WT/DS493/R /Add.1  
 
20 July 2018 
(18-4552) Page: 1/96 
  Original: English  
 
  
UKRAINE – ANTI -DUMPING MEASURES ON AMMONIUM NITRATE  
REPORT  OF THE PANEL  
Addendum  
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This addendum  contains Annexes A to E to the Report of the Panel to be found in document 
WT/DS493/ R. 
 WT/DS493/ R/Add.1  
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  LIST OF ANNEXES  
ANNEX  A 
PANEL DOCUMENTS  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures on Business Confidential Information  9 
ANNEX B  
ARGUMENTS OF THE PAR TIES  
Contents  Page  
Annex  B-1 First integrated executive summary of the arguments of Russia  12 
Annex  B-2 First integrated executive summary of the arguments of Ukraine  21 
Annex B -3 Second integrated executive summary of the arguments  of Russia  28 
Annex B -4 Second integrated executive summary of the arguments of Ukraine  38 
ANNEX C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Executive summary of the arguments of Argentina  49 
Annex  C-2 Executive summary of the arguments of  Australia  52 
Annex  C-3 Executive summary of the arguments of Brazil  55 
Annex  C-4 Executive summary of the arguments of China  58 
Annex  C-5 Executive summary of the arguments of Colombia  61 
Annex  C-6 Executive summary of the arguments of the European Union  63 
Annex  C-7 Executive summary of the arguments of Japan  68 
Annex  C-8 Executive summary of the arguments of Mexico  71 
Annex  C-9 Executive summary of the arguments of Norway  75 
Annex  C-10 Executive summary of the arguments of the United States  77 
ANNEX D 
PANEL COMMUNICATIONS   
Contents  Page  
Annex  D-1 Communication dated 23 August 2017 regarding deadlines set out in the  
timetable for this dispute  83 
Annex  D-2 Communication dated 23 August 2017 regarding Ukraine's first integrated 
executive summary  84 
Annex  D-3 Communication dated 30 August 2017  85 
Annex  D-4 Communication dated 12 September 2017  86 
Annex  D-5 Communication dated 21 September 2017  88 
Annex  D-6 Communication dated 16 October 2017  89 
ANNEX E 
INTERIM REVIEW  
Contents  Page  
Annex  E-1 Interim Review  91 WT/DS493/ R/Add.1  
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  ANNEX A  
WORKING PROCEDURES O F THE PANEL  
Contents  Page  
Annex A -1 Working  Procedures of the Panel  4 
Annex A -2 Additional Working Procedures of the Panel concerning business confidential 
information  9 
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  ANNEX A -1 
WORKING PROCEDURES O F THE PANEL  
Adopted on 3 April 2017  and revised on 21 September 2017  
1.1.  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  
 
1.2.  The deliberations of the Panel and the documents submitt ed to it shall be kept confidential. 
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 another 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 contained in its submissions that could be disclosed to the public.  
1.3.  The parties and Members having notified their interest in the dispute to the Dispute 
Settlement Body in acc ordance with Article 10 of the DSU (hereafter "third 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 adopted  by the 
Panel. 
1.4.  The Panel shall meet in closed session. The parties  and third parties  shall be present at the 
meetings only when invited by the Panel to appear before it.  
1.5.  Each party and third party has the right to determine the composition of its own deleg ation 
when meeting with the Panel. Each party and third party shall have the responsibility for all 
members of its own delegation and shall ensure that each member of such delegation acts in 
accordance with the DSU and these Working Procedures, particularl y with regard to the 
confidentiality of the proceedings.  
Submissions  
 
1.6.  Before the first substantive meeting of the Panel with the parties, each party shall submit a 
written submission in which it presents the facts of the case and its arguments, in accordance with 
the timetable adopted by the Panel. Each party shall also submit to the Panel, prior to the second 
substantive meeting of the Panel, a written rebuttal, in accordance with the timetable adopted by 
the Panel.  
1.7.  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 Russian Federation 
requests such a ruling, Ukraine shall submit its response to the request in its first writ ten 
submission. If Ukraine requests such a ruling, the Russian Federation shall submit its response to 
the request prior to the first substantive meeting of the Panel, at a time to be determined by the 
Panel in light of the request. Exceptions to this proc edure shall be granted upon a showing of good 
cause.  
1.8.  Each party shall submit all factual evidence to the Panel no later than during the first 
substantive meeting, except with respect to evidence necessary for purposes of rebuttal, answers 
to questions or c omments 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 n ew factual 
evidence submitted after the first substantive meeting.  WT/DS493/ R/Add.1  
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  1.9.  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 
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. Any objection shall be accompanied by a 
detailed explanation of the grounds of objection and an alternative translation.  
1.10.   To facilitate the maintenance of the r ecord of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute, indicating the submitting Member and the number of each exhibit on its 
cover page. For exa mple, exhibits submitted by the Russian Federation could be numbered RUS -1, 
RUS-2, etc. If the last exhibit in connection with the first submission was numbered RUS -5, the 
first exhibit of the next submission thus would be numbered RUS -6. 
1.11.   Each party and th ird party is invited to make its submissions in accordance with the WTO 
Editorial Guide for Panel Submissions, attached as Annex 1, to the extent that it is practicable to 
do so.  
Questions  
 
1.12.   The Panel may at any time pose questions to the parties and third parties, orally or in 
writing, including prior to each substantive meeting.  
Substantive meetings  
 
1.13.   Each party shall provide to the Panel the list of members of its delegation in advance of 
each meeting with the Panel and no later than 5.00  p.m. the previou s working day.  
1.14.   The first substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall invite the Russian Federation to make an opening statement to present 
its case first. Subsequently, the Panel shall invite Ukraine to present its point of view. 
Before each party takes the floor, it shall provide the Panel and other participants at the 
meeting with a provisional written version of its statement. In the event that 
interpretation is needed, each party shall provide additio nal copies for the interpreters, 
through the Panel Secretary. Each party shall make available to the Panel and the other 
party the final version of its opening statement as well a s its closing statement, if any, 
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 the n 
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 written questions within a deadline to be determined by the 
Panel.  
c. The Panel may subsequently pose questions to the parties. Each party shall then have an 
opportunity to answer these questions orally. The Panel shal l 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 Pa nel. 
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with the Russian Federation presenting its statement 
first.  
1.15.   The second substantive meeting of the Panel with the parties shall be conducted as follows:  WT/DS493/ R/Add.1  
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  a. The Panel shall ask Ukraine if it wishes to avail itself of the right to present its case first. 
If so, the Panel shall invite Ukraine to present its opening statement, followed by the 
Russian Federation. If Ukraine chooses not to avail itself of that right, the Panel shall 
invite the Russian Federation to present its opening statement first. Before each party 
takes the floor, it shall provide the Panel and other participants at the meeting with a 
provisional written version of its statement. In the event that interpretation is needed, 
each party shall provide additional copies for the interpreters, through the Panel 
Secretary. Each party shall make available to the Panel and the other party the final 
version of its opening statement  as well a s its closing statement, if any, preferably at the 
end of the meeting, and in any event no later than 5.00  p.m. of the first working day 
following the meeting.  
b. After the conclusion of the statements, the Panel shall give each party the opportunit y 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 pa rty to 
which it wishes to receive a response in writing. Each party shall be invited to respond in 
writing to the other party's written questions within a deadline to be determined by the 
Panel.  
c. The Panel may subsequently pose questions to the parties. Eac h 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 invit ed 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 party that presented its opening  statement 
first, presenting its closing statement first.  
Third parties  
 
1.16.   The Panel shall invite each third party to transmit to the Panel a written submission prior to 
the first substantive meeting  of the Panel with the parties, in accordance with the time table 
adopted by the Panel.  
1.17.   Each third party shall also be invited to present its views orally during a session of this first 
substantive meeting, set aside for that purpose. Each third party shall provide to the Panel the list 
of members of its delegation  in advance of this session and no later than 5.00  p.m. the previous 
working day.  
1.18.   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 state ments 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 worki ng 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 st atements. 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 par ty shall 
then have an opportunity to answer these questions orally. The Panel shall send in WT/DS493/ R/Add.1  
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  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 b e invited to 
respond in writing to such questions within a deadline to be determined by the Panel.  
Descriptive part  
 
1.19.   The description of the arguments of the parties and third parties in the descriptive part of 
the Panel report shall consist  of executive 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 exa mination 
of the case.  
1.20.   Each party shall submit an integrated executive summary of the facts and arguments as 
presented to the Panel in its first written submissions, first opening and closing oral statements 
and responses to questions following the first su bstantive meeting, and a separate integrated 
executive summary of its written rebuttal, second opening and closing oral statements and 
responses to questions following the second substantive meeting, in accordance with the timetable 
adopted by the Panel. E ach integrated executive summary shall be limited to no more than 15 
pages. The Panel will not summarize in the descriptive part of its report, or annex to its report, the 
parties' responses to questions.  
1.21.   Each third party shall submit an executive summary of its arguments as presented in its 
written submission  and statement in accordance with the 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 thi rd party shall not exceed 6  pages.  
1.22.   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  
 
1.23.   Following issuance of the interim 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 ti metable adopted by the Panel. The right to request such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
1.24.   In the event that no further meeting with the Panel is requested, each party may submit 
written comm ents on the other party's written request for review, in accordance with the timetable 
adopted by the Panel. Such comments shall be limited to commenting on the other party's written 
request for review.  
1.25.   The interim report, as well as the final report prior  to its official circulation, shall be kept 
strictly confidential and shall not be disclosed.  
Service of documents  
 
1.26.   The following procedures regarding service of documents shall apply:  
a. Each party and third party shall submit all documents to the Panel by f iling them via the 
Digital Dispute Settlement Registry (DDSR) by 5.00  p.m. (Geneva time) on the due 
dates established by the Panel. The electronic version uploaded into the DDSR shall 
constitute the official version for the purposes of the record of the di spute. Upload into 
the DDSR shall also constitute electronic service on the Panel, the other party, and the 
third parties.1 In case any party or third party is unable to meet the 5.00 p.m. deadline 
                                                
1 When a party uploads a document into the DDSR, in accordance with this paragraph,  it shall s end a 
notification to the Panel  and the other party via e -mail, identifying the document, including the number of 
exhibits uploaded. The notification to the Panel should be addressed to DSRegistry@wto.org. The Panel shall 
also notify the parties  via e-mail when it uploads a document into the DDSR. If a party does not have access to 
a document identified in the e -mail sent by the other party or the Panel, it shall inform the DS Registry and the 
other party via e -mail, promptly, and in any case, no  later than 5 p.m. the next working day.  WT/DS493/ R/Add.1  
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  because of technical difficulties in uploading these docum ents into the DDSR, the party 
or third party concerned shall contact the DS Registry without delay and provide an 
electronic version of all documents to be submitted to the Panel by e -mail, except for 
any exhibits. The e -mail shall be addressed to DSRegist ry@wto.org and the other party 
and, where appropriate, the third parties. The documents sent by email shall be filed no 
later than 5.30 p.m. on the date due. The exhibits shall also be filed with the DS Registry 
(office No. 2047) and provided to the other p arty and, where appropriate, the third 
parties by no later than 5:30 p.m., but shall be submitted on a CD -ROM, DVD, or USB 
stick, together with the DDSR E -docket template.  
b. By 5 p.m. the next working day following the electronic filing, each party and third  party 
shall file one paper copy of all documents it submits to the Panel, including the exhibits 
with the DS  Registry. The DS  Registrar shall stamp the documents with the date and 
time of the filing.  
c. The Panel shall provide the parties with the descriptiv e part, the interim report and the 
final report, as well as of other documents as appropriate, via the DDSR. When the Panel 
provides the parties or third parties both paper and electronic versions of a document, 
the electronic version uploaded into the DDS R shall constitute the official version for the 
purposes of the record of the dispute.  
1.27.   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 3 April 2017  
The following procedures apply to any business confidential information (BCI) submitted in the 
course of the Panel proceedings in DS 493. 
1.  For the purposes of these Panel proceedings, BCI includes:  
a. any information designated as such by the party submitting it that was previously 
treated as confidential by the investigating authority in the anti -dumping investigation at 
issue in this dispute  unless the Panel decides it should not be treated as BCI for 
purposes of these Panel proceedings  based on an objection by a party pursuant to 
paragraph 3 below.  
b. any other information designated as such by the party submitting it, unless the Panel 
decides it  should not be treated as BCI for purposes of these Panel proceedings  based on 
an objection by a party pursuant to paragraph 3 below.  
2.  Any information that is available in the public domain  may not be designated as BCI . In 
addition, information previously t reated as confidential by the investigating authority in the anti -
dumping investigation at issue in this dispute  may not be designated as BCI if the person who 
provided the information in the course of th at investigation agrees in writing to make the 
information publicly available.  
3.  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 objects 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 
party considers that the other pa rty or a third party designated  information as BCI which s hould 
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 with the reasons for the objection. The 
Panel , in deciding whether information subject to a n objection should be treated as BCI for 
purposes of these Panel proceedings, will  consider whether disclosure of the information in 
question could cause serious harm to the interests of the originator(s) of the in formation.  
4.  No person may have access to BC I except a member of the Secretariat assisting the Panel or 
the Panel, an employee of a party or third party, or an outside advisor to a party or third party for 
the purposes of this dispute.  
5.  A party or third party having access to BCI in these Panel proce edings shall not disclose that 
information other than to persons authorized to have access to  it pursuant to these procedures. 
Any information designated  as BCI under these procedures shall only be used for the purposes of 
this dispute. Each party and thir d party is responsible for ensuring that its employees and/or 
outside advisors comply with these procedures to protect BCI.  
6.  An outside advisor of a party or third party is not permitted access to BCI if that advisor is an 
officer or employee of an enterpri se engaged in the production, sale, export, or import of the 
product (s) that was/were the subject of the investigation at issue in this dispute , or an officer or 
employee of an association of such enterprises . All third party access to BCI shall be subject  to the 
terms of these working procedures.  
7.  The party submitting BCI shall mark the cover and/or first page of the document containing 
BCI, and each page of the document, to indicate the presence of such information. The specific 
information in question sha ll be placed between double brackets, as follows: [[xx,xxx.xx]].  The WT/DS493/ R/Add.1  
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  first page or cover of the document shall state "Contains Business Confidential Information ", and 
each page of the document shall contain the notice “Contains Business Confidential Information” at 
the top of the page.  
8.  Any BCI that is submitted in binary -encoded form shall be clearly marked with the statement 
"Business Confidential Information" on a label of the storage medium, and clearly ma rked with the 
statement " Business Confidential Information" in the binary -encoded files.  
9.  In the case of an oral statement containing BCI, the party or third party making such a 
statement shall inform the Panel b efore 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 versions of such oral statements submitted to the 
Panel shall be marked as provided for in paragraph 7. 
10.  Any person authorized to have access to BCI under the terms of these procedures shall store 
all documents containing BCI in such a manner as to prevent unauthorized access to such 
information.  
11.  The Panel wi ll 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 final report to the 
Members, the Panel will give each party an opportunity to review the report to ensure that it does 
not contain any information that the party has designated as BCI.  
12.  Submissions containing BCI will be included in the record forwarded to the Appellate  Body in 
the event of an appeal of the Panel's Report.  
 
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  ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 First integrate d executive summary of the arguments of Russia  12 
Annex  B-2 First integrated executive summary of the arguments of Ukraine  21 
Annex  B-3 Second integrate d executive summary of the arguments of Russia  28 
Annex  B-4 Second integrated executive summ ary of the arguments of Ukraine  38 WT/DS493/ R/Add.1  
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  ANNEX B -1 
FIRST INTEGRATED EXE CUTIVE SUMMARY OF TH E ARGUMENTS OF RUSSI A 
I.  INTRODUCTION  
1. In this dispute, the Russian Federation challenges Ukraine's measures imposing anti -
dumping duties on imports of ammonium nitrate originating in the Russian Federation. These 
measures are set forth in several decisions of the Intergovernmental Commission o n International 
Trade (Intergovernmental Commission): the 2008 Decision, as amended by the 2010 Decision, the 
2010 Decision itself and the Decision No. AD -315/2014/4421 -06 of 1 July 2014 and Notice "On the 
changes and extension of anti -dumping measures in respect of import to Ukraine of ammonium 
nitrate, origin from the Russian Federation", published on 8 July 2014 in Uryadoviy Courier , 
No. 120, including all annexes, notices, communications and reports of the Ministry of Economic 
Development and Trade of U kraine (Investigating Authority) and any amendments thereto.1 
II.  SUMMARY OF FACTS  
2. On 21 May 2008 the Intergovernmental Commission adopted Decision No. AD -
176/2008/143 -47 imposing definitive anti -dumping measures on imports of ammonium nitrate 
originat ing in Russia. The anti -dumping duties were set at 10.78% for JSC MCC EuroChem, 9.76% 
– for JSC Dorogobuzh, and 11.91% – for all other.  
3. On 6 February 2009 the District Administrative Court of Kiev issued Decision No 5/411 
annulling the anti -dumping measure for one producer (JSC MCC EuroChem). The District Court 
ruled that the Investigating Authority incorrectly applied a downward level of trade adjustment to 
the company 's export price and adjustments to the normal value and that the correct dumping 
margin for sales made by that producer amounted to minus 0.12%. This Decision was upheld by 
higher Ukrainian courts. In order to implement the Ukrainian Courts ' Judgments the 
Intergovernmental Commission adopted the 2010 Decision, that changed the anti -dump ing duty 
assigned to that producer to 0%.  
4. In 2013,  the Intergovernmental Commission launched interim and expiry reviews of these 
anti-dumping measures and included the Russian producer with negative dumping margin in the 
scope of both interim and expiry  reviews.  
5. In the course of the reviews, despite full cooperation of the Russian producers and 
exporters, the Investigating Authority rejected some data on production costs of ammonium 
nitrate submitted by them in their questionnaire responses. The price  for gas, i.e. the major input 
in the manufacture of the product under consideration, which was actually paid by the companies, 
was disregarded. The Investigating Authority used instead the average export price for gas 
charged at the border with Germany, n et of transport costs.  
6. Accordingly, the adjusted gas price was used for the calculation of production costs. The 
sales of ammonium nitrate in the Russian domestic market were found to be lower than 
"reasonable" per unit costs for its production plus adm inistrative, selling and general costs. The 
Investigating Authority came to a conclusion that domestic sales of ammonium nitrate were not "in 
                                                
1 The definitive anti -dumping measures were imposed through the Decision of the Intergovernmental 
Commission on International Trade No. AD -176/2008/143 -47 of 21 May 2008 "On the Application of the 
Definitive Anti -Dumping Measures on Import into Ukraine of Ammonium Nit rate Originating in the 
Russian  Federation" (2008 Decision), as amended by the Decision No. AD -245/2010/4403 -47 of 
25 October  2010 (2010 Decision). The expiry review was initiated pursuant to the Decisio n of the 
Intergovernmental Commission on International Trade No. AD -294/2013/4423 -06 of 24 May 2013. The interim 
review was initiated pursuant to the Decision of the Intergovernmental Commis sion on International Trade 
No. AD-296/2013/4423 -06 of 2 July 2013 . As a result of the simultaneously conducted expiry and interim 
reviews, the definitive anti -dumping duty rates on imports of ammonium nitrate from the Russian Federation, 
that were initially imposed by the Decision No. AD -176/2008/143 -47 of 21 May 2008, were increased and 
extended for the duration of five years by the Decision of the Intergovernmental Commission on International 
Trade No. AD -315/2014/4421 -06 of 1 July 2014, which came into force on 8 July 2014.  WT/DS493/ R/Add.1  
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  the ordinary course of trade" by reason of price. The Investigating Authority constructed the 
normal value using t he adjusted gas price that is three times higher than the price actually paid by 
the Russian producers and exporters.  
7. On 25 June 2014, the Investigating Аuthority circulated to the interested parties its 
"Materials provided according to the results obta ined in the process of reviews of the anti -dumping 
measures (interim review and in relation to their expiry) against the imports into Ukraine of 
ammonium nitrate originating in the Russian Federation" (Disclosure). Only two calendar days 
were provided for the interested parties to comment on this document.  
8. On 1 July 2014, the Intergovernmental Commission adopted Decision No. AD -
315/2014/4421 -06 extending the anti -dumping measures on imports of ammonium nitrate 
originating in Russia for the next five year s.2 The Decision also modified the anti -dumping duties 
as follows: JSC Dorogobuzh – 20.51%; JSC MCC EuroChem – 36.03%; all others – 36.03%, and 
therefore, levied the anti -dumping duty on the said Russian producer found to have negative 
dumping margin by th e Ukrainian courts.  
III.  SUBSTANTIVE CLAIMS R ELATING TO DUMPING D ETERMINATIONS  
 A. Ukraine violated Articles 2.2 and 2.2.1.1 of the Anti -Dumping Agreement by 
failing to calculate costs on the basis of records kept by the Russian producers 
and exporters w hile determining the constructed normal value  
9. Article 2.2.1.1 of the Anti -Dumping Agreement provides for the obligation to calculate costs 
by using records of the investigated producer or exporter. Under this rule, an investigating 
authority examines re cords on whether they: 1) are in accordance with the generally accepted 
accounting principles of the exporting country; and 2) reasonably reflect the costs associated with 
the production and sale of the product under consideration.  
10. As a matter of syste mic relevance, the Russian Federation wishes to note that the panel's 
and the Appellate Body's legal interpretations of Articles 2.2.1.1 and 2.2 of the Anti -Dumping 
Agreement and Article VI:1(b) of the GATT 1994 are relevant to this dispute as they provide  
interpretative guidance for future panels. It is further submitted that it is appropriate for the Panel 
in this dispute to rely on the Appellate Body's legal interpretations and reasoning in EU – Biodiesel  
of the provisions of the Anti -Dumping agreement a pplicable in this dispute.  
11. Following these interpretations, the second condition in the first sentence of Article 2.2.1.1 
of the Anti -Dumping Agreement does not include a general standard of "reasonableness". Nor is 
there any legal basis for an investi gating authority to use an additional or abstract standard to 
assess if the recorded costs are "reasonable" or "representative" through a comparison  with 
hypothetical costs that might have been incurred under a different set of circumstances or any 
other c osts not associated with the production and sale of the product under consideration in the 
country of origin. Indeed, the Appellate Body has already found that the second condition "relates 
to whether the records … suitably and sufficiently correspond to o r reproduce those costs incurred 
by the investigated exporter or producer that have a genuine relationship with the production and 
sale of the specific product under consideration".3 
12. During the interim and expiry reviews, Investigating Authority, relyi ng on the second 
condition under Article 2.2.1.1, deemed Russian producers' records as not reasonably reflecting 
the costs associated with the production and sale of gas. While ultimately rejecting the gas prices 
actually paid by them, it did not argue tha t these prices in the investigated producers' records do 
not represent the actual prices incurred by those producers in manufacturing ammonium nitrate. 
Instead, the Investigating Authority explained that Russian domestic gas prices are lower than 
export pr ices or key international markets ' prices for gas due to government regulation. The sole 
reason to reject the recorded costs of production was the fact that in Ukraine's view these costs 
were considered as "affected by administrative and political factors" . However, the issue as to 
                                                
2 Notice of Decision of the Intergovernmenta l Commission on International Trade No. AD -
315/2014/4421 -06, 1 July 2014 on the changes and extension of anti -dumping measures in respect of import 
to Ukraine of ammonium nitrate, origin from the Russian Federation, 08 July 2014 (2014 Extension Decision).  
3 Appellate Body Report, EU – Biodiesel , paras. 6.22, 6.30, 6.56.  WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
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  whether Russian domestic selling prices of gas are set by law does not affect reasonable reflection 
of actually incurred gas costs in investigated producers' records.  
13. Besides, the Appellate Body explained that "the inquiry en visaged under Article 2.2.1.1 is 
one relating to the circumstances of each investigated exporter or producer in the exporting 
country".4 Hence, the investigated producer can be accountable only for its own behaviour and its 
recording of the actually incurr ed manufacturing costs of the product under consideration.  
14. Accordingly, since the costs of production of ammonium nitrate were calculated not on the 
basis of records kept by Russian producers which were in accordance with the generally accepted 
accoun ting principles in the Russian Federation and reasonably reflected the costs associated with 
the production and sale of the ammonium nitrate, Ukraine acted in breach of its obligations under 
Article 2.2.1.1 of the Anti -Dumping Agreement.  
15. The proper int erpretation of Article 2.2.1.1 is relevant for the calculation of costs for normal 
value construction under Article 2.2 of the Anti -Dumping Agreement  as the adjusted costs were 
used to construct the normal value. Since these costs were calculated in breach of Article 2.2.1.1 
of the Anti -Dumping Agreement, determination of constructed normal value based on these costs 
is also inconsistent with Article 2 .2 of the Anti -Dumping Agreement.  
 B. Ukraine acted in breach of Articles 2.2 and 2.2.1.1 of the Anti -Dumping 
Agreement by replacing (adjusting) production costs actually borne by the 
Russian producers and exporters with data outside the Russian Federation , 
and using such data subsequently for construction of the normal value  
16. Article 2.2 of the Anti -Dumping Agreement describes circumstances in which the margin of 
dumping can be established on the basis of a constructed normal value. This provision requires the 
costs of production both to be assessed on the basis of, and to be based on, the costs that exist in 
the country where the investigated exporter or producer produces the product under 
consideration. Thus, Articles 2.2.1.1 and 2.2 of the Anti -Dumping Agreement prescribe an 
obligation for the investigating authority to calculate costs based on the costs associated with 
production and sale of the product under consideration in the country of origin.  
17. The Investigating Authority rejected the cos ts actually incurred by the Russian exporting 
producers accurately and reasonably reflected in their records and replaced (adjusted) them with 
the average price for natural gas exported and charged at the border with Germany. 
Subsequently, it used this "av erage price" for the construction of normal value for ammonium 
nitrate. The Investigating Authority used this price specifically because it does not reflect the gas 
price within the domestic market of the Russian Federation. For these reasons this export p rice for 
gas cannot be regarded as the price for gas associated with production and sale in the country of 
origin of the product concerned, i.e. ammonium nitrate in the Russian Federation.  
18. The adjustment (replacement) of gas prices by the Investigating  Authority inflated the costs 
of production of ammonium nitrate and thus the constructed normal value, which ultimately 
resulted in the finding of the existence of dumping and in higher dumping margins.  
19. Article 2.2.1.1 of the Anti -Dumping Agreement pre cludes WTO Members from including in 
the costs of production "costs" not "associated with the production and sale" of the product under 
consideration, while Article 2.2 prescribes them to calculate a normal value on the basis of the 
costs of production in the country of origin. Ukraine violated both of these Articles.  
 C. Ukraine violated Article 2.2.1 of the Anti -Dumping Agreement  
20. The guidance for conducting the "ordinary course of trade test" by reason of price is 
provided for in Article 2.2.1 of the Anti-Dumping Agreement. This provision provides for the 
investigating authority's right to "disregard below -cost sales of the like product".5 It may do so 
only if below -cost sales (i) are made within an extended period of time; (ii) in substantial 
quantiti es; and (iii) at prices which do not provide for the recovery of all costs within a reasonable 
                                                
4 Appellate Body Report, EU – Biodiesel , para. 6.22. 
5 Appellate Body Report, China – HP-SSST (Japan) , para. 5.22. (emphasis original)  WT/DS493/ R/Add.1  
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  period of time. The Investigating Authority acted inconsistently with this provision as it has 
disregarded domestic sales of the Russian exporting producers of a mmonium nitrate without 
determining whether such sales meet the said characteristics.  
21. Moreover, even if these factors have been at hand, any conclusions made on the absence of 
ordinary course of trade by reason of price of ammonium nitrate would have b een legally flawed 
due to the use of the adjusted costs of production calculated in breach of Article 2.2.1.1 of the 
Anti-Dumping Agreement.  
22. Thus, in its application of the ordinary course of trade test by reason of price, the 
Investigating Аuthority f ailed to satisfy the requirements of Article 2.2.1 of the Anti -Dumping 
Agreement by improperly treating domestic sales of ammonium nitrate in the Russian Federation 
and disregarding these sales in determining the normal value.  
 D. Ukraine violated Article 2.4 of the Anti -Dumping Agreement  
23. Article 2.4 of the Anti -Dumping Agreement sets forth an overarching obligation, applying to 
all paragraphs of Article 2 of the Anti -Dumping Agreement. The obligation in the first sentence of 
Article 2.4 requires that c omparison between the export price and the normal value shall be "fair".  
24. Investigating Authority 's calculation of the "margin of dumping" on the basis of a 
comparison between the export price and inflated normal value is contrary to the first sentence of 
Article 2.4. The result of such unfair comparison was the dumping margin in the amount that is 
considerably higher than the one that would have been calculated had the export price been 
compared with the normal value calculated using the price the Russi an producers actually paid.  
 E. Ukraine violated Article 2.1 of the Anti -Dumping Agreement  
25. Article 2.1 of the Anti -Dumping Agreement stipulates when a product is to be considered as 
being dumped for the purposes of the entire Anti -Dumping Agreement.6 This provision defines 
normal value in terms of domestic sales transactions in the exporting Member.7 
26. Had the Investigating Authority used the actual gas prices paid by the investigated exporters 
in the calculation of the production costs of ammonium ni trate consistently with Articles 2.2.1.1 
and 2.2.1, the Investigating Authority would have not found legal grounds for the application of 
Article 2.2 to determine dumping, or even to find the existence of any dumping at all.  
27. Accordingly, the Investigat ing Authority should have determined the dumping margin 
following the rules of Article 2.1 of the Anti -Dumping Agreement by comparing the export price 
with the comparable price of the like product destined for consumption in the exporting country. 
Since th e Investigating Authority, on the contrary, compared the export price with the constructed 
normal value in the absence of circumstances envisaged in Article 2.2. of the Anti -Dumping 
Agreement, it determined dumping in violation of Article 2.1 of the Anti -Dumping Agreement, 
which is a standalone claim submitted by the Russian Federation.  
 F. Ukraine violated Articles 11.1, 11.2 and 11.3 of the Anti -Dumping Agreement  
28. Being an independent obligation, Article 11.1 of the Anti -Dumping Agreement, as an 
overarching rule, underlines the requirements for reviews of ant i-dumping duties under 
Articles  11.2 and 11.3 and also highlights the factors that must inform such reviews.8 In US – 
Corrosion -Resistant Steel , the Appellate Body considered that, if the inve stigating authority 
"choose[s] to rely upon dumping margins" in its likelihood determination, the dumping calculations 
"must conform to the principles " set forth in Article 2 in general .9 
                                                
