal financial performance over the entire period of investigation. The existence 
of some positive trends does not negate the conclusions MOFCOM drew from weak and 
deteriorating financial performance over the period. Thus, MOFC OM's determination that subject 
imports were causing injury is not based on a flawed impact analysis.  
D. China Properly Addressed Key Causation Ar guments as Required by 
Articles  12.2 and 12.2.2 of the Anti -Dumping Agreement and Articles 22.3 
and 22.5 of th e SCM Agreement  
44. Contrary to the U.S. argument, MOFCOM did not "merely reiterated its unfounded 
assertions" regarding gains in domestic market share. The United States may not agree with 
MOFCOM 's conclusion, and the focus on other aspects of the factual  record to draw its conclusions 
about causal link, but MOFCOM sufficiently addressed this issue.  
45. MOFCOM noted the specific U.S. argument about the domestic industry market share, and 
then responded at length in the original determination. MOFCOM again noted this specific 
argument during the redetermination process, and then responded once again. As MOFCOM 
summarized: "During the whole injury investigation period, the quantity of the produce concerned 
had increased sustainably, and the imports prices wer e at a low level, which resulted in significant 
undercutting and suppression to the domestic like product, impacted by which, the domestic 
industry have been suffering long -term losses, the pre -tax profit margin and ratio of return on 
investment have staye d at a very low level". There is no doubt that MOFCOM addressed this issue 
and explained why it rejected the U.S. argument. As important, the Panel previously addressed 
this same U.S. argument, and rejected the U.S. argument. The United States has not pres ented 
any reasons for the Panel to reach a different conclusion in this Article 21.5 proceeding.  
46. Also contrary to the U.S. argument, the impact of subject imports of chicken paws was in 
fact injurious and MOFCOM explained why. The U.S. argument focuses  on the physical quantity of 
chicken paws in isolation, without addressing the price effects that were so important to MOFCOM 's 
causation analysis. MOFCOM addressed this issue twice: once in the original determination, and 
again in the Redetermination.  
47. The Redetermination proceedings provided particularly relevant discussions relating to 
chicken paws, and the importance of considering not just the physical quantity but also the prices. 
The Redetermination collected data that showed price undercuttin g for chicken paws ranging 
from 9.51 percent to 24.74 percent. The volume of chicken paws, therefore, was lower priced and 
had adverse price effects on the domestic industry. The Panel has previously addressed this same 
U.S. argument. In the original proceeding, the Panel found that MOFCOM would need only to cross 
reference its rejection of the argument in the  preliminary determination. That is precisely what 
MOFCOM has done, referencing the preliminary determination and the lack of any need to repeat 
those findings again. This is more than sufficient. The United States now simply repeated the 
argument from the  original investigation. Therefore, there is no new element that MOFCOM needed 
to address other than cross -referencing the preliminary determination.  
VI. THE REDETERMINATION IS CONSISTENT WIT H ARTICLE 1 OF THE 
ANTI -DUMPING  AGREEMENT, ARTICLE 1 0 OF  THE SCM  AGREEMENT, AND 
ARTICLE  VI OF THE GATT 1994  
48. The United States raised three consequential claims in its Panel Request but did not present 
any substantive arguments in this regard. It appears that the United States has decided to waive 
these three conseq uential claims as it did not even present a prima facie  case regarding these 
claims. Even if the Panel decides to reach these claims, they fail for reasons explained above.  WT/DS427/RW/Add.1  
 
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  VII. CONCLUSION  
49. For the reasons set forth above, China respectfully requests t he Panel to reject all of the 
U.S. claims and to find that the Redetermination is fully consistent with China 's WTO obligations 
under all of the covered agreements.  
 WT/DS427/RW/Add.1  
 
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  ANNEX C -2 
EXECUTIVE SUMMARY OF  THE SECOND WRITTEN SUBMISSION O F CHINA  
INTRODUCTION  
The themes that China highlighted in its First Written Submission continue to apply after the 1. 
U.S. Second Written Submission. The United States has not seriously addressed any of these 
concerns. First, the United States continues to press several claims that are wholly or partially 
beyond the Panel 's terms of reference. Since China 's arguments under Article  6.2 of the DSU go to 
the Panel 's very jurisdiction to hear those challenged claims, the Panel has no choice but to 
address those arguments and confirm the precise limits of the Panel 's jurisdiction in this dispute.  
Second, the United States continues to assert a single approach to iss ues for which the text 2. 
of the relevant obligation contemplates a range of approaches, arguing that MOFCOM should have 
agreed with the U.S. respondents and their efforts to distort the per unit cost of producing 
different types of edible broiler parts, and to dismiss the injurious impact of the increasing volume 
of low -priced subject imports. But MOFCOM met its obligation by unbiasedly and objectively 
considering all available evidence and alternative cost allocations, and then explaining reasonably, 
objecti vely, and thoroughly why it chose one reasonable and proper allocation method, as 
mandated by Article  17.6 of the Anti -Dumping Agreement, as well as why Tyson 's alternative was 
not acceptable. It met the same obligation by objectively and reasonably ensuri ng that its 
underselling analysis, based on a comparison of aggregate average unit values ("AUVs"), was not 
distorted. The underselling found was not merely a function of product mix. Indee d, the 
U.S. contention that that price of chicken paws is lower tha n the price of chicken breast was 
proven false. Thus, the analysis conservatively showed that imports undersold the domestic like 
product given the extremely limited volume of breast imports.  
Third, the United States continues to press claims that make  little sense in light of what the 3. 
United States did not challenge in MOFCOM 's Redetermination and concedes was WTO consistent. 
The specific U.S. claims must be evaluated in the context of the overall Redetermination. The 
MOFCOM Redetermination addressed a ll the findings made by the Panel in its original report, and 
did so in a way that respected China 's obligations under the Anti -dumping and SCM Agreements.  
I. CHINA RAISES SERIOUS  OBJECTIONS UNDER ART ICLE  6.2 OF THE DSU THAT THE 
UNITED STATES SEEKS TO DISREGARD  
The United States filed a deficient Panel Request that prevented China from anticipating the 4. 
scope of several of the claims the United States raised in its First Written Submission. In its 
Second Written Submission, the United States attempts to disregard China 's challenges under 
Article  6.2 of the DSU, claiming them to be "irrelevant or extraneous matters" to implementation 
proceedings under Article  21.5 of the DSU. This is simply wrong. On numerous occasions panels 
and the Appellate Body have  affirmed the fundamental nature of an assessment of the scope of 
their jurisdiction in consideration of the text of the panel request, emphasising the due process 
objective of such assessment. They have also affirmed that such a jurisdictional assessment is 
relevant and applicable to implementation procedures under Article  21.5 of the DSU. T he 
United  States failed to identify with sufficient detail the measures taken to comply with the original 
panel report by China that it seeks to challenge, nor did it i dentify the specific omissions or 
deficiencies in such measures. Instead, the United States presents broad references, ambiguous 
language, and seeks to challenge unchanged aspects of the original determination. If also fails "to 
provide the legal basis for  its complaint, by specifying how the measures taken, or not taken, fail 
to remove the WTO -inconsistencies found in the previous proceedings, or whether they have 
brought about new WTO -inconsistencies".  WT/DS427/RW/Add.1  
 
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  II. MOFCOM'S REDETERMINA TION FULLY COMPLIED WITH THE PROCEDURAL 
OBLIGATIONS OF THE A NTI-DUMPING AND SCM AGRE EMENTS  
A. MOFCOM Fulfilled Its Obligations Under Article  6.1 of t he 
Anti-Dumping  Agreement and Article  12.1 of the SCM Agreement  
The claims under Article 6.1 of the Anti -Dumpin g Agreement and 12.1 o f the 5. 
SCM Agreement fall outside the panel 's terms of reference and should be dismissed without 
consideration of its merits. The United States has failed to demonstrate that a reference to the 
Redetermination in toto  accompanied by the use of non -exclusive  language suffice to satisfy the 
requirements of Article 6.2 of the DSU in respect of its claim under Articles 6.1 and 12.1.  
Moreover, China complied with its obligations under Article  6.1 of the Anti -Dumping 6. 
Agreement and Article  12.1 of the SCM Agreem ent. This U.S. claim rests on an artificial isolation of 
the procedural steps adopted by MOFCOM in the reinvestigation. But the facts for the 
reinvestigation taken as a whole show that the U.S. respondents were provided with the 
information requested from the Chinese producers, including their identities. The facts also show 
that through the hearing held by MOFCOM on 30 May 2014 at the request of the U.S. parties, they 
were provided with ample opportunities to present evidence in writing but only the United  States 
chose to do so on June 3. The other parties failed to do so.  
B. MOFCOM Fulfilled Its Obligations Under Article  6.1.2 of the Anti -Dumping 
Agreement and Article  12.1.2 of the SCM Agreement  
The United States has not rebutted China 's arguments for dismissing the U.S. claims under 7. 
Article 6.1.2 of the Anti -Dumping Agreement and Article 12.1.2 of the SCM Agreement. Once 
again, the U.S. claim rests on the basis of an untenable mischaracterization of China 's procedural 
obligation and should be rejected by the Panel.  
First, as China explained in its First Written Submission, the United States simply failed to 8. 
cite Article 6.1.2 and Article 12.1.2 in its Request for Panel. Given the nature of the obligations 
contained in the sub -provisions of Article 6  and 12, the absence of the reference to these specific 
sub-provisions is fatal for the proper identification of the legal basis for the U.S. claim. It therefore 
falls outside of the terms of reference of the Panel.  
Second, and even if the Panel were t o consider the U.S. claim as within its terms of 9. 
reference, China respectfully submits that the claim must still be dismissed on the merits as legally 
baseless. The United States has fundamentally mischaracterized MOFCOM 's obligations under 
these specific provisions, emptying them of content and equating them to its obligations under 
Article 6.1 of the Anti -Dumping Agreement and Article 12.1 of the SCM Agreement. Contrary to 
what the United States argues, by releasing the public versions of the verification  exhibits in the 
Public Reading Room, MOFCOM promptly made available non -confidential evidence provided by the 
Chinese producers in the reinvestigation.  
C. MOFCOM Fulfilled Its Obligations Under Articles  6.4 and 6.2 of the 
Anti-Dumping Agreement and Articl e 12.3 of the SCM Agreement  
The Panel should also dismiss the U.S. claims under Articles 6.4 and 6.2 of the 10. 
Anti-dumping  Agreement and Article  12.3 of the SCM Agreement. Once more, the United States 
attempts to fault China for the failure of the U.S. r espondents during the redetermination 
proceeding and as such these claims are factually incorrect and legally baseless.  
First, the United States fails to rebut China 's terms of reference objection with respect to 11. 
these claims. China has demonstrated th at a general reference to the Redetermination 
accompanied by the language "for example" and followed by the reference to a non -existent 
measure does not suffice to fulfil the identification requirement set forth in Article  6.2 of the DSU 
in respect of the U.S. claims under Articles 6.4 of the Anti -dumping Agreement and 12.3 of the 
SCM Agreement. Furthermore, the United States is bringing a new claim under Article  6.2 of the 
Anti-dumping Agreement not included at all in its Request for Panel. China respectfu lly submits 
that these claims should be rejected without consideration of their merits.  WT/DS427/RW/Add.1  
 
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  Second, and even if the Panel were to consider these claims within its terms of reference, 12. 
China submits that the United States fails to demonstrate that MOFCOM bre ached its obligations 
under Article  6.4 of the Anti -dumping Agreement and Article  12.3 of the SCM Agreement. In 
particular, the United States fails to demonstrate that the U.S. respondents were denied by 
MOFCOM access to the record where the public version  of the information provided by the Chinese 
producers is located. Nor has the United States demonstrated that China failed to give the U.S. 
respondents opportunities to make a presentation of their views.  
It should be further noted that the United Stat es does not contest China 's argument in 13. 
respect of the waiver of its claim under Article  6.5 of the Anti -Dumping Agreement and Article  12.4 
of the SCM Agreement. Indeed the U.S. Second Written Submission confirms such waiver. While 
the United States includ es a reference to this provision in the title of the section where it attempts 
to rebut China 's terms of reference objections, these claims are not substantially argued by the 
United States.  
D. MOFCOM Did Not Act Inconsistently with Article  6.9 of the 
Anti-Dumping  Agreement by Failing to Disclose the Essential Facts  
The U.S. arguments rest on the mistaken assumption that the "essential facts" in a 14. 
reinvestigation proceeding are the same as the "essential facts" of the original investigation. 
According to the United States, any and all facts of the original investigation are also essential 
facts in the Redetermination. This view is wrong. The facts of the original investigation do not 
automatically become essential facts in the reinvestigation, and so wh at constitutes an "essential 
fact" of the reinvestigation might be different from what constitutes an "essential fact" of the 
original investigation. As a consequence, MOFCOM was not under the obligation to automatically 
disclose any and all data and calcu lations from the original investigation to all parties to the 
reinvestigation, except insofar as they were also "essential facts" for purposes of the 
Redetermination.  
As regards Pilgrim 's Pride, the United States argues that MOFCOM breached Article  6.9 15. 
because (1) it did not inform Pilgrim 's Pride of all of its data and calculations from the original 
investigation; and (2) it disclosed the information too late in the process for Pilgrim 's Pride to 
defend its interests. Both arguments are mistaken. First , MOFCOM only had to disclose the 
"essential facts" considered during the Redetermination proceedings. MOFCOM nonetheless 
disclosed data from the original investigation to Pilgrim 's Pride. Second, the timeline of the 
disclosure presented by the United Stat es is misleading. The facts show that Pilgrim 's Pride made 
good use of the information and had ample opportunity to defend its interests before MOFCOM. In 
fact, MOFCOM made adjustments to its margins based on Pilgrim 's Pride comments. In light of 
these cir cumstances, the U.S. argument that MOFCOM acted inconsistently with Article 6.9 as 
regards Pilgrim 's Pride must be rejected.  
The arguments concerning Keystone are equally misguided. MOFCOM recognizes that, 16. 
notwithstanding Keystone 's non -cooperation, MO FCOM had an obligation to disclose "essential 
facts" to Keystone. But China submits that MOFCOM properly discharged this obligation because 
the "essential facts" as regards Keystone are not the same as those of a cooperating party. In any 
case, MOFCOM was unable to disclose all data and calculations to Keystone, either directly or 
through the U.S. Embassy, in light of its failure to appear in the proceedings or duly appoint a 
representative to receive confidential information.  
III. MOFCOM'S DUMPING RED ETERM INATI ON WAS CONSISTENT WI TH THE 
ANTI -DUMPING AND SCM AGRE EMENTS  
A. MOFCOM's Allocation of Tyson's Costs Was Consistent With Article  2.2.1.1  
1. The second sentence of Article  2.2.1.1 requires only that the authority 
"consider all available evidence on the proper allocation of costs" and 
MOFCOM did so  
This U.S. claim about Tyson is wrong both legally and factually. Legally, the United States 17. 
tries to read more into the second sentence of Article  2.2.1.1 than the provision requires. China 
has presented an  interpretation grounded in the text and context that the United States still has WT/DS427/RW/Add.1  
 