6 Appellate Body Report, US – Corrosion -Resistant Steel  Sunset Review , para. 109; Panel Report, US — 
Oil Country Tubular Goods Sunset Reviews  (Article 21.5 – Argentina), para. 7.76, footnote 50 . 
7 Panel Report, Argentina – Poultry Anti -Dumping Duties , para. 7.272.  
8 See Appellate Body’s explanation regarding t he parallel wording of Article 21.1 of the SCM Agreement 
(Appellate Body Report, US – Carbon Steel , para.  70). 
9 Appellate Body Report, US – Corrosion -Resistant Steel , paras. 127, 130.  WT/DS493/ R/Add.1  
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  29. Based on the Investigating Authority 's conclusions in the interi m and expiry reviews, the 
Intergovernmental Commission decided to change the anti -dumping duty rates and to extend the 
anti-dumping measures for five years. In its consideration of whether the anti -dumping measure is 
necessary to offset dumping, the Invest igating Authority breached Articles 2.1, 2.2, 2.2.1, 2.2.1.1 
and 2.4 of the Anti -Dumping Agreement as explained above. These violations, taken individually 
and collectively, infected conclusions made by the Investigating Authority under Articles 11.2 and 
11.3 of the Anti -Dumping Agreement. Irrespective of the inconsistencies with these provisions, 
Ukraine violated Article 11.1 because it maintains anti -dumping duties despite the absence of 
dumping. Hence, Ukraine acted inconsistently with Articles 11.1, 11. 2 and 11.3 of the Anti -
Dumping Agreement.  
IV. CLAIMS REGARDING INC LUSION OF A RUSSIAN PRODUCER WITH NEGATI VE 
DUMPING MARGIN INTO THE SCOPE OF THE INT ERIM AND EXPIRY REVI EWS 
 A. Ukraine acted inconsistently with Articles 5.8, 11.1, 11.2 and 11.3 of the Anti-
Dumping Agreement  
30. Under Article 5.8 of the Anti -Dumping Agreement, an anti -dumping investigation should be 
immediately terminated, and no anti -dumping measure shall be imposed for exporters found not 
to be involved in dumping practices. In Mexico – Anti-Dumping Measures on Rice,  the Appellate 
Body ruled that "the second sentence of Article 5.8 requires the immediate termination of the 
investigation in respect of exporters for which an individual  margin of dumping of zero or de 
minimis  is determined ".10 The Appellate Body explained that exporters excluded from an 
investigation under this provision cannot be subject to subsequent reviews.11 
31. Ukraine violated this provision for four reasons. First, Ukraine maintained the Russian 
producer with a negative dumping margin, as defined by the 2008 Decision as amended by the 
2010 Decision, within the scope of the anti -dumping measures and thus failed to terminate the 
measures in respect of this exporter despite a determination on the absence of dumping.  Second, 
by the 2010 Decision, Ukraine imposed a 0% duty on the exporter for which a below de minimis  
dumping margin was found. Third, it included the said Russian producer into the scope of the 
underlying reviews. Finally, by extending measures to that pr oducer, Ukraine imposed anti -
dumping duties on the exporter for which no dumping was originally established.  
32. Therefore, there was no termination of investigation with regard to the Russian producer 
under consideration within the meaning of Article 5.8 of the Anti -Dumping Agreement. That is 
despite the fact that its dumping margin was negative as acknowledged by the Ukrainian legal 
system.  The Investigating Authority alleged that the de minimis  dumping margin was assigned to 
that Russian producer in the context of an "administrative procedure" that is outside the scope of 
the anti -dumping investigation and included this exporter into the reviews. Regardless of the legal 
status of procedures and decisions affecting anti -dumping investigations and impositio n of 
measures in Ukrainian domestic legislation, Article 27 of the Vienna Convention on Law of Treaties 
obliges Ukraine to respect its international obligations under the WTO Agreements, which was not 
done in the present case.  
33. As to Article 11.2 the An ti-Dumping Agreement, the Appellate Body explained that exporters 
for which below de minimis  margins have been established "cannot be subject to … changed 
circumstances reviews, because such reviews examine … 'the need for the continued imposition  of 
the d uty'".12 By analogy, in the context of Article 11.3, such exporters cannot be subject to an 
expiry review because such reviews examine the likelihood of continuation or recurrence of 
dumping, whereas no dumping is found. Besides, the mere fact that the anti -dumping duty 
remains in force while no longer being necessary constitutes a violation of Article 11.1 of the Anti -
Dumping Agreement.  
34. For these reasons, the Russian Federation submits that Ukraine breached its WTO 
obligations under Articles 5.8, 11.1, 11.2 and 11.3 of the Anti -Dumping Agreement.  
                                                
10 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 217. (emphasis added)  
11 Appellate Body Report, Mexico – Anti-Dumping Measure on Rice , paras. 305 -306. 
12 Appellate Body Report, Mexico – Anti-Dumping Measure on Rice , paras. 305 -306. (emphasis original)  WT/DS493/ R/Add.1  
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  V. SUBSTANTIVE CLAIMS R ELATING TO THE LIKEL IHOOD OF INJURY 
DETERMINATION  
 A Ukraine acted inconsistently with Articles 11.1, 11.2, 11.3, 3.1 and 3.4 of the 
Anti-Dumping Agreement  
35. In its determination of the likelihood of continuation of injury, the Investigating Authority 
relied on unsubstantiated findings regarding the existence of injury at the time the review should 
have been terminated and therefore such determination is WTO -inconsistent, which is describ ed in 
detail as follows.  
  (A) Ukraine failed to exclude imports of the Russian producer with negative 
dumping margin from the volume of "dumped" imports  
36. Articles 11.2 and 11.3 of the Anti -Dumping Agreement mandate that imports attributed to a 
particul ar producer (exporter) should be excluded from the determination of likelihood of injury if 
it is established that imports previously found to be dumped were not in fact dumped, i.e. not 
responsible for the alleged injury.  
37. Ukraine did not exclude imports of the producer with negative dumping margin from the 
scope of the determination on the likelihood of continuation of injury. The volume of imports 
regarded as dumped in the original injury determinations still included the imports that could no 
longer be treated as dumped. Given the change in the volume of "dumped" imports, Articles 11.2, 
11.3 and 3.1 of the Anti -Dumping Agreement obliged Ukraine this volume for the purposes of the 
expiry and interim reviews and to decrease the scope of injury dete rmination by the volume of not 
dumped imports. Ukraine failed to do so.  
38. Besides, it made affirmative conclusions on the likelihood of a future increase of imports 
from the Russian Federation based on an assumption regarding the future dynamics of impor ts 
attributable to this producer. Thus, the process of reviews carried out by Ukraine was not based on 
"positive evidence" and "objective examination" but favoured its domestic industry's interests.  
39. Taking into account that provisions of Article 3 of t he Anti -Dumping Agreement "contemplate 
a logical progression in an authority's examination leading to the ultimate injury and causation 
determination"13 the fact that the Investigating Authority included in its injury analysis not 
dumped imports led to infe ction of all the conclusions regarding the effect of imports from the 
Russian Federation on the state of the Ukrainian domestic industry. Hence, Ukraine breached 
Articles 11.1, 11.2 and 11.3 of the Anti -Dumping Agreement.  
  (B) The evaluation of economic f actors and indices having a bearing on the 
state of the Ukrainian domestic industry was not based on an "objective 
examination" of "positive evidence"  
40. Ukraine breached its obligations under Articles 11.2, 11.3 and 3.4 of the Anti -Dumping 
Agreement sinc e it: (a) failed to give an objective examination of factors and indices having a 
bearing on the state of domestic industry; (b) based its injury finding on a single factor, i.e. 
deterioration of financial results; (c) failed to give an objective examinati on of the substantial 
increase in the costs of production as a key factor having bearing on the state of domestic 
industry.  
41. The evidence on the record shows that the likelihood -of-injury determination consisted of 
two steps: (1) determination of the cu rrent state of the domestic industry and (2) prospective 
analyses of what happens should the anti -dumping measures lapse. As to the first step, the 
Investigating Authority stated that the domestic industry had been suffering injury. Yet, a number 
of econom ic factors demonstrated strong positive trends not in line with this conclusion, i.e. 
upward trends inter alia  in the volume of production, capacity utilization, market share and 
investments.  
                                                
13 See Appellate Body Re port, China – GOES , para. 143.  WT/DS493/ R/Add.1  
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  42. The injury analysis was based on selective use of informatio n. In its likelihood of injury 
determination, the Investigating Authority attributed considerable weight to financial results of the 
domestic industry, but failed to provide any explanation on why this particular factor outweighed 
all the others. In fact, the Investigating Authority based its injury findings on the sole negative 
trend in profitability of the domestic industry.  
43. The evidence on the record conclusively indicated that Ukrainian domestic industry's 
financial results were deteriorating due to  an increase in production costs. But  the Investigating 
Authority did not explain how the increase of production costs influenced the domestic industry.  
44. An objective and unbiased investigating authority would not have made an affirmative 
determination on the likelihood of continuation (recurrence) of injury on the basis of the sole factor 
given the positive trends in other economic factors and indices. Investigating Authority's 
assessment of the current state of the domestic industry was done contrary t o Articles 3.1 and 3.4 
of the Anti -Dumping Agreement.  As a result, Ukraine failed to meet its obligations under 
Articles  11.1, 11.2, 11.3 of the Anti -Dumping Agreement.  
VI. PROCEDURAL ISSUES AN D CLAIMS  
 A. Ukraine committed several procedural violations of  its obligations under 
Article 6.8 and paragraphs 3, 5 and 6 of Annex II to the Anti -Dumping 
Agreement  
45. Ukraine acted inconsistently with Article 6.8 and paragraphs 3, 5 and 6 of Annex II to the 
Anti-Dumping Agreement for four reasons. Firstly, Ukraine  resorted to the facts available in a 
situation when the Russian investigated producers and exporters cooperated and provided 
necessary information within a reasonable period of time.  The Investigating Authority did not make 
any findings suggesting that Ru ssian exporters and producers of ammonium nitrate either refused 
access to or otherwise failed to provide any necessary information within a reasonable period or 
significantly impeded the investigation and determinations.  
46. Secondly,  despite the cooperat ion of the Russian exporters and producers under the 
investigation and their appropriate submission of verifiable information in a timely fashion so that 
it could be used in the investigation without undue difficulties, the Investigating Authority rejected  
some information provided by them with respect to some of the costs associated with the 
production of the product under consideration and instead used in its determinations information 
from alternative sources. The completeness, correctness and accuracy o f the information provided 
by investigated producers and exporters in their replies to the anti -dumping questionnaire were 
not questioned by the Investigating Authority.  
47. Thirdly, t he Investigating Authority failed to inform the investigated producers and exporters 
in advance of the fact that their responses to the anti -dumping questionnaire about some of the 
costs information had been rejected and of the reasons therefor. Finally, the Investigating 
Authority failed to give the Russian exporters and producers an opportunity to provide further 
explanations within a reasonable period of time.  
 B. Ukraine acted inconsistently with Articles 6.2 and 6.9 of the Anti -Dumping 
Agreement by not  disclosing the essential facts  
48. Articles 6.2 and 6.9 of the Anti -Dumping Agreement provide for separate obligations for 
investigating authorities, which relate to disclosure of the essential facts.  
49. The confidentiality of information could be a legi timate justification of  a failure to disclose all 
the essential facts without violation of Article 6.9 of the Anti -Dumping Agreement. However, it 
could be the case only if a non -confidential summary of such information is disclosed, provided 
that such summary enables an interested party to understand the essential facts, comment on 
them, correct miscalculations and, thus, to defend its interests.  
50. Investigating Authority sent to the interested parties the Disclosure containing its findings 
on dumping  and injury made during the interim and expiry reviews. These findings did not 
sufficiently cover the essential facts about the likelihood of injury  determination. Nor did they WT/DS493/ R/Add.1  
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  contain precise figures and calculations sufficient  for the parties concerned t o understand how the 
Investigating Authority arrived at the conclusions on dumping determinations.  
51. The lack of facts in the Disclosure prevented the Russian exporters and producers from 
commenting on these facts and, thus, deprived them of their rights  to defend their interests 
guaranteed by Article 6.2 of the Anti -Dumping Agreement. What is more, Ukraine frustrated the 
purpose of the "essential facts" disclosure requirement by denying interested parties an 
opportunity to "provide additional information  or correct perceived errors, and comment on or 
make arguments as to the proper interpretation of those facts".14 Consequently, the Russian 
producers were effectively deprived of the right to defend their interests because they were unable 
to present the re butting arguments or address the errors in Investigating Authority 's analyses. 
Therefore, Ukraine violated Articles 6.2 and 6.9 of the Anti -Dumping Agreement.  
 C. Ukraine acted inconsistently with Article 6.9 of the Anti -Dumping Agreement 
by not providing sufficient time to comment on the Disclosure  
52. On 25 June 2014, the Investigating Authority sent the Disclosure to the interested parties 
imposing the deadline of 27 June 2014 for them to comment on this document. Thus, it provided 
only two calendar days  for comments. One Russian producer with a negative dumping margin 
requested an extension of the deadline by 14 days. However, that request was not satisfied.  
53. In the context of Article 6.9 of the Anti -Dumping Agreement, the ability of interested partie s 
to defend their interests is strongly connected with their ability to submit arguments on the facts 
under consideration. In its turn, the ability to submit arguments is dependent upon the time when 
the disclosure of those facts was made. The two days dea dline for commenting on essential facts 
which formed the basis for the decision made as a result of interim and expiry reviews was not 
sufficient for the parties to defend their interests. Accordingly, the Russian producers and 
exporters were effectively d eprived of the right to defend their interests under Article 6.9 of the 
Anti-Dumping Agreement.  
VII. OTHER CLAIMS  
 A. Ukraine breached Articles 12.2 and 12.2.2 of the Anti -Dumping Agreement  
54. Under Articles 12.2 and 12.2.2 of the Anti -Dumping Agreement, an investigating authority 
has to provide in sufficient detail in form of a public notice the findings and conclusions reached on 
all issues of fact and law it considered in making its preliminary and final determinations, which 
have led to the imposition of the measures. As the Appellate Body indicated in China – GOES ,15 
confidentiality concerns cannot excuse an investigating authority from its obligation to provide all 
materials relevant to its dumping determination and injury margin calculation.  
55. The publication of the Disclosure and the 2014 Extension Decision do not constitute a public 
notice within the meaning of these provisions as Ukraine failed to report calculation methodology, 
whether in the form of worksheets and computer output or the des cription of the data and 
formulas applied, as well as all  relevant information on the matters of fact and law which have led 
to the calculation of dumping margin . Besides, Ukraine did not provide all relevant information 
which formed the basis for its affi rmative findings in respect of injury. In particular, it did not 
disclose data characterizing the state of the Ukrainian industry. Thus Articles 12.2 and 12.2.2.of 
the Anti -Dumping Agreement were violated.  
 B. Ukraine violated Articles 1, 18.1 of the Anti -Dumping Agreement and Article VI 
of the GATT due to its WTO -inconsistent behaviour described above  
56. Both determinations of dumping and extension by Ukraine of anti -dumping duties im posed 
on imports of ammonium nitrate originating in the Russian Federation violate numerous provisions 
of the Anti -Dumping Agreement. These measures  also entail violations of Articles 1 and 18.1 of the 
Anti-Dumping Agreement and Article VI of the GATT 1994.  
                                                
14 Panel Report, EC – Salmon (Norwa y), para. 7.805.  
15 Appellate Body Report, China – GOES , para. 259.  WT/DS493/ R/Add.1  
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  VIII.  UKRAINE'S REQUEST FO R A PRELIMINARY RULI NG SHOULD BE  
REJECTED IN ITS TOTALIT Y 
57. Ukraine alleged that the 2008 and 2010 Decisions are not sufficiently clear indicated in the 
Panel Request. Yet, both the claim itself and the Panel Request, read in its entirety, including the 
footnotes, indicate that these decis ions have been duly identified as a challenged measure. 
Likewise, all claims of the Russian Federation are within the Panel's Terms of Reference and should 
be examined by the Panel.  
58. First, the Panel Request sufficiently informed Ukraine and third parti es about the Russian 
Federation's complaint on Ukraine's violation of Articles 5.8, 11.1, 11.2 and 11.3 of the Anti -
Dumping Agreement (Claim 1 in the Panel Request). The same is correct for Claim 17 and Claim 4 
of the Panel Request.  
59. The Russian Federat ion's Claim 17 is similarly reflected in the Panel Request with sufficient 
clarity. In addition to that, this claim (violation of Articles 11.1, 11.2, 11.3, 3.1 and 3.4) concerns 
the aspects of injury deriving from Claims 14 -16 of the Panel Request. In Cla im 4 of the Panel 
Request (breach of Articles 6.8 and paragraphs 3, 5 and 6 of Annex II of the Anti -Dumping 
Agreement), the Russian Federation also provided a brief summary of the corresponding factual 
background to enable Ukraine and third parties to unde rstand the issue clearly.  
60. Second, none of the claims made in the Panel Request expand the scope of the dispute or 
change the essence of the complaint. A combined reading of the Panel Request and the Request 
for Consultations shows that the legal basis of Claim 7 in the Panel Request (violation of 
Articles  12.2 and 12.2.2 of the Anti -Dumping Agreement) naturally evolved from the legal basis of 
Claim 10 of the Request for Consultations (violation of Article 6.9 of the Anti -Dumping 
Agreement).  
61. The incl usion of Claim 17 in the Panel Request (breach of Articles 11.1, 11.2, 11.3, 3.1 and 
3.4 of the Anti -Dumping Agreement) was due to the fact that additional information was received 
during consultations and contributed to a better understanding of the opera tion of a challenged 
measure which warranted revisiting the list of treaty provisions with which the measure is 
inconsistent. This claim evolved from Claim 13 and 14 (Articles 6.6 and 11.2, and Articles 6.6 and 
11.3 of the Anti -Dumping Agreement accordingl y), as well as from Claim 7 set forth in the Request 
for Consultations (violation of Article 5.8 of the Anti -Dumping Agreement).  
 WT/DS493/ R/Add.1  
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  ANNEX B -2 
FIRST INTEGRATED EXE CUTIVE SUMMARY OF TH E ARGUMENTS OF UKRAI NE 
I. UKRAINE'S REQUEST FOR PRELIMINARY RULING  
1. Measures not specified in the Panel Request  
1. The Russian Federation breached Article 6.2 DSU since  it included a measure in its First 
Written Submission that was not identified in its Panel Request.  While the Russian Federation's 
Panel Request clearly identifies the 2014 Decision as the measure at issue, nothing in the Panel 
Request indicates that this  is also the case for the 2008 Decision.  Quite on the contrary, the first 
two sentences of the Panel Request explicitly limit the scope of the dispute to the 2014 Decision by 
referring only to the measures "in connection with expiry and interim reviews. (… ) as set forth in 
the [2014 Decision]."  A use of plural or the mere mentioning of the 2008 Decision in a footnote is 
not sufficiently clear according to the panel in China - Publications and Audiovisual Products  to 
comply with the requirements of Article 6 .2 DSU.  
 
2. Claims having no basis in the Request for Consultations  
2. Ukraine submits that Claims 7 and 17 in the Panel Request have no basis in the Request for 
Consultations and therefore fall outside the terms of reference of the Panel.  The Appellate Body 
held that it is not necessary that the claims in the request for consultations are identical to those 
set out in the panel request, provided that the legal basis in the panel request may reasonably be 
said to have evolved from the legal basis that for med the subject of consultations.1 This last 
requirement has often been interpreted to require a close correlation between the provisions.  
 
(a) Claim 7 of the Panel Request  
3. With respect to Claim 7 of the Panel Request, it cannot be said that claims under Article 6.9 
Anti-Dumping Agreement have evolved from the same legal basis as claims under Article 12.2 and 
12.2.2 Anti -Dumping Agreement.  The only similarity between these articles is that they contain an 
obligation to disclose information.  However, as confirmed in WTO case law, the nature of these 
obligations is different.  Article 6.9 relates to information and facts that must be disclosed to 
provide the parties with an opportunity to defend their interests, while Article 12.2 and 12.2.2 
requires the  investigating authority to disclose the reasoning of its final determination.  Moreover, 
Article 6.9 requires the disclosure of facts before the final determination is made and Article 12.2 
and 12.2.2 require the public notice after the final determination  is made.  A third difference relates 
to the purpose of the articles. The purpose of Article 6.9 is to provide the parties with the 
opportunity to defend their interests.  Articles 12.2 and 12.2.2, on the other hand, is to ensure that 
the investigating autho rity's reasons for making the final determination can be discerned and 
understood by the public.  For those reasons, Ukraine submits that there is no correlation between 
Article 6.9 and Articles 12.2 and 12.2.2.  
 
(b) Claim 17 of the Panel Request  
4. The Ru ssian Federation argues that Claim 17 has evolved from the legal basis of Claims 7, 
13 and 14 of the Request for Consultations.  Contrary to the legal standard, the Russian  Federation 
does not argue that the legal basis of Claim 17 is closely related to the  legal basis of the Claims 7, 
13 and 14.  With regard to the correlation with Claim 7 of the Request for Consultations, the 
Russian Federation instead argues that the same factual circumstances – the inclusion of a 
producer with a de minimis  dumping margin in the scope of the expiry and interim review – led to 
the violation of the Articles 5.8, 11.1, 11.2, 2.2, 2.4, 11.3, 9.2 and 9.3 listed in Claim 7 of the 
Request for Consultations and a violation of Articles 3.1 and 3.4 mentioned in the Panel Request.  
Nevertheless, case law has held that the mere fact that claims under two different articles are 
premised on the same or related factual basis, does not imply that such claims concern the same 
matter or that one claim has evolved from the other.  
                                                
1 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 138.  WT/DS493/ R/Add.1  
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5. With resp ect to the correlation with Claims 13 and 14 of the Request for Consultations, the 
Russian Federation submits that because Claims 13 and 14 mention the word "injury", its claims 
under Article 3 naturally evolved from its claim under Articles 6.6, 11.2 and 11.3.  However, case 
law has exhaustively explained the difference in nature and purpose between these articles.  
Consequently, the obligations under Article 3, on the one hand, and Articles 11.2 and 11.3, on the 
other hand differ in nature as to "what" has to be analyzed and evaluated.  Article 3 calls for an 
analysis of whether the domestic industry is presently suffering from material injury caused by 
dumped imports, whereas Articles 11.2 and 11.3 call for the examination of the future situation 
following t he termination of the anti -dumping order.  Furthermore, in performing the analysis of the 
presently existing material injury as opposed to the evaluation of the future situation, the 
investigating authority has to comply with different obligations: Article 3 in the first scenario and 
Articles 11.2 and 11.3 in the second.  Thus, there is clearly no correlation between the claims 
under Article 3 and the claims under Articles 11.2 and 11.3 which results in Claim 17 not falling 
within the terms of reference of th e Panel.  
 
II. SUBSTANTIVE CLAIMS RELATING TO DUMPING DETERMINATIONS  
(a) Article 2.2.1.1 Anti -Dumping Agreement  
6. Ukraine submits that the reliance by the Russian Federation on EU – Biodiesel  is misplaced.  
First, the Russian Federation has selectively quoted certain portions from that proceeding while 
ignoring other equally important parts.  Second, the factual circumstances in EU – Biodiesel  were 
entirely different.  The Russian Federation has then selectively applied certain legal considerations 
from th at case to a whole different set of factual circumstances.  The factual differences consist of 
the fact that:  
 
(i) the governmental price -fixing of the domestic Russian gas which is called dual pricing 
is WTO inconsistent.  This is different from the export  taxes that were in place in 
Argentina;  
 
(ii) the domestic Russian gas prices were found to be below cost, different from the prices 
of soybeans in Argentina;  
 
(iii) the government intervention was direct as opposed to the indirect effect of the export 
taxes in Argentina; and  
 
(iv) the result of the intervention in the Russian gas prices has been measurable and 
significant, whereas in Argentina, the prices were merely depressed.  It is important to 
note that Gazprom is the predominant overall gas supplier in Russia (>70%), 
moreover, it accounts for virtually all gas supplies to the Agro -Chemical Industry to 
which ammonium nitrate producers belong.  
 
7. Turning to the legal provisions under investigation, contrary to what the Russian Federation 
argues, the A ppellate Body held in EU – Biodiesel  that an investigating authority is certainly free to 
examine the reliability and accuracy of the costs recorded in the records of the exporters to 
determine whether all costs incurred are captured, understated and whet her non -arms-length 
transactions or other practices affect the reliability of the reported costs.  Ukraine recalls that the 
Appellate Body provided three additional exceptions to reject the costs recorded in the records of 
the exporters; (i) non -arm's lengt h transaction; (ii) other practices; and (iii) situations which are 
not 'normal'.  Ukraine submits that its actions with respect to disregarding the cost of gas as 
pictured in the records of the Russian exporters fall within these exceptions.  
 
8. The notio n of non -arm's length is neither defined in the Covered Agreements, nor in 
Appellate Body case law.  Since we are dealing with the most specific accounting provision within 
the Anti -Dumping Agreement, i.e. Article 2.2.1.1, Ukraine submits that for the defin ition of 'arm's 
length ' the Panel should be guided by the relevant specific accounting definitions.  GAAS and ISA 
provide that an arm's length transaction is "[a] transaction conducted on such terms and 
conditions between a willing buyer and a willing selle r who are unrelated and are acting 
independently of each other and pursuing their own best interests."  The domestic sales 
transactions of gas were not at arm's length since those prices do not reflect an interaction 
between independent buyers and sellers, pursuing their own best interests.  This non -arm's length WT/DS493/ R/Add.1  
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  nature of the practice therefore falls squarely within the first exception provided by the Appellate 
Body in EU – Biodiesel . Accordingly, the cost rectification by the Ukrainian authority was therefo re 
in line with exception foreseen by the Appellate Body and is not inconsistent with Article 2.2.1.1 of 
the Anti -Dumping Agreement.  
 
9. Second, the factual situation in the Russian Federation's gas market is significantly unique to 
qualify as such 'other practice'.  The facts demonstrate that there exists a clear practice in the 
Russian Federation which is definitely 'other ' than which is usual in the commercial world, and 
which is also distinctly different from the factual situation in EU – Biodiesel . The illegal price fixing 
by the Government, the mandatory domestic gas sales below cost and the direct governmental 
intervention are all aspects of something that is not typical of most, if not all, other anti -dumping 
proceedings of WTO members.  Such facts, th erefore, clearly warrant denomination as an 'other 
practice ' in the sense of one of the exceptions described by the Appellate Body in EU – Biodiesel . 
Since this practice can therefore be identified as 'other ', it justifies a rectification of the line item 
for gas purchases in the records of the producers.  
 
10. It is submitted that we do not need to get to the discussion of 'normally ' since the particular 
situation in the Russian Federation already falls squarely in one of the two regular exceptions 
discusse d above (non -arm's length or other practices).  However, should the Panel deem it useful, 
Ukraine will be pleased to discuss as to why it considers that the domestic gas prices in the 
Russian Federation and their reflection in the accounting records are not  normal.  In such situation, 
Ukraine submits that the above described specific factual circumstances in this case (a) 
governmental price fixing, (b) prices fixed below cost, (c) direct governmental intervention which 
is (d) measurable warrant deviation from  the obligation to normally base the cost on the records.  
 
(b) Article 2.2 of the Anti -Dumping Agreement  
11. Ukraine recalls that the situation before us is again vastly different than the one in EU – 
Biodiesel , where there was no need to look elsewhere f or information.  The persuasive reasoning of 
US – Softwood Lumber IV  in the context of the Agreement on Subsidies and Countervailing 
Measures , as repeated by EU – Biodiesel in the context of the Anti-Dumping Agreement  is 
instructive.  In very specific and un ique circumstances, such as the one that the Ministry of 
Economic Development and Trade of Ukraine (MEDTU) was facing, interpretation must be given to 
a legal concept in light of the economic facts that underpin it.  In this case, as a result of the 
artific ial and pervasive nature of the domestic gas prices in the Russian Federation, the 
investigating authority was compelled to resort to information and evidence from outside the 
country of origin to arrive at and determine the cost inside the country of orig in. Compliance with 
this obligation may then require the investigating authority to adapt the information.  This is 
exactly what the investigating authority did.  It considered prices of Russian gas sold on a free 
market.  It adjusted these prices back so as to arrive to the price within the Russian Federation.  In 
so doing it carefully limited itself to the distorted line item of gas prices and did not substitute the 
entire cost of the product under consideration.  
 
(c) Article 2.2.1 of the Anti -Dumping Agreement  
12. This claim represents not much more than a repetition of the Russian Federation's 
discontent with the calculation of the normal value inclusive of the cost rectification.  To this extent, 
claim 3 is therefore  consequential to claim 1.  Ukraine submits that the Russian Federation's 
argument has no merit as the investigating authority did not violate the pr ovisions of 
Article  2.2.1.1 of the Anti -Dumping Agreement.  
 
13. In any event, MEDTU conducted the ordinary c ourse of trade test on the basis of the 
determined cost of production and found that the sales of the Russian producers were not made in 
the ordinary course of trade.  When making this determination, MEDTU assessed whether (i) the 
sales were made at a loss within an extended period of time; (ii) the sales were made at a loss in 
substantial quantities; and (iii) the prices did not provide for recovery of all the costs within a 
reasonable period of time.  Based on this assessment, MEDTU concluded that the sales  of the 
Russian producers were not in ordinary course of trade.  
 
14. Further, even if the Panel were to uphold the claim that Article 2.2.1.1 of the Anti -Dumping 
Agreement had been violated, this does not mean that the obligations under Article 2.2.1 have  WT/DS493/ R/Add.1  
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  been violated as a consequence.  Article 2.2.1.1 and Article 2.2.1 contain distinct obligations that 
should not be mixed.  
 
(d) Article 2.4 of the Anti -Dumping Agreement  
15. The "difference" that the Russian Federation claims "affects price comparability" between the 
normal value and the export price, such that "due allowance" should have been made in order to 
ensure a "fair comparison" under Article 2.4, arose from the methodology used by MEDTU to 
determine the normal value.  Unlike the examples in the illu strative list in Article  2.4, the alleged 
"difference" is not a characteristic of the transactions being compared.  It was a methodological 
approach that affected the cost of ammonium nitrate, but it did not affect the price comparability 
of the normal valu e and the export price. This approach has been confirmed by the Appellate Body 
in US – Zeroing (EC) .  
 
16. Furthermore,  the Appellate Body held in EU – Biodiesel  that Article 2.2.1.1 and Article 2.4 
serve different functions in the context of determinations of dumping whereby the former assists 
an investigating authority in the calculation of costs for purposes of constructing the normal value; 
whereas the latter concerns the fair comparison between the normal value and the export price.2 
Similarly, the panel held in EU – Footwear (China)  that "[n]othing in Article 2.4 suggests that the 
fair comparison requirement provides guidance with respect to the determination  of the 
component elements of the comparison to be made, that is, normal value and export price."3 
 
III. VIOLATION OF ARTICLES 5.8, 11.2 AND 11.3 OF THE ANTI -DUMPING AGREEMENT 
BY INCLUDING A RUSSIAN PRODUCER WITH A NEGATIVE DUMPING MARGIN IN 
THE SCOPE OF T HE INTERIM AND EXPIRY REVIEWS  
17. First, the 2008 Decision, as amended by the 2010 Decision, falls outside of the scope of the 
Panel's terms of reference.  Therefore, the only issue before the Panel is whether the 2014 Decision 
violates Articles 5.8, 11.1, 11.2, and 11.3 of the Anti -Dumping Agreement.  Since the Russian 
Federation did not specify which actions of MEDTU violate these legal provisions, the claim under 
Articles 11.1, 11.2 and 11.3 should be dismissed as unfounded since the Russian Federation has  
failed to provide a prima facie case.  
 
18. The claim under Article 5.8 must equally be dismissed since the Russian Federation 
erroneously relied on the findings of the Appellate Body in Mexico – Anti-Dumping Measures on 
Rice. The findings of the Appellat e Body relate to the determination of a zero or de minimis  
dumping margin by the investigating authority.  MEDTU, in fact, found dumping margins of 40.5% 
and 82.2%.  Therefore, there was no obligation to terminate the investigation.  Moreover, the 
Appellate B ody held, in line with the findings of several panels, that the obligation is only limited to 
original investigations and that no such obligation arises in the context of interim reviews, expiry 
reviews and administrative reviews.  
 
19. Finally, if the Pane l is of the view that a case could have been brought against the 2008 
Decision, as amended by the 2010 Decision, Ukraine submits that this claim should be rejected.  
Based on case law, there are three cumulative conditions that must be met before an investi gating 
authority needs to terminate an investigation. These are that (1) it relates to an original 
investigation; (2) a negative or de minimis  dumping margin is determined; and (3) this dumping 
margin determination is made by the investigating authority.  These conditions are not met since, 
first, the 2008 Decision found a dumping margin for EuroChem of 10.78%.  Second, no 
investigating authority ever found a zero or de minimis dumping margin.  The 2010 Decision – 
taken following a series of decisions by the U krainian courts – did not determine that EuroChem's 
dumping margin was negative, zero or de minimis . The 2010 Decision merely enforced the rulings 
of the Ukrainian courts that EuroChem's dumping margin was not correctly determined.  Rather 
than recalculating EuroChem's dumping margin, the Interdepartmental Commission on 
International Trade only modified the anti -dumping duty rate – and not the margin  – applicable to 
EuroChem and changed this duty rate to zero.   
 
20. Panels previously made a clear distinction between the purpose of an original investigation 
and a duty assessment procedure under Article 9.3 of the Anti -Dumping Agreement when it 
                                                
2 Appellate Body Report, EU – Biodiesel , para. 6.48 
3 Panel Report, EU – Footwe ar (China) , para. 7.263.  See also Panel Report, EU – Biodiesel , para. 7.296  WT/DS493/ R/Add.1  
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- 25 - 
 
  quoted the panel's findings in US – DRAMS  that "…in the context of Article 5 .8, the function of the 
de minimis  test is to determine whether or not an exporter is subject to an anti -dumping order.  In 
the context of Article 9.3 duty assessment procedures, however, the function of any de minimis 
test applied by Members is to determin e whether or not an exporter should pay a duty."4 Similarly 
to an Article 9.3 duty assessment procedure, the 2010 Decision merely set a new duty level for 
EuroChem but did not calculate a new dumping margin for that producer.     
 
21. Since the three condi tions are not met, no obligation to terminate the investigation existed 
upon MEDTU. Claim 7 of the First Written Submission must therefore be dismissed.  
 
IV. SUBSTANTIVE CLAIMS REGARDING LIKELIHOOD OF RECURRENCE AND/OR 
CONTINUATON OF INJURT DETERMINATION  
(a) The Russian Federation's reliance on Article 3 Anti -Dumping Agreement  
22. Ukraine notes that it is a well -established rule in WTO jurisprudence that provisions of 
Article  3 of the Anti -Dumping Agreement do not apply to likelihood of recurrence or con tinuation of 
injury determinations in expiry and interim reviews.  Ukraine agrees that in the course of expiry 
and interim reviews, an investigating authority is obliged to base its findings on an objective 
examination of positive evidence.  However, the sou rce of this obligation are Articles 11.2 and 11.3 
themselves and not Article 3.  Consequently, Ukraine asks the Panel not to consider any of the 
Russian Federation's claims based on the alleged violations of Article 3 of the Anti -Dumping 
Agreement.  
 
(b) Proper interpretation of MEDTU findings  
23. The arguments of the Russian Federation are based on an erroneous interpretation of the 
obligations of an investigating authority under Articles 11.2 and 11.3 of the Anti -Dumping 
Agreement.  It should be pointed ou t that neither Article 11.2 nor Article 11.3 of the Anti -Dumping 
Agreement obligate an investigating authority to make a determination that the domestic industry 
is suffering material injury.  Instead, the investigating authority is tasked with making a 
determination in respect of the likelihood of recurrence or continuation of dumping and injury 
should the anti -dumping measures be terminated.    
 
24. Most of the Russian Federation's arguments are premised on the erroneous presumption 
that MEDTU made a findi ng that the Ukrainian industry was suffering material injury and that such 
a finding was the basis for MEDTU's determination of the likelihood of recurrence of injury.  MEDTU 
did not determine that the Ukrainian industry was suffering from material injury.  Instead, MEDTU 
determined that (i) during the period of investigation of the interim and expiry review, the Russian 
producers continued to export dumped products; (ii) there was no indication that the pricing 
behavior would change; (iii) the Russian produc ers were also exporting dumped products to other 
markets; (iv) in case the duties would be terminated, the Russian producers would increase their 
exports which would have an impact on the prices in the market; and (v) patterns showed the 
increase in Russia n imports in the periods when the application of the anti -dumping duty was 
suspended.  
 
(c) EuroChem imports  
25. The Russian Federation claims that EuroChem should not have been included in the 
determination on likelihood of injury since its dumping margin  was zero.  However, in an expiry 
review, an investigating authority is under no obligation to exclude from the likelihood of 
recurrence of injury analysis the volume of imports from a producer currently not found to be 
engaged in dumping (which was not the  case here in any event).  Nevertheless, nothing i n 
Articles  11.1, 11.2 and 11.3 prohibits an investigating authority from analysing the import volume 
trends in respect of the product subject to a zero anti -dumping duty in order to make a 
determination as t o the likely behaviour of producers subject to the anti -dumping duties, once 
such duties are removed.  The analysis of EuroChem's export and prices indicated that a surge of 
imports was to be expected if the duties were terminated.   
                                                
4 Panel Report, Mexico – Anti-Dumping Measures on Rice , para. 7.142 (emphasis added).  WT/DS493/ R/Add.1  
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(d) Alleged undue relia nce on the profitability of the Ukrainian industry  
26. Contrary to what the Russian Federation is arguing, MEDTU did not solely make a 
determination on the likelihood of the recurrence of injury based on the decrease of profitability of 
the Ukrainian indus try. Instead, it determined that there was a likelihood of recurrence of injury 
based on (i) the likely increase of the dumped imports should the anti -dumping measures be 
terminated; (ii) the impact of the dumped imports on the prices of the national produ cers; and (iii) 
the consequential impact on the state of the Ukrainian industry.  Secondly, taking into account the 
dramatic drop in profitability of the domestic industry, it was not unreasonable for MEDTU  to 
conclude that the Ukrainian industry was still in a fragile state.  
 
(e) Analysis of the costs of production of the Ukrainian industry  
27. Finally, the Russian Federation argues that MEDTU  failed to examine the cost of production 
as a factor having a bearing on the state of the industry under Article 3.4 of the Anti -Dumping 
Agreement.  In that respect, it suffices to note that the Russian Federation's claim is based on an 
incorrect understan ding of the facts of the case.  MEDTU in fact examined the increase in the cost 
of production of the Ukrainian industry.  MEDTU determined that the cost of production significantly 
increased, at a pace exceeding the increase in the sales prices, thus resulti ng in a significant 
decrease of the profitability.  
 
V. PROCEDURAL CLAIMS  
(a) Alleged recourse to facts available  
28. The Russian Federation argues that MEDTU's decision to disregard the costs for gas in the 
records of the investigated producers equates to a decision to resort to facts available under 
Article 6.8 of the Anti -Dumping Agreement.  It is clear, based on the investigation record, that the 
information about costs of gas in the producers' records was not rejected on evidentiary grounds 
under Arti cle 6.8 of the Anti -Dumping Agreement.  Instead, the information regarding the costs of 
gas in the records of the investigated producers was accepted into evidence, analyzed by MEDTU 
and thereafter rectified based on the substantive rules regarding the dete rmination of costs under 
Article 2.2.1.1 of the Anti -Dumping Agreement.  The Russian Federation tries to blur the lines 
between the procedural and evidentiary rules in Article 6.8 on the one hand, and substantive rules 
in Article 2.2.1.1 regarding the dumpi ng determination, on the other hand.  However, Article 6.8 
and Annex II do not govern how an investigating authority is to calculate dumping margins.  
 
(b) Alleged deficiencies in the disclosure of the essential facts  
29. The Russian Federation's claim reg arding the disclosure of essential facts in the likelihood of 
recurrence of injury relates first to the figures and price effects analysis and second, to the figures 
in Tables 11.3.1 to 11.3.6 in the Disclosure.  First, The Russian Federation bases its arguments  on 
the findings of the Appellate Body in China – GOES . Nevertheless, this case concerned an original 
investigation whereas the investigation at issue is a combined interim and expiry review.  
Moreover, as far as the data in Tables 11.3.1 through 11.3. 6 is concerned, the Russian Federation 
did not advance any argument at all to demonstrate that such data would constitute essential data 
within the meaning of Article 6.9 of the Anti -Dumping Agreement.   
 
30. Further, Ukraine recalls that the disclosure obl igations under Article 6.9 of the Anti -Dumping 
Agreement relate to essential facts on the record of the investigating authority and not to 
reasoning or explanations.5 Since neither of the Russian Federation's two complaints deal with the 
disclosure of fact s, they do not fall within the scope of Article 6.9 of the Anti -Dumping Agreement.   
 
31. Finally, Ukraine notes that the information in Tables 11.3.1 through 11.3.6 was properly 
disclosed to the interested parties taking into account MEDTU's confidentialit y obligations under 
Article 6.5 of the Anti -Dumping Agreement.  The disclosure of trends' data instead of absolute 
figures is a generally used method for providing non -confidential summaries of confidential data 
and this does not render the disclosure concerning price effects inconsistent with the requirements 
of Article 6.9 of the Anti -Dumping Agreement.  
                                                
5 Appellate Body Report, China – Autos (US), para. 7.145.  WT/DS493/ R/Add.1  
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32. Regarding the essential facts in the dumping calculations, MEDTU disclosed the essential 
facts underlying its dumping determinations in sufficien t detail so as to enable the Russian 
exporting producers to understand clearly which data was used for the calculation of the dumping 
margins.  MEDTU explained the applied methodology in detail and referred to precise information in 
the questionnaire respon ses of the investigated Russian producers used to calculate the dumping 
margin.  The actual figures are indeed not reflected in the Disclosure.  Nevertheless, sufficient 
details were given and disclosure took place by form of reference to the specific data w hich was in 
the possession of the investigated Russian producers.  
 
VI. CLAIMS UNDER ARTICLES 12.2 AND 12.2.2  
33. In respect of the Russian Federation's claims under Articles 12.2 and 12.2.2, Ukraine 
reiterates its position as set out in Ukraine's First Written Submission.  Further, Ukraine notes that 
the Russian Federation's claim under Articles 12.2 and 12.2.2 is limited to the lack of disclosure in 
respect of the dumping margin calculations.  In its First Written Submission, however, the 
Russian Federati on additionally argues that Ukraine violated Articles 12.2 and 12.2.2 by not 
disclosing in sufficient details the data regarding injury margin calculations and determination of 
the likelihood of the recurrence of injury.  Since claim 7 in the Panel Request only mentioned the 
deficiency of the disclosure in respect of the dumping margin calculations, the Russian Federation's 
claims in respect of the injury margin calculations and determination of the likelihood of the 
recurrence of injury are outside the Pane l's terms of reference.  
 
VII. CONCLUSIONS  
34. Ukraine has demonstrated the lawfulness of the anti -dumping action that Ukraine has taken 
in respect of the injuriously dumped ammonium nitrate from the Russian Federation.  
 
 
 WT/DS493/ R/Add.1  
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  ANNEX B -3 
SECOND INTEGRATED EX ECUTIVE SUMMARY OF T HE ARGUMENTS OF RUSS IA 
I. INTRODUCTION  
1. In this second integrated executive summary the Russian Federation summarizes arguments 
presented to the Panel in its second written submission, its opening and closing oral statements at 
the second substantive meeting and its responses to the Panel's ques tions after the second 
substantive meeting.  
II. PRELIMINARY ISSUES – TERMINOLOGY AND ADMI SSION OF EVIDENCE  
2. The Russian Federation objects to both the use of the term "Investigation Report" and the 
designation of Report on the Gas Market of Russian Fede ration prepared by the Ukrainian State 
Enterprise "Ukrpromvneshekspertiza" by Ukraine as "underlying the investigation report" and 
respectfully requests the Panel to use the term "Disclosure" in its references to Exhibit RUS -10 and 
Exhibit UKR -17 in its Re port. 
3. Also, the Russian Federation does not agree with the usage of the term "rectification" or 
"rectify", which is a misrepresentation by Ukraine of what actually was a substitution " of natural 
gas prices actually paid by the Russian producers with a s urrogate price for natural gas destined 
for export charged at the "border with Germany".  
4. Along with the request to disregard Exhibits from UKR -1 to UKR -8, the Russian Federation 
respectfully asks the Panel to disregard Ukraine 's exhibits from UKR -31 to UKR-40. These exhibits 
are irrelevant to the consideration of the Russian Federation 's claims. They are acts of ex post  
rationalization since none of them are referenced in the Disclosure and some of them even 
postdate the Disclosure. Legal acts and anti -dumping practices of other WTO Members referred to 
by Ukraine are also irrelevant since they are part of internal law of other WTO Members and 
concern anti -dumping investigations based on the facts that are not before the Panel in this 
dispute.  
III. SUBSTAN TIVE CLAIMS RELATING  TO DUMPING DETERMINA TIONS  
A. Ukraine violated Articles 2.2 and 2.2.1.1 of the Anti -Dumping Agreement 
because it failed to calculate the cost of production of ammonium nitrate in the 
Russian Federation on the basis of the records kept by the Russian producers 
of ammonium nitrate  
(A) Facts of the present case are similar to those in EU – Biodiesel  
5. The Russian Federation considers that the findings of the panel and the Appellate Body in EU 
– Biodiesel  are highly relevant to the present  dispute. The factual circumstances at hand are 
similar to those in EU-Biodiesel : (i) the measures concerned are anti -dumping measures; (ii) in 
both cases investigating authorities (1) did not allege that the records of the investigated 
producers were impr oper, flawed, or otherwise inconsistent with the generally accepted accounting 
principles of the exporting countries; (2) did not allege that the prices for raw materials in the 
records kept by the investigated producers did not represent the actual prices  incurred by those 
producers, thus in both disputes input prices were considered as recorded correctly; (3) considered 
that Article 2.2.1.1 of the Anti -Dumping Agreement allows them to examine the "reasonableness" 
of the costs reflected in the records of t he investigated producers and exporter; (4) disregarded 
the actual prices of raw materials, correctly reflected in the records of the investigated producers 
and exporters; (5) relied explicitly on the second condition in the first sentence of Article 2.2.1 .1 of 
the Anti -Dumping Agreement to justify such rejection; (6) replaced input prices actually incurred 
by the investigated companies with the surrogate prices of raw materials and used them in the 
calculation of the cost of production of the products unde r consideration; (7) concluded that 
domestic sales of the product were not made in the ordinary course of trade and the normal value 
had to be constructed; (8) used the cost of production of the product under consideration, and 
replaced the raw material pr ices with surrogate prices, to construct the normal value of the 
products; (9) used the surrogate prices for raw materials that did not represent the cost of raw 
materials in the domestic market of the products under consideration for their producers or WT/DS493/ R/Add.1  
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  exporters; (iii) in both cases inconsistencies with Articles 2.2.1.1 and 2.2 of the Anti -Dumping 
Agreement are claimed.  
6. In addition, Ukraine's reference to the Appellate Body Report in EU – Biodiesel  into its first 
written submission indicates its agreeme nt with the Appellate Body's interpreta tion of 
Article  2.2.1.1 and the application of that Article in that case.  
 (B) Arguments based on the analysis of prices of natural gas in the Russian 
Federation are irrelevant  
7. The examination of the reasonableness  of prices paid for input (i.e. natural gas), as well as 
the government regulation of prices on inputs, falls outside the scope of provisions of Article 2, in 
particular Articles 2.2, 2.2.1 and 2.2.1.1 of the Anti -Dumping Agreement. Thus, all arguments 
concerning the alleged "factual differences " between the present dispute and EU – Biodiesel  
presented by Ukraine do not offer any valid reasons, let alone legal grounds for deviation from the 
findings of the Appellate Body in EU – Biodiesel.  
8. Russian commitments envisaged in the Working Party Report on Russia's Accession to the 
WTO and corresponding arguments of Ukraine are irrelevant to this dispute and outside the Panel's 
terms of reference. Their consideration would be contrary to Article 3.10 of th e DSU as an attempt 
to link several distinct matters in the same proceedings. The paragraphs of the Working Party 
Report cited by Ukraine do not contain a special commitment of the Russian Federation on price 
comparability for the purpose of anti -dumping p roceedings . Any discussions and commitments 
reflected in these paragraphs are irrelevant for the examination of Russia's claims in the dispute at 
issue. In addition, Members of the Working Party on Russia 's accession were satisfied with the 
explanations pr ovided by the representative of the Russian Federation, including those on the 
pricing policies; they knew that some prices on natural gas were regulated in the Russian 
Federation, and agreed that some prices on gas in the Russian Federation would be regul ated in 
the future. Reference to the Working Party Report on Russia's Accession to the WTO provided in 
the Disclosure is irrelevant and approach of Ukrainian authorities in reading of accession 
documents and evaluation  of its own and Russia's regulation of  prices on natural gas highlight that 
they were not objective during the anti -dumping proceedings on imports of ammonium nitrate 
from the Russian Federation.  
9. The question of whether Russian gas suppliers conduct their business practice in accordance 
with Article XVII:1(b) of the GATT 1994 is irrelevant for this dispute. The measure at issue in this 
dispute is not about the business practice of Russian gas suppliers, but about the consistency of 
Ukraine's anti -dumping measures with the WTO Agreements. Art icle 2.2.1.1, as well as other 
provisions of Article 2 of the Anti -Dumping Agreement, do not provide a legal basis for an 
investigating authority's analysis of whether an investigated producer or exporter, or a supplier of 
raw materials to an investigated producer or exporter, is a state trading enterprise and of whether 
such an enterprise acts in accordance with Article XVII of the GATT 1994. The preparatory work 
during the Uruguay and Tokyo rounds confirm this understanding.  
10. Any arguments related to the Supplementary Provision to Article VI:1 in Annex I to the 
GATT 1994 (the second Ad Note to Article VI of the GATT 1994) or "the particular market 
situation" are irrelevant to this dispute. These arguments were not considered by Ukrainian 
authorities wh ile conducting underlying reviews and therefore constitute ex post  rationalization 
considerations contrary to Article 17.6(i) of the Anti -Dumping Agreement.  
11. Ukrainian authorities' "determination" on the gas supplier cost of production of natural gas i s 
irrelevant and WTO -inconsistent. In the current case: (i) the product under consideration and the 
like product are both ammonium nitrate originating in the Russian Federation; (ii) natural gas is a 
raw material used to produce ammonium nitrate, and, thus , natural gas is not a like product to 
ammonium nitrate; (iii) the investigated producers are the Russian producers of ammonium 
nitrate and not the producers of natural gas; (iv) the investigated producers purchase natural gas; 
(v) the records of the inves tigated producers correctly reproduced the cost of production of 
ammonium nitrate including prices paid by these producers for natural gas. Taking these and the 
first sentence of Article 2.2.1.1 of the Anti -Dumping Agreement into account, the examination o f 
the investigating authority should have been focused on whether the records of the investigated 
producers of ammonium nitrate reasonably reflect the costs actually  incurred by them for the 
product under consideration, including actual prices  paid for nat ural gas.  
12. However, Ukrainian authorities went further and examined the reasonableness of prices for 
natural gas . In this analysis, Ukrainian authorities compared the recorded actually paid prices for 
natural gas with some hypothetical costs that might  have been incurred under a different set of WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
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  circumstances and with gas prices in other markets. Neither Articles 2.2.1.1, 2.2.1, 2.2 nor any 
other disciplines (including Article 6.6) of the Anti -Dumping Agreement allow assessment of prices 
for inputs in d etermination of normal value.  
13. The Russian Federation emphasizes that gas suppliers were not "the investigated producers" 
for the purpose of the anti -dumping proceedings. That means inter alia  that the cost of production 
of natural gas was neither revi ewed, nor commented on by the Russian gas suppliers. Finally, 
Ukrainian authorities erroneously presumed and in fact never determined the identity of the 
supplier of gas to the investigated producers of ammonium nitrate. Had Ukrainian authorities 
checked t he identity of the suppliers of gas to the Russian exporting producers, they would have 
found, for instance, that they were supplied with gas by different gas producers and not just the 
one that was wrongly presumed by Ukraine to be the sole supplier of ga s to the investigated 
producers. On the basis of these considerations, all Ukraine's arguments, reasons and evidence 
related to the costs of production of natural gas in the Russian Federation shall be rejected.  
14. Moreover, Ukraine's characterization of  government regulation of natural gas prices and its 
alleged effect is irrelevant to the settlement of this dispute since Article 2.2.1.1 of the Anti -
Dumping Agreement does not allow to examine government regulation and its effect. Instead it 
prescribes ex amination of the quality of records of "the exporter or producer under investigation" 
and the proper allocation of costs. This is in line with the general concept of dumping which 
"relates to the pricing behavior of exporters or foreign producers".1  
15. By characterizing the government regulation at issue as alleged "direct intervention", 
Ukraine tries, on the one hand, to downplay the situation in Argentina explored in EU – Biodiesel , 
and, on the other hand, to exaggerate the situation in the Russian Fede ration. The situation in 
Argentina cannot be even compared with the regulation of some prices for natural gas in the 
Russian Federation. While price regulation and export duties are both government regulations, 
Article 2.2.1.1 of the Anti -Dumping Agreement  does not require any analysis related to 
government regulation, including its nature (whether it is direct or not), thus rendering such 
determination irrelevant for the present dispute.  
16. As to evaluation of the alleged effect of the government regulat ion of prices on natural gas 
in the Russian Federation in comparison to the regulation analyzed by the panel in EU-Biodiesel , 
the EU authorities, contrary to Ukraine's allegations, were able to measure the effect of 
government regulation quite precisely.  
  (C) Arguments based on footnote 400 of the panel report in EU – Biodiesel  
are irrelevant and legally flawed  
17. In its search for the legal basis justifying its measures, Ukraine attempts to invoke 
footnote  400 of the panel report in EU – Biodiesel . First, its reference to this footnote, as well as to 
paragraphs of the Appellate Body Report that refer to footnote 400, is an act of ex post  
rationalization, and therefore should be rejected in its totality. Second, neither "non -arm's length 
transaction s" nor "other practices" in footnote 400 of the panel report in EU – Biodiesel  can be 
qualified as "legal exceptions" from application of Articles 2.2.1.1 and 2.2 of the Anti -Dumping 
Agreement. The Anti -Dumping Agreement under no circumstances permits meas ures inconsistent 
with its provisions, since there are no exceptions in this Agreement like, for example, general 
exceptions in the GATT 1994. Third, footnote 400 of the panel report in EU – Biodiesel constitutes 
obiter dictum , since  neither the Appellate Body, nor the panel made any particular affirmative 
findings based on substantive statements of this footnote. Therefore footnote 400 of the panel 
report in EU – Biodiesel  does not constitute legal basis in a manner Ukraine claims it to be.  
18. In addition , Ukraine arguments based on the "arm's length" test for determination of normal 
value are irrelevant for several reasons, including: (i) Article 2.2.1.1 of the Anti -Dumping 
Agreement does not contain an additional, third, condition that would permit an in vestigating 
authority to use this test; (ii) its applicability will be contrary to what  Article 2.2.1.1 prescribes, 
i.e., comparison between the costs reported in the records kept by the investigated producers and 
the costs actually incurred by that inves tigated producer; (iii) the context of Article 2.2.1.1 
(including the text of Article 2.3) does not support Ukraine's position either; (iv) its application 
contradicts the Appellate Body's ruling that the examination of the reasonableness of costs is not 
permitted under Article 2.2.1.1 of the Anti -Dumping Agreement; (v) it ignores that dumping arises 
                                                