- C-13 - 
 
  not addressed: the second sentence of Article  2.2.1.1 requires only that the authority "consider all 
available evidence on the proper allocation of costs". China now confirms  that interpretation by 
showing it better reflects the three equally authentic texts of Article  2.2.1.1 and the meaning of 
"proper", "juste", and "adecuada" in that provision. Moreover, under the second sentence of 
Article  2.2.1.1 the allocations not "hist orically utilized" by the exporter should not be considered as 
"evidence" for the authority. The "proper" allocation shall be interpreted in the context of 
Article  2.2.1.1 as whole; a cost allocation which is reasonably reflected under the first sentence o f 
Article  2.2.1.1 shall be considered as "proper" under the second sentence. The United States, by 
withdrawing its claim on "reasonable reflection" under the first sentence and limiting its claim to 
"proper allocation" under the second sentence, presents a n argument unhinged from that context. 
Finally, there is no legal requirement under Article  2.2.1.1 to investigate all products, as wrongly 
claimed by the United States.  
China is not arguing that the authority can adopt an "improper" allocation of cost s. China 's 18. 
point is that there is not a single "proper" allocation like the solution to a math problem. Rather, 
there are range of permissible "proper" allocations, provided the authority has considered the 
alternatives and sufficiently explained its reaso ning. MOFCOM met this obligation.  
2. MOFCOM reasonably rejected the Tyson alternative cost methodology as not 
correctly reflecting costs  
In the original investigation, Tyson 's records did not reasonably reflect the cost of the 19. 
product under considerat ion because Tyson misallocated the price of offal (waste products) to 
certain edible products, such as paw. MOFCOM corrected the distortion applying a weight -based 
methodology to allocate costs to specific models of the product under consideration.  
Factually, MOFCOM thoroughly explained why it rejected Tyson 's proposed alternative 20. 
methodology. During the original panel proceedings, the Panel found insufficient evidence in the 
determination itself of MOFCOM 's consideration. Given this finding, during the  reinvestigation, 
MOFCOM clarified the facts and then explained the effect of Tyson 's misallocation and its distortion 
in much more detail its reasons for adopting a weight -based allocation for the product under 
consideration, and for not accepting the Tys on alternative weight -based allocation for all products. 
MOFCOM thus complied with all findings by the original Panel, and eliminated any pr ocedural 
deficiencies of MOFCOM' s original determination.  
After reviewing the Redetermination, the United State s has not pursued its original claim for 21. 
"reasonable reflection" under the first sentence, nor its prior claims under the second sentence 
that blood and feather were not allocated any cost under MOFCOM 's weight -based method, and 
has now shifted to a claim about whether the cost allocation for blood, feathers, and other inedible 
parts was proper under the second sentence of Article  2.2.1.1, and whether all available evidence 
on the proper cost allocation had been considered. Indeed, the United States essenti ally argues 
that the scope of the product concerned included blood and feathers, which is plainly false.  
The Redetermination shows that MOFCOM reasonably and objectively drew a distinction 22. 
between the products under consideration and those products not under consideration, a 
distinction well -grounded in the anti -dumping practice and the specific facts of this particular 
investigation. The United States tries to misrepresent a statement by this Panel, reading a narrow 
statement about the "ambiguity" of a  document as somehow embracing the U.S. substantive 
theory about how costs should be allocated. This time there is no ambiguity. China has submitted 
Tyson 's Table 6.3, and the U.S. argument does not address this actual document. The 
Redetermination sets fo rth at some length the numerous and specific reasons why MOFCOM did 
not accept Tyson 's alternative methodology, none of which have been shown to be unreasonable 
or biased by the United States. Tyson 's alternative was not supported by its accounting records , 
was deficient in terms of missing data (dead birds), was not verifiable (no indication of accounting 
sources), and was contradictory (unit costs were incomparable to previously reported costs). The 
U.S, argued that only a reallocation of costs to all pro ducts (not to the products under 
consideration only) by weight can justify the MOFCOM 's weight -based allocation method. This is 
fundamentally wrong. It is indeed Tyson itself to have applied different cost method for edible and 
inedible products (waste pro ducts) in its accounting practice. In response, the U.S. arguments 
invite the Panel to substitute its views for those of authority, something contrary to the standard 
of review in Article  17.6(i) of the Anti -Dumping Agreement.  WT/DS427/RW/Add.1  
 
- C-14 - 
 
  B. MOFCOM's treatment of Pilg rim's Pride's costs was also consistent with 
Article  2.2.1.1  
This U.S. claim about Pilgrim 's Pride is also wrong. One legal defect is that this claim about 23. 
Pilgrim 's Pride is outside the Panel 's terms of reference. The Panel had not made any findings 
about Pilgrim 's Pride under the second sentence of Article  2.2.1.1 and the U.S. Panel Request must 
be read in that context. Article  6.2 of the DSU does not allow the United States to craft a vague 
claim and then define that claim only later during the dispu te. 
Another legal defect is that the United States now seeks to enforce a finding the Panel never 24. 
made. The finding in the original Panel Report regarding the second sentence of Article  2.2.1.1 did 
not apply to Pilgrim 's Pride. MOFCOM completely implem ented the Panel 's actual finding. Since the 
Panel had accepted MOFCOM 's decision to reject the Pilgrim 's Pride reported information as 
unreliable, it underscores that the Panel finding about the second sentence was limited to those 
companies that had submitted reliable information as mentioned by the Panel in its conclusion.  
A final legal defect is that the United States has not presented any argument in support of 25. 
its claim sufficient to establish a  prima facie  case. Merely asserting that China di d not comply with 
the finding – without any legal or factual discussion – is not enough to establish a prima facie  
case. And the MOFCOM explanations of the reasons for choosing the weight based allocation more 
than rebut the unsupported U.S. argument.  
C. MOFCOM acted consistently with Article  9.4 of the Anti -Dumping Agreement 
in its selection of the rate for "all others"  
The United States continues to argue the general rule of Article  9.4 that when an 26. 
investigation is limited according to the second sen tence of Article  6.10 an all -others rate shall not 
exceed the weighted average margin of dumping of the selected respondents. But Article  9.4(i) 
does not include exporters or producers that did not identify themselves to the investigating 
authority for the  purpose of being selected in the limited investigation because such exporters or 
producers could not have been potentially included in the selection of the parties to investigate. 
MOFCOM required all exporters to identify themselves through registration. Those who did not 
register did not make themselves known to MOFCOM.  
Finally, the U.S. assertion that exporters subject to MOFCOM 's all-others rate were not 27. 
asked to cooperate in MOFCOM 's reinvestigation  is irrelevant. The Panel in the original proceed ing 
expressly upheld the sufficiency of MOFCOM 's notice to interested parties. MOFCOM had no 
obligation as part of its implementation of DS427 to offer such parties a second opportunity to 
cooperate through the reinvestigation.  
D. MOFCOM acted consistently  with Article  6.8 and Annex II  of the 
Anti-Dumping Agreement with respect to Tyson  
Tyson did not cooperate with MOFCOM to the best of its ability, and also did not provide 28. 
MOFCOM with the necessary information. Since Tyson did not provide MOFCOM with t he necessary 
data, MOFCOM was thus forced to turn to the "facts available" on the record – which included the 
data provided by Tyson. The United States does not challenge MOFCOM 's legal argument nor the 
proposed standard that a responding party has to act to the "very best of its ability" or face the 
consequence that the investigating authority may resort to facts available. Rather, the 
United  States challenges only the factual basis for MOFCOM 's decision to resort to facts available, 
attempting to show tha t Tyson acted "to the best of its ability", while remaining silent on 
MOFCOM 's choice of data as "facts available".  
MOFCOM 's purpose in the Redetermination was to implement the Panel 's findings. The Panel 29. 
found that MOFCOM 's weight -based method was imp roper because the U.S. respondents such as 
Tyson claimed that China did not determine the real processing cost occurring at each processing 
step to each specific model. Thus, MOFCOM sought to ensure proper separation of processing and 
meat costs, and to id entify the detailed processing costs incurred at each processing step for each 
specific model. Yet, upon earning the result from the Panel, Tyson complained in the 
redetermination that MOFCOM sought too much information. To the contrary, MOFCOM sought WT/DS427/RW/Add.1  
 
- C-15 - 
 
  only what was claimed by Tyson and required of it by the Panel, and without such information it 
could not accomplish its task. Tyso n was the cause of this result.  
China reiterates that responding parties such as Tyson are required to act to the very best o f 30. 
their ability when responding to the investigating authority. Failure to do so entitles the 
investigating authority to resort to facts available under Artic le 6.8 and Annex II of the 
Anti-Dumping Agreement. The United States has neither disputed the exis tence of this rigorous 
standard, nor China 's interpretation of this standard. Instead, the United States attempts to shift 
the debate by focusing on Tyson 's failed attempts at responding adequately to MOFCOM 's 
questionnaires and trying to explain away the deficiencies of Tyson 's responses. The United States 
is mistaken. Tyson 's conduct did not meet the rigorous standard under Article 6.8 and Annex II of 
the Anti -Dumping Agreement. The reinvestigation was driven by Tyson 's claims, yet Tyson was not 
then prepared to comply through the provision of adequate information. Even if that was the 
"best" of Tyson 's ability, MOFCOM was fully justified in resorting to facts available in light of the 
fact that it did not receive the necessary information from Tyson.  
IV. MOFCOM'S INJURY REDE TERMINATI ON WAS CONSISTENT WI TH THE 
ANTI -DUMPING AND SCM AGRE EMENTS  
A. MOFCOM's Analysis of Underselling and Price Suppression Were Consistent 
with Anti -Dumping Agreement Articles  3.1 and 3.2 and SCM Agreement 
Articles  15.1 and 15.2  
The United States continues to claim that MOFCOM took "no action" that complied with the 31. 
Panel 's instructions "to control for differences in physical characteristics affecting price 
comparability" or to make any "necessary adjustments" to ensure price  comparability in its 
underselling analysis. As established by China, MOFCOM 's Redetermination directly responded to 
the principal concerns raised by both the United States and the Panel in this proceeding.  
Specifically, MOFCOM conducted on -site verif ications of four producers for the purposes of 32. 
collecting additional information on product -specific pricing. This approach was a reasonable and 
objective method to address the issue of price comparability consistent with Article  17.6 of the 
Anti-Dumping A greement. From the information it collected MOFCOM could reasonably conclude 
whether or not U.S. imports were concentrated in the low value products. This was the Panel 's 
concern, and therefore MOFCOM 's approach was the direct way to address that concern. The 
evidence showed that, contrary to U.S. understanding about the value of different parts of the 
chicken in the Chinese market, U.S. imports were actually concentrated in high value products, 
and therefore price comparisons conducted on an aggregate AUV basis would be reasonable – 
there would be no risk that any price underselling showing in the comparisons would merely be the 
result of product mix. The United States is unhappy with MOFCOM 's approach, but that does not 
make the approach unreasonable or WT O inconsistent.  
With respect to price suppression, the United States adds nothing new. It repeats the same 33. 
factual arguments that China already rebutted in its First Written Submission. The only new aspect 
of the U.S. argument is its insistence that an  authority 's obligation to establish the explanatory 
force of subject imports with respect to price suppression under Articles  3.2 of the 
Anti-dumping  Agreement and 15.2 under the SCM Agreement is the equivalent of the causation 
analysis called for under A rticle 3.5 of the Anti -dumping Agreement and Article  15.5 of the  
SCM Agreement. But Articles 3.2 and 15.2 only require the authority to "consider" the "effect of 
such imports" in its analysis of price suppression. The mere existence of price suppression al one is 
not enough, but this does not mean that Articles  3.2 and 15.2 require a full demonstration that 
subject imports caused the price suppression. This much is confirmed from the very authority cited 
by the United States – the Appellate Body Report in  China – GOES  – in arguing the contrary 
conclusion. MOFCOM 's Redetermination met the relevant standard.  
B. MOFCOM's Analysis of Adverse Impact Was Consistent with Articles  3.1 
and 3.4 of the Anti -Dumping Agreement and Articles  15.1 and 15.4 of the 
SCM Agreeme nt 
The United States complains that MOFCOM did not redo its analysis of adverse impact. This 34. 
complaint, however, is misplaced for two reasons. First, since there was no measure taken to WT/DS427/RW/Add.1  
 
- C-16 - 
 
  comply and there was no need for MOFCOM to redo its analysis, this  claim is outside the Panel 's 
terms of reference for this Article  21.5 proceeding. It would be fundamentally unfair to subject 
China to potential consequences for acting inconsistently with Articles  3.4 and 15.4 when China 
has had no chance to react to specific concerns identified by  a Panel. China and other 
WTO Members should not have to react to arguments, as opposed to findings by panels.  
Second, MOFCOM 's finding of adverse impact completely respected the obligations of 35. 
Articles  3.4 and 15.4. MOFCOM expressly considered all enu merated factors, including those raised 
by the United States in its arguments. MOFCOM considered all those factors in context, putting 
particular weight on the domestic industry 's consistently bad financial performance throughout the 
period, and the severe ly deteriorating overall performance at the end of the period in 2008 and 
early 2009. It is reasonable and objective to put particular weight on financial performance and 
the more recent period. That the United States can point to some positive trends for some factors 
earlier in the period does not render the MOFCOM findings unreasonable or biased. Those positive 
trends were discussed, but in the end MOFCOM correctly considered all of the factors.  
C. MOFCOM's Analysis of the Causal Link Was Consistent with Articles  3.1 
and 3.5 of the Anti -Dumping Agreement and Articles  15.1 and 15.5 of the 
SCM Agreement  
The United States continues to seek an impermissible expansion of its claim #3. The 36. 
United  States defined that claim as ignoring certain WTO provisions " because" MOFCOM 's 
determination "was not based on an examination of all relevant evidence". This language is a 
specific reference to the second sentence of Articles  3.5 and 15.5. The claim does not reference 
either directly or indirectly the other three se ntences of these provisions. The U.S. claim, 
therefore, relates to the specific obligations found in the second sentence. The U.S. claim then 
specified the two categories of evidence that were ignored as part of the very same sentence. The 
claim was thus d efined by reference to these two specific categories of evidence. The United States 
cannot now avoid the implications of its narrowly drawn claim and add a third and entirely 
different aspect about an alleged failure by MOFCOM to reconcile the causation fi nding with 
improving domestic industry performance. The Panel must see this effort for what it is and limit its 
consideration to the claim as it was specifically framed in the U.S. Panel Request.  
Regarding the issue of chicken paws, the Panel finding o n this issue was limited to the 37. 
procedural claim about proper disclosure of the MOFCOM discussion. Since the United States had 
only raised the issue about chicken paws as a procedural claim under Article 12.2.2, the Panel only 
addressed that issue, and MOF COM only addressed that issue. MOFCOM fully addressed the finding 
the Panel actually made regarding chicken paws. MOFCOM did pre cisely what the Panel required – 
which was a cross reference to the earlier discussion of this issue in the MOFCOM preliminary 
determination.  
Turning to the merits of the U.S. claim, MOFCOM established the necessary causal link 38. 
between subject imports and the condition of the industry, and that none of the U.S. arguments 
break this causal link. To this end, the United States co ncedes that MOFCOM need only show that 
subject imports contributed to the adverse condition of the domestic industry. The United States 
also concedes the adverse impact from the increasing volumes of low -priced subject imports that 
undersold domestic price s. These subject imports injured the domestic industry throughout the 
period of investigation (as reflected by the consistent operating losses), and led to a dramatic fall 
in indicators from 2007 to 2008, and in early 2009. Its rebuttal consists of an argu ment that 
MOFCOM did not consider certain other facts, that MOFCOM did not examine "all" relevant 
evidence. But this argument is wrong. The Redetermination shows that MOFCOM did consider "all 
relevant evidence".  
First, MOFCOM did not ignore the eviden ce regarding domestic market share. China 39. 
addressed this point at some length in its First Written Submission. The United States simply 
ignores that discussion. Second, MOFCOM did not ignore the evidence regarding chicken paws. The 
United States asserts th at imports of chicken paws "could not have injured the domestic industry", 
but this assertion is just wrong and rests on several flawed premises about the market and the 
evidence before MOFCOM. Third, MOFCOM did not ignore the evidence of correlations betw een 
subject imports and the condition of the industry. The United States largely repeats is own prior 
arguments, without addressing China 's arguments. The United States continues to cite the change 
by comparing 2006 to 2008, in a disingenuous effort to mas k the sharp decline from 2007 to WT/DS427/RW/Add.1  
 