1 Appellate Body Report, US – Zeroing (Japan), para. 156 (referring to Appellate Body Report, US – 
Zeroing (EC), para. 129). WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
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  from the pricing behaviour of an exporter of the product under investigation, and not of a third 
party (producer of input).  
19. Moreover, the suggested by Ukr aine definition of an arm's length transaction shall not be 
accepted. The suggested analysis of government regulation of prices of inputs as well as of 
producers of inputs and their business structure and operation, the cost of production of inputs 
would r esult in a violation of Articles 2.2.1.1 and 2.2 of the Anti -Dumping Agreement. Also, 
Ukraine relies on definitions from the auditing standards, international and those of the US , while 
Article 2.2.1.1 of the Anti -Dumping Agreement concerns generally accep ted accounting principles 
of the exporting country , i.e. the Russian Federation in this case.  
20. In its argumentation on the relevance of Article 2.3 of the Anti -Dumping Agreement, Ukraine 
ignores the functional and textual differences between Articles 2 .2.1.1 and 2.3 of the Anti -
Dumping Agreement. While Article 2.3 governs the methodology for determining the export price, 
Article 2.2.1.1 concerns the calculation of the cost of production for determination of the normal 
value. Provisions of Article 2.2.1. 1 and Article 2.3 contain different obligations and address 
different issues, and should not be mixed up. In particular, Article 2.2.1.1 does not include the 
terms "unreliable", "independent buyer ". The absence of such wording in Article 2.2.1.1 and other 
provisions relevant to the determination  of normal value also indicates that Article 2.3 should not 
be considered as the relevant context for interpretation of Article 2.2.1.1 of the Anti -Dumping 
Agreement.  
21. Ukraine's arguments on "other practices" are not relevant either. Consistently with the well -
established ejusdem generis  canon of construction, the category of "other practices" should be 
understood as encompassing only such practices as are of the same kind as those preceding this 
phrase in footnote  400 of the panel report in EU – Biodiesel . Thus, the immediate context of the 
phrase suggests that the words "other practices" should be understood as reporting and business 
practices, i.e. the reporting practices of the investigated producers or exporter s, but not as 
practices of governments. This is confirmed by the conclusion of the panel in EU – Biodiesel , in 
which it emphasized that records should adequately report the actual costs incurred by the 
particular producer or exporter for the product under consideration.2  
  (D) Ukraine 's arguments based on the interpretation of the word "normally" 
in Article 2.2.1.1 of the Anti -Dumping Agreement are irrelevant and 
legally flawed  
22. Ukraine cannot rely on the word "normally" in Article 2.2.1.1 of the Anti -Dumping 
Agreement as all such arguments constitute ex post  rationalization. Furthermore, there is a limited 
number of explicit provisions that would allow investigating authorities in the course of  normal 
value determination to disregard costs reflected in  investigated producers' and exporters' records 
(when both conditions of the first sentence of Article 2.2.1.1 are satisfied) when determining the 
normal value. The exhaustive list of such provisions is: the third sentence of Article 2.2.1.1 of the 
Anti-Dumping Agreement and its footnote 6; Article 2.7 of the Anti -Dumping Agreement and the 
incorporated second Ad Note to Article VI:1 of the GATT 1994; special commitments on price 
comparability in the accession protocols of certain Members. None of them apply  in the present 
case. 
23. In this regard, the panel's interpretation of the term "normally" in China – Broiler Products  is 
problematic, as not being balanced since it put more weight on the side of an investigating 
authority and should not be used. Also, t here is no need to outreach to the US – Clove Cigarettes 
on the applicability of the TBT Agreement in order to examine the term "normally" in its ordinary 
meaning in Article 2.2.1.1 of the Anti -Dumping Agreement. The re levant context, namely 
Articles  2.1 a nd 2.2 of the Anti -Dumping Agreement and Article VI:1 of the GATT 1994 support 
this understanding.  
24. As to the interpretation of the term "appropriate proxy" in paragraph 6.24 of the Appellate 
Body Report in EU – Biodiesel , the Russian Federation submits  that "the establishment of the 
normal value through an appropriate proxy for the price of the like product in the ordinary course 
of trade in the domestic market of the exporting country"  means that an investigating authority is 
required to establish as a ccurately as possible the price of the like product in the domestic market.  
25. In their examination of the records kept by the Russian investigated producers and 
exporters Ukrainian authorities were biased and not objective. There was no legal reason to r eject 
prices of natural gas. Ukraine acted inconsistently with Articles 2.2.1.1 and 2.2 of the Anti -
                                                
2 Panel Report, EU – Biodiesel , para. 7.232.  WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
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  Dumping Agreement as Ukrainian authorities failed to calculate the cost of production of 
ammonium nitrate on the basis of the records kept by the investigat ed producers and exporters of 
ammonium nitrate.  
 B. Ukraine violated Articles 2.2 and 2.2.1.1 of the Anti -Dumping Agreement by 
replacing (adjusting) gas prices actually paid by the Russian investigated 
producers and exporters with data outside the Russian Federation, and using 
such data subsequently for construction of the normal value  
(A) Any ruling based on Article 14(d) of the SCM Agreement is not applicable 
to the present dispute  
26. Contrary to Ukraine's suggestion, neither Article 14(d) of the SCM  Agreement, nor 
reasoning, interpretations and findings by the panel and the Appellate Body in US – Softwood 
Lumber IV  apply to this dispute. There is no legal basis for the incl usion of obligations of 
Article  14(d) of the SCM Agreement into the framework of Article 2.2 and 2.2.1.1 of the Anti -
Dumping Agreement. These provisions use entirely different terminology, different structure, and 
different wording. The primary focus of determining a subsidy under the SCM Agreement lies in 
the analysis of a governme nt's actions, while the rules on determination of dumping stipulated by 
Article 2 of the Anti -Dumping Agreement are focused on "the foreign producer's or exporter's 
pricing behavior". Suggested applicability of Article 14(d) of the SCM Agreement is contrar y to the 
intention of drafters to treat different problems differently with different instruments.  Had the 
drafters intended so, they would have made an explicit reference or incorporated a similar wording 
in these articles of the Anti -Dumping Agreement.  
27. Accordingly, the approach advocated by Ukraine, if adopted, would culminate in the 
extension of rights of importing Members at determining dumping and diminishment of rights of 
the exporting Members. As a result, Ukraine's approach towards the applicabi lity of inferences 
made from Article 14(d) of the SCM Agreements is against Article 2 of the Anti -Dumping 
Agreement and Article 3.2 of the DSU.  
(B) Ukrainian authorities did not use the cost of production in the Russian 
Federation when constructing the normal value of ammonium nitrate  
28. Ukraine improperly interprets the claim of the Russian Federation under Articles 2.2 and 
2.2.1.1 of the Anti -Dumping Agreement limiting it only to the "use of out -of-country evidence". 
This claim is, however, broader as  Ukraine violated the said provisions because: 1) gas prices were 
taken not from the records of the investigated producers of ammonium nitrate, but from outside 
the country of origin, namely at German/Czech border (Waidhaus) as Ukraine explained; 2) 
Waidha us gas price is not the "costs associated with the production and sale of the product under 
consideration"; and 3) Waidhaus gas price, with or without adjustment for transportation costs, 
does not reflect natural gas prices available for producers of ammon ium nitrate in the Russian 
Federation. Thus, Ukraine's construction of normal value is not based on "the cost of production 
[of ammonium nitrate] in the country of origin", i.e.in the Russian Federation.  
29. Ukrainian authorities violated Articles 2.2.1.1 and 2.2 when they substituted natural gas 
prices reflected in the investigated producers' records with the natural gas price at the 
German/Czech border and used this surrogate price in the calculation of the cost of production and 
then in the construction of the normal value of ammonium nitrate. There were no legal reasons for 
such substitution and the use of out -of-country price in these calculations.  
30. Even if in a hypothetical case when records kept by Russian producers and exporters were 
not in compl iance comply with the requirements of Article 2.2.1.1 of the Anti -Dumping Agreement 
or investigated producers had not cooperated and Ukrainian authorities had failed have any data 
about the prices paid by investigated producers of ammonium nitrate for natu ral gas, Ukrainian 
authorities should also have resorted first to the gas prices in the Russian Federation. The 
Appellate Body explained in EU – Biodiesel  that "in -country evidence" is the preferred source of 
information after an examination of the records  of the investigated producers and exporters. A 
resort to the information obtained outside the country of origin is limited to certain circumstances 
listed by the Appellate Body where there is a need to analyze or verify the information in the 
records kept  by the exporter or producer under investigation using documents, information, or 
evidence from other sources, including from sources outside the 'country of origin'.3 In any event, 
such information shall reflect the cost of production in the country of or igin.  
                                                
3 Appellate Body Report, EU – Biodiesel , paras. 6.70 -6.71, fn  228.  WT/DS493/ R/Add.1  
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- 33 - 
 
  31. Ukraine's resort to out -of-country evidence in the anti -dumping proceedings on imports of 
ammonium nitrate clearly constitutes a violation of Article 2.2 of the Anti -Dumping Agreement.  
(C) Ukraine failed to adapt price of Russian gas at the Germ any/Czech 
border in order to arrive at the "cost of production in the country of 
origin"  
32. There were no legal reasons to reject in -country prices of Russian natural gas and resort to 
out-of-country price for natural gas. Without prejudice to this posit ion, while resorting to out -of-
country price, Ukraine failed to adapt the gas price at the German/Czech border to arrive at the 
cost of production of ammonium nitrate in the country of origin. The price at Waidhaus more than 
three times exceed the price ac tually paid by the Russian investigated producers and was several 
times higher than other gas prices in the domestic Russian market. In fact, Ukrainian authorities 
used the price at the Germany/Czech border specifically  because it did not reflect the gas p rice 
within the domestic market of the Russian Federation, which mirrors the investigating authorities' 
decision that took place in EU – Biodiesel.4 All these factors also show that Ukraine did not intend 
to adapt the information from outside the country i n order to arrive at the "cost of production in 
the country of origin ". 
33. In their calculations of the cost of production of ammonium nitrate and the consequent 
construction of its normal value, Ukrainian authorities were biased and not objective. They 
replaced gas prices in the records of the investigated producers with prices outside of country of 
origin in a situation when the records of the investigated producers must have been used for the 
calculation of the cost of production of ammonium nitrate. Th e surrogate price for natural gas used 
by Ukrainian authorities in its calculations did not reflect actual price s of natural gas in the 
Russian  Federation. The surrogate price for natural gas was neither "the cost[] associated with the 
production … of the product under consideration" nor "the cost of production [of the product under 
consideration] in the country of origin" because it was not the pric e of natural gas in the 
Russian  Federation. The Russian Federation reiterates that Ukraine acted inconsistent ly with 
Articles 2.2 and 2.2.1.1 of the Anti -Dumping Agreement.  
C. Ukraine violated Article 2.2.1 of the Anti -Dumping Agreement  
34. Ukrainian authorities violated Article 2.2.1 by improperly calculating the cost of production 
of ammonium nitrate and disreg arding sales that are not below -costs. Prior to disregarding sales of 
the like products Ukraine failed to establish that they were: i) below cost in substantial quantities; 
ii) made at prices which do not provide for the recovery of all costs within a reas onable period of 
time; iii) made within an extended period of time.  Contrary to Ukraine's objection to the scope of 
the claim, Ukrainian authorities understood the content of the arguments of the Russian 
Federation correctly.  
35. The Russian Federation sub mitted that had Ukrainian authorities conducted such analysis by 
considering all three criteria prescribed by Article 2.2.1 of the Anti -Dumping Agreement, the result 
would have been legally flawed anyway since using the costs inflated due to the use of the  
surrogate gas price would inevitably distort the results of the ordinary course of trade test.  
36. Ukrainian authorities' allegations that they complied with the "substantial quantities" 
requirement and the "extended period of time" requirement under Article 2.2.1 of the Anti -
Dumping Agreement  are misleading. Ukrainian authorities did not establish a "weighted average 
selling price" of ammonium nitrate. The Disclosure does not indicate that Ukrainian authorities 
carried out the respective analysis. Accordi ngly, any allegations made on the establishment of the 
"weighted average selling price", including fulfilment  of "substantial quantities" and "extended 
period of time" requirements are incorrect. Compliance with these obligations cannot be implied.  
37. Contrary to Ukraine's assertion, the Russian Federation does not need to "demonstrate that 
lower costs would have resulted in a finding that unit sales prices would have been above those 
lower costs" to prove a violation of Article 2.2.1 of the Anti -Dumping A greement . Under 
Article  2.2.1, Ukrainian authorities should have conducted the ordinary course of trade test by 
reason of price based on costs of production reflected in the records kept by investigated 
producers and exporters. They failed to do so.  
                                                
4 See Appellate Body  Report, EU – Biodiesel , paras. 6.81-6.83 (quoting Panel Report, EU – Biodiesel , 
para. 7.258).  WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
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  D. Ukraine violated Article 2.4 of the Anti -Dumping Agreement  
38. Being a logical progression of obligations under Articles 2.2 and 2.2.1.1 of the Anti -Dumping 
Agreement, the first sentence of Article 2.4 mandates an investigating authority to apply these 
provis ions in a way to ensure the fair comparison between the normal value and the export price. 
As a result, Russian Federation's claim under Article 2.4 should not be reduced to the issue of 
adjustments under the third sentence of Article 2.4 of the Anti -Dumpi ng Agreement. The 
comparison of the actual export price with the inflated normal value constructed on the basis of 
WTO-inconsistent calculation of the costs of production resulted in the dumping margin at rate 
82.2%. This margin is self -explanatory in cont rast with the negative dumping margin in the 
absence of cost adjustments.  
39. Ukraine violated the obligation in the first sentence of Article 2.4 of the Anti -Dumping 
Agreement because it failed to make a fair comparison between the export price and the 
constructed normal value by improperly calculating constructed normal value for ammonium 
nitrate produced in the Russian Federation.  
E. Ukraine violated Article 2.1 of the Anti -Dumping Agreement  
40. There are compelling reasons for the Russian Federation to request the Panel to consider the 
claim under Article 2.1 of the Anti -Dumping Agreement and make a separate finding on the 
violation by Ukraine of its obligations under this Article. Nothing in the text of Article 2.1 
represents an obstacle to this. Beside s, such a fundamentally important provision, determinant for 
the entire Anti -Dumping Agreement, cannot be relegated to the level of "context" precluding the 
Panel from issuing a separate finding on it. This finding will positively affect the stage of 
imple mentation of the Panel's recommendations as the nature of the violation predetermines 
responding party's actions to eliminate it.  
41. Ukrainian authorities should have determined the dumping margin by comparing the export 
price with the comparable price of  the like product destined for consumption in the exporting 
country, i.e. the Russian Federation. Yet, they compared the export price with constructed normal 
value and, thus, determined the normal value in violation of Article 2.1 of the Anti -Dumping 
Agree ment.  
IV. CLAIMS REGARDING INC LUSION OF A RUSSIAN PRODUCER WITH NEGATI VE 
DUMPING MARGIN INTO THE SCOPE OF THE INT ERIM AND EXPIRY REVI EWS – 
UKRAINE ACTED INCONS ISTENTLY WITH ARTICL ES 5.8, 11.1, 11.2 A ND 11.3 OF 
THE ANTI -DUMPING AGREEMENT  
A. The Panel Request properly identifies the contested measures  
42. Ukraine maintains its position that only the 2014 Decision was identified as a measure at 
issue in the Panel Request. However, the text of the Panel Request refers to the anti -dumping 
measures "in rela tion to" or "relating to" the interim and expiry reviews including, thus, th e 
2008 Decision, as amended by the 2010 Decision and later extended through the 2014 Decision.  
43. Read in its entirety, the second sentence of the Panel Request further supports t his 
understanding. Not only does this sentence cite "any and all annexes, notices, communications 
and reports of [MEDTU] and any amendments thereof," but it also mentions other decisions in 
footnote 2. Ukraine unconvincingly attempts to refute the relevanc e of footnote 2 by arguing that 
challenged measures are supposed to be mentioned in the main body of a panel request. This 
position is at odds with the Appellate Body's postulate requiring to "consider[] the panel request as 
a whole."5 By the same token, t he reference to the 2010 Decision in footnote 3 of the Panel 
Request disproves Ukraine's argument.  
44. Contrary to its allegation, Ukraine has been able to identify the 2008 and 2010 Decisions 
and to comment on the claims made by the Russian Federation. Th us, Ukraine's ability to defend 
itself has not been impaired.  
B. Ukraine found that JSC MCC EuroChem was not dumping and correspondingly 
failed to exclude this exporter from the definitive anti -dumping measure  
45. The Russian Federation is challenging Ukra ine's decision to impose a 0% anti -dumping duty 
on JSC MCC EuroChem through the 2010 Decision under Article 5.8. Whereas Ukraine committed 
an independent breach of Articles 11.1, 11.2 and 11.3 by including this exporter into the 
underlying reviews and by a dopting the 2014 Decision in respect of JSC MCC EuroChem.  
                                                
5 Appellate Body Report, US – Carbon Steel , para. 127.  WT/DS493/ R/Add.1  
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- 35 - 
 
  46. As per Ukraine's submission, the 2010 Decision does not amount to a legal finding that JSC 
MCC EuroChem's dumping margin was negative, zero, or de minimis . Rather, its anti -dumping 
duty rate was  set equal to 0%. But Ukraine overlooks the combined effect of Ukrainian courts' 
judgments modifying the dumping margin rate for JSC MCC EuroChem to be de minimis . As a 
result, Ukraine should have excluded this Russian producer from any subsequent review a nd from 
any extension of the measures as follows from Mexico – Anti-Dumping Measures on Rice .6 Ukraine 
is precluded from invoking its national law to justify the allegedly improper decisions of its 
authorities, including those related to the acceptance of evidence.  
47. For all these reasons, the Russian Federation maintains that Ukraine violated Articles 5.8, 
11.1, 11.2 and 11.3 of the Anti -Dumping Agreement by failing to terminate the anti -dumping 
measures in respect of JSC MCC EuroChem and unlawfully incl uding it in the underlying reviews.  
V. SUBSTANTIVE CLAIMS R ELATING TO THE LIKEL IHOOD OF INJURY 
DETERMINATION  
A. Ukraine has not substantiated its likelihood of injury determination in violation 
of Articles 11.1, 11.2 and 11.3 of the Anti -Dumping Agreement  
  (A) Applicable legal standard  
48. The Russian Federation contends that any injury analysis in anti -dumping proceedings is 
strictly governed by the Anti -Dumping Agreement. Ukraine's attempt to escape the obligations 
stemming from the Anti -Dumping Agreemen t is undermined by the proper interpretation of case 
law. If an investigating authority in its own judgement decides to make an examination falling 
under the scope of Article 3, "then it would be bound by the relevant provisions of Article 3 of the 
Agreeme nt".7 Even beyond this finding, Article 11.3 of the Anti -Dumping Agreement alone requires 
the investigating authority to act with an appropriate degree of diligence and arrive at a reasoned 
conclusion on the basis of information gathered as part of a proce ss of reconsideration and 
examination, to base its determinations on "positive evidence" and an "objective examination".  
(B) Ukraine made a determination on the likelihood of continuation of injury  
49. According to the Disclosure Ukrainian authorities mad e a determination regarding the 
likelihood of continuation  of injury which was consisted of two steps. Ukraine, firstly, determined 
the present state of the domestic industry as to whether the injury was eliminated or not; and, 
secondly, conducted prospect ive analyses of what happens should the anti -dumping measures 
lapse. These logical steps taken by Ukrainian authorities culminate in the understanding that they 
had examined the present state of the domestic industry and made a conclusion that there was 
injury.  
50. Ukraine's usage of a different terminology, i.e. recurrence of injury  is deceiving. Ukraine 
tries to convince that Ukrainian authorities determined that Ukrainian producers did not completely 
recover from the injury established in the original i nvestigation. However, this allegation does 
contrast with the actual determination that Ukrainian industry was suffering from the material 
injury caused by dumped imports. Additionally, Ukraine's reasoning that its authorities made a 
determination regardin g the recurrence of injury are ex post  rationalization and should be rejected 
in their totality.  
(C) Evaluation of economic factors and indices having a bearing on the state 
of the Ukrainian domestic industry was not based on an "objective 
examination" of  "positive evidence"  
51. Ukraine made  affirmative determination on the likelihood of continuation of injury 
predominantly on the basis of decreased profitability, ignoring the positive trends in other 
economic factors and indices. Despite Ukraine's emphasis on the dramatic drop in profitabili ty of 
the domestic industry, Ukrainian authorities failed to conduct an objective and unbiased analysis of 
increase of gas costs and its influence on the state of the domestic industry. Ukraine failed to 
exclude imports of the Russian producer with negativ e dumping margin from the volume of 
"dumped" imports.  
52. Ukraine's inclusion of imports attributable to the producer with negative dumping margin 
into the volumes of dumped imports in the likelihood -of-injury determination breaches  
Articles  11.1, 11.2 and  11.3 of the Anti -Dumping Agreement as not based on  "positive evidence". 
                                                
6 Appellate Body Report, Mexico – Anti-Dumping Measure on Rice , para. 305.  
7 Panel Report, US – Oil Countr y Tubular Goods Sunset Reviews, para. 7. 274.  WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
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  As a corollary, conclusions made on the basis of this incorrectly established volume of "dumped" 
imports do not qualify as "objective assessments". The Russian Federation wishes to un derline that 
the producer with negative dumping margin was the main exporter of the product under 
consideration to Ukraine. Thus, the inclusion of non -dumped imports into injury analysis has 
infected the overall conclusions  on the likelihood of continuatio n of injury.  
53. Ukraine made finding on the continuation of injury analysis, in such finding its evaluation of 
economic factors and indices having a bearing on the state of Ukrainian domestic industry was not 
based on an "objective examination" of "positi ve evidence". As a result, Ukraine made the 
likelihood of injury determination in violation of Articles 11.1, 11.2, 11.3 of the Anti -Dumping 
Agreement.  
VI. PROCEDURAL ISSUES AN D CLAIMS  
 A. Ukraine committed several procedural violations of its obligations under 
Article 6.8 and paragraphs 3, 5 and 6 of Annex II to the Anti -Dumping 
Agreement  
54. Contrary to Ukraine 's argument that Article 6.8 of the Anti -Dumping Agreement and 
provisions of Annex II do not apply to the present case, MEDTU de facto  referred to facts available 
when it rejected the "first -best" information from records of the investigated producers and used 
the surrogate price of natural gas. The analogies between Article 2.2.1.1 governing the calculation 
of costs and Article 2.3 governing the det ermination of export price8 drawn by Ukraine are 
unfounded and do not affect the applicability of Article 6.8 of the Anti -Dumping Agreement.  
 B. Ukraine acted inconsistently with Articles 6.2 and 6.9 of the Anti -Dumping 
Agreement by not disclosing the ess ential facts  
55. Contrary to Ukraine's contention, the Russian Federation has established a prima facie case 
by explaining in its submissions why the data redacted in Tables 11.3.1 -11.3.6 of the Disclosure 
and the formulas on the calculation of normal valu e and dumping margin are "facts on the record," 
which formed "the basis for the decision" to apply anti -dumping measures. By virtue of these 
properties, these are essential facts in the sense of Article 6.9 of the Anti -Dumping Agreement.  
56. The Russian Fe deration's claim under Article 6.2 of the Anti -Dumping Agreement is not 
consequential to that of Article 6.9. E ven if certain information is not regarded as essential facts to 
be disclosed under Article 6.9, its disclosure still can be a subject to the Article 6.2 broader 
obligation to provide interested parties with a full opportunity to defend their interests.  
57. In its attempt to justify the violations of Articles 6.9 and 6.2 of the Anti -Dumping 
Agreement, Ukraine relies on the alleged confidentialit y of the data concerned. By substantiating 
its response to Ukraine's arguments on the legal provisions invoked by the responding party, i.e. 
Article 6.5 and 6.5.1 of the Anti -Dumping Agreement, the Russian Federation enjoys its due 
process rights requiring  equal opportunities to be provided for both parties during dispute 
settlement. In given circumstances, the departure from this rule is not warranted since a non -
compliance with Article 6.5.1 may trigger a breach of obligations under Articles 6.2 and 6.9.  
58. Either way, Ukraine is barred from relying on the confidentiality explanation with regard to 
the aggregate data included in Tables 11.3.1 -11.3.6 of the Disclosure , i.e. that four producers 
which filed a collective confidentiality request belong to one group, as it is merely ex post  
rationalization proffered by Ukraine first during these proceedings before the Panel and not known 
during the anti -dumping investigation at hand. Requests, if any, were sent by the Ukrainian 
producers in their own name, and y et they did not indicate reasons that would amount to good 
cause. The reasons presented in Exhibit UKR -51b, are nothing but a repetition of the general 
definition of confidential information under Article 6.5 of the Anti -Dumping Agreement that does 
not cov er the aggregate data per se . 
59. Ukraine did not provide an effective non -confidential summary as it is absolutely impossible 
to derive any conclusive findings from the relevant figures given in the Disclosure.  
 C. Ukraine acted inconsistently with Articl e 6.9 of the Anti -Dumping Agreement 
by not providing sufficient time to comment on the Disclosure and refusing to 
accept comments duly submitted by the Russian investigated producer   
60. All arguments and explanations provided by Ukraine do not justify the  imposition of the 2 -
days period for comments on the Disclosure. The complexity of the issues involved in the 
                                                
8 Ukraine second written submission, para. 170. WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
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  investigation rendered it impossible to derive any incorrectness or mistakes effectively within 2 
days from the document in the foreign language f or the Russian producers. The fact that the data 
used in the Disclosure was provided by the Russian producers in their replies to the questionnaires 
before circulation of the Disclosure is irrelevant as they could not be expected to know which 
information is essential for the investigation.  
61. The Russian Federation upholds its claims regarding several procedural violations of WTO 
law committed by Ukraine in the course of the underlying reviews. Specifically, Ukraine breached 
Article 6.8 and paragraphs 3,  5 and 6 of Annex II to the Anti -Dumping Agreement be -cause its 
decision to resort to facts available was unfounded. Ukraine's failure to disclose essential facts, 
harmful for interested persons' rights, is contrary to Articles 6.2 and 6.9 of the Anti -Dump ing 
Agreement. Last but not least, Ukraine acted inconsistently with Article 6.9 of the Anti -Dumping 
Agreement when it set the 2 -days period for comments on the Disclosure.  
VII. OTHER CLAIMS  
 A. Ukraine breached Articles 12.2 and 12.2.2 of the Anti -Dumping  Agreement  
62. Claim under Articles 12.2 and 12.2.2 of the Anti -Dumping Agreement fall within the Panel's 
terms of references since they have naturally evolved from the claim under Article 6.9 as laid 
down in the Request for Consultations. Article 6.9 and Articles 12.2 and 12.2.2 do not categorically 
differ as far as the scope of the obligation, the time of disclosure (both obligations are triggered 
when an investigating authority takes or is about to take a final decision) and their purposes are 
concerned.  As a result, this comparability amounts to "at the very least, some connection" that 
would suffice to establish that the claim in the Panel Request has evolved from the one set out in 
the request for consultations without changing the essence of the claim .  
63. In addition to that, the claim is not strictly confined to "the lack of disclosure in respect of 
the dumping margin calculation" as Ukraine suggested, but to the full set of circumstances implied 
in the text of the claim in the Panel Request. The la st sentence, singled out by Ukraine, is not a 
substitution but, rather, an exemplification of what the claims are. Finally, Ukraine may not rely on 
this objection to the scope of the claims at bar as it raised this argument at later stages of dispute 
settlement.  
 B. Ukraine violated Articles 1, 18.1 of the Anti -Dumping Agreement and Article VI 
of the GATT due to its WTO -inconsistent behaviour described above  
64. Ukraine falsely asserts that a dependent character of the claim under Articles 1 and 18.1 of 
the Anti-Dumping Agreement and Article VI of the GATT 1994 renders it manifestly unfounded in 
law. Russian Federation's claim is substantiated as the measures imposed on imports of 
ammonium nitrate from Russia are not specific actions against dumping that are  in accordance 
with the GATT 1994, as interpreted by the Anti -Dumping Agreement.  
 WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 38 - 
 
  ANNEX B -4 
SECOND INTEGRATED EXECUTIVE  SUMMARY OF THE ARGUM ENTS OF UKRAINE  
I. SUBSTANTIVE CLAIMS RELATING TO THE DUMPING DETERMINATION  
A. Claim 1 (Claim 10 of the Panel Request): Ukraine violated Articles 2.2 and 
2.2.1.1 of the Anti -Dumping Agreement because, in determinin g the 
constructed normal value, it failed to calculate costs on the basis of records 
kept by the Russian producers and exporters, even though the costs 
associated with the production and sale of ammonium nitrate were 
accurately and reasonably reflected in the Russian exporters' and producers' 
records that were in accordance with the generally accepted accounting 
principles of the country of origin and exportation (RF SWS section 1)  
1. As Ukraine has explained in its First Written Submission and subsequent documents, the 
normal value calculation contained in the disclosure document and underlying documents provided 
a coherent explanation of the reasonable reflection of the costs associated with the production and 
sale of the product under consideration which  justified the conclusion that the reliability of the 
reported costs had been affected.  
 