- C-17 - 
 
  2008, and to avoid the further decline in interim 2009. Overall, the domestic industry had an 
unacceptable level of financial performance throughout the period of investigation. Finally, the 
United States also makes a conse quential claim based on allegedly defective MOFCOM analysis of 
price effects. But as already discussed MOFCOM did not rely on a defective analysis of price 
effects.  
In sum, MOFCOM established that subject imports were contributing to the adverse 40. 
condi tion of the domestic industry, and established the requisite causal link, particularly given the 
absence of any other possible causes. The Panel should uphold the Redetermination as fully 
consistent with Articles  3.1 and 15.1 as well as Articles  3.5 and 15 .5. 
D. MOFCOM Properly Addressed Key Causation Arguments as Required by 
Articles  12.2 and 12.2.2 of the Anti -Dumping Agreement and Articles  22.3 
and 22.5 of the SCM Agreement  
The United States reiterates its earlier argument that MOFCOM did not really address in the 41. 
Redetermination the substance of the arguments made in the proceeding, but does not really 
respond to China 's arguments that MOFCOM in fact did address these arguments. Regarding 
domestic market share, the U.S. argument is really a complaint  that MOFCOM considered all of the 
evidence and put into context the single fact that the domestic industry gained market share with 
all of other facts showing a domestic industry suffering material injury because of unfairly traded 
subject imports. The Un ited States apparently thinks that increasing domestic share is somehow 
entitled to more weight than other facts, but it is not. Regarding chicken paws, the United States 
continues to argue that MOFCOM 's response was not enough, but without addressing eith er of 
China 's arguments. China explained how the Redetermination included new information about the 
price effects of chicken paws, including specific margins of chicken paw price underselling; further, 
China also explained that it made the very correction to the final determination the Panel had 
suggested.  
V. MOFCOM'S REDETERMINA TION WAS CONSISTENT WITH ARTICLE  I OF THE 
ANTI -DUMPING AGREEMENT, A RTICLE  10 OF THE SCM AGREEM ENT, AND 
ARTICLE  VI OF THE GATT  
The United States presents no argument at all in su pport of its three consequential claims. 42. 
Although these claims were raised in the Panel Request, they were no t mentioned at all in the 
First Written Submission. It is not enough to raise a consequential claim in a Panel Request and 
then present no argument  at all. These claims have either been waived, or the United States has 
failed to present a prima facie  case. The United States has not responded to this legal objection at 
all. The Appellate Body has made clear that (1)  the complaining party bears the burden of proof 
with regard to its claims, and (2)  a prima facie  case requires more than just an allegatio n without 
any discussion of the facts or legal basis. In this dispute, the United States has made this issue 
easy for the Panel by providing no discussion at all in the U.S. First Written Submission, and 
essentially no rebuttal or discussion in the U.S. Se cond Written Submission. For these reasons, 
whatever the Panel decides about the other U.S. claims, it must reject the U.S. consequential 
claims as not having been established.  
CONCLUSION  
For the reasons set forth in China 's First Written Submission and Second Written 43. 
Submission, China respectfully requests the Panel to reject all of the U.S. claims and to find that 
the Redetermination is fully consistent with China 's obligations unde r all of the covered 
agreements.  
 WT/DS427/RW/Add.1  
 
- C-18 - 
 
  ANNEX C -3 
EXECUTIVE SUMMARY OF  THE ORAL STATEMENTS OF CHINA  
AT THE SUBSTANTIVE M EETING OF THE PANEL  
This document summarizes the key points presented by China during its opening and closing 1. 
statement at the substantial meetings with the Panel on 25 and 26 April, 2017.  
China notes at the outset that the United States has effectively abandoned one of its claims 2. 
under the first sentence of Article 2.2.1.1 of the Anti -dumping Agreement and its other 
two claims under the second sentence. The U.S. claims that MOFCOM acted inconsistently with the 
second sentence of Article 2.2.1.1 by including costs for products not subject to investigation into 
the costs for the products subject to investigation .  
China did not address in detail the U.S. argument concerning Pilgrim 's Pride as Panel 3. 
acknowledged in its preliminary ruling on jurisdictional issues that in the original dispute, the Panel 
made no specific findings of violation under the second sentenc e of Article 2.2.1.1 regarding 
Pilgrim 's Pride. But even if the Panel allows the U.S. claim on Pilgrim 's Pride cost allocation, the 
United States merely asserted that China did not comply with the findings and has not provided 
any legal or factual discussion during this proceeding. This is not enough to establish a prima facie  
case.  
In regards of Tyson and what it concerns the proper allocation of cost, China considers that 4. 
the U.S. interpretation of the second sentence in isolation from the context provided in the first 
sentence improperly eliminates the logical interrelationship between the two sentenc es, an 
approach that is contrary to the U.S. interpretative approach in the original dispute. Instead, it is 
China 's belief that Article 2.2.1.1 focuses on the correct process to consider evidence for the 
proper allocation of costs and that the second sent ence needs to be read in conjunction with the 
first sentence of Article 2.2.1.1. Indeed, the "proper" allocation of costs under the second sentence 
is supplemental to "reasonable" reflection under the first sentence of Article 2.2.1.1. Since China 's 
weight -based allocation method does "reasonably reflect" the cost under first sentence, it should 
be considered as the "proper" allocation of costs under second sentence of Article 2.2.1.1. China 's 
argument is that, depending on the facts of each case, there may  well be more than one "proper" 
way to allocate costs.  China 's interpretation has not been challenged by the United States and can 
be confirmed easily by looking at the text of Article  2.2.1.1 in all three authentic languages.  
The United States challen ges MOFCOM 's decision to reject Tyson 's proposed alternative cost 5. 
methodology. However, China notes that MOFCOM 's redetermination satisfies the Panel 's ruling in 
the original proceeding; and that MOFCOM was entitled under Article  2.2.1.1 not to accept Tyso n's 
proposal as evidence since it had not been historically utilized. This has been confirmed by the 
findings of the panel in US – Softwood Lumber V  and the U.S. position in that case.  
As to the factual grounds of this claim, China noted that during the  original investigation 6. 
MOFCOM found that Tyson 's records did not reasonably reflect the cost of the product under 
consideration because it misused the price of offal (waste products) to estimate the cost of certain 
edible products, such as paws. MOFCOM co rrected the distortion by applying a weight -based 
methodology to properly allocate costs to specific models of the product under consideration. 
During the reinvestigation, MOFCOM clarified the facts surrounding Tyson 's costs and MOFCOM 's 
findings, and expl ained in much more detail why MOFCOM decided to adopt a weight -based 
allocation for the products. In short, the problem is that Tyson tried to confuse the product subject 
to investigation with products not subject to investigation to assert that MOFCOM did  not properly 
reallocate the cost to all products.  
The Redetermination sets forth at some length the four specific reasons why MOFCOM did 7. 
not accept Tyson 's alternative methodology, none of which have been shown to be unreasonable 
or biased by the Unite d States. First, Tyson did not take into account weight loss resulting from 
dead birds. Second, Tyson provided only the cost of product under investigation in Table 6 -3 
without including weight and cost of non -subject product. Third, MOFCOM did not determi ne that WT/DS427/RW/Add.1  
 
- C-19 - 
 
  the cost allocation methodology for non -subject products was unreasonable. And fourth, Tyson did 
not provide the cost of live chickens used for the product concerned.  
The United States essentially argues that the scope of the product concerned included blood 8. 
and feathers, which is plainly false. The Redetermination shows that MOFCOM reasonably and 
objectively drew a distinction between subject products and non -subject products. This distinction 
is well -grounded in the anti -dumping practice and t he specific facts of this particular investigation. 
Moreover, Tyson was fully aware of the distinction. For example, in the original investigation, 
Tyson submitted cost table 6 -3 listing many specific products, all edible, none inedible; and in the 
reinves tigation, when it submitted some information on products not within the scope in its first 
supplemental questionnaire response, Tyson provided that information under the heading 
"inedible".  
MOFCOM 's definition of the subject products (i.e., edible products) is reasonable. The 9. 
United States cannot require MOFCOM to use a different definition because doing so violates  
Article  17.6(ii) of the Anti-Dumping Agreement – requiring MOFCOM to replace its permissible 
interpretation of the like product (i.e., edible products) with a different one.  
In respect of the U.S. claim under Article 6.8 , China notes that Tyson did not cooperate 10. 
with MOFCOM to the best of its ability, and also did not provide MOFCOM with the necessary 
information as requested. Consequ ently, MOFCOM was thus forced to turn to the "facts available"  
on the record –facts that were based on the data provided by Tyson. For the purpose of 
implementing the findings by the original Panel, MOFCOM sought to ensure a proper separation of 
processing  and meat costs, and to identify the detailed processing costs incurred at each 
processing step for each specific model. Yet, upon learning the result from the Panel, Tyson 
complained during the redetermination proceeding that MOFCOM sought too much inform ation 
while Keystone failed to cooperate in the redetermination. Tyson 's conduct did not meet the 
rigorous standard under Article 6.8 and Annex II of the Anti -Dumping Agreement.  
We now turn to the Article 9.4  issue. The United States argues that when an investigation 11. 
is limited according to the second sentence of Article  6.10, an "all -others" rate shall not exceed the 
weighted average margin of dumping of the selected respondents as per the general rule of 
Article  9.4. But Article  9.4(i) does not inclu de exporters or producers that did not identify 
themselves to the investigating authority for the purpose of being selected in the limited 
investigation because such exporters or producers could not have been potentially included in the 
selection of the pa rties to investigate. MOFCOM required all exporters to identify themselves 
through registration. Those who did not register did not make themselves known to MOFCOM.  
Let me turn to price suppression and underselling . The U.S. claim is that MOFCOM took 12. 
"no action" to comply with the Panel 's instructions "to control for differences in physical 
characteristics affecting price comparability" or to make any "necessary adjustments" to ensure 
price comparability in its underselling analysis. But MOFCOM 's Redet ermination directly responded 
to the principal concerns raised by both the United States and the Panel by collecting the full range 
of product specific pricing data from the verified pr oducers in the reinvestigation –and by expressly 
addressing the product  mix issue.  
First, under Articles 3.2 of the Anti -Dumping Agreement and 15.2 of the 13. 
SCM Agreement , MOFCOM is free to select its own method of pricing analysis, provided it 
conducts an "objective examination" of "positive evidence"; and two, the Panel did not require 
MOFCOM to abandon its use of average annual AUVs. MOFCOM was simply required to "consider" 
whether there was "significant" price undercutting and had ample discretion to choose its 
methodology.  
MOFCOM disproved the U.S. assertion that subject imports were dominated by low value 14. 
products. MOFCOM examined: (1)  import data compiled by China Customs; (2)  export data 
provided by USPEEC; (3)  product -specific pricing by four domestic producers, data which was 
verified during the Redeterminatio n; and (4) the prices shown on the invoices. This data proved 
that imports were concentrated in high value products, suggesting that any comparison of 
aggregate AUVs would work against the domestic industry, not in favor. The United States no 
longer direct ly challenges this argument; rather, it attacks the representativeness of the domestic 
data. The United States effectively conceded the point in the redetermination proceeding and now WT/DS427/RW/Add.1  
 
- C-20 - 
 
  seeks to ignore this reality. But the reality is clear: in the Chinese m arket even Tyson charges 
more for products like paws than products like chicken breast.1 
 First, MOFCOM has the discretion to select the method it considers best depending on the 15. 
particular circumstances of the investigation. And second, MOFCOM 's under selling analysis was 
based on complete industry data, not the data of four producers. There was no sampling of data. 
MOFCOM 's limited examination of product -specific data was merely to confirm the two key points: 
(1) whether U.S. imports were concentrated in lower value products; and (2)  whether the overall 
AUV comparison was conservative, including whether the underselling would have been higher 
using product specifications. On both points, the supplemental analysis confirmed MOFCOM 's 
conclusions in the or iginal determination, an approach that is both reasonable and objective.  
As to price suppression, it needs to be noted that MOFCOM considered the combined effects 16. 
of increasing volume and underselling and found price suppressing effects from both. As e xplained 
in the redetermination, the dumped and subsidized imports had two effects. First, they created a 
situation of price undercutting. Second, they also caused price suppression, as reflected in the 
decreasing profit levels. Both of these effects were the result of the dumped and subsidized 
subject imports.  
The United States further insists that an authority 's obligation to establish the explanatory 17. 
force of subject imports with respect to price suppression under A rticles  3.2 of the 
Anti-dumping  Agreement and 15.2 of the SCM Agreement is equivalent to the causation analysis 
under Article  3.5 of the Anti -dumping Agreement and Article  15.5 of the SCM Agreement. But 
Articles 3.2 and 15.2 only require the authority to "consider" the "effect of such impo rts" in its 
analysis of price suppression. The mere existence of price suppression alone is not enough, but 
this does not mean that Articles  3.2 and 15.2 require a full demonstration that subject imports 
caused the price suppression. In this case, MOFCOM 's Redetermination met the relevant standard.  
The United States complains that MOFCOM did not redo its entire analysis of adverse impact. 18. 
But contrary to the U.S. complaints, the Panel did not make a finding requiring MOFCOM to carry 
out its analysis ane w.  
In its redetermination, MOFCOM listed the injury factors, and then provided an explicit 19. 
overall discussion of how those factors interacted and how subject imports were explaining that 
adverse impact. MOFCOM was careful in drawing an explicit link t o both lower domestic prices and 
lower domestic profits. MOFCOM also discussed the causal link extensively, and explained how the 
subject imports were linked to specific injury indicators. The increasing volume and market share 
of low priced subject import s led MOFCOM to conclude: (1)  such imports had a "material impact on 
the sales price" of the domestic industry; (2)  the domestic industry could not "reach a reasonable 
profit margin"; (3)  domestic industry capacity utilization "has been on a relative low l evel"; (4)  the 
return on investment was on a "relative low level"; and (5)  the inconsistent cash flow "impacted 
the investment and financing". Articles  3.4 and 15.4 expressly include these as injury factors.  
The other arguments raised by the United St ates also miss the point. Contrary to the 20. 
U.S. argument, the prospect of future imports is not irrelevant to MOFCOM 's current injury 
analysis. China presented a specific argument regarding the meaning of the key phrase "potential 
decline". In China 's opini on, this language contemplates a forward -looking analysis. The 
United  States simply ignores this part of the text of Article 3.4 and instead cites to language from 
the decision of the Appellate Body in China – GOES  that was not addressing this specific issue. The 
United States has simply not responded to China 's argument based on the text.  
The weak capacity utilization reinforced the severe financial problems of the domestic 21. 
industry, and reinforced MOFCOM 's finding of current material injury. First, the United States has 
not seriously challenged MOFCOM 's finding about increasing inventories; in fact, it largely dropped 
this part of its claim and does not address at all the increase in inventory in 2009. The U.S.  
argument on adverse impact thus comes down to its argument about capacity utilization. Yet by 
focusing on one or two of the many injury factors, the United States misses the point that 
although the authority must address each factor, the authority need no t show that each individual 
                                                