2. Ukraine therefore submits that MEDT  of Ukraine acted in accordance with the Anti -Dumping 
Agreement when it calculated the cost of gas in the Russian Federation and determined the 
reliability of the reported costs. The Appellate Body in EU – Biodiesel did not consider that the 
reliability of  the records should necessarily be taken at face value when determining whether 
records reflect the costs.1 On the contrary, an investigating authority has discretion within the 
factual context to examine non -arm's length transactions and other practices.2 Ukraine also notes 
that the second sentence of Article 2.2.1.1 of the Anti -Dumping Agreement suggests that the 
investigating authority is in fact invited to examine all relevant evidence.  Therefore, the assertion 
by the Russian Federation that an investig ation into the reliability of the costs is somehow off -
limits is contrary to the text of the provision and contrary to the text of the clarifications by the 
panel and the Appellate Body in EU – Biodiesel . Furthermore, in the context of the Anti -Dumping 
Agreement, "costs" means real economic costs involved in producing the product in the exporting 
country and not simply the amount reflected on an invoice.  
 
3. Consequently, MEDT of Ukraine did properly examine the reliability of the reflection of the 
costs in  the records, in accordance with the guidance of the Appellate Body, and found that these 
records did not completely reflect the costs of gas after a thorough investigation of all evidence 
before it. MEDT of Ukraine found that the domestic gas prices were regulated by the Government, 
were artificially lower than prices in genuine free markets, and were below cost. These are all 
consequences of the dual pricing system of gas in the Russian Federation. As for the suggestion 
that MEDT of Ukraine conducted a ' reasonableness ' inquiry,3 this does not comport with the 
disclosure document (Exhibit RUS -10). As witnessed on pages 21 through 23 of that document, 
MEDT of Ukraine did properly examine the reliability  of the reflection of the costs in the records.  
 
4. The Russian Federation is attempting to defy the clarifications by the panel and Appellate 
Body in EU – Biodiesel  by either ignoring it, misinterpreting it or considering it an obiter dictum . 
The Russian Federation's qualification of footnote 400 of the panel report as obiter dictum is 
absurd and inconsistent. Footnote 400 does not deviate from the examination of the panel in 
paragraphs 7.220 to 7.247 and contributes to the panel's interpretation of Article 2.2.1.1 of the 
Anti-Dumping Agreement. Hence, paragraphs 7.220 to 7.247, including the footnotes to these 
paragraphs, constitute, as a whole, the panel's legal analysis of the second condition of 
Article  2.2.1.1, which was essential to settle the dispute.  
 
                                                
1 Appellate Body Report, EU – Biodiesel, para. 6.33.  
2 Appellate Body Report, EU – Biodiesel, para. 6.41. 
3 The Russian Federation's response to Panel question No. 7, para. 11, fourth sentence.  WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 39 - 
 
  5. Ukraine thu s maintains that the domestic gas prices in the Russian Federation were not at 
arm's length  and could therefore be disregarded by MEDT of Ukraine. In similar vein, Ukraine 
submits that this governmental set of circumstances is a " practice" which is "other " than what 
happens in a marketplace driven by supply in demand, and that this centrally dictated fixed price 
affects the reliability and accuracy of the costs as reported in the records of a producer or 
exporter. Ukraine finds that it does not need to get to the discussion of 'normally'  since the 
particular situation of the investigated Russian exporting producers already falls squarely in one of 
the two regular exceptions discussed earlier (non -arm's length or other practices). However, 
should the Panel de em it useful, Ukraine will be pleased to discuss this.  
 
6. Contrary to what the Russian Federation holds, the fundamental differences between the EU 
– Biodiesel case and the case at hand make it impossible to merely transplant the factual findings 
of EU – Biodiesel  to the case before us. The first difference between the two cases is the 
governmental regulation of gas prices in the Russian Federation, which was confirmed by the 
Working Party Report of the Russian Federation's accession. The Working Party Re port illustrates 
the specific circumstances on the Russian gas market, that led MEDT of Ukraine to the finding that 
the gas prices in the Russian Federation's internal market are not at arm's length and are the 
result of 'other practices'. This report is u sed as a factual basis and therefore falls within the scope 
of this dispute. In addition to this, the second Ad Note  to Article VI:1 GATT serves as relevant 
context to interpret Article 2.2.1.1 of the Anti -Dumping Agreement and stipulates that price 
compar ability may be difficult when domestic prices are fixed by the State.4 Both the Working 
Party Report and the Second Ad Note  point to the WTO incompatibility of the Russian Federation's 
dual pricing system for gas, which is in stark contrast to the export d uty imposed in Argentina.  
 
7. MEDT of Ukraine did not need to investigate whether prices of other suppliers were also 
fixed pursuant to the national legislation since it found that Gazprom was the main and sole 
supplier of gas for all the Russian producers  of ammonium nitrate. Additionally, out of all the 
relevant exporting producers from the Russian Federation: Uralchem did not export, EuroChem 
wanted all its answers to be disregarded and the financial statements mentioned that Dorogobuzh 
purchased all gas  volumes from Gazprom.  
 
8. The second difference lies in the fact that, contrary to the Argentine prices, the Russian 
prices for gas are below cost. The Russian Federation accuses Ukraine of misrepresenting and 
generalising the facts on the record. The fa cts however demonstrate that MEDT of Ukraine 
analyzed thousands of pages of evidence, including those contained in Exhibit UKR -1 and UKR -2. 
On the basis of a careful and balanced analysis, MEDT of Ukraine produced a concise disclosure 
document (Exhibit RUS -10) in excess of forty pages, with ten pages exclusively devoted to the 
normal value determination.  
 
9. Initially, MEDT of Ukraine did not ask for detailed information on gas suppliers, because the 
sheer size and consequences of the distorted gas costs o nly surfaced after the submission by the 
Russian producers of the answers to the questionnaires on 26 November 2013. However, after 
analysis of the answers to the questionnaires of the Russian producers, as well as additional 
documents submitted by them, M EDT of Ukraine identified that in fact there were no Russian 
producers to which it could  have directly  sent further requests on gas suppliers. [[ ***]]% of the 
exports from the Russian Federation came from EuroChem and this company had already formally 
requested that MEDT of Ukraine should disregard all its answers. Despite this position, MEDT of 
Ukraine still conducted a thorough examination and presented a well -reasoned explanation of its 
actions and findings in its disclosure.  
 
10. Ukraine submits that t he third difference with the EU – Biodiesel case is that in EU – 
Biodiesel , the domestic prices for biodiesel  (the finished product) were regulated.5 For that reason 
the European Union found that the domestic sales of biodiesel were not made in the ordinar y 
course of trade, hence resorted to constructed normal value and only then started to doubt the 
raw material costs.6 This sharply contrasts with the situation before us, where the price of the 
main raw material  was fixed by the Russian State and which was  the trigger to examine the raw 
material costs, ab initio . Furthermore, the price of the main raw material in EU – Biodiesel was not 
                                                
4 Panel Report, EU – Biodiesel , para. 7.241.  
5 Russian Federation's Second Written Submission, paras. 139 and 140, quoting AB in EU – Biodiesel, 
para. 5.4.  
6 Ibid. WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
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  regulated. In contrast to the situation in Argentina, gas prices in the Russian Federation were the 
immediate consequence o f governmental price setting.  
 
11. Lastly, the fourth difference is that the impact of the fixed price of gas is measurable and 
significant, in contrast to the impact of an export duty. It is important to note that the percentages 
of export taxes are not the same as measuring the actual effect of those taxes on soybean prices. 
In light of the above, Ukraine submits that it is clear that the factual findings of the EU – Biodiesel 
case cannot be applied to the case at hand.  
 
B. Claim 2 (Claim 11 of the Panel  Request): Ukra ine acted in breach of 
Articles  2.2 and 2.2.1.1 of the Anti -Dumping Agreement because it replaced 
(adjusted) the costs of gas actually borne by the Russian producers and 
exporters for production of ammonium nitrate with data on the gas price s 
outside the Russian Federation, in particular at the border with Germany, 
that did not reflect the costs of production in the country of origin, and used 
such prices subsequently for constructing the normal value  (RF SWS 
Section  2) 
12. Ukraine submits th at the Russian WTO -inconsistent dual pricing system of gas is at the root 
of the distortion. After having determined that under these circumstances, the accounting records 
of the companies did not reliably reflect the costs of gas, MEDT of Ukraine needed t o properly 
rectify these records. By contrast, the approach suggested by the Russian Federation, namely 
accepting the records as they are, would lead to distorted results.  
 
13. According to the Panel and the Appellate Body in EU – Biodiesel , "in such circumstances, the 
authority is not prohibited from relying on information other than that contained in the records 
kept by the exporter or producer, including in -country and out -of-country evidence"7 as long as, 
"whatever the information that it uses, an investigating authority has to ensure that such 
information is used to arrive at the 'cost of production in the country of origin'."8 The fact that the 
real cost of the gas is significantly higher than the fixed do mestic price within the 
Russian  Federation  does not mean that this disqualifies the evidence from outside the country. On 
the contrary, as Ukraine mentioned in its First Written Submission, the Appellate Body has 
proffered sound criteria and suggestions to make the required judgment calls in situa tions such as 
these. Ukraine acted in line with that guidance.  
 
14. Ukraine submits that the reasoning of the Appellate Body in US – Softwood Lumber IV and 
further developed in the anti -dumping context in EU – Biodiesel is compelling. In very specific and 
unique circumstances, such as the one that MEDT of Ukraine was facing, interpretation must be 
given to a legal concept in light of economic facts that underpin it.  In this case, no unaffected 
domestic market in the Russian Federation existed due to the dem onstrated direct and pervasive 
intrusion of the State. Hence, Ukraine finds that this was imperative to search for an outside 
benchmark, duly adjusted, to supply objective evidence of the costs of gas in the 
Russian  Federation.  
 
15. Ukraine therefore inten tionally used an undistorted price of Russian gas and then adapted 
that price to the local level. The average Russian gas price at Waidhaus was USD 426, which was 
properly 'adapted' back to the price level at the Russian border, i.e. USD 396 in line with t he 
Appellate Body guidance concerning Article 2.2 of the Anti -Dumping Agreement.  
 
C. Claim 3 (Claim 9 of the Panel Request): Ukraine violated Article 2.2.1 of the 
Anti-Dumping Agreement because it improperly treated domestic sales of 
ammonium nitrate in t he Russian Federation as not being in the ordinary 
course of trade and disregarded these sales in determining the normal value 
(RF SWS Section 3)  
16. Ukraine submits that MEDT's of Ukraine determination on the ordinary course of trade 
complied with Article  2.2.1 of the Anti -Dumping Agreement, footnote 5, and with the explanation 
accorded to Article 2.2.1 in EC – Salmon. In paragraph 7.238 of EC – Salmon  the panel clarified 
that "the "determination" that below -cost sales are made "within an extended period o f time" does 
not call for the investigating authority to "determine" the "extended period of time" itself, but only 
                                                
7 Ibid. 
8 Ibid. WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
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  that the below -cost sales in question are made within a period of time that is normally one year 
but no less than six months." In the case b efore the Panel, the period of time that was used was 
the Review Investigation Period (RIP) (which was one year). Ukraine submits that this period fully 
qualifies as an extended period of time in the sense of footnote 4 of the Agreement.  
 
17. In paragraph  7.239 of EC – Salmon, the panel confirmed that footnote 5 of the Anti -
Dumping Agreement explains that below -cost sales may be considered to be "made in substantial 
quantities" when an investigating authority establishes that the "weighted average selling price" of 
the below -cost sales at issue is less than the "weighted average per unit costs". This is exactly 
what MEDT of Ukraine did.  
 
18. In paragraph 7.275 of EC – Salmon, the panel clarified that all sales not found to be above 
weighted average cost fo r the period of investigation do not  provide for the recovery of costs 
within a reasonable period of time. By finding that the weighted average selling price was below 
the weighted average unit cost, MEDT of Ukraine made exactly this determination on pages  25, 26 
and 27 of the disclosure document.   
 
19. It is abundantly clear therefore that by meeting all three relevant conditions of Article 2.2.1 
of the Anti -Dumping Agreement, Ukraine has respected the requirements of the ordinary course of 
trade test.  
 
20. Article 2.2.1 should in any event not be relegated to the realm of a consequential violation, 
should an inconsistency with Article 2.2.1.1 somehow be determined.9 Assuming arguendo that an 
inconsistency with Article 2.2.1 could exist and lead a separat e life as a consequential violation, 
the Russian Federation has never presented a prima facie  case that, absent the rectification of the 
gas purchase costs, the three -step OCOT analysis (as properly conducted by Ukraine) would have 
led to a different resul t. The only allegation that was made was that the rectification of the gas 
costs "resulted in a much higher unit cost of production" that "made the conclusion that the 
domestic sales by the Russian exporting producers under investigation were made not in t he 
ordinary course of trade more likely ".10 Such vague contention as 'more likely' is not sufficient to 
serve as a prima facie case since a violation of a provision of the Anti -Dumping Agreement cannot 
just be established on the mere basis of 'more likely'. There was in fact never a claim that 
Article 2.2.1 was violated as a result of higher unit costs.  
 
D. Claim 4 (Claim 12 of the Panel Request): Ukraine violated the obligation in 
the first sentence of Article 2.4 of the Anti -Dumping Agreement because it 
failed to make a fair comparison between the  export price and the 
constructed normal value by improperly calculating constructed normal value 
for ammonium nitrate produced in the Russian Federation  (RF SWS 
Section  4) 
21. Ukraine recalls that the Appellate Body held in EU – Biodiesel  that Article 2.2 .1.1 and 
Article  2.4 of the Anti -Dumping Agreement serve different functions in the context of 
determinations of dumping whereby the former assists an investigating authority in the calculation 
of costs for purposes of constructing the normal value; wherea s the latter concerns the fair 
comparison between the normal value and the export price.  
 
22. Similarly, the panel held in EU – Footwear (China)  that "[n]othing in Article 2.4 suggests 
that the fair comparison requirement provides guidance with respect to the determination of the 
component elements of the comparison to be made, that is, normal value and export price."  
 
23. For the foregoing reasons, the Russian Federation has not demonstrated that Ukraine failed 
to make a "fair comparison" between the norma l value and the export price, inconsistently with 
Article 2.4 of the Anti -Dumping Agreement.  
                                                
9 Ukraine's response to Panel question No. 15. paras. 68 -70. 
10 Russian Federation's First Written Submission, para. 117. (emphasis added)  WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
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II. VIOLATION OF ARTICLES 5.8, 11.1, 11.2 AND 11.3 OF THE ANTI -DUMPING 
AGREEMENT BY INCLUDING A RUSSIAN PRODUCER WITH A NEGATIVE DUMPING 
MARGIN IN THE SCOPE OF TH E INTERIM AND EXPIRY REVIEWS  
A. The Panel's Term of Reference  
24. Since the Russian Federation has clarified that it is no longer bringing a claim against the 
2008 Decision, Ukraine does not need to reiterate its previous arguments regarding the fact that  
the 2008 Decision is not a measure brought properly before the Panel.  
 
25. Notwithstanding this, Ukraine submits that the 2010 Decision was not brought properly 
before the Panel and therefore falls outside the Panel's terms of reference. This is clear by  the 
wording of the Panel Request that limits the scope of the dispute to only those measures in 
relation to the expiry and interim reviews. Furthermore, contrary to what the Russian Federation 
holds, footnote 2 of the Panel Request is insufficient to prop erly identify the measures at issue 
since it appears to merely provide factual context to the expiry and interim review. Similarly, 
Ukraine holds that the Russian Federation's First Written Submission did not provide the required 
clarification since it emp hasised a violation of Articles 11.1, 11.2 and 11.3 of the Anti -Dumping 
Agreement, which can only relate to the 2014 Decision.   
 
26. As a consequence of the unclarity, Ukraine has to engage in speculation as to which 
measures were being challenged by the R ussian Federation. However, the fact that Ukraine 
accidently addressed the correct claim does not make the Panel Request compliant with Article 6.2 
DSU. Evidently, these requirements needed to be met when the Panel Request was submitted and 
not after Ukrai ne wrote its First Written Submission. For these reasons, Ukraine submits that the 
2010 Decision is not a measure before the Panel.  
 
B. Violation of Article 5.8 Anti -Dumping Agreement in the 2014 Decision  
27. Ukraine submits that the obligation under Arti cle 5.8 of the Anti -Dumping Agreement to 
immediately terminate an investigation when the dumping margin is zero or de minimis,  did not 
arise with respect to the 2014 Decision. Pursuant to the Appellate Body in Mexico – Anti-Dumping 
Measures on Rice , an inv estigating authority only needs to terminate an investigation if it 
determines a negative, zero or de minimis  dumping margin. MEDT of Ukraine found dumping 
margins of 40.5% and 82.2%, and therefore, it was not under the obligation to terminate the 
investig ation. Furthermore, as held by the panel in US – DRAMS  and the panel in US – Corrosion -
Resistant Steel Sunset Review , the obligation to immediately terminate an investigation when the 
dumping margin is zero or de minimis is only applicable to original inve stigations initiated pursuant 
to Article 5 of the Anti -Dumping Agreement. Consequently, the de minimis test in Article 5.8 of the 
Anti-Dumping Agreement does not apply in expiry reviews.  
 
C. Conditional Defense  Regarding the Claim that the 2010 Decision Violated 
Article 5.8 Anti -Dumping Agreement  
28. Even if one assumes that a claim under Article 5.8 of the Anti -Dumping Agreement could 
have been brought against the 2010 Decision, Ukraine submits that such claim should be rejected 
since the investigating authority, MEDT of Ukraine and the Interdepartmental Commission on 
International Trade (ICIT), never determined a negative, zero or de minimis dumping margin. 
Upon request of EuroChem, the Ukrainian Courts simply ruled that the 2008 Decision was unlawful 
but did not find in the operative part that the dumping margin for EuroChem was negative, zero or 
de minimis . During the Court proceedings, the only calculation methods presented were the 
erroneous calculations car ried out by EuroChem itself. The Courts, however, did neither instruct to 
reopen the investigation, nor to apply a particular methodology for the calculation of the dumping 
margin since this was not requested by EuroChem. Consequently, MEDT of Ukraine and ICIT had 
no choice but to bring the duty down to zero without recalculating the dumping margin.  
 
29. Ukraine submits that as neither the investigating authorities in the 2010 Decision, nor the 
judgements of the Ukrainian Courts determined a negative, zero or de minimis dumping margin for 
EuroChem, the conditions set out by the Appellate Body in Mexico – Anti-Dumping Measures on 
Rice are not met. Therefore, the obligation under Article 5.8 of the Anti -Dumping Agreement to WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
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  immediately terminate an investigati on and to not include producers with a negative or de minimis 
dumping margin in future reviews was not triggered by the 2010 Decision.  
 
D. Violation of Articles 11.1, 11.2 and 11.3 of the Anti -Dumping Agreement in 
the 2014 Decision  
30. Ukraine considers t hat the Russian Federation's claim concerning Article 11.1, 11.2 and 11.3 
of the Anti -Dumping Agreement is purely consequential to the Russian Federation's claim under 
Article 5.8 of the Anti -Dumping Agreement. Ukraine therefore submits that since the mere  
imposition of a zero dumping duty on a company – without a determination of a negative, zero or 
de minimis  dumping margin – does not trigger the obligation to immediately terminate the 
investigation, there is also no obligation upon the investigating auth ority to exclude the same 
company in later reviews. In other words, if the obligation under Article 5.8 of the Anti -Dumping 
Agreement does not apply in the original investigation, Ukraine holds that the same obligation 
cannot exist in later reviews.  
 
31. If the Panel were to consider that this claim is not consequential, Ukraine submits that this 
claim must still be dismissed as unfounded as the Russian Federation failed to provide a prima 
facie violation of these provisions. Indeed, the Russian Federation  did not specify which actions – 
or inactions – by MEDT of Ukraine or ICIT constitute an alleged violation of these legal provisions. 
Ukraine cannot be expected to defend itself against claims that merely refer to articles of the Anti -
Dumping Agreement wit hout any further specifications or clarifications as to the exact claimed 
violations.  
 
III. SUBSTANTIVE CLAIMS RELATING TO THE LIKELIHOOD OF INJURY 
DETERMINATION  
A. Claim 8:  Ukraine Acted Inconsistently with Articles 11.1, 11.2 and 11.3 of the 
Anti-Dumping Agreement  
1. MEDT's of Ukraine Determination of the Likelihood of Recurrence of Injury  
32. Pursuant to the panel in EU – Footwear (China) , in order to discharge the burden of proof, 
the Russian Federation must demonstrate that while making it s conclusion on the likelihood of 
injury, MEDT of Ukraine did not make a reasoned conclusion based on sufficient evidence. The 
heart of the Russian Federation's argument is that MEDT of Ukraine made a determination that 
material injury existed in the RIP a nd that MEDT of Ukraine relied on this determination to 
conclude that there was likelihood of continuation of injury.  
 
33. As is clear from section 13 and 11.4 of the Disclosure, Ukraine holds that MEDT of Ukraine 
determined that there was a likelihood of recurrence of injury and not of continuation of injury. 
The analysis performed by MEDT of Ukraine underscored the negative effects on the Ukrainian 
domestic industry which would occur should the measures be terminated. Moreover, Ukraine notes 
that the Russ ian Federation does not point out a single passage in the Disclosure or 2014 Decision 
stating that MEDT of Ukraine determined that the injury was likely to continue should the anti -
dumping measures be repealed.  
 
34. Ukraine submits that the Russian Federat ion's argument saying that MEDT's of Ukraine 
determination that the Ukrainian domestic industry did not completely recover from material injury 
established during the original investigation is equal to a determination that the Ukrainian industry 
is sufferi ng from material injury is incorrect since it ignores the economic reality. When carrying 
out an interim or expiry review, the condition of the domestic industry may range anywhere 
between a completely healthy state and suffering from serious injury. Essen tially, all possible 
degrees of deterioration of domestic industry, that fall short of "injury" within the meaning of 
Article 3, should therefore be classified, in terms of the Anti -Dumping Agreement, as absence of 
injury . A finding that the domestic indus try did not completely  recover from previous material 
injury would suggest that the domestic industry is somewhere in between  having recovered (a 
healthy state) and suffering from material injury. Therefore, in terms of two legal categories 
provided for in  the Anti -Dumping Agreement, such finding should be classified as a finding that the 
domestic industry is not suffering from a material injury.  WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
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  2. Russian Federation's Claims in respect to the Determinations relied on by MEDT of Ukraine 
in its likelihood a nalysis  
35. Ukraine submits that in the course of expiry and interim reviews, an investigating authority 
is obliged to base it findings on an objective examination of positive evidence. However, as held by 
the Appellate Body in US – Oil Country Tubular Goo ds Sunset Reviews , the source of this 
obligation is Articles 11.2 and 11.3 of the Anti -Dumping Agreement and not Article 3 since the 
obligations set out in Article 3 do not apply to likelihood -of-injury determinations in sunset 
reviews.11  
 
36. The Russian Federation submits a new argument in its second written submission stating 
that MEDT of Ukraine should have taken into account the that natural gas was supplied to the 
Ukrainian domestic industry by Ostchem at prices, allegedly higher than Ostc hem's own purchase 
costs.12 This allegation never appeared in the Russian Federation's First Written Submission, First 
Oral Statement nor in the responses to the questions from the Panel. Ukraine therefore submits 
that this cannot be addressed in the Panel Report.  
 
37. In any event, the Russian Federation's allegation has no merit. MEDT of Ukraine was indeed 
aware that the Ukrainian domestic producers were purchasing gas from its parent company, 
Ostchem Holding. This is clearly indicated in the questionnair e responses of the Ukrainian 
producers. At the same time, gas purchase prices of the Ukrainian domestic industry, as reflected 
in their records, were in line with the market prices for the industrial users in Ukraine (that is, 
Naftogaz market price to indu strial users). Therefore, the price of gas sale transactions between 
Ostchem and Ukrainian domestic industry adequately reflected market forces and the arm's length 
principle.13 Moreover, the assessment of the state of the industry is limited to the domesti c 
companies producing the like product and does not include the assessment of the profitability of 
the parent company.  
 
38. The Russian Federation criticizes MEDT's of Ukraine comparison between the prices of the 
imported product and like domestic product  on the grounds that it does not discuss "reasons 
underlying the difference in prices"14 and attributes to "a legitimate decision of the Ukrainian 
courts" negative effect on the prices of the domestic industry.15 First, similar to the issue of 
transfer prici ng, the criticism of MEDT's of Ukraine price comparison was raised for the first time in 
Russian Federation's Second Written Submission. It would, therefore, be inappropriate to address 
this new allegation in the Panel's report. Secondly, there is no conne ction between this argument 
and the two "claims" under Articles 11.1, 11.2 and 11.3 advanced by the Russian Federation in the 
Panel Request. Further, Russian Federation's criticism, has, in any event, no merit. There is no 
obligation to explore the "reason s" for differences in price levels and/or the difference between the 
price of the Russian exporters and the cost of production of domestic industry. The fact is that 
Russian producer's export price (Ukraine border) was lower than the cost of production of 
Ukrainian domestic producers and the sales prices of the Ukrainian domestic producers.  
 
39. With regard to the Russian Federation's argument that MEDT's of Ukraine determination "on 
likelihood of injury was unsubstantiated and legally flawed since the anal ysis had been carried out 
on the basis of imports including"16 imports from EuroChem in respect of which a zero anti -
dumping duty was established in the 2010 Decision, Ukraine would like to reiterate its position. As 
previously explained, MEDT of Ukraine wa s under no obligation to exclude EuroChem from the 
review since this obligation does not exist during reviews and since EuroChem was found to be 
dumping. In any event, Ukraine submits that considering import  volume  trends  of a producer  in 
respect  of whom  anti-dumping  duty was decreased  to zero is the most reasonable  methodology  to 
assess  the import  trends  once the anti-dumping  measures  are terminated.  
 
                                                
11 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 285.  
12 Russian Federation's Second Written Submission, paras. 604 -610. 
13 In particular, in 2012 the domestic industry gas purchase price (net of VAT, inclusive transportation 
costs) was in the range between [[ ***]] and [[ ***]] USD/1000 m3 and in RIP, between [[***]] and [[ ***]] 
USD/1000 m3. Naftogaz price to industrial consumers (net of VAT, inclusive transportation costs) was 476.8 
USD/1000 m3 both in 2012 and RIP.  
14 Russian Federation's Second Written Submission, para. 615.  
15 Ibid.  
16 Russian Federation's First Written Submission, para. 209.  WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 45 - 
 
  IV. PROCEDURAL CLAIMS  
A. Claim 9 (Claim 4 of the Panel Request): Relating to the Alleged Recourse to 
Facts  Available  
40. Ukraine explains that the information about costs of gas in the producers' records was not 
rejected on evidentiary grounds under Article 6.8 of the Anti -Dumping Agreement.17 Instead, the 
information regarding the costs of gas in the records of the investigated producers was accepted 
into evidence, analyzed by MEDT of Ukraine and thereafter rectified based on the substantive rules 
regarding the determination of costs under Article 2.2.1.1 of the Anti -Dumping Agreement. The 
respective explanati ons were duly provided in the Disclosure. Furthermore, the Russian Federation 
did not bring forward any arguments substantiating its claim.  
 
B. Claim 10 (Claim 5 of the Panel Request): Ukraine acted inconsistently with 
Articles 6.2 and 6.9 of the Anti -Dump ing Agreement because Ukraine failed 
to adequately disclose the essential facts under consideration which formed 
the basis for the decision to apply anti -dumping measures, including the 
essential facts underlying the determinations of the existence of dump ing; 
the calculation of the dumping margins, including relevant data and formula 
applied; the determination of injury and causation, including the price 
comparisons and the underlying data; information on import and domestic 
prices used therein  
41. With re spect to the Russian Federation's claims under Articles 6.2 and 6.9 of the Anti -
Dumping Agreement, Ukraine reiterates that the Russian Federation failed to demonstrate that any 
of the facts, which were allegedly not disclosed, constitute essential facts. M oreover, Ukraine notes 
that the information in Tables 11.3.1, 11.3.2, 11.3.3, 11.3.4, 11.3.5 and 11.3.6 was properly 
disclosed to the interested parties taking into account MEDT's of Ukraine confidentiality obligations 
under Article 6.5 of the Anti -Dumping  Agreement.  
 
42. Contrary to the Russian Federation's allegations, the Ukrainian producers did request 
confidential treatment both for their individual data and for the combined data. The request for 
confidentiality was in fact substantiated since the Ukra inian producers qualified the data as 
commercially sensitive for the companies individually and together. This qualification was 
reasonable, as for example, the disclosure of the average price level in respect to the four 
affiliated companies would have gi ven Russian producers a good basis for formulating their own 
pricing strategy in Ukraine. Ukraine emphasizes that none of the interested Russian Producers 
objected to the designation of this data as commercially sensitive.  
 
43. Furthermore, with regard to the sufficiency of the non -confidential summaries, Ukraine 
argues that since MEDT of Ukraine made its determinations on the basis of trends of various 
economic and financial indicators, as opposed to absolute figures, the disclosure of trends data 
was the most appropriate means of providing a summary of the confidential information.  
 