1 See, e.g.,  
https://list.tmall.com/search_product.htm?q=%CC%A9%C9%AD&type=p&vmarket=&spm=875.7931836%2F
B.a2227oh.d100&from=mallfp..pc_1_searchbutton  (listing Tyson chicken prices in  China).  WT/DS427/RW/Add.1  
 
- C-21 - 
 
  factor by itself  has been linked to subject imports. The authorities are to consider all the factors, 
but then consider them as a whole when making the broader conclusion that subject imports have 
explanatory force with regard t o the condition of the domestic industry.  
The evidence on the record fully supports MOFCOM 's finding. China 's argument is 22. 
straightforward: by definition, any volume of subject imports was having some impact on the 
excess domestic capacity. Any volume not supplied by subject imports would have been available 
for domestic suppliers. Even if non -subject imports supplied some of that volume, domestic 
suppliers would also have supplied some  and therefore, would have had higher capacity utilization.  
Instead, the United States argues that there was low capacity utilization because of 23. 
expanding domestic capacity. Regardless, the rate of utilization would have been higher, but for  
the presence of increasing volumes of subject imports.  
MOFCOM properly fo cused on the actual situation of the domestic industry, and properly 24. 
found material injury consistent with Articles 3.4 and 15.4.  
Let me briefly touch on the issue of  causation . We refer the Panel to paragraph 31 of the 25. 
U.S. opening statement and the U .S. claim that MOFCOM in i ts redetermination ignored 
U.S. arguments concerning increasing market share. There, the United States cites to a single 
page in the redetermination and contends this constitutes MOFCOM 's entire analysis of the market 
share issue as contended by China in its First Written Submission. The United States ignores other 
sections of China 's First Written Submission, such as paragraph 385, where China demonstrated 
that MOFCOM took into account all the factors as a whole, including market share. The 
United  States also ignored China 's discussion of this issue at parag raphs 345 and 346 of its 
Second  Written Submission. But perhaps most glaring is that the United States ignored MOFCOM 's 
specific response to this U.S. argument about market shar e at page 79 of its Redetermination, 
which is provided as Exhibit China -1. The redetermination, read as a whole, clearly addresses and 
responds to the U.S. argument.  
China wishes to conclude its remarks with two very important matters that we believe p lay a 26. 
very important role and that came to a head during these meetings.  
The first is the standard of review under Article  17.6.  A Panel 's role is to review the 27. 
authority 's determination, but not to arrive at its own separate conclusion about what the Panel 
would have done under similar circumstances. To this end, we expect the Panel to conclude that if 
MOFCOM 's redetermination was reasonable, it will be upheld, even if the Panel would have 
approached the matter differently.  
Second, China believes it is extremely important to establish and respect who bears the 28. 
burden of proof in this proceeding. China requests the Panel to review whether the United States 
has met its own burden by presenting evidence in support of its claim. To this end, the fact t hat 
China has produced a document at the request of the Panel does not necessarily mean that t he 
burden has shifted to China.  
 
_______________  
 
 
 WT/DS427/RW/Add.1  
 
- D-1 - 
 
  ANNEX D  
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex  D-1 Integrated executive summary of the arguments of the European Union  D-2 
Annex  D-2 Integrated executive summary of the arguments of Japan  D-4 
 
  WT/DS427/RW/Add.1  
 
- D-2 - 
 
  ANNEX  D-1 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGUMENTS OF  THE EUROPEAN UNION  
1. This executive summary integrates comments made by the European Union at the 
Third Party Hearing on 26 April 2017.  
2. On the United States' procedural claims relating to disclosure requirements , the 
European Union notes that following the Panel's Preliminary Ruling of 22 March 2017, the 
United  States' claims under Articles 6.1.2 and 6.2 of the Anti -Dumping Agreement (ADA) are 
outside the Panel's terms of reference, while the United States' claim s under Articles 6.1 and 6.4 
ADA are within the Panel's terms of reference.  
3. The European Union considers that Article 6.4 ADA  is more directly relevant to the alleged 
omission than Article 6.1 ADA. The data provided by the domestic firms, which was the  main pillar 
of the revised price effects analysis, is "relevant information" "used by the authorities" pursuant to 
Article 6.4. MOFCOM thus had to give interested parties a timely opportunity to see such 
information and prepare presentations accordingly. "Timely opportunities" means that the 
information must be made available early enough in the process, so that the comments can still be 
taken into account in the decision -making of the investigating authorities. The European Union 
invites the Panel to clos ely scrutinize whether this was the case here.  
4. The European Union is of the view that the obligations set out in Article 6.1 ADA  (both 
alternatives) concern information requests to those parties that are supposed to hold the relevant 
information. It sh ould not be read as establishing a general obligation to systematically notify  any 
information request to all players in the investigation, regardless of whether the information 
required falls within their remit.  
5. On Article 6.9 ADA , the European Union c onsiders that calculations employed by an 
investigating authority to determine dumping margins, and the data underlying the authority’s 
calculations, constitute essential facts pursuant to Article 6.9. As far as the redetermination is 
concerned, this means  that all data and calculations for determining this duty must be disclosed, 
including data from the original investigation, if it was determinative/ relied on in the 
redetermination. On the other hand, data from the original investigation which had no dir ect 
relevance for the re -determined duty would not qualify as an essential fact. Where facts available 
are used to determine a duty, the same disclosure obligation applies in principle. Thus, specific 
data and calculation methods used must be disclosed, su bject to the requirements of Article 6.5 
ADA. 
6. Regarding the United States' claims on dumping , the European Union's position is that 
Article 2.2.1.1 ADA  sets up a substantive obligation of proper cost allocation, not just a 
procedural obligation to consi der evidence. Such a procedural obligation would be void and empty 
if it did not reflect, and were not tied to, the existence of a substantial obligation. In this regard, 
the European Union agrees with the original Panel1 and the panel in EC – Salmon (Norw ay)2 that 
the allocation method applied by an investigating authority must not result in the calculation of a 
cost of production that includes costs not "associated" with production and sale of this product in 
the period of investigation. The European Unio n also agrees with the United States that the 
allocation method used must be applied consistently. Thus, if the allocation is done on the basis of 
weight, and not value, costs which occur with regard to the whole chicken, must be spread over all 
products a ccording to their weight, even if they generate little value – to the extent they are 
associated with the product in question.  
7. On the use of facts available pursuant to Article 6.8 ADA , the European Union stresses that 
the aim of the provisions on the u se of facts available is not to punish non -cooperating interested 
parties. It is to allow investigating authorities to arrive at accurate determinations based on 
reliable data, where interested parties do not provide such data. Thus, an investigating autho rity is 
                                                
1 Panel Report, paras. 7.196 -7.197.  
2 Panel Report, EC – Salmon (Norway) , paras. 7.491, 7.507.  WT/DS427/RW/Add.1  
 
- D-3 - 
 
  allowed to replace any necessary information that has been requested from an interested party but 
has not been provided, whatever the reason for not providing it (non -cooperation or not). To the 
extent that information is not missing, for instance because the respondent has provided partial 
information, it cannot be replaced3, unless it is unreliable. Non -cooperation is one case where data 
is considered unreliable, but there are others, as Annex II.3 ADA shows. Untimely submission 
which makes a nece ssary verification impossible is one example. Another example, a selective 
submission of data, where one sub -set of data is provided but not another one, may cast doubts 
on the reliability of the whole data set. In this context, costs of production have be en identified as 
a particularly crucial sub -set of data, the absence of which may very well have ramifications 
beyond the pure cost analysis. If an investigating authority wants to disregard data as unreliable, 
the burden of substantiating the unreliabilit y falls on the authority; lack of cooperation will make 
findings of unreliability more plausible.  
8. Regarding the United States' claims relating to the findings on injury , as far as the price 
effects analysis under Article 3.1 ADA  is concerned, the Europe an Union notes that the 
requirement to base the "determination of injury" on positive evidence and an objective 
examination extends to all fundamental elements of the injury analysis. Any finding on this issue 
should thus be supported by "positive evidence " pursuant to Article 3.1 ADA (i.e., evidence of an 
affirmative, objective and verifiable character, which is credible4), which is gathered, inquired into 
and, subsequently, evaluated in a way that conforms to the basic principles of good faith and 
fundame ntal fairness. The analysis must be based on data which provides an accurate and 
unbiased picture of what it is that one is examining5. The European Union acknowledges that 
where samples are used, the samples must be "properly representative of the domesti c industry"6. 
Samples that represent a too low proportion of the domestic industry can be problematic.  
9. However, in the European Union's view, the standards for representativeness of samples for 
general price levels of products (as at stake in the prese nt case) are not necessarily the same as 
for samples on price trends. Price trends depend on a range of factors and easily vary from one 
segment of the industry to another, in particular due to different economic performance of 
different segments of the in dustry. On the other hand, the European Union would a priori imagine 
that the difference in value of certain product types is less likely to change fundamentally 
according to which segment of the industry is being looked at, as it does normally not depend on 
the economic performance of the industry segment in question. Depending on the circumstances 
of the case, a smaller sample could thus be sufficient for assessing differences in value of product 
types.  
10. On the impact analysis under Article 3.4 ADA , the European Union expects that the Panel 
will be guided by the high standard that the Appellate Body has set in this field. According to this 
standard all factors having a bearing on the state of the industry must always  be evaluated by the 
investigating a uthorities in every investigation7; this evaluation consists of an analysis and 
interpretation of the facts established in relation to each listed factor, its role, relevance and 
relative weight8. Where several factors show positive trends, an overall eval uation of all factors 
becomes even more indispensable. This evaluation, which puts data on all factors in context to 
each other, must explain why and how, despite the positive factors , the domestic industry was 
injured, and whether and how the positive mov ements were outweighed by any other factors9.  
11. The Panel might wish to examine in particular the two main aspects highlighted by China, 
namely the weaker financial indicators and the trends in the first half of 2009, in order to assess 
how "heavy" they  weigh in relation to the other factors examined, in particular those that were 
positive. The European Union invites the Panel to assess carefully whether the consideration that 
China submits it has given to all relevant factors is apparent not only from t he submissions to the 
Panel, but duly reflected in relevant documentation from the investigation10. 
 
 
                                                
3 Appellate Body Report, Mexico – Anti-Dumping measures on Rice , para. 288.  
4 Appellate Body Reports, US – Hot-Rolled Steel , para. 192; China – GOES , para. 126.  
5 Appellate Body Reports, US – Hot-Rolled Steel , para. 193;  China – GOES , para. 126.  
6 Appellate Body Report, EC – Fasteners (China) , paras. 435 –436. 
7 Appellate Body Reports, China – HP-SSST , paras. 5.203 -5.209, and cases cited therein.  
8 Panel Reports, Egypt – Steel Rebar , paras. 7.42 -7.51;  EC – Tube or Pipe Fittings , para. 7.314  
9 Panel Reports, Thailand – H-Beams , paras. 7.249 and 7.255; Korea – Certain Paper , para. 7.273.  
10 Appellate Body Report, China – GOES , para. 131.  WT/DS427/RW/Add.1  
 
- D-4 - 
 
  ANNEX D -2 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGUMENTS OF  JAPAN  
1. In this proceeding, Japan addresses its views on systemic aspects  regarding the 
interpretation of Articles  2.2.1.1, 3.1, 3.2, and 6.9 of the Agreeme nt on Implementation of 
Article  VI of the General Agreement on Tariffs and Trade 1994 (the "ADA") and  Articles  15.1 
and 15.2 of the Agreement on Subsidies and Countervailing Measures  (the "SCM"), as well as 
regarding its view on judicial economy  regarding  the claims under ADA Article s 3.4 and 3.5 and 
SCM Article s 15.4 and 15.5 . Japan does not take any particular position on factual aspects on this 
dispute.  
I. MOFCOM 'S Analysis of Price Comparability under ADA Article s 3.1 and  3.2 and 
SCM Articles 15.1 and 15.2  
2. The original panel found that the product mix of the subject impor ts and that of the 
domestic like products varied considerably. The subject imports were composed of limited parts of 
chicken  products,  including a high proportion of paws, legs, wings and gizzards, whereas the 
domestic like products included all other parts of chicken , including breast  meat.1 Despite such 
difference, MOFCOM simply compared the ir average unit values (AUVs) and found that the subject  
imports had undersold the domestic like products.2 The panel found that the evidence showing 
price differe nces between different chicken parts  "should [] have alerted MOFCOM to the fact that 
the outcome of its price comparison would be affected by the composition of each of the product 
'baskets '".3 The original panel thus found that MOFCOM failed to ensure pri ce comparability in 
terms of product mix in violation of ADA Articles 3.1 and 3.2 and SCM Articles 15.1 and 15.2.  
3. In this dispute, the United States alleges that , MOFCOM collected product -specific pricing 
data from four out of the seventeen domestic pro ducers  that constituted the domestic industry  in 
the course of the Reinvestigation4. According to the United States, MOFCOM  found that , these data 
from the four domestic producers show that chicken paws,  legs, wings and gizzards were priced 
higher than oth er parts of chicken , indicating that subject import s consisted primarily of 
higher -value products, not lower -value products as respondents alleged.5 MOFCOM thus concluded 
in the Redetermination that "the price undercutting reflected in the average price di fference is not 
caused by different product mix ".6 
4. The United States argues in its first written submission  that MOFCOM still failed to ensure 
the price comparability, because MOFCOM failed to establish that the data collected from only four 
domestic pr oducers were sufficiently representative of the  prices of the domestic like products.7 
The United States also argues that MOFCOM 's analysis of price comparability is deficient.  
5. China argues that MOFCOM 's additional findings based on the product -specific price data in 
the Re investigation were made only to establish that the comparison based on the overall AUV s did 
not negatively bias the US producers.8 China explains that "[i]f any bias existed in the com parison, 
it in fact favored U.S. producers, not the domestic industry, since U.S. imports were shown to be 
concentrated in high value products whereas the domestic industry sold the full spectrum of 
domestic like product. "9 
                                                
1 Panel Report,  China – Broiler Products , para. 7.490.  
2 Panel Report, China – Broiler Products , paras.  7.490 -494. 
3 Panel Report, China – Broiler Products , para. 7.493.  
4 United States ' first written submission para. 145.  
5 United States ' first written submission, para.  134. 
6 United States ' first written submission, para. 38, quoting RID, Section VII (ii)  (2) p. 18 -19 
(Exhibit  USA-8). 
7 United States ' first written submission, paras. 145 -149. 
8 China 's first written submission, para. 288. ( "MOFCOM made additional findings about product -specific 
underselling based on the available data. But these findings were only to establish there was no bias in using 
the overall AUV approach. ") 
9 China 's first written submission, para.  274. WT/DS427/RW/Add.1  
 