44. Finally, Ukraine notes that the Federation's grievances regarding the confidentiality 
treatment and insufficient confidential summaries are, in any event, outside of the Panel's Terms 
of Reference. The Panel's Terms of Reference are limited pursuant to Article 7 DSU to the claims 
put for ward in the Russian Federation's Panel Request. In its Panel Request, the 
Russian Federation advanced only a claim under Article 6.5.1 of the Anti -Dumping Agreement and 
not under Article 6.5 in general. Consequently, the Panel has no jurisdiction to rule o n Ukraine's 
alleged violation of Article 6.5 of the Anti -Dumping Agreement.   
 
C. Claim 11 (Claim 6 of the Panel Request): Ukraine acted inconsistently with 
Article 6.9 of the Anti -Dumping Agreement because the disclosure of the 
documents with results of expiry and interim reviews issued on 25 June 2014 
was not made by Ukraine in sufficient time for the interested parties to 
defend their interests  
45. Ukraine notes that the Ukrainian Anti -Dumping Law clearly indicates that the time -limits 
established by th e investigating authority " expire at the end of the working hours  in ministries, 
                                                
17 See Ukraine's First Written Submission, Section VII.A.1.  WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 46 - 
 
  central executive body in the tax or customs sphere or in the Commission" .18 Ukraine submits that 
it is not unreasonable to expect that one interested party, namely EuroChem, p articipating in an 
anti-dumping investigation in Ukraine would familiarize itself with the legislation – Ukrainian Anti -
Dumping Law – applicable to the conduct of the investigation.  
 
46. The Russian Federation also claims that the 2 -days period was unreas onable because the 
disclosure was issued in Ukrainian language. The anti -dumping investigation was conducted in 
Ukraine by Ukrainian Authorities with Ukrainian being the official language of Ukraine. The fact 
that an interested party may not have command o f the Ukrainian language, therefore, does not 
warrant a provision of any additional time for submitting comments.  
 
V. OTHER CLAIMS  
A. Claim 14 (Claim 7 of the Panel Request): Ukraine acted inconsistently with 
Articles 12.2 and 12.2.2 of the Anti -Dumping A greement because Ukraine 
failed to provide in sufficient detail in the Decision of the Intergovernmental 
Commission on International Trade N o.AD -315/2014/4421 -06 of 
1 July 2014, as referred to in Notice "On the changes and extension of anti -
dumping measure s in respect of import to Ukraine of ammonium nitrate 
originating in the Russian Federation", and in the Communication of the 
Ministry of Economic Development and Trade of Ukraine No. 4421 -10/21367 -
07 of 25 June 2014 the findings and conclusions reached on  all issues of fact 
and law it considered in making its preliminary and final determinations and 
failed to provide all relevant information and reasons, which have led to the 
imposition of the measure. In particular, Ukraine did not provide the 
calculation s used to determine the dumping margins in the final 
determination and the data it relied upon in order to make the calculations  
47. Ukraine explained that a claim under Article 12.2 does not ev olve from a claim under 
Article  6.9 and does in fact expand th e scope of the dispute. In respect of the scope of obligations 
under Articles 6.9 and 12.2, Russian Federation's arguments are limited to a mere statement that 
both Articles contain an obligation to disclose information and, therefore, do not categorically  
differ.19 Ukraine notes that the scope of disclosure ( i.e., which information has to be disclosed) 
was considered a relevant factor by the panel in EC – Fasteners (China)  in its decision to rule that 
a claim under Article 6.9 (an obligation to disclose inf ormation) not mentioned in the Request for 
Consultations was outside the Panel's Terms of Reference, even though a claim under Article 6.2 
(also a disclosure obligation) was mentioned in the Request for Consultations.20 The same panel 
found that the timing as to when the disclosure has to be fulfilled is another relevant factor.  
 
48. Furthermore, the difference in purpose is that Article 6.9 of the Anti -Dumping Agreement 
obliges an investigating authority to provide parties "with sufficient factual informat ion to defend 
their interests during the investigation", whereas Article 12.2.2 – "to ensure that the investigating 
authority's reasons for concluding as it did can be discerned and understood".  
 
49. Finally, Ukraine notes that including the phrase "notice s […] of the Ministry of Economic 
Development and Trade of Ukraine" is insufficient to indicate to Ukraine that by challenging the 
measures under Article 6.9 of the Anti -Dumping Agreement, the Russian Federation also intends to 
challenge the measures under  Article 12.2 of the same Agreement. Ukraine recalls that the 
complaining party must indicate both the measure being challenged and the specific legal 
provisions alleged to be violated.21 The mere indication of a measure being challenged does not 
put the re spondent on a sufficient notice as to what claims the claimant intends to pursue and 
what "matter" is being referred to the DSB.  Based on the foregoing, Ukraine submits that the 
Russian Federation's claim under Article 12.2 of the Anti -Dumping Agreement fa lls outside of the 
scope of the Panel's terms of reference.  
 
                                                
18 Paragraph 4, Article 6 of the Ukrainian Anti -Dumping Law, Exhibit UKR -9. 
19 Russian Federation's Second Written Submission, para. 714.  
20 Panel Report, EC – Fasteners (China) , paras. 7.507 and 7.508.  
21 Appellate Body Report, Guatemala – Cement I , paras. 70 and 72.  WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 47 - 
 
  VI. CONCLUSIONS  
50. Ukraine has shown that all the claims pursued and developed in the Russian Federation's 
First Written Submission, First Oral Statement, Second Written Submission and Second Oral 
Statement  are unfounded and based on erroneous interpretations of the covered agreements. 
Ukraine respectfully asks the Panel to reject all of the Russian Federation's claims.  
 
 
_______________  
 
 
 WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 48 - 
 
  ANNEX C  
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Executive summary of the arguments of Argentina  49 
Annex  C-2 Executive summary of the arguments of Australia  52 
Annex  C-3 Executive summary of the arguments of Brazil  55 
Annex  C-4 Executive summary of the arguments of China  58 
Annex  C-5 Executive summary of the arguments of Colombia  61 
Annex  C-6 Executive summary of the arguments of the  European Union  63 
Annex  C-7 Executive summary of the arguments of Japan  68 
Annex  C-8 Executive summary of the arguments of Mexico  71 
Annex  C-9 Executive summary of the arguments of Norway  75 
Annex  C-10 Executive summary of the arguments of the United States  77 
 
 
  WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 49 - 
 
  ANNEX C -1 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF ARGENTINA  
Third party oral statement  
Introduction  
 
1. Argentina thanks the Panel for the opportunity to participate in this case and to present its 
views, given its systemic and trade interest in the correct interpretation of certain obligations 
contained in the legal provisions of the Anti -Dumping Agreement and the GATT 1994 invoked in 
this dispute.  
2. In particular, Argentina emphasizes the importance of maintaining a proper interpretation of 
the ru les contained in those agreements and the findings made by the Appellate Body in  EU –
Biodiesel  (DS473).  
3. In the light of the foregoing, Argentina respectfully submits the following considerations to 
the Panel.  
The Russian Federation's claim under Article 2.2.1.1 of the Anti -Dumping Agreement  
 
4. In connection with the claim under Article 2.2.1.1 of the Anti -Dumping Agreement and 
Article  VI:1(b)(ii) of the GATT 1994, Argentina considers it appropriate to recall certain specific 
principles developed by the Appe llate Body in the EU – Biodiesel  case. 
5. First of all, the Appellate Body upheld  the Panel's finding that Article 2.2.1.1 "does not 
involve an examination of the 'reasonableness' of the reported costs themselves, when the actual 
costs recorded in the records  of the producer or exporter are otherwise found, within acceptable 
limits, to be accurate and faithful".1 
6. Upon verification of the conditions of the first sentence of Article 2.2.1.1, that is, the 
existence of records that are kept in accordance with gene rally accepted accounting principles and 
reasonably reflect the costs associated with the production and sale of the product under 
consideration, the value must be constructed on the basis of those records  insofar as  they reflect 
the actual costs  incurred.2 
7. Argenti na has argued that the correct i nquiry into whether the records reasonably reflect the 
cost of production involves an assessment of the reasonableness of the records , as opposed to the 
reasonableness  of the costs, and that, although government int ervention may distort costs, such 
intervention does not necessarily constitute a sufficient basis for disregarding the records.3 
8. Secondly, Argentina does not agree with the interpretation given by some third parties to 
the effect that certain governmental actions may be the source or origin of dumping.4 
9. The Panel in the EU – Biodiesel  case found that there were no legal arguments to 
extrapolate from the second Ad Note to Articles VI:2 and VI:3 that the concept of "dumping" is 
intended to cover any distortio n arising out of government action.5 
10. The Appellate Body reaffirmed that the object and purpose of the Anti -Dumping Agreement 
is to recognize the right of Members to take anti -dumping measures to counteract injurious 
                                                
1 EU – Biodiesel  (WT/DS473/AB/R, para. 6.41).  
2 EU – Biodiesel  (WT/DS473/AB/R, para. 6.41).  
3 EU – Biodiesel  (WT/DS473/R, para. 7.188).  
4 Third Party Written Submission of the European Union, p. 7; Third Party Written Submission of Brazil, 
pp. 8-9. 
5 EU – Biodiesel  (WT/DS473/R, para. 7.240).  WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 50 - 
 
  dumping6 and that the normal value of th e product under consideration must be constructed in 
accordance with costs actually incurred by the investigated companies.7 
11. In other words, the construction of value must not be based on hypothetical costs that might 
have been incurred under a different s et of conditions or circumstances, such as the alleged 
absence of any distortion of costs caused by government intervention.8 
12. In this connection, in the EU – Biodiesel  case, both the Panel and the Appellate Body found 
that the difference between the domest ic market prices and the international prices of the raw 
material caused as a result of certain gove rnment interventions does not, in itself, constitute a 
sufficient basis, under Article 2.2.1.1, for concluding that the producers' records do not reasonably  
reflect the costs of the raw material, or for disregarding those costs when constructing the normal 
value of the product under consideration.9 
The Russian Federation's claims under Article 2.2 of the Anti -Dumping Agreement  
 
13. The Russian Federation argues t hat Ukraine acted in a manner inconsistent with Article  2.2 
of the Anti -Dumping Agreement by not using production costs in the country of origin to construct 
normal value and by replacing the raw material costs reported in producers' records (internal co st 
and cost actually incurred) with the average price of gas destined for export at the border with 
Germany.10 
14. Argentina recalls that, as was noted by the Appellate Body in the EU – Biodiesel case, the 
investigating authority is not prevented from having recourse to information on costs other than 
that contained in the records  of exporters or producers, including in -country and out -of-country 
evidence . This, however, does not mean that an inves tigating authority may simply substitute the 
costs from outside the country of origin for the "cost of production in the country of origin".11 
15. The Appellate Body held that Article 2.2 of the Anti -Dumping Agreement and 
Article  VI:1(b)(ii) of the GATT 1994 ma ke clear that the determination provided for in that rule 
refers to the "cost of production […] in the country of origin". Thus, whatever the information that 
it uses, an investigating authority has to ensure that such information is used to arrive at the "cost 
of production in the country of origin".12 
16. It may be concluded from the foregoing that the investigating authority may not have 
recourse to information from a place other than the country of origin for the sole purpose of 
correcting an alleged cost di stortion caused by government intervention , by substituting an alleged 
out-of-country cost for the do mestic cost actually incurred . 
The Russian Federation's claim under Article 6.9 of the Anti -Dumping Agreement  
 
17. The Russian Federation argues that Ukraine a cted in a manner inconsistent with Article 6.9 
of the Anti -Dumping Agreement by not having informed all interested parties of the essential facts 
in sufficient time for them to defend their interests. Russia maintains that Ukraine granted only 
two working days for the interested parties to make comments on the essential facts which formed 
the basis for the decision taken as a result of the interim review and the final review upon expiry 
of the time -limit. 
18. Without seeking to take a position on factual questi ons in this specific case, Argentina shares 
the view expressed by the Russian Federation and by some third parties13 to the effect that the 
two working days allowed for comments on the essential facts do not appear prima facie  to be 
sufficient or reasonable  under the terms of Article 6.9 of the Anti -Dumping Agreement.  
                                                
6 EU – Biodiesel  (WT/DS473/AB/R, para. 6.25).  
7 EU – Biodiesel  (WT/DS473/AB/R, para. 6.19).  
8 EU – Biodiesel  (WT/DS473/AB/R, para. 6.41).  
9 EU – Biodiesel  (WT/DS473/AB/R, paras. 6.54-6.56).  
10 First Written Submission by the Russian Federation, p. 95.  
11 EU – Biodiesel  (WT/DS473/AB/R, para. 6.73).  
12 EU – Biodiesel  (WT/DS473/AB/R, para. 6.73).  
13 Third Party Submission of Brazil, pp.  22-24. WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 51 - 
 
  Conclusion  
 
19. Madam President and distinguished Panel members, Argentina thanks you for your 
attention.  
 WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 52 - 
 
  ANNEX C -2 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF AUS TRALIA  
1. Australia's submissions in this dispute have focused on how normal value should be 
determined in anti -dumping investigations where government price setting is evident.   
 
I. INTERPRETATION OF "R EASONABLY REFLECT TH E COSTS" IN ARTICLE 2.2.1.1 OF 
THE ANTI -DUMPING AGREEMENT  
2. In Australia's view, the proper application of Article 2.2.1.1 of the Agreement on 
Implementation of Article VI of the General Agreement on Tariffs and Trade  (the "Anti -Dumping 
Agreement") is informed by the purpose of Article 2.2, which  the Appellate Body has described as 
follows:   
 
Article 2.2 of the Anti -Dumping Agreement concerns the establishment of the normal 
value through an appropriate proxy for the price of the like product in the ordinary 
course of trade in the domestic market of the exporting country when the normal 
value cannot be determined on the basis of domestic sales. The costs calculated 
pursuant to Article 2.2.1.1 of the Anti -Dumping Agreement must be capable of 
generating such a proxy. This supports the view that the " costs associated with the 
production and sale of the product under consideration" in Article 2.2.1.1 are those 
costs that have a genuine relationship with the production and sale of the product 
under consideration.1  
3. Australia considers that an investig ating authority must therefore examine whether costs 
calculated pursuant to Article 2.2.1.1 are capable of generating an appropriate proxy; and have a 
genuine relationship with the production and sale of the product under consideration.  Where 
reliance on the costs reflected in a producer or exporter's records would not result in an 
appropriate proxy, an investigating authority should disregard those costs.  
 
4. In Australia's view, such circumstances may arise in instances where government price 
setting is evident.  This is because government price setting may not apportion costs between 
relevant entities on the basis of commercial considerations and market forces of supply and 
demand.  Rather, where the input prices paid and recorded by a producer or export er are set by 
government, they may not accurately reflect how the actual costs have been apportioned between 
the relevant transacting entities.  In such circumstances, using the producer's or exporter's cost 
records could fail to reasonably reflect the cos ts associated with the production and sale of the 
product under consideration, such that they would yield an inappropriate proxy that fulfils the 
basic purpose of Article 2.2.  
 
5. The Appellate Body has consistently recognised that costs may be disregarde d in remedies 
investigations where they are not based on forces of supply and demand but instead reflect some 
anomalous distortion – including: where prices in a subsidies investigation are suppressed because 
of a government's predominant role in the marke t;2 where prices are suppressed because sales of 
relevance to an anti -dumping investigation take place between affiliates;3 and where sales take 
place in the context of a liquidation sale.4  This is further supported by the context of Article 2.2, 
includin g Article 2.7 – which makes clear that the price comparison methodology may need to be 
adjusted in circumstances of government price setting.  
 
6. Australia therefore considers that the setting of input prices by government may be a 
sufficient basis for dis regarding the costs reflected in the records of producers and exporters 
because, where those costs would not yield an appropriate proxy for the price of the like product in 
the ordinary course of trade, they would not fulfil the basic purpose of Article 2. 2. 
                                                
1 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.24.  
2 Appellate Body Reports, US – Softwood Lumber IV , para. 106; US – Anti-Dumping and Countervailing 
Duties (China) , para. 446.  
3 Appellate Body, US – Hot-Rolled Steel , paras. 140 - 147.  
4 Appellate Body, US – Hot-Rolled Steel , para. 143. WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 53 - 
 
   
II. INTERPRETATION OF "N ORMALLY" IN ARTICLE 2.2.1.1 OF THE ANTI -DUMPING 
AGREEMENT  
7. Australia supports Ukraine's argument in this dispute that the "normally" condition in 
Article  2.2.1.1 of the Anti -Dumping Agreement provides a separate legal ground f or derogating 
from producers' records.   
 
8. As was found by the panel in China – Broiler Products , the "normally" condition provides a 
standalone legal basis to derogate from the rule applied in Article 2.2.1.1, and ''requires  an 
investigating authority t o explain why it departed from the norm and declined to use a 
respondent's books and records."5 
 
9. Australia therefore considers that the "normally" condition: supports the view that an 
investigating authority should consider whether it would be appropria te in the circumstances of a 
particular investigation to depart from the usual rule in Article 2.2.1.1;  and justifies disregarding 
the records of producers and exporters where these would not yield an appropriate proxy.  
 
III. DISTINGUISING THIS D ISPUTE FR OM EU – BIODIESEL (ARGENTINA ) 
10. Australia considers that it is important to take account of the factual and legal distinctions 
between this dispute and EU – Biodiesel (Argentina) , and cautions against any reflexive application 
of the reasoning and findings in EU – Biodiesel (Argentina) to the current dispute.   
 
11. Nuances in the panel and Appellate Body reports in EU – Biodiesel (Argentina) have not 
been reflected in Russia 's first written submission or oral statement.  In particular, Russia contends 
that Article 2.2.1.1, as clarified by the Appellate Body in that dispute, makes the parameters of the 
costs themselves beyond the scope of the investigating authority's examination.6  However, while 
the panel and the Appellate Body determined that the Argentine export tax system did not provide 
"a sufficient basis" for disregarding the costs in producer and exporter records, both the panel and 
the Appellate Body explicitly recognised a number of circumstances in which the costs reflected in 
producers' records might be examined and disregarded.7   
 
12. Importantly, the panel in EU – Biodiesel (Argentina) also explicitly noted that the 
circumstances at issue in that dispute  were distinct  from those where input prices are set by the 
government, as is the case in the current dispute.8  For the reasons Australia has provided 
throughout its submissions in this dispute, in Australia's view, government price setting provides a 
sufficient basis for disregarding the costs in records of producers and exporters under 
investigation.  
 
13. Further, in EU – Biodiesel (Argentina) , the EU made clear that it did not seek to rely upon 
the "normally" condition.9  In contrast, Ukraine does seek to rely upon it in this dispute.  This 
provides a second legal ground to support Ukraine's approach which was not examined in the 
dispute upon which Russia seeks to rely.   
 
IV. FINDING THE COSTS AS SOCIATED WITH PRODUC TION IN  THE COUNTRY OF 
ORIGIN CONSISTENTLY WITH ARTICLE 2.2  
14. The text of Article 2.2 permits the margin of dumping to be determined by comparison with 
a comparable price of the like product when exported to an appropriate third country in certain 
circumstances .  In considering how this should be applied, Australia observes that the Appellate 
Body in EU – Biodiesel (Argentina)  found that the use of "information from sources outside the 
country" was permitted on the condition that:  
                                                
5 Panel Report, China – Broiler Products , para. 7.161, citing Appellate Body Report, US – Clove 
Cigarettes , para. 273.  
6 Russia's first written submission, para. 68.  
7 Panel Report, EU – Biodiesel (Argentina) , fn 400; Appellate Body Report, EU – Biodiesel (Argentina) , 
para. 6.41.  
8 Panel Report  EU – Biodiesel (Argentina) , fn 421 to para. 7.249. Note the Appellate Body upheld these 
findings in para. 6.57 of its Report.   
9 Panel Report, EU – Biodiesel (Argentina) , fn 380; Appellate Body Report, EU – Biodiesel (Argentina) , 
fn 120. WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 54 - 
 
   
 … whatever information or evi dence is used to determine the "cost of production", it 
must be apt to or capable of yielding a cost of production in the country of origin. 
This, in turn, suggests that information or evidence from outside the country of origin 
may need to be adapted in o rder to ensure that it is suitable to determine a "cost of 
production" "in the country of origin".10 
15. This makes clear that use of data from outside of the country of production is permitted 
where that data is adapted to ensure it is suitable to determin e the cost of production in the 
country of origin.  In Australia's view, this will depend on the specific circumstances of a given 
case, the quality and quantity of the evidence on the investigation record, and the quality of an 
investigating authority's e xplanation.  However, Australia cautions that the process of adjustment 
should not reintroduce distortions, such as those arising from government price setting, in the 
construction of normal value.  
 
V. CONCLUSION  
16. Australia concludes that Article 2.2 re quires an investigating authority to examine whether 
costs calculated pursuant to Article 2.2.1.1 are capable of generating an appropriate proxy, and 
whether government price setting has suppressed costs to the extent that costs apportioned to the 
seller a re not reasonably reflected in the records.  In such circumstances there may be grounds for 
the investigating authority to depart from the producer or exporter records where doing so would 
yield a more appropriate proxy.  Where such derogation takes place,  Article 2.2 clearly permits the 
use of data from a third country where it is appropriately adjusted to reflect the costs of 
production in the country of origin, without reintroducing the very distortions that undermine the 
appropriateness of the proxy.  
 
 
                                                
10 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.70. WT/DS493/ R/Add.1  
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- 55 - 
 
  ANNEX C -3 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF BRA ZIL 
1. Brazil made the following points in relation to topics of systemic relevance in this dispute.  
 
I. The legal standard under Article 2.2.1.1 of the Anti -dumping Agreement (ADA)  
 
2. The Russian Federation relied heavily on the Appellate Body jurisprudence in EU – Biodie sel 
(Argentina)  to argue its case. Brazil would like to recall, however, that the referred Appellate 
Body's ruling is circumscribed to the factual circumstances of that case. Therefore, Brazil would 
caution the Panel against overstretching the boundaries o f the Appellate Body 's ruling in EU – 
Biodiesel (Argentina) . 
 
3. It is clear from the report in EU – Biodiesel (Argentina)  that the Appellate Body 's reading of 
the legal standard under Article 2.2.1.1 of the ADA is more nuanced than Russia has argued in 
these proceedings.  
 
4. Firstly, the Appellate Body referred to several instances in which investigating authorities are 
authorized to depart from the records kept by producers when calculating the normal value. It 
explained that:  
 
"[R]ecords  that are GAAP -consistent may nonetheless be found not to reasonably 
reflect the costs associated with the production and sale of the product under 
consideration. This may occur, for example, if certain costs relate to the production 
both of the product un der consideration and of other products, or where the exporter 
or producer under investigation is part of a group of companies in which the costs of 
certain inputs associated with the production and sale of the product under 
consideration are spread across  different companies' records, or where transactions 
involving such inputs are not at arm's length. "1 
5. The Appellate Body also clarified that there may be circumstances where the obligation to 
calculate the cost on the basis of the records kept by the ex porter or producer does not apply. The 
Appellate Body did not limit those circumstances, nor did it establish an exhaustive list, they 
merely mentioned transfer pricing as one example of such instances2.  
 
6. Moreover, the Appellate Body considered that th e phrase "the cost of production in the 
country of origin " does not limit the sources of information or evidence that may be used in 
establishing the costs of production in the country of origin to sources inside the country of origin.3 
This means that the re may be circumstances when it would be appropriate for the investigating 
authority to rely on an external benchmark when calculating the normal value under Article 2.2.1.1 
of the ADA.  
 
7. Secondly, in EU – Biodiesel (Argentina) , the EU based its determi nation that the producer 's 
records do not reasonably reflect the cost of soybeans on the fact that the export tariff applied to 
soybean was around 20% higher than that applied to the exportation of biodiesel. For the 
Appellate Body, however,  
 
"the Argenti ne export tax system was not, in itself, a sufficient basis  under 
Article  2.2.1.1 for concluding that the producers ' records do not reasonably reflect the 
costs of soybeans associated with the production and sale of biodiesel, or for 
disregarding those cos ts when constructing the normal value of biodiesel. "4 
                                                
1 EU – Biodiesel (Argentina) , para. 6.33.  
2 Ib., para . 6.73. 
3 Ib., para. 6.74.  
4 Ib., para. 6.55.  WT/DS493/ R/Add.1  
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  8. Brazil understands that the determination of which circumstances would in fact authorize 
investigating authorities to depart from the records kept by producers needs to be made on a 
case-by-case basis, according to the actual effect of this restriction in the product at issue. In this 
regard, Brazil agrees with Australia's Third Party Submission that the basic purpose of constructing 
the normal value under Article 2.2 of the ADA is to identify an appropriate proxy for the price of 
the like product in the ordinary course of trade in the domestic market of the exporting country 
when that price cannot be used. It is thus for investigating authorities to asses in each case 
whether constructing the norm al value on the basis of the records kept by producers will generate 
this proxy.  
 
9. Brazil considers that, depending on the nature and on the magnitude of the intervention, 
State interference in the market to set or regulate the prices of inputs or raw ma terials at 
artificially low levels could be considered "sufficient basis " for investigating authorities disregarding 
producers ' records under Article 2.2.1.1 of the ADA. It is important to note that, in EU – Biodiesel 
(Argentina), the Appellate Body did no t make any findings regarding how Article 2.2.1.1 should 
apply to situations where the prices of inputs are subject to price controls.  
 
10. Thirdly, the Appellate Body 's decision in EU – Biodiesel (Argentina) was specifically 
circumscribed to the second co ndition of the first sentence of Article 2.2.1.1. This means that there 
was no guidance  about the interpretation of the term "normally ", in the beginning of the first 
sentence. More specifically, on which circumstances the obligation i n the first sentence of 
Article  2.2.1.1 to "normally " base the calculation of costs on the records kept by the exporter or 
producer under investigation would not apply:  
 
"As the Panel noted, the EU authorities relied explicitly on the second condition in the 
first sentence of Article 2.2.1.1 of the Anti - Dumping Agreement to discard the records 
kept by the Argentine producers under investigation insofar as they pertained to the 
cost of soybeans. (See Panel Report, paras. 7.221 and 7.227; and Definitive 
Regulation (Panel Exhibit  ARG-22), Recital 38) Thus, for purposes of resolving this 
dispute, it is the meaning of this condition that must be ascertained, and not whether 
there are other circumstances in which the obligation i n the first sentence of 
Article  2.2.1.1 'normally ' to base the calculation of costs on the records kept by the 
exporter or producer under investigation would not apply ". 5 
11. Brazil understands that the term "normally " in the first sentence of the Article 2.2.1.1 
suggests that there may be specific situations  where the records kept by the exporter or producer 
could be put aside, justifying the departure of the obligation to calculate the costs of production on 
the basis of the records kept by the producers.  
 
12. In sum, Brazil considers that the jurisprudence in EU – Biodiesel (Argentina)  offers only 
limited guidance when assessing whether investigating authorities can resort to an external 
benchmark when calculating the normal value under Article 2.2.1.1 of the ADA. In deciding the 
present dispute, the Panel s hould be conscious of these limitations.  
 
II. Article 5.8 of the ADA is applicable in the context of reviews initiated under 
Articles 11.2 or 11.3 of the ADA  
 
13. In Brazil' s views Article 5.8 of the ADA is applicable in the context of reviews initiated under 
Articles 11.2 or 11.3 of the Anti -Dumping Agreement.  Therefore, an investigating authority cannot 
impose duties in the context of reviews if the producer/exporter 's dumping margin was found to be 
de minimis . This understanding is confirmed by the App ellate Body in Mexico – Anti-Dumping 
Measures on Rice : 
 
"[a]n investigating authority does not, of course, impose duties – including duties at 
zero per cent – on exporters excluded from the definitive anti -dumping measure, 
therefore such exporters cannot b e subject to administrative and changed 
circumstances reviews, because such reviews examine, respectively, the 'duty paid ' 
and 'the need for the continued imposition of the duty '"6. 
                                                
5 Appellate Body Report, EU – Biodiesel (Argentina) , para . 6.18, footnote 120.  
6 Appellate Body Report, Mexico – Anti-dumping measures on rice , para. 305. WT/DS493/ R/Add.1  
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  III.  Procedural claim: Deadline for producer and exporter to comment on the essential 
facts  
 
14. Brazil understands that there is no definition in the ADA as to what constitutes "sufficient 
time" for the purpose of Article 6.9 of the ADA.  
 