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  6. Japan agrees with the United States that the analysis of price effects of the subject  imports 
on the domestic like products  would not be performed properly unless MOFCOM would show that  
the product -specific price data collected by MOFCOM were sufficiently representative of the entire 
sales of the domestic  like products. O ther domestic producers , who were  not reinvestigated  by 
MOFCOM,  may have different product -specific pricing . Thus, the investigating authority must make 
sure that t he sales data on the chicken paws, legs, wings and giz zards  collected from a limited 
number of domestic producers are  sufficiently representative of the entire sales by the domestic 
industry.  
7. In addition to the above, Japan notes that the need to ensure the price comparability 
between the subject imports a nd the domestic like products in conducting the price effects analysis 
is well-established in the WTO jurisprudence. According to the Appellate Body in China – GOES , 
"[a]s soon as price comparisons are made, price comparability necessarily arises as an iss ue."10 
The Appellate Body has stated  that a failure to ensure price comparability is inconsistent with the 
requirement under ADA Article 3.1 and SCM Article 15.1 , which provide  that a determination of 
injury be based on "positive evidence " and involve an "objective examination ".11 The Appellate 
Body has emphasised that "if subject import and domestic prices were not comparable, this would 
defeat the explanatory force that subject import prices might have for the depression or 
suppression of domestic prices ."12 The requirement to ensure the price comparability between the 
subject imports and the domestic like products is therefore an integral aspect of the obligation to 
consider the price effects of subject imports  under ADA Article 3.2 and SCM Article 15.2 . 
8. The requirement to ensure the  price comparability between  them is supported by the notion 
of the "logical progression of inquiry " under ADA  Article 3 and SCM Article 15 . Drawing on this 
notion, t he panel in China – X-ray Equipment  stated, in the context o f ADA Article 3, that : 
It is precisely because the price undercutting analysis under Article 3.2 ultimately 
must be used to assess whether dumped imports "through the effects of dumping, as 
set forth in paragraphs 2 and 4 " are causing injury to the domesti c industry, that it is 
necessary to ensure the prices that are the subject of an undercutting analysis are 
comparable.13 
9. As the panel in China – X-Ray Equipment  also correctly observed, prices of the subject 
imports and the domestic like products are not comparable if they are not in a competitive 
relationship , and consequently do not interact to each other in the  domestic  market.  The original 
panel also stated to this effect : "the focus of the comparison performed under  ADA Article 3.2 and 
SCM Article 15.2 is on the competitive relationship ".14 
10. Recently , the Appellate Body has confirmed in China – HP-SSST (Japan)  / China – HP-SSST 
(EU) that the analysis  "must provide a meaningful basis for  subsequently determining whe ther the 
dumped imports are causing injury to the domestic industry  within the meaning of Article 3.5 of 
the Anti -Dumping Agreement ."15 Accordingly, in order to reach the ultimate determination of the 
causation, "[a]n examination of the competitive relation ship between products is … required so as 
to determine whether such products form part of the same  market. "16 
11. It is therefore irrelevant whether the product -mix difference between the subject imports 
and the domestic like products would work in favour of the former or the latter. Japan considers 
that in this regard, China 's argument does not speak to the propriety of such comparison and 
cannot cure th e flawed price comparability  analysis.  
12.  Japan also notes that the likeness finding between the product under investigation and the 
domestic like products as a whole would not provide sufficient basis to conclude that each 
                                                
10 Appellate Body Report, China – GOES , para. 200.  
11 Appellate Body Report, China – GOES , para. 200.  
12 Appellate Body Report, China – GOES , para. 200.  
13 Panel Report, China – X-Ray Equipment , para. 7.50. See also Panel Report, China – Broiler Products , 
para. 7.475.  See also  Appellate Body Repor t, China – HP-SSST (Japan)/ China – HP-SSST  (EU), para. 5.162.  
14 The original panel expressly stated that "the focus of the comparison performed under Articles 3.2 
and 15.2 is on the competitive relationship between subject imports and domestic like products in the market 
of the importing Member ". Panel Report, China – Broiler Products , fn 737.  
15 Appellate Body Report , China – HP-SSST (Japan)/China – HP-SSST (EU) , para. 5.180.  
16 Appellate Body Report , China – HP-SSST (Japan)/China – HP-SSST (EU) , para . 5.262 . WT/DS427/RW/Add.1  
 
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  individual type of the product s under investigation competes with, and accordingly are comparable  
with, each of the domestic like products.   
13. In this regard, the panel in China – X-ray Equipment  clarified that an investigating 
authority 's conclusion of "likeness " for the purpose of defining the product under consideration and 
the domestic like products  cannot automatically form the basis for the price comparability  between 
individual products . The panel in China – Autos (US)  also noted, "these issues arise at and relate 
to different stages of an investigation "17, and accordingly, "[e]ven granting that a like product 
determination may be relevant as the starting point of an assessment of price comparability…it will 
not always be determinative ".18 
14. As the original panel  found,  "evidence of [price differences between different chicken parts] 
should in our view have alerted MOFCOM to the fact that the outcome of its price comparison 
would be affected by the composition of each of the product 'basket ' [and would]  have required 
MOFCO M to take necessary steps to ensure price comparability ".19 As discussed above, it is 
irrelevant whether the difference in product -mix would favo ur the US imports or the domestic 
products. The focus should be on whether, for example, chicken gizzards and ch icken breasts are 
in a competitive relationship and thus comparable for the purpose of price effects analysis. If the 
average price of chicken gizzards is substantially higher than that of chicken breasts in the Chinese 
market, this suggest s that different  parts of chicken may have limited substitutability and a weak 
competitive relationship. If this is the case, a price undercutting of chicken gizzards would have 
little, if any, effects on the price of chicken breasts  and thus the AUV comparison between th e 
broad basket of the subject imports and that of the domestic like products would be inappropriate  
for the purpose of the price effect analysis under Articles 3.2 and 15.2 . Japan invites the Panel to 
take into account these legal considerations in decidin g on this issue in this dispute.  
II. The Practice of Judicial Economy r egarding  the United States ' claims under ADA 
Article s 3.4 a nd 3.5 and SCM Article s 15.4 and 15.5  
15. The original panel found that MOFCOM 's price effects analysis was inconsistent with ADA 
Article 3.2 and SCM Article 15.2. With respect to the United States ' claims under ADA Article s 3.4 
and 3.5  and SCM Article s 15.4 and 15.5, the panel exercised judicial economy and did not make 
any findings . The panel stated that making additional findi ngs with regard to ADA Article s 3.4 
and 3.5 and SCM Article s 15.4 and 15.5 would not assist the resolution of the dispute, because 
"[i]mplementing the Panel 's findings with respect to MOFCOM 's price effects analysis will require 
China to re -examine MOFCOM 's Determination concerning the impact [and causation] ".20 However, 
in implementing the original panel 's finding with respect to the price effects, MOFCOM  did not 
change its  impact  analysis in the re -determination . 
16. In this compliance proceeding, China alleges that MOFCOM was not in a position  to change 
its impact analysis and causation  analysis, given that the original panel exercised judicial economy 
and did not make any findings on whether its impact and causation analyses are WTO consistent. 
Irrespective of whether China 's allegation is correct or wrong, Japan considers that it might have 
assisted in resolving this issue of dispute had the panel made findings with respect to ADA 
Article s 3.4 and 3.5 and SCM Article s 15. 4 and 15.5.  
17. In this respect, Japan recalls that the Appellate Body has stated, in Australia  – Salmon  that 
"the principle of judicial economy has to be applied keeping in mind the aim of the dispute 
settlement system ......A panel has to address those claims  on which a finding is necessary in order 
to enable  the DSB to make sufficiently precise recommendations and rulings  so as to allow for 
prompt compliance by a Member ."21 A panel should carefully  assess how its findings or 
non-findings regarding a claim would affect the Member 's implementation of DSB 
recommendations and rulings.   
                                                
17 Panel Report, China – Anti-Dumping and Countervailing Duties on Certain Automobiles from the 
United States , fn 441.  
18 Panel Report, China – Anti-Dumping and Countervailing Duties on Certain Automobiles from the 
United States , para. 7.278.  
19 Panel Report, China – Broiler Products , para. 7.493 . See also Appellate Body Report, China – 
HP-SSST (Japan) /China – HP-SSST  (EU), para . 5.181 ( "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. "). 
20 Panel Report, China – Broiler Products , paras.  7.555, 584.  
21 Appellate Body Report,  Australia – Salmon,  para. 223 . (underline added).  WT/DS427/RW/Add.1  
 
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  18. In the Panel 's preliminary ruling of 22 March 2017 , the Panel held that the claims of the 
United States under ADA Articles 3.4 and 3.5 and SCM Articles 15.4 and 15.5 we re within the 
terms of reference for this compliance proceeding . To secure a positive resolution of the current 
dispute, Japan encourages the Panel to make  findings with respect to the claims of the 
United  States  that are within the term s of reference for this compliance proceeding . 
III. Proper Allocation of C osts under ADA Article 2 .2.1.1  
19. With respect to ADA Article 2.2.1.1, Japan agrees with the United States that the 
investigating authorit y is required to evaluate all available evidence and undertake a "proper " 
allocation of cost  to calculat e the normal value. On this point, the original panel suggested that the 
investigating authority may weigh in mind the facts of a particular case under inve stigation when 
considering the evidence relating to cost allocation methods.  
20. ADA Article 2.2.1.1 read together  with Article 2.2, for the purpose of this paragraph, 
provides conditions an investigating authority needs to satisfy when constructing the no rmal value 
on the basis of production costs in the country of origin. Japan understands that in principle, the 
normal value should be an appropriate proxy of the price in the "ordinary course of trade " for the 
products when destined for the consumption in the exporting country . Japan notes that in 
circumstances where a certain part of joint -products has little commercial value in the exporting 
country 's market, while all joint products are commercially marketed in the importing market , due 
to consumers ' different eating habits, such fact s in a particular case may need to be taken into 
account in calculating the dumping margin.  The question is whether an investigating authority can 
take into consideration the actual market practices  of relevant countries , such as differences in 
consumers ' perceptions,  as against only evidence s of exporting countries , when deciding the 
proper allocation of costs.  
21. In the original panel proceeding there was a debate on whether the investigating authority 
should have used weight -based cost allocation or value -based cost allocation. The issue disputed 
could be understood as  whether the investigating authority may take into consideration the  
relevant countries ' proper market practices  under the circumstances of the case . In this 
compliance proceeding, the United States focused its argument on MOFCOM 's use of alleged 
distortive weight -based allocation methodology  in its redetermination, and challenged that 
MOFCOM 's cost allocation methodology was not "proper ". Japan considers t hat whether or not the 
cost allocation is "proper " cannot be determined in the abstract. If the investigating authority 
chooses to deviate from the cost allocation used by exporters and foreign producers, it should 
adhere to the actual market practices of the relevant countries and fully explain its deviation. In 
this regard, Japan views that China has not adequately explained why MOFCOM 's decision 
regarding cost -allocation was "proper " based on the market practices of the relevant countries.  
IV. Disclosure  of Essential Facts  
22. Finally, Japan would like to emphasise the importance of the disclosure  of "essential facts " 
which form the investigating authority 's basis of determination, pursuant to ADA Article  6.9.22 The 
necessity to secure the transparency and due process of interested parties in anti -dumping 
investigations  remains the same under reinvestigations. ADA Article  6.9 oblige s the authorities to 
inform interested parties of the body of facts necessary for the authorities ' process of analysis. In 
other words , disclosure by investigating authorities should provide the interested parties with the 
necessary information that enables them to comment on the completeness and correctness of the 
facts being considere d by the investigating authority, and thus ensure  a fair determination by the 
investigating authority. In light of the above, while Japan takes no position on the factual issues of 
this case, Japan respectfully request the panel to review the consistency o f MOFCOM's disclosure  
during its reinvestigation  with AD Agreement  Article 6.9.  
 
_______________  
 
 
 
                                                
22 Panel Report, China – Broiler Products , para.  7.90. WT/DS427/RW/Add.1  
 
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  ANNEX E  
PRELIMINARY RULING  
Contents  Page  
Annex E -1 Ruling by the Panel on jurisdictional issues dated 22 March 2017  E-2 
 
 
  WT/DS427/RW/Add.1  
 
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  ANNEX E-1 
RULING BY THE PANEL ON JURISDICTIONAL IS SUES  
22 March 2017  
1  INTRODUCTION  
1.1.  In its written submissions, China has requested that the Panel rule a number of claims 
outside its jurisdiction. To enable the parties to better focus their arguments at the substantive 
meeting, we have decided to resolve at this stage of the proceeding China's assertions that certain 
US claims set out in its panel request1 are outside the Panel's terms of reference either because 
they do not comply with Article 6.2 of the Dispute Settlement Understanding (DSU), or as a 
consequence of the Panel's exercise o f judicial economy in the original dispute.  
2  ARTICLE 6.2 OF THE DS U  
2.1  Arguments of the parties  
2.1.1   China  
2.1.  Claims under AD Agreement Article s 6.1.2 and 6.2 and SCM Agreement Article 12.1.2  are not 
within the Panel's terms of reference because they are not set out in the panel request.  
2.2.  The claim under the second sentence of AD Agreement Article 2.2.1.1 in respect of 
Pilgrim's  Pride is not within the Panel's terms of reference  because:  
a. the Pa nel made no findings in respect of Pilgrim's Pride under the second sentence of 
Article 2.2.1.1 in the original dispute2; 
b. cost allocation issues with regard to Pilgrim's Pride were not addressed by MOFCOM in 
the redetermination, and are therefore not befor e the Panel, and the original 
determination in this respect cannot be raised in this Article 21.5 proceeding3; and  
c. the narrative language of the panel request concerns  cost allocation issues related to 
Tyson and is unrelated to the reinvestigation of Pilgrim's Pride.4 
2.3.  Claims under AD Agreement Articles 6.1 and 6.4 and SCM Agreement Articles 12.1 and 12.3 
are not within the Panel's terms of reference  because the panel request does not identify the 
specific measure5 and does not "present the problem clearly". In particular, the panel request 
refers, as "an example", to documents that do not exist (i.e. questionnaires).  
2.4.  The United States asserts in its first written submission that  MOFCOM failed to  reconcile its 
causation analysis with the improving domestic ind ustry performance . This assertion  constitutes  a 
new element of the claim under AD Agreement Articles 3.1 and 3.5  and SCM Agreement  
                                                
1 Request for  the establishment of a panel by the United States, WT/DS427/11 and 
WT/DS427/11/Corr.1 . 
2 China's first written submission, para. 131; second written submission, paras. 199 and 202.  
3 China's first written submission, para. 133.  
4 China's first written sub mission, para. 134; second written submission, paras. 197 and 198.  
5 China's second written submission, para. 82:  
[T]he United States general reference to measures imposing AD/CVD duties to U.S. 
products, accompanied with the reference to the Redeterminati on without any 
further specification, does not fulfil the requirements of Article  6.2 of the DSU since 
it fails to identify with sufficient precision the challenged measure.  
China's second written submission, para. 83: "China is arguing that the United Sta tes has failed to identify the 
measure".  
 WT/DS427/RW/Add.1  
 
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  Articles  15.1 and 15.5 that had not been set out in the panel request. In partic ular, the use of the 
word "including"  in the panel request, as opposed to "including but not limited to", indicates an 
intention on the part of the United States to  set out an exha ustive list of the elements of its claims 
under these provisions . 
2.1.2   United Sta tes 
2.5.  In respect of the US claims under AD Agreement Articles 6.1.2  and 6.2 and SCM Agreement 
Article 12.1.2 , "China 's argument is misplaced beca use it rests on an erroneo us assumption:  that 
the United States simply cited AD Agreement Article 6 and SCM Agree ment Article 12 – and 
nothing more. "6 In fact, the panel request  "explicitly references A D Agreement Article 6.1 and 
SCM Agreement Article 12.1 "7; thus, t he United States "narrowed its concerns to those that flow 
from AD Agreement Article 6.1 and SCM Agree ment Article 12.1 ".8 The findings of the Appellate 
Body in respect of DSU Article 23 in US – Countervailing Measures  on Certain EC Products  that 
"there is a close relationship between the obligations set out in paragraphs 1 and 2 of Article 23 "9 
and finding a claim within the panel's terms of reference as a result are "directly on point" in this 
context. In a similar way, the claims at issue are " a particular application of the broader obligation 
in AD  Agreement Article 6.1 and SCM Agreement Arti cle 12.1 ".10 The claims are included in the 
claims under Articles 6.1 and 12.1 because the "factual predicate" is the same as that of the 
claims under Articles  6.1 and 12.1.  
2.6.  Regarding its claim under Article 2.2.1.1 with respect to Pilgrim's Pride, the Uni ted States 
asserts:  
The Panel Request clearly states that the United States is bringing a claim under the 
second sentence of Article 2.2.1.1 . Moreover, the language the United States uses is 
with respect to "producers, " not simply Tyson . There is no reason  from the language 
of the claim to believe that the United States circumscribed its claim with respect to 
Tyson only.11 
"[T]he DSU requires identification of measures and claims – not particular interested parties ."12 
Because the Panel's findings under the s econd sentence of Article  2.2.1.1 in the original report 
were " with respect to consideration of allocation methodologies and allocation of processing [costs] 
extended to all respondents, including Pilgrim 's Pride"13, this matter falls within the jurisdictio n of 
the Panel.  
2.7.  The "example" referred to in connection with the claim under AD Agreement Article 6.1 and 
SCM Agreement Article 12.1  in the second sentence of paragraph 5 of the panel request is "wholly 
unnecessary" to the statement of the US claim as it w as "simp ly a preview of what the 
United  States might argue in its submissions".14 In particular, "[t] he questionnaire is not the 
measure at issue; the continued imposition of AD and CVD duties are, including the conduct of the 
reinvestigation ".15 
2.8.  In respect of the claim under AD Agreement Article 6.4 and SCM Agreement Article 12.3 , the 
United States maintains it is clear that " the measures at issue are those that continue to lead to 
imposition of AD and CVD duties on  U.S. broiler products ";16 the second senten ce example simply 
foreshadows US arguments. In particular, the reference to questionnaires is simply an example.  
                                                
6 United States' second written submission, para. 203.  
7 United States' second written submission, para. 204.  
8 United States' second  written submission, para . 204. 
9 United States' second written submission, para. 205 (quoting Appellate Body Report, US – 
Countervailing Measures  on Certain EC Products , para. 111).  
10 United States' second written submission, para. 205.  
11 United States' second written submission, para. 2 12. (emphasis added)  
12 United States' second written submission, para. 211.  
13 United States' second written submission, para. 213.  
14 United States' second written submission, para. 195.  
15 United States' second written submission, para. 197.  
16 United States' second written submission, para. 207.  WT/DS427/RW/Add.1  
 
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  Whether MOFCOM called its information requirements a questionnaire, or verification, 
or anything else, the critical point is that MOFCOM did n ot provide a timely 
opportunity to see the information it obtained from Chinese domestic producers.17   
2.9.  In respect of the claim under AD Agreement Article 3.5 and SCM Agreement Article 15.5 , 
"China conflates claims with arguments".18 Responding to the arguments of China in respect of the 
scope of the term "including" in the panel request:  
What panel and the Appellate Body have appropriately recognized is that the term 's 
open-ended meaning cannot be used to keep claims undefined . At no time has any 
panel or the Appellate Body ever found that it cannot be used as part of an indication 
to preview some – but not all – arguments.19 
2.2  Relevant Law  
2.10.   Articles 7 and 6.2 of the DSU govern the jurisdiction of the Panel. Article 7 provides that, 
unless the parties agree otherwise, a panel shall have the standard terms of reference set out in 
that provision, which encompass the "matter referred to the DSB" by the complainant in the 
request for establishment. Article  6.2 sets out the requirements for a request for establishment of 
a panel (panel request), which describes the "matter referred to the DSB" and thus establishes the 
parameters of the jurisdiction of the panel. Article 6.2 states:  
The request for the establishment of a panel shall be made in w riting. 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.  
2.11.   It is well settled that:  
a. The "matter" referred to the DSB comprises the measure(s) at issue and the claims as 
set out in the request for establishment.20 
b. Where a matter, including  claims, does not satisfy the requirements of Article 6.2, it is 
not within the jurisdiction of the panel.21 
c. To determine whether  a matter or a claim falls within the terms of reference of the 
panel, the panel request should be read in its entirety.22 
d. A defect in the panel request may not be "cured" in later submissions.23 
e. The use of terminology such as "including" "cannot operate to include any and all other 
claims not specifically included in the request".24 
f. There is a difference between the claims  of a complainant and its arguments  in support 
of those claims. The Panel may only address the claims set out in the panel request. 
However , arguments need not be included in the request for establishment, and a party 
may raise any arguments in support of those claims it wishes. Moreover, a panel is not 
limited to arguments submitted by the parties in resolving the matter before it, but may 
develop its own reasoning.25 
                                                
17 United States' second written submission, para. 207.  
18 United States' second written submission, para. 220.  
19 United States' second written submission, para. 221.  
20 Appellate Body Report, Guatemala – Cement I , para. 72.  
21 Appellate Body Reports, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, p. 186 ; and  US – Carbon 
Steel, para. 126.  
22 Appellate Body Report, US – Carbon Steel , para. 127.  
23 Appellate Body Report, EC – Bananas  III, para. 143.  
24 Appellate Body Reports, EC – Fasteners (China), para. 597; and India – Patents (US) , para. 90.  
25 Appellate Body Reports, India – Patents (US) , para. 88; and EC – Hormones , para. 156.  WT/DS427/RW/Add.1  
 
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  g. Article 6.2 protects Members' due process interests in the course of dispute settlement.26 
At the same time, the procedural rules of the WTO should not be used as litigation 
techniques, but so as to promote the fair, prompt and ef fective resolution of disputes.27  
h. A panel has the inherent jurisdiction to determine whether a matter falls within its terms 
of reference, and may need to do so even in the absence of any request by a party.28 
2.3  Analysis  
2.3.1   Claims under AD Agreement Articles 6.1 .2 and 6.2 and SCM Agreement 
Article  12.1.2  
2.12.   DSU Article 6.2 requires that a complainant "identify the specific measures at issue and 
provide a brief summary of the legal basis of the complaint" . It is axiomatic that " the listing of the 
treaty provision(s)  allegedly violated is normally a prerequisite for a panel request to be consistent 
with Article 6.2 of the DSU ".29 At the same time,  because a finding under DSU Article  6.2 goes to 
the parameters of our jurisdiction, deciding whether a claim is sufficiently set out in the panel 
request is not a mechanical task . Rather, we are required to read the panel request in its entirety ; 
the statement of a claim may be inferred from the totality of a panel request, such that a 
complainant's failure to list a specific provision would not necessarily deprive a panel of jurisdiction 
to address a claim under that provision .30  
2.13.   The question before us in this proceeding is whether the US claims under AD Agreement 
Articles 6.1.2 and 6.2 a nd SCM Agreement Article 12.1.2, as argued in its first written submission, 
were properly set out in the panel request. Paragraph 5 of the panel request states:  
Article 6.1 of the AD Agreement and Article 12.1 of the SCM Agreement beca use 
during the reinve stigation MOFCOM did not provide notice of the information that 
MOFCOM required and did not provide interested parties ample opportunity to present 
in writing all evidence they considered relevant. For example, MOFCOM did not 
disclose the questionnaires it  submitted to Chinese domestic producers during the 
re-investigation.31   
On its face, the panel request does not refer to AD Agreement Articles 6.1.2 and 6.2 and 
SCM Agreement Article 12.1.2 .  
  
2.14.   China's jurisdictional challenge  is simple: AD Agreement Arti cle 6.2 is not referred to in the 
panel request.  The United States does not make any arguments in response to China's arguments. 
In the absence of any response from the United States that would explain that a claim under that 
provision is nonetheless set o ut in the panel request, we conclude that no claim under 
AD Agreement Article 6.2 is properly before us in this dispute.   
2.15.   According to the United States, the claim in respect of AD Agreement Article 6.1.2 and 
SCM Agreement 12.1.2 may be understood to be wi thin the terms of reference under paragraph 5 
of the panel request , because:  
a. the US panel request  "explicitly references A D Agreement Article 6.1 and 
SCM Agreement Article 12.1 "32;  
                                                
26 Appellate Body Report, US – Carbon Steel , para  126; Argentina – Import  Measures , Annex D -2, 
para. 4.26. This extends to third parties, to ensure that they receive "sufficient notice " of the specific measures 
that a complainant is challenging. ( Argentina – Import Measures , Annex D -2, para. 4.20).  
27 Appellate Body Report , Thailand – H-Beams , para. 97 (citing Appellate Body Report,  US – FSC, 
para. 166).  
28 Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 45.  
29 Appellate Body Report, US – Countervailing and Anti -Dumping Measures (China) , para. 4.31.  
30 Appellate Body Report, US – Countervailing and Anti -Dumping Measures (China) , para. 4.33.  We also 
recall our findings to this effect regarding claims under Articles 12.2.2 and 22.5 of the AD and SCM Agreements 
respectively in the original panel report, pa ra. 7.520.  
31 United States' request for the establishment of a panel, WT/DS427/11 (United States' panel request), 
para. 5.  
32 United States' second written submission, para. 204.  WT/DS427/RW/Add.1  
 
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  b. US concerns in respect of AD Agreement Article 6.1 .2 and SCM Agreement Arti cle 12.1.2  
"flow from" its concerns under AD Agreement Article 6.1 and SCM Agreement 
Article  12.133; 
c. there is a "close relationship"34 between AD Agreement Article 6.1.2 and SCM Agreement 
Article 12.1.2 on the one hand, and the listed provisions on the other , in that the claims 
at issue are " a particular application of the broader obligation in AD Agreement 
Article  6.1 and SCM Agreement Article 12.1 "; and  
d. the claims at issue are included in the claim under AD Agreement Article 6.1 and 
SCM Agreement Article 12 .1 because they have the same "factual predicate".  
2.16.   We recall that Articles 6.1.2 and 12.1.2 were addressed in the US first written submission 
but not mentioned in the US panel request. At issue is whether these Articles are so closely related 
to Articles  6.1 and 12.1 that, as a consequence, and in the light of the narrative in paragraph 5 of 
the panel request, the statement of claims specifically under Articles 6.1 and 12.1 may be found to 
include claims under Articles 6.1.2 and 12.1.2. To resolve this ques tion, we first examine the 
provisions at issue. Articles 6.1 and 6.1.2 of the AD Agreement provide:  
6.1 All interested parties in an anti -dumping investigation shall be given notice of the 
information which the authorities require and ample opportunity to present in writing 
all evidence which they consider relevant in respect of the investigation in question.  
…  
6.1.2 Subject to the requirement to protect confidential information, 
evidence presented in writing by one interested party shall be made 
available  promptly to other interested parties participating in the 
investigation.  
The corresponding provisions of the SCM Agreement, Articles 12.1 and 12.1.2, are largely identical 
– the minor textual differences are not relevant in this context.  
 
2.17.   AD Agreement Article 6 and SCM Agreement Article 12, entitled "Evidence", address  a wide 
range of topics beyond strictly evidentiary matters and establish a number of diverse but often 
related obligations in respect of the conduct of anti -dumping and countervailing duty 
investigations. AD Agreement Article 6.1 and SCM Agreement Article 12.1  contain two distinct but 
related obligations on the investigating authority concerning the conduct of the investigation:  
a. to give notice to all interested parties o f information required by the investigating 
authorities; and  
b. to provide to all interested parties an ample opportunity to present relevant evidence in 
writing.  
AD Agreement Article 6.1.2 and SCM Agreement Article 12.1.2 require that non -confidential 
evidence presented in writing by one party must be made available to other participating 
interested parties promptly.35 
 
2.18.   There is no question that AD Agreement Articles 6.1 and 6.1.2 and SCM Agreement 
Articles  12.1 and 12.1.2 are related  to some extent, as they  all refer to the presentation of 
evidence in writing. However, it is not at all clear to us that Articles 6.1.2 and 12.1.2 are, as the 
United States argues, "nothing less than a specific application of the denial of opportunity that 
                                                
33 United States' second  written submission, para . 204. 
34 United States' secon d written submission, para. 205.  
35 Articles 6.1.1 and 12.1.1 , not at issue here,  set out a time -frame for exporters and producers (and in 
countervailing duty investigations, interested Members) to reply to questionnaires they receive; Article s 6.1.3 
and 12 .1.3 require the provision of the full text of the application to known exporters and the authorities of the 
exporting Member, and other interested parties upon request, with due regard for the protection of confidential 
information . WT/DS427/RW/Add.1  
 
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  AD Agreement Article 6 .1 and SCM Agreement Article 12.1 require".36 Articles 6.1.2 and 12.1.2 
require that evidence submitted by one interested party in writing be made available promptly to 
other participating interested parties. In our view, this is a very different obligation  from those set 
out in Articles 6.1 and 12.1, requiring notice of the information required and "ample opportunity" 
for interested parties to present relevant evidence in writing. Thus, while the obligation in 
Articles  6.1.2 and 12.1.2 may be related  to the  "ample opportunity" to present evidence in writing 
required under Articles 6.1 and 12.1, compliance with the one does not require or establish 
compliance with the other. It is entirely possible for an investigating authority to give notice of the 
informat ion required and ample opportunity to submit evidence in writing, but fail to ensure that 
evidence presented in writing is made available promptly to other interested parties, and vice 
versa. Neither in form nor in substance do we consider the provisions s o "closely related" that the 
statement of a claim under Articles 6.1 and 12.1 in a panel request can, without more, be 
understood to include a claim under Articles 6.1.2 and 12.1.2. Merely that Articles 6.1.2 
and 12.1.2 concern information submitted in wri ting pursuant to the opportunity required by 
Articles  6.1 and 12.1, does not suffice to bring the former within the scope of the latter.  
2.19.   Nonetheless, according to the United States, "The U.S. Panel request explicitly references 
the lack of opportunity affo rded by MOFCOM in the reinvestigation thus placing clear parameters 
on the scope of the claim."37 This, we understand, refers to the statement in paragraph 5 of the 
panel request concerning " ample opportunity to present in writing all evidence they consider ed 
relevant ". This language is in the text of Articles 6.1 and 12.1. It does not appear in Articles 6.1.2 
and 12.1.2. Moreover, it is not clear to us how the failure to make information submitted in writing 
available to other interested parties is linked t o the alleged lack of ample opportunity to present 
evidence in writing referred to in the narrative in paragraph 5 of the panel request. This reference 
cannot, in our view, bring the asserted failure to make information available within the scope of 
the ob ligations in Articles 6.1 and 12.1, and thus paragraph 5 fails to state a claim under 
Articles  6.1.2 and 12.1.2 . The United States also relies on its first written submission to "confirm" 
the scope of its claim in the panel request. However, given our view  that the panel request, read 
as whole, does not state a claim under Articles 6.1.2 and 12.1.2, there is nothing to "confirm".  
2.20.   In the light of the foregoing, we find that the United States' claims under Articles 6.1.2 
and 6.2 of the AD Agreement and Artic les 12.1.2 are not within our terms of reference.  
2.4  Claims under AD Agreement Articles 6.1 and 6.4 and SCM Agreement and 12.1 
and 12.3 
2.21.   The question before us in this context is whether the claims under AD Agreement 
Articles  6.1 and 6.4 and SCM Agreement Arti cles 12.1 and 12.3  as set out  in the panel request 
provide the required clarity and specificity. The questions at issue are similar and so we deal with 
them together.  
2.22.   Paragraph 5 of the panel request states:  
Article 6.1 of the AD Agreement and Article 12. 1 of the SCM Agreement beca use 
during the reinvestigation MOFCOM did not provide notice of the information that 
MOFCOM required and did not provide interested parties ample opportunity to present 
in writing all evidence they considered relevant. For exampl e, MOFCOM did not 
disclose the questionnaires it submitted to Chinese domestic producers during the 
re-investigation .38 
Paragraph 4 of the panel request states:  
 