15. Brazil consider s however, that, in any case, the parties should have full opportunity to 
defend their interests.  
 
 
 WT/DS493/ R/Add.1  
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  ANNEX C -4 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF CHINA  
Third party oral statement  
Ms Chairperson, distinguished Members of the Panel:  
1. The People 's Republic of China  appreciates the opportunity to express its views before the 
Panel at the third party sess ion. In this oral statement , China  will focus on the legal interpretation 
of Articles 2.2.1.1 and 2.2 of the Agreement on Implementation of Article VI of the General 
Agreement on Tariffs and Trade 1994  ("Anti-Dumping Agreement ").   
I. INTRODUCTION  
2. This dispute raises important interpretive issues regarding the relevant provisions under 
Article 2 of the Anti -Dumping Agreement.  As Article 2 disciplines a Member 's determination of the 
existence and magnitude of "dumping ", this dispute  relates  to the foundat ional concept of 
"dumping " that applies throughout the Anti -Dumping Agreement and in Article VI of the General 
Agreement on Tariffs and Trade 1994  ("GATT 1994 "). The Appellate Body has explained that 
"dumping is the result of the pricing behavior of indivi dual exporters or foreign producers ",1 and 
that "[d]umping arises from the  pricing practices of exporters  as both normal values and export 
prices reflect their pricing strategies  in home and foreign markets ".2 This understanding of 
"dumping " as international price discrimination is fundamental for the balance of rights and 
obligations in the Anti -Dumping Agreement. The factors exogenous to the producer are simply not 
relevant for determining the existence of "dumping ". Anti -dumping measures a re not a tool for 
importing countries to counteract the regulatory policies of exporting countries.  The interpretation 
of the relevant provisions under Article 2 of the Anti -Dumping Agreement should be consistent 
with the foundational concept of "dumping ". 
II. ARTICLE 2.2.1.1 STIPULATES TO CALCUL ATE THE COST OF PROD UCTION ON THE 
BASIS OF  THE RECORDS KEPT BY THE PRODUCERS  
3. Article 2.2.1.1 addresses how to determine costs of production in the country of origin, 
either where an investigating authority assess es whether prices are below costs under Article 2.2.1 
or where it chooses to construct  normal value under Article 2.2. Article 2.2.1.1 states that an 
authority must use the costs set forth in the GAAP compliant "records kept by the exporter or 
producer  under investigation ", unless the records do not "reasonably reflect the costs associated 
with the production and sale of the product ".3 The Appellate Body in EU – Biodiesel  stress ed that 
the term "reasonably  reflect the costs associated with the production and sale of the product " in 
Article 2.2.1.1  refers to whether "the records kept by the exporter or producer suitably and 
sufficiently correspond or reproduce those costs incurred by the investigated exporte r or producer 
that have a genuine relationship with the production and sale of the specific product under 
consideration ".4  
4. The mere recording of the price paid  for inputs does not inevitably mean that the 
producer 's records reasonably reflect the costs  associated with the product 's production. For 
instance, Article 2.2.1.1 itself embodies rules dealing with the "proper allocation " of certain costs, 
and the Appellate Body  in EU – Biodiesel  pointed out some exceptional situation too. However, 
none of thes e situations involve imposition of hypothetical out -of-country costs in a bid to counter 
the economic effects of regulation by an exporting government. The Appellate Body has excluded 
"an examination of the 'reasonableness' of the reported costs themselves , when the actual costs 
                                                
1 Appellate Body Report, US – Zeroing (Japan) , para. 111 (emphasis added).  
2 Appellate Body Report, US – Stainless Steel (Mexico) , para. 95 (emphasis added), referring to 
Appellate Body Reports, US – Zeroing (EC) , para. 156 and US – Zeroing (Japan) , para. 156 "[t]he concept of 
dumping relates to the pricing behaviour of exporters or fo reign producers ". See also Appellate Body Report, 
US – Stainless Steel (Mexico) , para. 86.  
3 Emphasis added.  
4 Appellate Body Report, EU – Biodiesel , para. 6.26. WT/DS493/ R/Add.1  
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  recorded in the records of the producer or exporter are otherwise found, within acceptable limits, 
to be accurate and faithful".5 The Appellate Body found the costs "calculated on the basis of 
records kept by the exporter or produce r" under Article  2.2.1.1 must lead to a cost "in the country 
of origin".6  
5. Article 2.2.1.1 states that "costs shall normally be calculated on the basis of records kept 
by the exporter or producer under investigation ". The panel in US – Softwood Lumber V  explained 
that this imposes a positive obligation on an investigating authority to normally use the books and 
records of the respondent, provided that two conditions are met.7 The fact that the sentence uses 
the word "normally " does not render the rule op tional. It simply indicates that the obligation 
included in that sentence is not absolute and that there are exceptions as expressed by the two 
conditions referred to in the same sentence. This understanding has also been highlighted by the 
Appellate Body in US – Clove Cigarettes :  
We observe that the ordinary meaning of the term "normally" is defined as "under 
normal or ordinary conditions, as a rule". In our view, the qualification of an obligation 
with the adverb "normally" does not, necessarily, alter t he characterization of that 
obligation as constituting a "rule". Rather, we consider that the use of the term 
'normally' … indicates that the rule … admits of derogation under certain 
circumstances." […]8 
6. There is no reason that the interpretation of Ar ticle 2.2.1.1 of the Anti -Dumping Agreement 
in this dispute could depart from the WTO jurisprudence in  EU – Biodiesel . The use of the word 
"normally " can't be interpreted to allow an investigating authority to ignore its obligation under 
Article 2.2.1 .1 unless under the exceptions provided under the Anti -Dumping Agreement.  
III. ARTICLE 2.2 STIPULATES  TO CONSTRUCT THE NOR MAL VALUE ON THE BAS IS OF 
THE COST OF PRODUCTI ON IN THE COUNTRY  OF ORIGIN  
7. Article 2.2 of the Anti -Dumping Agreement deals with the establishment of the 
producer/export 's normal value.  It requires that domestic prices normally be used for the purpose 
of establishing normal value. In some circumstances, however, Article 2.2 recognizes that 
domestic prices may be unsuitable. These situat ions are clearly provided in Article 2.2.  In such a 
situation, an investigating authority has two options:  it may base normal value on "a comparable 
price of the like product when exported to an appropriate third country ", or, it may construct 
normal value  on the basis of the "cost of production in the country of origin " plus administrative, 
selling and general costs and profit.  Each of these methods aims to achieve a proxy normal value 
as close as possible to the would -be domestic selling price:9 sales mus t be to an "appropriate " 
third country at a "comparable " price and the costs of production must be the producer 's costs in 
the "country of origin ". The "cost of production " described in Article 2.2 is the producer 's cost and 
not a hypothetical  cost that does not reflect the true cost incurred by the producer to produce the 
product under consideration.       
8. China recognizes that situations arise where a producer 's true costs to produce the product 
are not reflected in its records, meaning th at the "cost of production in the country of origin " must 
be determined through evidence other than the producer 's own accounts.  This may be the case, 
for example, where the producer 's records cannot be used because the transaction is influenced by 
a non -arm's length pricing transfer with a related party, in which case the recorded cost may 
appear to be unreliable.  To be clear, in such a case, the investigating authority may reject the 
producer 's records , but may not deny the true costs of the producer of t he product under 
consideration. The authority may look for evidence other than the producer 's records, but, at the 
end of the day, it must determine or calculate the true costs of the producer of the product under 
consideration and not a hypothetical  cost. To determine costs in such a case, the authority must 
clearly look for evidence in the country of origin  because this evidence is the best evidence of the 
true cost  to the producer "in the country of origin ".  
                                                
5 Ibid. para. 6.41 (quoting Panel Report, EU – Biodiesel , fn 400 to para. 7.242).  
6 Ibid. para. 6. 23. 
7 Panel Report, US – Softwood Lumber V , para. 7.237. 
8 Appellate Body Report, US – Clove Cigarettes , para. 273. See also Panel Report, China – Broiler 
Products , para. 7.161.  
9 Panel Report, Thailand – H-Beams , para. 7.112.    WT/DS493/ R/Add.1  
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  9. The Appellate Body in EU – Biodiesel  also stress ed that an investigating authority may not, 
when using out -of-country evidence, "simply substitute costs from outside the country of origin for 
the 'cost of production in the country of origin '"; rather "the investigating authority [is required] to 
adapt the information that it collects " [to the conditions of the country of origin].10  
10. Thus, if no in -country evidence were available and out -of-country evidence had to be used, 
the out -of-country costs would have to be adjusted to ensure that the "cost of production " 
ascertained by the authority is a reflection of the producer 's true costs to produce the product in 
the country of origin . Such necessary adjustments would include accounting for any differences in 
regulatory policies and any other fact ors exogenous to the producer tha t affect the cost of 
production.  Ignoring such factors would mean that the external costs taken into consideration 
reflect conditions outside the country of origin and therefore could not be reflective of the 
producer 's cost of production "in the country of origin ".  
IV. OTHER ISSUE  
11. China takes note that some Parties use Article 2.7 of the Anti -Dumping Agreement and the 
second Supplementary Provision to paragraph 1 of Article VI in Annex I to GATT 1994 ( "Ad Note") 
as context to support their conclusion that a state regulation of prices would allow an investigating 
authority to reject home market prices.  
12. The Ad Note is the only provision of the Anti -Dumping Agreement and GATT 1994 that 
provides conditional aut hority for an investigating authority to use of a methodology not based on 
a strict comparison with domestic prices and costs.  However, the Ad Note lays down two strict 
conditions that must be met before an authority is permitted to depart from a strict co mparison 
with home market prices and costs. Specifically, the Ad Note permits recourse to the exceptional 
methodology under the Ad Note only if: (i)  there is a complete or substantially complete monopoly 
of trade by the State in the exporting  country; and (ii) all prices in the exporting country are fixed 
by the State.  
13. The Ad Note is an exception to the rules provided under articles 2.1 and 2.2 of the Anti -
Dumping Agreement and Article VI of GATT 1994. It could not justify an investigating authority 's 
practice to reject home market price or costs based on the regulation of price in the exporting 
country. On the contrary, if it does not meet the two strict conditions provided under the Ad Note, 
an investigating authority must strictly follow the rules pro vided under articles 2.1 and 2.2 of the 
Anti-Dumping Agreement and Article VI of GATT 1994.  
Thank you. The delegation of China looks forward to your questions.  
 
                                                
10 Appellate  Body Report, EU – Biodiesel , para. 6.73. WT/DS493/ R/Add.1  
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  ANNEX C -5 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF COL OMBIA  
The government of Colombia (hereinafter "Colombia ") intervenes in this case given its systemic 
interest in the application of several provisions of the WTO Covered Agreements discussed before 
this Panel.  
 
While not taking a final position on the specific merits of this case, Colombia provides its views on 
some of the legal claims advanced by the Parties to the dispute. In particu lar, Colombia has made 
submissions on the following issues presented by the Parties:  
 
A. ARTICLES 2.2 AND 2.2.1.1 - SOURCES INSIDE THE COUNTRY OF ORIGIN   
1. In Colombia' s opinion, the Anti -Dumping Agreement acknowledges that in certain 
circumstances consi deration of the domestic price in the exporting country does not produce an 
appropriate 'normal value ' for the purposes of comparison with the export price in order to 
determine the margin of dumping. Thus, ADA Article 2.2 envisages circumstances in which such a 
straightforward price -to-price comparison may not be possible or appropriate and therefore 
provides for alternative methodologies for the calculation of the normal value. Such possibilities do 
not exclude information collected outside the exporting country when determining the "cost of 
production in the country of origin".  
2. This issue was clarified by the Appellate Body in EU – Biodiesel w hen interpreting Article 2.2 
of the ADA and VI of the GATT 1994; the AB stated that: "these provisions do not limit the sources 
of information or evidence that may be used in establishing the costs of production in the country 
of origin to sources inside the country of origin…" .1 
3. Furthermore, the AB stressed the "reference" role of ADA Article 2.2 and stated th at "…On 
the basis of the text of Article 2.2 of the Anti -Dumping Agreement and Article VI:1(b)(ii) of the 
GATT 1994, the phrase "cost of production […] in the country of origin" may be understood as a 
reference to the price paid or to be paid to produce so mething within the country of origin".2 
B. THE TERMS "SHALL NORMALLY" UNDER ADA ARTICLE 2.2.1.1  
4. Colombia recognizes that the use of the term "shall" before the term "normally" implies an 
obligation of mandatory nature. However, as the AB has stated, th ere should be certain 
circumstances where the preference rule over records kept by the exporter or the producer admits 
derogation. This seems to be the case where despite the evidence submitted or obtained during 
the investigation proceedings, the IA concl udes that domestic sales of any product are not "in the 
ordinary course of trade". This has critical relevance in cases where distorting administrative 
practices or rules could affect the "normal value" of the investigated product. Nonetheless, the IA 
must comply with the fundamental obligations set out in ADA Article 5.3 when performing the 
proper examination of the evidence provided by the interested parties. This means to examine 
whether the evidence before the authority at the time it made its determina tion was such that an 
unbiased and objective that evidence could properly have made the determination.3 
C. THE OBLIGATION TO ESTABLISH A PRIMA FACIE CASE  
5. Colombia considers that the prima facie case , refers to several elements: a) there must be 
an expr ess statement on the claim; b) the reasons for which the complaining Member considers 
there is a violation of a specific article of a Covered Agreement; c) identification of the specific 
measures at issue and provision of a brief summary of the legal basis  of the complaint sufficient to 
                                                
1 ABR, EU – Biodiesel , para. 6.74 (WT/DS473/AB/R).  
2 Ibid, para. 6.69 .  
3 PR, US – Hot-Rolled Steel , para. 7.153 (WT/DS184/R) . WT/DS493/ R/Add.1  
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  present the problem clearly4. Evidence must be presented to enable the complainant to rule on the 
alleged facts.  
6. For this reason, it is important to consider that, according to Article 13 of the DSU, the 
panels have a sig nificant investigative authority, but this authority cannot replace the burden for 
the complaining party to establish a prima facie  case of inconsistency based on a specific legal 
claims.5 A panel is entitled to seek information and advice from experts and  from any other 
relevant source it chooses, pursuant to Article 13 of the DSU, but not to make the case for a 
complaining party.  
 
                                                
4 Appellate Body Report, Guatemala – Cement I , paras. 70 and 72.  
5 ABR, India – Agricultural Products , para. 5.85. WT/DS493/ R/Add.1  
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  ANNEX C -6 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF THE  EUROPEAN UNION  
1  INTRODUCTION  
1. The EU exercises its right to participate as a third party in this case because of its systemic 
interest in the correct and consistent i nterpretation and application of the covered agreements and 
other relevant documents, and the multilateral nature of the rights and obligations contained 
therein, in particular the Anti -Dumping Agreement. Whilst not taking a position on the facts of this 
case, the EU provides its views on certain legal claims and arguments advanced so far by the 
Parties to the dispute.  
2  SUBSTANTIVE CLAIMS R ELATING TO DUMPING D ETERMINATIONS  
2.1  Russia's claim that Ukraine violated Articles 2.2 and 2.2.1.1 of Anti -Dumping 
Agreement because, in determining the constructed normal value, it failed to calculate 
costs on the basis of records kept by the Russian producers and exporters  
2. The EU notes that the Appellate Body in EU — Biodiesel , referring to the panel report in the  
same case, mentioned  "non-arms-length transactions" or "other practices" which may affect the 
reliability of the costs reported in the records. Several third parties (Australia, Brazil, the US) 
highlighted this aspect in their written submissions.  
3. First, the EU agrees that certain government actions can be at the source of dumping and 
material injury. Ukraine distinguishes the present case from EU — Biodiesel  and explains in detail 
that the kind of state intervention in the present case is much more sig nificant than in EU — 
Biodiesel , as the domestic price of gas in Russia is established by law and not subject to market 
forces.  
4. Indeed, Article VI:5 of GATT 1994 provides that no product can be subject to both anti -
dumping and countervailing duties, in order to "compensate for the same situation". It is 
uncontroversial that countervailing duties can be used to address situations caused by the action 
of the government of the exporting country, such as prohibited subsidies. This means that, by 
acknowledgin g that there can be a single situation which could be the subject to either a 
countervailing duty or an anti -dumping duty, Article VI of GATT 1994 acknowledges that 
government actions may be at the source of dumping and material injury.  
5. This conclusion was confirmed by the Appellate Body in United States — Anti-dumping and 
Countervailing duties (China) that clearly establishes that "exogenous factors", such as the actions 
of the government of the exporting country, may very well be the source of dumping.  
6. Second , the EU agrees with Ukraine that the establishment of the domestic gas prices in 
Russia may fall under the "other practices" which may affect the reliability of the reported costs. 
Indeed, the domestic gas price in Russia is regulated by the Sta te and not subject to market 
forces. It appears that the price at which the main provider, Gazprom, sells gas on Russia's 
domestic market does not even cover the costs for extraction and transportation to the Russian 
producers, let alone the other expenses  incurred.  
7. The EU agrees that this practice by the Russian State of establishing the domestic gas prices 
may be considered as falling under the category of "other practices" which affect the reliability and 
accuracy of the costs in the producers' record s. 
8. Third, the EU agrees that at the time of its accession to the WTO Russia undertook specific 
commitments with regard to pricing policies and in particular with regard to the fact that 
"producers/distributors of natural gas in the Russian Federation wo uld operate […] on the basis 
normal commercial considerations, based on recovery of costs and profit". In addition, the EU 
recalls the concerns expressed by Members with regard to Russia's gas pricing policies and the role 
of Gazprom.  
9. Thus, Russia's com mitment that producers and distributors of gas in Russia would operate 
on the basis of normal commercial considerations, based on recovery of cost and profit, is part of WT/DS493/ R/Add.1  
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  its WTO obligations. However, the fixing of domestic gas prices by the State cannot be  equated to 
"normal commercial considerations".  
10. Finally , with regard to the meaning of "normally" in Article 2.2.1.1, the EU considers that a 
threshold question is whether Ukraine has explained sufficiently well to the Panel how that 
particular provisi on was relied upon by the IA in the investigation at issue. Otherwise the 
invocation by this particular provision may only constitute an attempt at ex-post rationalisation. 
This would mean that the Panel almost certainly does not need to decide this questi on in this case, 
and in our submission should not do so.  
11. Following the definition of dumping, and the introduction of the notions of normal value and 
price comparability in Article 2.1 of the Anti -Dumping Agreement, Article 2.2 elaborates the rules 
for determining normal value. Article 2.2 contains two sub -paragraphs. Article 2.2.1 focuses in on 
the question of when domestic sales or sales to a third country may be treated as not in the 
ordinary course of trade by reason of price (when they are below th e costs of production plus 
administrative, selling and general costs).  
12. Article 2.2.1 itself contains one further sub -paragraph: Article 2.2.1.1. By its own terms, 
Article 2.2.1.1 is framed as a provision to be applied "for the purpose of paragraph 2 ". The term 
"purpose " appears in the singular. To understand the provision properly, we must therefore look 
back to the single purpose of paragraph 2. We must neither improperly expand nor narrow that 
single purpose. The single purpose of paragraph 2 is, as w e have already observed, to set out 
rules governing the establishment of a value that is normal or, for short, a normal value. Thus, we 
must correctly understand the first sentence of Article 2.2.1.1 as requiring that, for the purpose of 
establishing a nor mal value, provided that certain conditions are met, costs shall normally be 
based on the records of the investigated firm.  
13. The first sentence of Article 2.2.1.1 contains two conditions, introduced by the term 
"provided that "'. The first condition rela tes to GAAP, whilst the second condition refers to "records 
… reasonably reflect the costs … ". If the relevant conditions are fulfilled, then, according to the 
terms of Article 2.2.1.1, a particular consequence follows. That consequence is framed as an 
obligation (through the use of the term "shall"). Specifically, the consequence is that normally the 
costs are to be calculated on the basis of the records of the investigated firm. Thus, by its own 
terms, the first sentence of Article 2.2.1.1 does not establ ish the consequence as an absolute rule, 
but frames the consequential obligation by using the term "normally ". Also by its own terms, the 
first sentence of Article 2.2.1.1 does not explicitly set out what circumstances may be considered 
"normal " and what c ircumstances may be considered "not normal ". 
14. It is important to recognise and acknowledge, in the design and architecture of the first 
sentence of Article 2.2.1.1, that there are two conditions that, if satisfied, result in a specific 
consequence. Such  a condition – consequence structure is not the same, as a matter of law, to a 
general rule – exception structure, and it would be legally erroneous to interpret and apply the 
provision as if it were framed as a general rule – exception, when that is not t he case.  
15. By its own terms, Article 2.2.1.1 does indicate some of the circumstances in which it may be 
justified to reject/replace/adjust specific cost items in the records of the investigated firm. For 
example, the second sentence of Article 2.2.1.1 re fers to cost allocations have been "historically 
utilized " by the investigated firm, in particular as regards amortization, depreciation, allowances 
for capital expenditures and other development costs. Thus, a specific cost allocation might be in 
accordan ce with GAAP and otherwise "reasonably reflect the costs … ", but it might not have been 
"historically utilized " by the investigated firm, as opposed to being specifically engineered for the 
purposes of completing the questionnaire response. Thus, in such a  situation, instead of calculating 
costs exclusively on the basis of the records kept by the investigated firm, an investigating 
authority may be entitled to reject/replace/adjust such costs (by definition, by having recourse to 
information or data exogeno us to the records kept by the investigated firm). The same comment 
applies with respect to the existence of an "association or compensatory arrangement " as 
referenced in Article 2.3. The Appellate Body has recognised that rejecting transactions between 
affiliates in favour of transactions that are in the ordinary course of t rade is consistent with 
Article  2.1, and thus consistent with the purpose (establishing a normal value) that Article 2.2.1.1 
is expressly directed towards achieving. If such adjustments would not be made pursuant to 
Article  2.2.1.1 (the terms adjusted and adjustment appear in the  third sentence and in 
footnote  6), then they would only have to be made instead pursuant to Article 2.4.  
16. These observations are confirmed by the repeated use  of the term "normal " throughout the 
relevant provisions, including in Article VI of the GATT 1994; in the basic definition in Article 2.1; WT/DS493/ R/Add.1  
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  in Article 2.2, footnote 2, Article 2.2.1, and footnote 5; in Articles 2.2.1.1 and 2.2.2 (by cross -
reference) and Ar ticle 2.4. The overarching requirement that the export price must be compared 
with a value that is normal, that is, a normal value, provides compelling support for the preceding 
analysis.  
17. Thus, the EU has offered some initial views with regard to the c orrect interpretation of 
Article  2.2.1.1, including the meaning and place of "normally" in its overall architecture. The EU 
considers that there are other circumstances in which the obligation i n the first sentence of 
Article  2.2.1.1 "normally" to base the  calculation of costs on the records kept by the exporter or 
producer under investigation would not preclude the rejection or adjustment of data found to 
relate to an abnormal situation, an issue which was not decided in EU — Biodiesel . This 
understanding is shared by other third parties.  
2.2  Russia's claim that Ukraine acted in breach of Articles 2.2 and 2.2.1.1 of Anti -
Dumping Agreement because it replaced (adjusted) the costs of gas actually borne by 
the Russian producers and exporters for production of  ammonium nitrate with data on 
the gas prices outside of Russia  
18. Ukraine maintains that, differently from EU – Biodiesel , in the present case the gas price 
was regulated by the State and the State was the main supplier of the respective product.  
19. The EU recalls that the Appellate Body has made it clear that evidence from outside the 
country of origin may be taken into account in the determination of the cost of production in the 
country of origin.  
20. Furthermore, the EU notes that in the context of the SCM Agreement the Appellate Body 
went even further, stating in US – Softwood Lumber IV  that an IA may use a benchmark other 
than private prices of the goods in question in the country of provision, when it has been 
established that those private prices  are distorted.   
21. That position was later confirmed by the Appellate Body in US — Anti-Dumping and 
Countervailing Duties (China) , also in the context of the SCM Agreement. According to the 
Appellate Body an IA may reject in -country private prices if it reaches the conclusion that these 
are too distorted due to the predominant participation of the government as a supplier in the 
market.  
22. Similarly, in the present case Ukraine has brought evidence that in -country gas prices in 
Russia are distorted such that they cannot meaningfully be used for the construction of the normal 
value, as the Russian government establishes itself the domestic gas prices. It follows that in the 
case of a market distorted to such an extent by state intervention an IA may not re ly on the 
domestic prices of gas.  
2.3  Russia's claim that Ukraine violated Article 2.2.1 of the Anti -Dumping Agreement 
because it improperly treated domestic sales of Ammonium nitrate in Russia as not 
being in the ordinary course of trade  
23. Russia clai ms that the use of the price adjustment with respect to the gas prices in Russia's 
domestic market resulted in a much higher per unit costs of production and lead to the conclusion 
that the domestic sales of the ammonium nitrate producers were not in the o rdinary course of 
trade. Thus, the use of a several times higher gas price tainted th e entire analysis under 
Article  2.2.1 of the Anti -Dumping Agreement.  
24. Ukraine maintains that Russia's third claim is consequential to its first claim according to 
which  Ukraine violated Article 2.2.1.1 of the Anti -Dumping Agreement, explaining then that the IA 
has found that sales were made at a loss, in substantial quantities and during an extended period 
of time, the prices not having provided for recovery of all costs  within a reasonable period of time.  
25. The EU recalls that Appellate Body has offered in US — Hot-Rolled Steel  several examples of 
situations which may fall under the category of transactions "not in the ordinary course of trade".  WT/DS493/ R/Add.1  
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  2.4  Russia's claim that Ukraine violated Article 2.4 of the Anti -Dumping Agreement 
because it failed to make a fair comparison between the export price and the 
constructed normal value  
26. Russia claims that Ukraine violated Article 2.4 of the Anti -Dumping Agreement as a 
consequence of the fact that in the construction of the normal value the IA rejected the prices of 
gas paid by the ammonium nitrate producers and replaced them with gas prices charged to 
customers outside the country of origin.  
27. Ukraine maintains that Rus sia's claim is merely a repetition of its previous claim regarding 
the construction of the normal value and that the "artificial inflation" of the total cost of production 
is not a difference which affects price comparability. It re -explains that the IA reached the 
conclusion that gas prices on Russia's domestic market were clearly not of a commercial nature, 
being significantly lower than the export prices, and that those prices were fixed by the State and 
were below the cost, contrary to Russia's commitme nt undertaken upon its WTO accession. 
Accordingly, the IA took into account the average of the gas prices at the German border . Thus, 
the solution used by the IA does not relate to a difference in the characteristics of the domestic 
and export transactions  which are compared, or for that matter a difference affecting price 
comparability.  
28. The text of Article 2.4 provides that a "fair comparison" be made between the export price 
and the normal value when determining whether dumping exists.  The second sent ence of 
Article  2.4 sets up the requirements to be met by this comparison, stating that it shall be "at the 
same level of trade, normally at the ex -factory level, and in respect of sales made at as nearly as 
possible the same time". The third sentence of A rticle 2.4 elaborates on the means to be employed 
in order that the "comparison" between the normal value and the export price is "fair".  
29. The EU recalls that the panel in EU – Biodiesel  has found that Article 2.4 refers to only those 
differences which affect price comparability and not to differences arising exclusively from the 
methodology used to construct the normal value.  
30. The EU agrees with Ukraine. As the way that Argentina and Russia structured their claims is 
similar in the two cases, the EU considers that the Panel should dismiss Russia's claim, as it is a 
merely consequential claim to its claims regarding the construction of the normal value and it does 
not address specific aspects of the fair comparison contemplated by Article 2.4 of the An ti-
Dumping Agreement.  
31. Russia's claim under Article 2.4 pertains to the calculation of the normal value, as opposed 
to the comparison between the normal value and the export price. In light of the panel reports in 
Egypt – Steel Rebar  and EC – Tube or P ipe Fittings,  Article 2.4 does not deal with the basis for and 
basic establishment of the export price and normal value (which are addressed in other 
provisions), but rather addresses the nature of the comparison of export price and normal value. 
Thus, Rus sia's claim that the Ukrainian authorities should have calculated the normal value in a 
different way falls outside the scope of Article 2.4, because Article 2.4 does not apply to the 
establishment of the normal value. If Ukraine is right about the adjustm ents made pursuant to 
Article 2.2.1.1, which the EU considers to be the case, it would of course not be required to "un -
adjust" pursuant to Article 2.4. The case turns on a proper construction a nd application of 
Article  2.2.1.1, not Article 2.4.  
2.5  Termi nation of investigation against an exporter with alleged negative dumping in 
the original investigation  
32. The EU starts by recalling that the Appellate Body in Mexico — Anti-Dumping Measures on 
Rice found that by requiring the investigating authority to conduct a review for exporters with zero 
and de minimis  margins, Article 68 of Mexico 's Foreign Trade Act was inconsistent with  Article 5.8 
of Anti -Dumping Agreement and  Article 11.9 of SCM Agreement.  
33. If the Panel finds that in the present case there  were no such de minimis  determinations 
with respect to EuroChem in the original investigation, then the question may be if Article 5.8 of 
Anti-Dumping Agreement applies in the context of reviews initiated under Articles 11.2 or 11.3 of 
Anti-Dumping Agreem ent. 
34. In this respect, the panel in US — Corrosion -Resistant Steel Sunset Review  did not find 
textual or contextual support in the language of either Article 11.3 or Article 5.8 to suggest that 
the de minimis  standard also applies in the context of suns et reviews.  WT/DS493/ R/Add.1  
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  35. However, the EU notes that in interpreting the provisions with respect to sunset reviews a 
panel needs to take into account their rationale and not confine itself to the sole analysis of text 
and context. For instance, in the context of the  cumulative assessment of injury the Appellate 
Body found in US — Oil Country Tubular Goods Sunset Reviews  that notwithstanding the 
differences between original investigations and sunset reviews, cumulation remains a useful tool 
for investigating authoriti es in both inquiries.  
36. Finally, the EU recalls that in the context of the SCM Agreement the Appellate Body has 
found in US — Carbon Steel  that the de minimis standard set forth in Article 11.9 of the SCM 
Agreement  is not implied in Article 21.3 of the A greement.  
3  CONCLUSIONS  
37. The EU hopes that its contribution in the present case will be helpful to the Panel in 
objectively assessing the matter before it and in developing the respective legal interpretations of 
the relevant provisions of the Anti-Dumping Agreement.  
 