Articles 6.4 and 6.5 of the AD Agreement, and Articles 12.3 and 12.4 of the 
SCM Agreement, beca use during the reinvestigation MOFCOM did not provide 
interested parties timely opportunities to see all non -confidential information that was 
relevant to their case and that was used by the investigating authority, and MOFCOM 
treated information as confid ential absent good cause. For example, MOFCOM failed to 
                                                
36 United States' second written submission, para. 205.  
37 United States' second written submission, para. 205.  
38 Emphasis added.  WT/DS427/RW/Add.1  
 
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  disclose the questionnaires it submitted to Chinese domestic producers during the 
re-investigation .39 
2.23.   China's principal argument is that "the United States has failed to identify the measure".40 
Moreove r, because no "questionnaires" were sent to domestic producers, these claims as set out in 
the panel request caused China puzzlement. The use of the words "for example" does not save 
each claim by enlarging it to encompass other forms of information reques t than "questionnaires". 
Neither claim presents the problem "clearly"; each is therefore inconsistent with DSU Article 6.2.  
2.24.   The United States responds that:  
a. the measures at issue  are " those that continue to l ead to imposition of AD and 
CVD duties on  U.S. broiler products " and the panel request properly identifies the 
measures by explicitly referencing the  reinvestigation41; 
b. the reference in the panel request to "the questionnaire" foreshadows US arguments , 
and is not relevant to the identification of the claim42; and  
c. "[w]hether MOFCOM called its information requirements a questionnaire, or verification, 
or anything else, the critical point is that MOFCOM did not provide a timely opportunity 
to see the information it obtained from Chinese domestic producers ."43  
2.25.   Articles 6.1 and 12.1 require notice  of the information required by the investigating 
authorities. Articles 6.4 and 12.3 require the authorities to provide opportunities to see  relevant 
non-confidential information used by the authorities. The alleged violation in respect of each 
provision as stated in the panel request is an omission : that is, for Articles 6.1 and 12.1, the 
alleged failure to provide "notice of the information which the authori ties require", and for 
Articles  6.4 and 12.3, the alleged f ailure to " provide interested parties timely opportunities to see 
all non -confidential information that was relevant to their case". As an "example" of the 
information subject to these requirements, the panel request refers to " questionnaires [MOFCOM]  
subm itted to Chinese domestic producers during the re -investigation ".  
2.26.   We make the following observations:  
a. The "measure taken to comply" within the meaning of Article 21.5 is the 
redetermination . The measure  before us has been specifically identified in the pa nel 
request.  
b. The question, then, is whether the references to questionnaires as examples in 
paragraphs 4 and 5 of the panel request result in the claims as set out not presenting 
the problem "clearly":  
i. China asserts that no questionnaires  were sent to Chinese producers. All MOFCOM 
did in the course of the reinvestigation was engage in a verification exercise. At the 
same time, however, throughout the redetermination MOFCOM states that it not only 
verified  the information it had, but sought  and obtained additional information .44 
Whether or not "questionnaires" in some formal sense were used in this effort, there 
were clearly requests made to Chinese domestic producers for further information, 
and information was submitted.  
ii. Where, as in this c ase, claims are based on alleged omissions by the investigating 
authority, the investigating authority is in possession of information that it allegedly 
did not give notice of as required under Articles 6.1 and 12.1, and did not provide 
                                                
39 Emphasis added.  
40 China's second written submission, para. 83.  
41 United States' second written submission, para. 207.  
42 United States' second written submission, para. 207.  
43 United States' second written submission, para. 207.  
44 We note also China's second written submission, para. 252: "Specifically, MOFCOM conducted on -site 
verifications of four producers for the purposes of collecting additi onal information  on product -specific pricing." 
(emphasis added)  WT/DS427/RW/Add.1  
 
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  ample opportunities  to see under Articles 6.4 and 12.3. The complaining Member, of 
course, does not know what the relevant information is, or in what form it was 
required or received – or indeed, whether it exists – but does believe that 
information was requested and submitt ed to the investigating authorities. In these 
circumstances, it is difficult to see how the complainant could be expected to 
pin-point with any precision in a panel request information (including its format – in 
the form of a questionnaire or otherwise) it  does not have and might not even know 
about.   
iii. Whether a claim as set out in the panel request presents the problem clearly 
depends on not just the specific words used in the panel request but also the 
underlying obligations. The term "questionnaire" has a generally understood 
technical meaning in the context of anti -dumping and countervailing duty practice 
more generally; MOFCOM might not have sent a "questionnaire" in the technical 
sense to domestic producers during the reinvestigation. But that does not  render the 
claim as a whole, which refers to "questionnaires" only as an example of the 
problem, opaque to the point of vitiating China's due process rights under DSU 
Article 6.2.  
iv. MOFCOM required, sought, and obtained additional information from Chinese 
domestic producer in the course of its reinvestigation. Under Articles 6.1 and 6.4 
and 12.1 and 12.3, it had obligations with respect to notice of the information 
required (which is not limited to information required in questionnaires ) and 
providing oppor tunities to see relevant information. It is not disputed that the 
information provided by the Chinese domestic producers in the reinvestigation was 
relevant and used by MOFCOM.45 Regardless of the limited example – reference to 
questionnaires – in the panel  request, in our view there is little doubt as to the scope 
of the claims under Articles 6.1, 6.4, 12.1, and 12.3.  
2.27.   In the light of the foregoing, we find that the claims of the United States under Articles 6.1 
and 6.4 of the AD Agreement and Articles 12.1  and 12.3 of the SCM Agreement are within our 
terms of reference.  
2.4.1   Second sentence of Article 2.2.1.1 and Pilgrim's Pride  
2.28.   The question before us here is the scope  of the claim of violation of Article 2.2.1.1, second 
sentence, specifically whether it encompa sses MOFCOM's alleged violation in respect of the 
calculation of a dumping margin for Pilgrim's Pride in the reinvestigation. In this respect, China 
advances two lines of argument:  
a. While the claim in the panel request is drafted broadly, the  narrative lang uage concerns 
only the allocation issues related to the calculation of Tyson 's dumping margin. The claim 
itself, as set out in the panel request, appears to be unrelated to the issues surrounding  
the calculation of a dumping margin  for Pilgrim's Pride during the reinvestigation . 
Accordingly, the claim as developed in the first written submission of the United States is 
not within the terms of reference of the Panel .46 
b. In the original dispute the Panel made no findings in respect of the calculation of a 
dumping margin for Pilgrim's Pride under the second sentence of Article 2.2.1.1 . Indeed, 
the findings of the Panel in respect of the first sentence underline that its findings under 
the second  sentence could not have applied to Pilgrim's Pride. For these re asons, 
MOFCOM did not address any cost allocation issues with regard to Pilgrim's Pride during 
the reinvestigation , and therefore the consistency of the dumping margin for Pilgrim's 
Pride with Article 2.2.1.1 is not within the terms of reference of the Pan el.47 
2.29.   The United States responds that:  
                                                
45 China's second written submission, para. 252: "From the information it collected MOFCOM could 
reasonably conclude whether or not U.S. imports were concentrated in the low value products."  
46 China's first written submission, para. 134; second written submission, paras. 197 and 198.  
47 China's first written submission, para. 131; second written submission, paras. 199 and 202.  WT/DS427/RW/Add.1  
 
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  a. the claim in the panel request is clear in that it refers to "producers", and not just 
Tyson48; 
b. the Panel's findings of violation of the second sentence of Article 2.2.1.1 in the original 
dispute were not limited to Tys on49; and  
c. in any event, DSU Article 6.2 requires identification of measures and claims of violation – 
not particular interested parties.50  
2.30.   Turning to the first basis for China's challenge, we recall paragraph 8 of the panel request:  
Articles 2.2 and 2.2.1. 1 of the AD Agreement beca use MOFCOM improperly calculated 
the cost of production for  US producer s, failed to calculate costs on the basis of the 
records kept by the  US producer s under investigation, and did not consider all 
available evidence on the prope r allocation of costs. For example, MOFCOM allocated 
production costs of non -subject merchandise to subject merchandise and failed to 
properly allocate processing costs for subject merchandise.51 
2.31.   For purposes of considering the scope of the Panel's jurisdic tion, there is an important 
distinction between claims  and arguments . The claim here is that the redetermination in respect of 
the calculation of costs for US producers does not meet the requirements of Articles 2.2 
and 2.2.1.1. We note that:  
a. The "measure taken to comply" within the meaning of Article 21.5 is the 
redetermination. The measure  before us has been specifically identified in the panel 
request.  
b. The legal basis for the claim is set out as Article 2.2 and both sentences of 
Article  2.2.1.1. The two examples provide additional clarity, but they neither expand nor 
restrict the scope of the claim, and are not limited as to the producers to which they 
refer.  
Nothing in the DSU requires that the arguments in support of a claim be specified in the request  
for establishment. It is true that i n the original dispute, there was no specific  finding of violation of 
the second sentence of Article 2.2.1.1 with respect to Pilgrim's Pride. Nonetheless, t he Panel's 
findings regarding that provision were not strictly limited to Tyson, but were more general in some 
aspects. Thus, we see no reason to foreclose the possibility of a claim under Article 2.2.1.1 
involving arguments concerning other producers. We note that the panel request refers to US 
producers in the plura l. This clearly opens the possibility for arguments concerning the alleged 
failure of MOFCOM to comply with the cited AD Agreement provisions in calculating a dumping 
margin for more than one US producer. We see no basis to require the identification of sp ecific 
interested parties in respect of which an investigating authority has made a determination with 
respect to each claim of violation.  
 
2.32.   Among the various arguments made in support of the US claim under the second sentence 
of Article 2.2.1.1 is the arg ument in respect of Pilgrim's Pride. These arguments do not go beyond 
the claim as set out in the panel request. Accordingly, the claim of violation as set out in the panel 
request meets the requirements of DSU Article 6.2 and is properly before us. 
2.33.   Having  so concluded, we do not consider it necessary to address China's second ground for 
its jurisdictional challenge.  
2.34.   We therefore find that China has not established that the US claims in respect of Articles 2.2 
and 2.2.1.1 insofar as they relate to Pilgrim's  Pride fall outside our jurisdiction.  
                                                
48 United States' second written submission, para. 212.  
49 United States ' second written submission, para. 213.  
50 United States' second written submission, para. 211.  
51 Emphasis added.  WT/DS427/RW/Add.1  
 
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  2.5  Alleged failure to reconcile causation analysis with evidence  
2.35.   The question before us here is the scope  of claims of violation of AD Agreement Articles  3.1 
and 3.5 and SCM Agreement Articles 15.1 and 15.5, and whether they encompass MOFCOM's 
alleged failure to reconcile its causation analysis with the improving domestic industry 
performance. China refers to  the specific language of paragraph 3 of the panel request:  
Articles 3.1 and 3.5 of the AD Agreement, and Ar ticles 15.1 and 15.5 of the 
SCM Agreement, beca use MOFCOM's determination that subject imports were ca using 
injury to the domestic ind ustry was not based on an examination of all relevant 
evidence, including that subject import volume did not increase at the expense of the 
domestic ind ustry and that a large portion of subject imports consisted of products 
that could not have been injurio us, and was ba sed on MOFCOM's flawed price and 
impact analyses.  
2.36.   China argues that:  
a. The use of the word "including"  instead of "including but not necessarily limited to"  must 
be understood  as setting out an exha ustive list of elements of the US claim under 
Articles 3.1 , 3.5, 15.1, and 15.5.52  
b. "The contrast between the phrase 'for example ' for all of the other claims, but the term 
'including ' only for claim #3 shows an explicit effort to distinguish the two types of 
claims.  In this context, 'including ' is being used in a limiting sense. "53 
c. The language of the paragraph is " a specific reference to the second sentence of 
Articles  3.5 and 15.5.  The claim does not reference either directly or indirectly the other 
three sentences of these provisions. The U.S. claim, therefore r elates to the specific 
obligations found in the second sentence ."54 
2.37.   The United States argues that:  
a. "The claim is that MOFCOM 's continued imposition of AD/CVD measure on  U.S. broiler 
products is inconsistent with the cited provisions. "55 The examples set out in the panel 
request are arguments ; the United States was not under an obligation to set any of its 
arguments out in the panel request . 
b. The term "include" is not exclusive.56 
2.38.   We make the following observations:  
a. The phrase "including but not necessarily limited to " is an unfortunate redundancy that 
clutters many a legal document. We note that in certain contexts, of course,  the term 
"including" may have a limiting effect. For example, the legal maxim eiusdem generis 
provides that a listing of items "inclu ded" in a general term  could limit the scope of that 
term to the genre  of the included items. But that is not what China argues. We are asked 
to find that the use of the term "including" in a jurisdictional document creates an 
exhaustive list for the sole reason  that it is not accompanied by a redundant qualifier. 
We are not aware of a canon of interpretation that would require us to reach this 
conclusion.  
b. The use of "including" in one paragraph of the panel request and "for example" in the 
other paragraphs  is not determinative of the meaning of either term. It is the case that 
in certain circumstances, in a treaty the use of one term rather than another may give 
rise to the presumption that a different meaning was intended by its drafters. In this 
instance,  read in the context of the panel request as a whole, nothing in the use of "for 
                                                
52 China's first written submission, para. 378.  
53 China's second written submission, para. 330.  
54 China's second written submission, para. 328.  
55 United States' second written submission, para. 220.  
56 United States' second written submission, para. 221.  WT/DS427/RW/Add.1  
 
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  example" in some paragraphs suggests a "limiting" – that is, an exhaustive  – sense for 
the term "including".  
c. As we have observed, in addressing questions of panel jurisdictio n, there is an important 
distinction between claims  and arguments . The claims here allege that the 
redetermination, which is the measure take to comply, does not satisfy the requirements 
of Articles 3.1 and 3.5 of the AD Agreement and 15.1 and 15.5  of the SCM Agreement . 
We note in this respect that the four sentences of Articles 3.5 and 15.5 are inextricably 
linked. Among the various arguments the United States makes in support of those claims 
is MOFCOM's alleged failure to reconcile its causation analysis with the improving 
domestic industry performance. Merely because this argument is not set out in the panel 
request does not preclude the United States from making it in the course of the dispute.  
2.39.   In the light of the foregoing, we find that the argument tha t MOFCOM allegedly failed to 
reconcile its causation analysis with the improving domestic industry performance is within the 
scope of the United States' claims that China has acted inconsistently with Articles 3.1 and 3.5 of 
the AD Agreement and Articles 1 5.1 and 15.5 of the SCM Agreement, and within the jurisdiction of 
the Panel.  
2.6  Concl usion on DSU Article 6.2  
2.40.   We find that US claims in respect of Articles 6.1.2 and 6.2 of the AD Agreement and 
Articles  12.1.2 of the SCM Agreement are not within the scope of our terms of reference and we 
will make no findings on such claims.  
2.41.   We find that US claims in respect of Articles 3.1, 6.1, 2.2.1.1, and 3.5  of the AD Agreement 
and Articles 15.1, 12.1, and 15.5 of the SCM Agreement are within the scope of our terms of 
reference.  
3  THE PANEL'S EXERCISE OF JUDICIAL  ECONOMY IN THE ORIGI NAL DISPUTE  
3.1  Introduction and arguments of the parties  
3.1.  In the original dispute, the Panel found that MOFCOM's findings of price undercutting and of 
price suppression were inconsistent with the re levant obligations. It observed that " MOFCOM's 
examination of the situation of the domestic ind ustry was inextricably linked to its earlier analysis 
of the price effects of subject imports " and that implementation of its findings regarding price 
effects wo uld "require China to re -examine MOFCOM's Determination concerning the impact of 
subject imports on the domestic ind ustry".57 In this situation, the Panel took the view that making 
additional findings with respect to MOFCOM's analysis of the impact of the subject imports on the 
domestic ind ustry would not assist in the resolution of t he dispute between the parties58, and 
made no  findings with respect to the United  States' claims under  AD Agreement Articles  3.1 
and 3.4 and SCM Agreement Articles  15.1 and 15.4 .59 The Panel in the original dispute also made 
no findings, on the same grounds, in respect of US claims under AD Agreement Article 3.5 and 
SCM Agreement Article 15.5.60 
3.1.1   China  
3.2.  The US claims under AD Agreement Articles 3.1, 3.4, and 3.561 and SCM Agreement 
Articles 15.1, 15.4, and 15.5 in this proceeding are beyond the scope of the Panel's terms of 
reference because the Panel exercise d judicial economy  in respect of these claims in the original 
dispute. Specifically:  
                                                
57 Panel Report, China – Broiler Products , para. 7.555.  
58 Panel Report, China – Broiler Products , para. 7.555.  
59 Panel Report, China – Broiler Products , para. 7.556.  
60 Panel Report, China – Broiler Products , paras. 7.584 and 7.585.  
61 China raised arguments in respect of AD Agreement 3.5 and SCM Agreement Article 15.5 for the first 
time in its second written submission. (China's second written su bmission, paras. 335 and 336). As the issues 
are the same as the arguments under AD Agreement Articles 3.1 and 3.4 and SCM Agreement Articles 15.1 
and 15.5, we address all these arguments at the same time.  WT/DS427/RW/Add.1  
 
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  a. The Panel exercised judicial economy and did not rule on the  US claim s or otherwise 
address in any way the merits of the  US arguments in support of th ese claims. "Neither 
China nor the United States 'lost' this claim  – the claim was not addressed "62; this 
rendered the claim s of no effect.63 
b. "China recognizes that the Panel believed in good faith that the Panel findings on price 
effects 'will require' MOFCOM to reconsider its impact analysis . But with all due respect, 
that belief was incorrect. "64 And so, the unchanged part of the redetermination was not 
an "inseparable element" of the measure taken to comply65; MOFCOM did not need to 
revisit it.66 Indeed, " there was no measure taken to comply and there was no need for 
MOFCOM to redo its analysis ".67 
c. The reassertion of th ese claims in this proceeding creates a fundamental unfairness to 
the detriment of China.68 Because this is a compliance proceeding, China is deprived of 
any chance to address any inconsistency that may now be found or otherwise to bring its 
measure into compliance.   
d. "If the  Panel agrees with China 's argument about price effects, then the Panel will be 
acknowledging it was incorrect in saying implementation 'will require ' a change to the 
impact analysis . If the Panel does not agree with China 's argument about price effects, 
then there is no need to address the separate claims on impact . The additional claim 
would not add anything to the overall  U.S. challenge and rights under the WTO . The 
separate claims on impact th us really matters to the United States only if it has lost it s 
claims regarding price effects (and other claims), and needs some independent basis to 
establish the WTO inconsistencies of the AD and CVD measures. "69 
e. This situation is "functionally the same " as the case in which a party did not bring a 
claim in the ori ginal dispute  that it could have brought.70 The United States is thus 
barred from bringing th ese claim s in these 21.5 proceedings.  
3.1.2   United States  
3.3.  The claims under AD Agreement Article 3.4  and SCM Agreement Article 15.4 are within the 
Panel's terms of referen ce71, because:  
a. "[W]here a Member fails to prove inconsistency on a claim, that claim may not be 
re-litigated in a compliance proceeding . The Appellate Body has never found that the 
exercise of judicial economy precludes consideration of a claim in a complia nce 
proceeding . The logic for this distinction is compelling . A Member is not entitled to a 
second chance to prove a claim that has been already rejected . There is no j ustification 
for rejecting a claim that was never decided ."72  
b. The Panel exercised judicial economy  in the original dispute  "on the basis that MOFCOM 
would need to undertake a reexamination of its impact analysis – and th us decide how to 
address the  US claim . MOFCOM 's decision to decline to do so cannot absolve it from 
having its injury findings assessed."73 
                                                
62 China's second written submission, para. 291.  
63 China's first written submission, para. 336.  
64 China's second written submission, para. 292.  
65 China's second written submission, para. 293.  
66 China's second written submission, para. 291.  
67 China's second written submission, para. 287.  
68 China's first written submission, paras. 333 and 335.  
69 China's second written submission, para. 294.  
70 China's first written submission, para. 336.  
71 The United States has responded to the arguments set out in China's first written submission. Given 
that the arguments in respect of AD Agreement Article 3.4 and SCM Agreement Article 15.4 are the same as 
those in respect of AD Agreement Article 3.5 and SCM Agreement Article 15.5, we believe we can dispose of 
this matter without further submission by the Uni ted States.  
72 United States' second written submission, para. 215. (emphasis original; fn omitted)  
73 United States' second written submission, para. 216.  WT/DS427/RW/Add.1  
 
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  c. "Precluding consideration of claims in a compliance proceeding on the basis that judicial 
economy was exercised " would undermine Articles 3.4 and 3.7 of the DSU.74 
d. "[T]here was no barrier to China engaging in a reexamination of its impa ct analysis. "75 
3.2  Analysis  
3.4.  First, the findings of the panel and the Appellate Body in EC – Bed Linen (Article 21.5 – India)  
relied on by China do not  support its position. We recall that in that case,  the panel in its original 
report found that the complainan t had failed to establish a prima facie case in respect of the claim 
at issue. The complainant then sought to raise the same claim in the Article 21.5 proceedings. The 
Appellate Body upheld the panel's finding that the claim was not within the scope of is jurisdiction, 
noting due process and fairness concerns:  
A complainant that, in an original proceeding, fails to establish a prima facie  case 
should not be given a "second chance" in an Article 21.5 proceeding, and th us be 
treated more favourably than a com plainant that did establish a prima facie  case but, 
ultimately, failed to prevail before the original panel, with the result that the panel did 
not find the challenged measure to be inconsistent with WTO obligations. Nor should a 
defending party be subject  to a second challenge of the measure found not to be 
inconsistent with WTO obligations, merely beca use the complainant failed to establish 
a prima facie  case, as opposed to failing ultimately to persuade the original panel.76  
Accordingly, the foc us of the Appellate Body in that case was the actions of the complainant  in 
failing to establish a prima facie  case in the original dispute . More important  for the question 
before us here , both the panel and the Appellate Body were aware of the potential consequences 
of their findings and explained further : 
 
We also recall that the Panel noted, in paragraph 6.44 of the Panel Report, that the 
original panel's dismissal of India's claim under Article 3.5 relating to "other factors" 
was not an exercise of "judic ial economy". The issue raised in this appeal is different 
from a situation where a panel, on its own initiative, exercises "judicial economy" by 
not ruling on the substance of a claim.77 
3.5.  The Appellate Body had occasion to revisit the question of the effect  of an exercise of judicial 
economy on the admissibility of a claim in the context of Article 21.5 proceedings involving 
redeterminations in  US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) . At 
issue in that case was whether,  
[T]he USDOC's finding that the volume of imports of OCTG from Argentina declined 
after the imposition of the anti -dumping duty order – which was made in the original 
sunset determination and incorporated into the Section 129 Determination – is part of 
the "meas ure taken to comply" within the meaning of Article 21.5 of the DSU.78 
The Appellate Body noted that while Argentina had in fact challenged the USDOC's volume analysis 
in the original panel proceedings, the panel had not made a finding regarding the WTO -consistency 
of that analysis.79 In that case the panel did not expressly exercise judicial economy, but both 
disputing parties characterized the panel's approach to the issue in the original OCTG  dispute as an 
exercise of judicial economy. In that case, the Uni ted States argued that the findings of the 
Appellate Body in EC – Bed Linen (Article 21.5 – India) applied to the USDOC's findings on volume 
of imports, asserting  – as China does in this case – that because there had been no panel findings, 
                                                
74 United States' second written submission, para. 217.  
75 United States' second written submission, pa ra. 218.  
76 Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 96.  
77 Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , fn. 115 to para. 96. ( italics  original; 
underline  added)  
78 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews  (Article 21.5 – Argentina) , 
para. 138.  
79 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , 
para. 141.  WT/DS427/RW/Add.1  
 
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  there had been no change in the USDOC findings, and the complainant could not raise the matter 
again in a n Article  21.5 proceeding . The Appellate Body disagreed:  
 
[E]ven if the original panel's approach should properly be characterized as judicial 
economy, it would still mean that the central rationale of the Appellate Body in EC – 
Bed Linen (Article 21.5 – India)  would not be applicable . The Appellate Body explained 
that the issue raised in that case differed "from a situation where a panel, on its own 
initiative, exercises 'judicial economy' by not ruling on the substance of a claim."80  
3.6.  China expressly acknowledges that the Panel exercised judicial economy in respect of the 
claims at issue in the original dispute. It does not argue that the Panel did not have the authority 
to exercise judicial economy or that it did so improperly  in the original dispute; if anything, China 
encourages the Panel to continue to exercise judi cial economy in respect of claims under 
Articles  3.4 and 15.4 if the Panel makes findings adverse to its interests under Articles 3.2 
and 15.2.81 In addition , China did not appeal the  findings of the original Panel in this regard.82 In 
our view, the findings  in US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina)  
and EC – Bed Linen (Article 21.5 – India)  clearly establish  that the exercise of judicial economy by 
a panel in respect of a claim does not , for that reason alone , preclude a comp laining party from 
bringing that same claim before a subsequent Article  21.5 panel.  
3.7.  In this instance, the Panel in its original report did not make any  substantive  findings in 
respect of the  US claims under Articles 3.1, 3.4, 15.1 , and 15.4 . This was beca use, having found 
China in breach of AD Agreement Article 3.2 and  SCM Agreement  Article 15.2, the Panel concluded 
that re -examination of the analysis under those provisions would require re -examination of the 
impact of subject imports on the domestic ind ustry, and therefore additional findings with respect 
to MOFCOM's analysis under Articles 3.4 and 15.4 would not assist in the resolution of the dispute . 
As it turned out, MOFCOM did not change its analysis under Articles 3.2 and 15.2, and did not 
deem it nec essary to change its analysis under Articles 3.4 and 15.4 . Nevertheless, this is not a 
case where the "central rationale" of the Appellate Body in EC – Bed Linen (Article 21.5 – India) is 
directly applicable, beca use it was not the complainant  that failed to establish its claim  in the 
original dispute , it was the Panel that opted to not rule on the claim.  The fairness and due process 
concerns cited by the Appellate Body  in denying a second chance to raise the same claim in an 
Article 21.5 proce eding  are simply not relevant here .  
3.8.  Second, w e note China's argument that:  
If the Panel agrees with China 's argument about price effects, then the Panel will be 
acknowledging it was incorrect in saying implementation 'will require' a change to the 
impact analysis . If the Panel does not agree with China 's argument about price 
effects, then there is no need to address the separate claims on impact.83 
Neither of these arguments is relevant to whether these claims are within our terms of reference in 
this proce eding. Whether or not we erred in not making findings under Articles 3.4 and 15.4 in the 
original dispute does not change the fact that we did not make such findings, and that exercise of 
judicial economy was not challenged on appeal . That MOFCOM did not a ct as we had anticipated 
does not, of course, demonstrate that we erred . In any event, it would not be appropriate for us to 
make a finding in respect of our terms of reference in this proceeding  on the basis of a potential 
finding or exercise of judicial economy that might be the result of our consideration of the claims 
in this proceeding .  
                                                
80 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , 
para. 148. (fn omitted)  
81 China's second written submission, para. 294: " If the Panel does not agree with China 's argument 
about price effects, then there is no need to address the separate claims on impact ." (emphasis added)   
82 We recall the findings of the Appellate Body in EC – Bed Linen (Article 21.5 – India), para 96:  
Moreover, here, India decided not to appeal the panel finding at issue in the 
original proceedings, even though it could have done so, inasmuch as the issue 
was not of an excl usively factual nature. Hence, India itself seems to have 
accepted the finding as final.   
(emphasis added)  
83 China's second written submission, para. 294.  WT/DS427/RW/Add.1  
 
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  3.9.  Finally, w e do not consider the premise of China's assertion of "fundamental unfairness" to be 
correct or to suffice to change our view that the United States is not p recluded from raising its 
claims under Articles 3.1, 3.4, 15.1, and 15.4 in this proceeding. Nothing suggests that " China will 
never have any chance to address that inconsistency or otherwise bring its measure into 
compliance "84, should the Panel find that the redetermination is inconsistent with Articles 3.1 , 3.4, 
3.5, 15.1, 15.4, and 15.5. It is true that China would not have the benefit of another reasonable 
period of time to do so, but that is not the same thing as being "deprived" of the opportunity to do 
so.85 The fact that in making its redetermination, MOFCOM did not have the benefit of Panel 
findings in respect of the original determination did not absolve China of its obligation, under the 
WTO Agreement, to ensure that the measure taken to comply is consistent with all its obligations 
under the WTO Agreement.   
3.3  Conclusion  
3.10.   In the light of the foregoing, we find that the claim s of the United States under 
AD Agreement Articles 3.1, 3.4, and 3.5 and SCM Agreement 15.1, 15.4, and 15.5 are within our 
terms o f reference.  
__________  
 
 
                                                
84 China's first written submission, para. 333.  
85 We note that should there be continu ing disagreement between the parties as to whether China has 
brought itself into compliance, China has recourse to Article 21.5 to resolve such a disagreement. (Appellate 
Body Reports, Canada/US  – Continued Suspension , para. 347).