 WT/DS493/ R/Add.1  
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  ANNEX C -7 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF JAP AN 
I. INTRODUCTION  
1. In this dispute, the Russian Federation ("Russia")  challenges the anti -dumping measures  
imposed by Ukraine  on ammonium nitrate originating in Russia, raising a number of claims 
pertaining to the interpretation  of the WTO covered agreements, notably the Agree ment on 
Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the "Anti -
Dumping Agreement").  Japan considers that this dispute raises issues of systemic importance , and 
focuse s on several issues  regarding the interpretation of Articles 2.2.1.1, 11.1, 11.2, and 11.3 of 
the Anti -Dumping Agreement . Notwithstanding the above, Japan does not take any specific views 
on the factual aspects of the dispute.  
II. INTERPRETATION OF AR TICLE 2.2.1.1 OF THE  ANTI-DUMPING AGREEMENT  
A. The Condition that the Exporter 's Records Reasonably  Reflect Costs 
2. Japan 's comments  regarding the condition that the exporter 's records reasonably reflect the 
costs focus on the methodology used by an investigating authority to ca lculate the cost of 
production . Russia correctly notes that, in EU – Biodiesel (Argentina) , the Appellate Body clarified 
that there is no "additional or abstract standard of 'reasonableness ' that governs the meaning of 
costs associated with the production and sales of the product under consideration" .1 This, 
however, does not mean that an investigating authority must in all circumstances accept the costs 
registered in an exporter's or producer 's records.2  
3. For example, t he panel in EU – Biodiesel (Argentina)  made it clear that an investigating 
authority are "free to examine non -arms-length transactions or other practices which may affect 
the reliability of the reported costs  [ ]".3 The Appellate Body also recognized in EU – Biodiesel 
(Argentina)  that there may be circumstances in which the exporter's or producer 's records may be 
found "not to reasonably reflect the costs associated with the production and sale of the product 
under consideration".4 In sum, both the panel and the Appellate Body left o pen the possibility that 
the investigating authority could permissibly decline to use the exporter's or producer's records 
after considering the specific circumstances of the costs reported to be  incurred by those exporters 
or producers  on their records.  In Japan 's view, transactions affected by government price control  
may fall under "non-arms-length transactions or other practices  which may affect the reliability of 
the reported costs"  and which the investigating authorities are "free to  examine ". 
4. Further, Japan notes that Article 2.2.1.1 must be understood in the light of the concept of 
"normal value" and Articles 2.1 and  2.2. "Normal value" is defined in Article 2.1 as "the 
comparable price, in the ordinary course of trade, for the like product when destined for 
consumption in the exporting country".  The "normal value" is meant to reflect "the 'normal ' price 
of the like product, in the home market of the exporter".5 Sales not made in the ordinary course of 
trade are to be excluded from the calculation  of normal value "precisely to ensure that normal 
value is, indeed, the 'normal' price of the like product, in the home market of the exporter" .6  
5. The Appellate Body also stated that Article 2.2.1.1 pertains to a methodology for obtaining 
an "appropriat e proxy" for the sales price of the product under investigation "if it were sold in the 
ordinary course of trade in the domestic market" .7 In this regard , "the costs associated with the 
production and sale of the product" under Article 2.2.1.1 are intended  to serve as an appropriate 
                                                
1 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.37.  
2 See for example, Panel Report, EU – Biodiesel (Argentina) , footnote 400 to para. 7.242 . 
3 Ibid. 
4 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.33. 
5 Appellate Body Report, US – Hot-Rolled Steel , para. 140 . 
6 Ibid. 
7 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.24.  WT/DS493/ R/Add.1  
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  basis for estimating the would -be market price  of the products concerned,  or, in other words, the 
price that would have resulted from sales transactions concluded on terms and conditions that are 
compatible with normal  commercia l practice.  Japan considers that whether or not a commercial 
practice is "normal"  must be determined objectively  by the investigating authority of the importing 
country and take into account the actual commercial practices in the relevant market.  
6. The ab ove interpretation does not constitute  a new test under Article 2.2.1.1.  To the 
contrary, the above interpretation faithfully reflects the text of Article 2.2.1.1, as previously 
interpreted by panels and the Appellate Body.  Article 2.2.1.1 permits an investigating authority to 
disregard the exporter's or producer's records when it determines that such records do not 
"reasonably reflect the costs associated with the production and sale of the product under 
consideration" because the recorded c osts of inputs do not reflect transactions concluded on terms 
and conditions that are compatible with normal commercial practice.   
B. The Term "Normally" Under Article 2.2.1.1  
7. Japan notes  that t he first sentence of Article 2.2.1.1 contemplates that an investigati ng 
authority shall "normally" calculate costs on the basis of records kept by the exporter or producer,  
provided that such records satisfy the two prescribed conditions.   
8. The ordinary meaning of "normally" is "[u]nder normal or usual conditions; as a ru le".8 The 
Appellate Body has observed that the qualification of an obligation with the adverb "normally" 
connotes that  there are circumstances "in which the obligation i n the first sentence of 
Article  2.2.1.1 'normal ly' to base the calculation of costs on the records kept by the exporter or 
producer under investigation would not apply" .9 In accordance with the principle of effectiveness ,10 
this Panel must give "meaning and effect" 11 to the term "normally"  in Article  2.2.1.1.  Limiting the 
circumstances in which an investigating authority may depart from the exporter's records to the 
two prescribed conditions reads out the term "normally"  from Article  2.2.1.1 and the text would 
have exactly the same meaning as if it had read: "costs shall be calculated on th e basis of records 
kept by the exporter or producer under investigation, provided that [ ]".  
9. Furthermore, the rationale for relying on the recorded costs of the producer or exporter is 
that such costs potentially reflect market prices of inputs and, co nsequently, the use of such prices 
can yield a proxy that approximates the would -be price of the product under consideration if it had 
been sold in the ordinary course of trade.  Such rationale is premise d on the existence of a well-
functioning market in wh ich participants are acting independently (as in arm 's length transactions) 
for their own commercial interest.  When prices of inputs are determined arbitrarily  by government 
regulations, then an investigating authority should be allowed to exclude the rele vant transactions 
from the calculation of constructed normal value.  Japan recalls, in this regard, that the Appellate 
Body has recognized "that the Anti -Dumping Agreement affords WTO Members discretion to 
determine how to ensure that normal value is not di storted through the inclusion of sales that are 
not 'in the ordinary course of trade'" provided that discretion is exercised in an even -handed 
way.12 Japan respectfully requests the Panel to give "meaning and effect" to the inclusion of the 
term "normally" and t o preserve the flexibility that the inclusion of this term in Article 2.2.1.1 is 
intended to provide to investigating authorities.  
III. INTERPRETATION OF AR TICLE 11 OF THE ANTI-DUMPING AGREEMENT  
10. Article 11 of the Anti -Dumping Agreement provides t hat anti -dumping duties may continue 
or be extended if the investigating authority finds that the removal or expiry of the anti-dumping 
duties would likely lead to continuation or recurrence of injury.  With respect to Article 11, Russia 
argues that the provisions of Article 3 of the Anti -Dumping Agreement apply to reviews conducted 
pursuant to Article 11.13   
                                                
8 Appellate Body Report, US – Clove Cigarettes , para. 273.  
9 Appellate Body Report, EU – Biodiesel (Argentina) , footn ote 120 to para. 6.18 . 
10 The principle of effectiveness is "[o]ne of the corollaries of the 'general rule of interpretation ' in the 
Vienna Convention [on the Law of Treaties]" (Appellate Body Report, US – Gasoline,  p. 23) . 
11 Appellate Body Report, Canada – Dairy , para. 133.  
12 Appellate Body Report, US – Hot-Rolled Steel , para. 148.  
13 Russia 's First Written Submission, para. 199.  WT/DS493/ R/Add.1  
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  11. As stated by the Appellate Body, there are certain differences in the "nature and purpose" of 
original investigations and sunset reviews.14 The A ppellate Body further noted that there are no 
cross-references between Article 3 and Article 11.3 , and that Article 11.3 does not expressly 
identify any particular factors that authorities must take into account in making such a 
determination.15 However, in vestigating authorit ies' discretion  is not  unfettered with respect to the 
determination of likelihood of the continuation or recurrence of injury under Article 11.  The 
investigating authorities must abide by the following considerations.  
12. First, the App ellate Body has confirmed that "the fundamental requirement of Article 3.1 
that an injury determination be based on 'positive evidence' and an 'objective examination' would 
be equally relevant to likelihood determinations under Article 11.3."16 Second, purs uant to 
Article  11.3, t he investigating authority's likelihood -of-injury determination must rest on  "a 
sufficient factual basis to allow it to draw reasoned and adequate conclusions ".17 To comply with 
this requirement, "[c]ertain of the analyses mandated by  Article 3 [ ] may prove to be probative, 
or even required".18 As the Appellate Body explained:  
[i]t seems to us that factors such as the volume, price effects, and the impact on 
the domestic industry of dumped imports, taking into account the conditions of  
competition, may be relevant to varying degrees in a given likelihood -of-injury 
determination. An investigating authority may also, in its own judgment, consider 
other factors contained in Article 3 when making a likelihood -of-injury 
determination.19 
13. In sum, Japan considers that, contrary to Russia's assertion, there is no rigid requirement to 
examine all of the injury factors listed in Article 3.4 of the Anti -Dumping Agreement in every 
Article  11 review . Nonetheless,  by the nature of likelihood  of "injury" determinations, Japan  
understands that certain factors examined under Article 3 may need to be examined in an 
Article  11 review depend ing on the specific circumstances of the case.  
 
                                                
14 Appellate Body Report,  US – Corrosion -Resistant Steel Sunset Review , para. 124.  
15 Appellate Body Report,  US – Corrosion -Resistant Steel Sunset Review , para. 113.  
16 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 284.  
17 Appellate Body, US – Corrosion -Resistant Steel Sunset Review , para 114 (quoting Panel Report, US – 
Corrosion -Resistant Steel Sunset Review , para 7.271) . 
18 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 284.  
19 Ibid.  WT/DS493/ R/Add.1  
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  ANNEX C -8 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF MEX ICO 
Third party oral statement  
1.  Mexico is grateful for the opportunity to put forward its views on this dispute.  
2.  In this statement, my delegation will first address substantive aspects and then go on to some 
procedural aspects.  
3.  In general terms, Mexico does not agree with various arguments put forward by Russia 
concerning the interpretation of the second condit ion in the first sentence of Article 2.2.1.1 and its 
relationship with Article 2.2 of the Anti -Dumping Agreement.  
4.  Russia argues that the reference to "costs of production" contained in Articles 2.2 and 2.2.1.1 
of the Anti -Dumping Agreement concerns the  producer -specific costs associated with the 
production and sale of the product under consideration, since only these costs can be those 
incurred by the producer investigated in the country of origin.  
5.  Mexico disagrees with Russia's interpretation. In o ur view, a proper interpretation of 
Articles  2.2 and 2.2.1.1 of the Anti -Dumping Agreement leads to the conclusion that the 
production costs referred to in Article 2.2 of the Anti -Dumping Agreement are not necessarily the 
costs associated with the producti on and sale of the product under consideration that are actually 
incurred by the specific producer/exporter.  
6.  In this connection, in the first place Russia's interpretation would necessarily lead to the 
conclusion that it is implicit in Article 2.2 that  the reference to the "cost of production" pertains to 
the specific product of the producer or exporter investigated. However, that would make it 
superfluous for the article to go on to say "in the country of origin", since this would already be 
covered by  the expression "of the product" (under consideration) which is considered implicit.  
7.  Secondly, if an investigating authority validly determines that it cannot use the records of the 
exporter or producer because they are not in conformity with the gener ally accepted accounting 
principles of the exporting country, or because they do not reasonably reflect the costs associated 
with the production and sale of the product under investigation, then the authority would have to 
use a different basis for the cos ts associated with the production and sale of the product under 
consideration. If, in using this alternative basis, it determines that there are no domestic sales in 
the ordinary course of trade, it would then be able to construct the normal value. Obvious ly, in 
constructing the normal value in accordance with Article 2.2, it could not use the accounting 
records of the exporter, since, as was said earlier, they are not reliable. However, according to 
Russia's interpretation, Article 2.2 of the Anti -Dumping Agreement would oblige the authority 
precisely to use those records, despite the fact that it has already been determined that they are 
not reliable. That is the reason why Article 2.2 cannot refer implicitly to the specific product, 
because such an interp retation would mean that, despite the existence of a valid reason for not 
using the accounting records, the authority would necessarily have to use the costs of the product 
under consideration, now by virtue of Article 2.2.  
8.  Thus, apart from the fact th at there is nothing in Article 2.2 to support the interpretation that 
the article in question implicitly refers to the specific product, such an interpretation would mean 
that there is no difference between the costs referred to in that article and Article  2.2.1.1, even 
though the Appellate Body itself, in its EU – Biodiesel  report (DS43), stated that the scope of 
Article  2.2 is much broader than that of Article 2.2.1.1. On the other hand, as mentioned before, if 
it were implicit in Article 2.2 that the pro duction cost must be that of the specific product, referring 
to the product under investigation produced by a particular producer/exporter, it would be 
superfluous to go on to say "in the country of origin", since this would already be covered by the 
fact that there is an implicit reference to the specific product.  WT/DS493/ R/Add.1  
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  9.  Mexico therefore considers that the reference contained in Article 2.2 to the "cost of production 
in the country of origin" indicates that the information sought is not the specific information of a 
company, but information making it possible to determ ine what is the cost of production in the 
country of origin. This reading is compatible with what was stated by the Appellate Body in the EU 
– Biodiesel  case (DS473), where it found:  
"[…] the authority is not prohibited from relying on information other th an that 
contained in the records kept by the exporter or producer, including in -country and 
out-of-country evidence".1 
10.  Mexico also considers that the Anti -Dumping Agreement's preference for actual information 
does not justify limiting the methodologic al options for its substitution. This is evidenced by the 
fact that Article 2.2.2, which also refers to the construction of normal value, provides the flexibility 
of replacing the actual data with "any other reasonable method". Moreover, according to 
Article 2.2.1.1, the option of calculating costs using records of the producer/exporter is only the 
preferred basis, since, as was indicated by the Appellate Body in US – Clove Cigarettes  (DS406), if 
a provision is qualified by the term "normally", it admits of  exceptions. Thus, in accordance with 
that article, it is possible to resort to other options in order to calculate costs.  
11.  Mexico considers that the interpretations given by Russia, taken to the extreme, would imply 
that the "facts available" provisio ns may not be used either, although these are set out in the 
Anti-Dumping Agreement itself, because they imply an option other than that of costs.  
12.  Lastly, with regard to the procedural issues, Mexico wishes to express its concern about the 
time-limit imposed on third parties by the Panel for the reading of oral statements during this 
session, irrespective of the language in which it is wished to make them. Mexico points out that 
this limitation is not a decision of the Members reflected in the Dispute Settlement Understanding; 
in addition, in establishing the limitation indiscriminately for all languages, consideration is not 
given to the fact that more time is required to make a statement in Spanish than in English, as is 
shown by the versions of the P anel and Appellate Body reports in Spanish, which require roughly 
16% more pages than the English versions. Thus, the imposition of a single limit for official 
languages has a detrimental impact on Spanish and French.  
13.  Moreover, my delegation wishes to  point out that the Panel decided to use the Digital Dispute 
Settlement Registry mandatorily, without consulting the third parties. The progress towards a 
digital platform is important and may facilitate the handling of the case file; however, as that 
platform is still in a test phase, permission should have been given for the use of both the 
traditional system and the new platform.  
14.  Having made these points, the Mexican Government again expresses gratitude for being given 
the opportunity to participate  in this proceeding and to present its points of view, and is more than 
willing to reply to any question the Panel may put to it.  
  
                                                
1 Appellate Body Report, EU – Biodiesel  (DS473), para. 6.73. WT/DS493/ R/Add.1  
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The Response by Mexico to the Question of the Panel  
1. DISREGARDING COSTS OF GAS USED IN PRODUCTION OF AMMONIUM NITRATE  
1. In paragraph 6 of its third -party statement, Norway states that under Article 2.2.1.1 of the 
Anti-Dumping Agreement it is the records of the investigated producer that stand the test of 
reasonableness and not the costs reflected in those records. In the th ird parties' view, in 
ascertaining whether the records reasonably reflect the costs, is an investigating authority 
permitted to examine the reasonableness of the costs themselves? Please explain what in the text 
of Article 2.2.1.1 would support your view.  
 
Reply:  
 
1. In Mexico's view, yes, this is permitted. Article 2.2.1.1 of the ADA lays down the 
requirements that must be met in choosing the basis to be used in calculating the costs for 
determining normal value. In particular, we note that the text of this article establishes two basic 
premises:  
 
(a)  first, that costs are normally calculated on the basis of records kept by the exporter or 
producer;  
 
(b)  second, that the first premise (i.e. that costs are normally calculated on the basis of 
records kep t by the exporter or producer) will be applied provided that two conditions are 
satisfied:  
 
(i) that the records of the exporter or producer are in accordance with the generally 
accepted accounting principles (GAAP) of the exporting country; and  
 
(ii) that they reasonably reflect the costs associated with the production and sale of the 
product under consideration.  
 
2. In other words, if the records kept by the exporter or producer are in accordance with the 
GAAP of the exporting country and reasonably refle ct the costs associated with the production and 
sale of the product under investigation, then the authority will normally  use the accounting records 
kept by the exporter or producer.  
 
3. Now, in US – Clove Cigarettes , the WTO Appellate Body (AB) interprete d the ordinary 
meaning of the term "normally" as "under normal or ordinary conditions; as a rule".2 In the same 
dispute, the AB observed that if an obligation is qualified by the adverb "normally", then that 
obligation admits of derogation.3 In paragraph 7 .161 of its final report, the Panel in China – Boiler 
Products  adopted the same approach.  
 
4. Thus, if the accounting records are in accordance with the GAAP and reasonably reflect the 
costs associated with the production and sale of the product under cons ideration, then the 
authority will normally use those accounting records for calculating the costs. Obviously, if the 
records reflect the costs of production and sale of the product under consideration, then in using 
those records the authority would be ba sing itself on the costs of production and sale of the 
product under consideration. On the other hand, however, if the authority were to decide not to 
base itself on the accounting records (for example, because the records did not comply with the 
GAAP or r easonably reflect the costs associated with the production and sale of the product under 
consideration), then, by definition, the authority would not be able to base itself on the costs of 
production and sale of the product under consideration, but would h ave to carry out its calculations 
on some other basis. It is precisely for this reason that Article 2.2 of the ADA cannot implicitly 
contain the expression "of the product", since that interpretation would mean that, despite not 
being able to use the accou nting records, the authority would necessary have to fall back, this 
time under Article 2.2, on the costs of the product under consideration.  
 
                                                
2 Appellate Body Report, US – Clove Cigarettes , para. 273.  
3 Idem. WT/DS493/ R/Add.1  
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  5. Clearly, this interpretation leads to absurd results and, moreover, deprives the word 
"normally" in Article 2. 2.1.1 of its meaning, since, for practical purposes, the authority would 
always have to base itself on the accounting records to be able to obtain the costs of the product 
under consideration incurred by the exporter, regardless of the fact that Article 2. 2.1.1 would 
allow it to seek another option.  
 
6. If recourse to an option other than the accounting records of the exporter is permitted, we 
see no reason why that other option could not be used when the accounting records of the 
exporter reflect unreasona ble costs.  
 
 
 WT/DS493/ R/Add.1  
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  ANNEX C -9 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF NORWAY  
Third party oral statement  
Madam  Chairperson, Members of the Panel,  
1. Norway welcomes this opportunity to present its views on the issues raised in these panel 
proceedings. Norway did not present a written third party submission to the Panel. Without taking 
any position on the facts of this dispute, Norway will in this oral statement take the opportunity to 
offer some views on the interpretation of the Second condition of Article 2.2.1.1 of the Anti -
Dumping Agreement, and the application of the Panel and Appellate Body reports in EU – 
Biodiesel.1   
2. The obligations on the investigating authorities according to Article 2.2.1.1, is subjected to 
two cumulative conditions:  
i.  that the records kept by the exporter or producer are in accordance with the generally 
accepted accounting princip les (GAAP) of the exporting country; and  
ii.  that such records reasonably reflect the costs associated with the production and sale 
of the product under consideration.  
3. If these two conditions are fulfilled, the investigating authorities "shall normall y" calculate 
the costs on the basis of the records kept by the exporter or producer under investigation.  
4. With regards to the second condition, the parties disagree on whether Article 2.2.1.1 "allows 
an investigating authority to disregard input prices reasonably reflected in records kept by the 
investigated producers and ex -porters on the grounds that due to governmental regulation 
domestic input prices are lower than prices charged for exporter of the input concerned and/or in 
the markets of third coun tries".2  
5. Ukraine contends, among other, that following the guidance of the Appellate Body and Panel 
in EU – Biodiesel, the second condition of Article 2.2.1.1 allows the investigating authority to 
"examine the reliability and accura cy of the costs reco rded in the records of the 
producers/exporters ", and disregard such records when they do not reasonably reflect the costs 
associated with the production and sale of the product under consideration, because the recorded 
costs of inputs do not reflect transa ctions concluded on terms and conditions that are compatible 
with normal commercial practices . 
6. Regarding the content of the second condition, Norway notes that the Appellate Body in EU 
– Biodiesel clearly established that the wording "reasonably reflect " of Article 2.2.1.1 relates to the 
"records ", and not the "costs associated with the production and sale of the product under 
consideration ". It is the "records " that stand the test of reasonableness, and not the "costs".  
7. Furthermore, regarding the "costs", both the Panel and the Appellate Body in EU – Biodiesel 
established that "costs associated with the production and sale of the product under consideration " 
relates to the "actual " costs incurred that are genuinely related to the production and sale of the 
specific product under consideration.3 
8. In connection to this, the Panel in EU – Biodiesel underlined that the condition at issue 
relates to whether the costs set out in a producer 's or exporter 's records "correspond – within 
acceptable limits – in an accurate and reliable manner[] to all the actual costs incurred  by the 
                                                
1 DS473 – EU – Anti-Dumping Measures on Biodiesel from Argentina.  
2 Russia 's First Written Submission para. 64.  
3 Appellate Body Report in DS473 – EU – Anti-Dumping Measures on Biodiesel from Argentina, 
para. 6.30.  WT/DS493/ R/Add.1  
BCI deleted, as indi cated [[***]]  
- 76 - 
 
  particular producer or exporter under consideration ".4 In addition the Panel further underlined that 
"the object of comparison is to establish whether the records reasonably reflect the costs actually 
incurred, and not whether they reasonably reflect some hypothetical costs that might have been 
incurred under different set of conditions or circumstances and which the investigating authority 
consider more "reasonable " than the costs actually incurred ".5 
9. Norway does not intend to delve into the facts of the case, but it seems from the written 
submissions of the parties that the Ukraine does not dispute tha t the costs recorded by the 
producers accurately and reliably capture all the relevant production activities that have actually 
incurred related to the production of the specific product. The real issue in dispute would seem to 
be whether the input price o f gas in Russia can be disregarded due to it being subsidized or 
distorted through government regulations so that the producer receives gas for less than market 
value.  
10. In this respect, Norway notes that "dumping " is defined as price discrimination by the 
investigated producer between domestic and export markets.6 Anti-dumping measures are 
available to counter such discriminatory behavior by exporters.  Government regulation or 
intervention in the home market, that affect the producers ' cost of productio n, for instance price 
caps or the provision by a Government of an input for less than market value, is more 
appropriately considered under the Subsidies Agreement7, and is not as such a reason to reject 
the actual cost of production in a dumping investigat ion.  
11. In conclusion, Article 2.2.1.1 of the Anti -dumping Agreement does not allow the 
investigating authorities to reject records by the producer or exporter, on the grounds that the 
records do not reasonably reflect the costs associated with the produ ction and sale of the product 
under investigation, because the price of an input is considered not to reflect market value due to 
governmental regulation.   
12. This concludes Norway 's statement here today. Thank you.  
 
                                                
4 Panel Report in DS473 – EU – Anti-Dumping Measures on Biodiesel from Argentina, para. 7.247.  
5 Panel Report, in DS473 – EU – Anti-Dumping Measures on Biodiesel from Argentina, para. 7.242.  
6 GATT Article VI:1(b)(ii) and Agreement on the Implementation of  Article VI of the General Agreement 
on Tariffs and Trade 1994  Article 2.1.  
7 Cf. Agreement on Subsidies and Countervailing Measures  Article 1.1(a)(1)(iii) and Article 14(d).  WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
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  ANNEX C -10 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF THE  UNITED STATES  
I. CLAIMS REGARDING ART ICLES 2.2 AND 2.2.1. 1 
A. Costs Associated With the  Production of the Product under Investigation  
1. The United States has serious concerns with the positions espoused by Russia with regard to 
the interpretation and application of Article 2.2.1.1 of the Anti -Dumping Agreement.  First, the 
Anti-Dumping Agree ment uses the general term "costs, " and not a term such as "amounts actually 
incurred. " In context, the term "cost" means real economic costs involved in producing the product 
in the exporting country and not simply the amount reflected, for example, in an  invoice price.  
Otherwise, investigating authorities would be bound to accept artificial, affiliated -party transfer 
prices – amounts which have no economic meaning.    
2. Second, Article 2.2.1.1 references costs "associated with  the production and sale of t he 
product under consideration. " "Associate " or "associated " is typically defined as being "placed or 
found in conjunction with another. " This language does not support an interpretation that the only 
inquiry involves what the producer paid for a particula r input.  Rather, the term "associated with " 
suggests a more general connection between the relevant costs and the production or sale of the 
product and supports an economic conception of costs.  
3. The context provided by other provisions in Article 2.2 also undermines Russia 's suggested 
interpretation.  Where the Anti -Dumping Agreement refers to costs "actually incurred by 
producers, " it does so explicitly.  For instance, for administrative, selling, and gene ral costs, 
Article  2.2.2(i) references "the actu al amounts incurred and realized by the exporter or producer in 
question. " Similarly, Article 2.2.2(ii) uses an express limitation to "the actual amounts incurred 
and realized by other exporters or producers. " Given the express language utilized in 
Article s 2.2.2(i) and 2.2.2(ii), Article 2.2.1.1 cannot be read to limit "costs" to those actually 
incurred in the way envisioned by Russia.  
4. Russia 's reliance on the Appellate Body report in EU – Biodiesel  is also misplaced.  First, the 
Appellate Body understoo d that the costs calculated pursuant to Article  2.2.1.1 must generate an 
appropriate proxy for the price of the like product in the ordinary course of trade in the domestic 
market of the exporting country when the normal value cannot be determined on the b asis of 
domestic sales.  Given that Article 2.2.1.1 (in conjunction with Article  2.2) pertains to a 
methodology for obtaining an "appropriate proxy " for the price of the product under investigation 
"if it were sold in the ordinary course of trade in the dom estic market, " "the costs associated with 
the production and sale of the product " under Article 2.2.1.1 must be of the kind that is capable of 
serving as an appropriate basis for estimating the normal value of the final product.  Similarly, the 
Appellate Bo dy stated the general proposition that the second condition (starting with "reasonably 
reflect ") means that the records of the exporter or producer must "suitably and sufficiently 
correspond to or reproduce the costs that have a genuine  relationship with t he production and sale 
of the specific product under consideration. "  
5. Second, the Appellate Body in EU – Biodiesel  made an explicit finding on what kind of 
analysis an authority may employ in applying the second condition o f the first sentence of 
Article 2.2.1.1:  
an investigating authority is "certainly free to examine the reliability and accuracy of 
the costs recorded in the records of the producers/exporters " to determine, in 
particular, whether all costs incurred are captured, whether the costs incurred have 
been over - or understated and whether non -arms-length transactions or other 
practices affect the reliability of the reported costs . 
If, as Russia suggest s, the only inquiry related to whether the books and records reflected 
amounts actually incurred, then the existence of "non-arms-length transactions " or "other 
practices " would be irrelevant.   WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
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  6. Finally, the United States recalls that the Panel 's role is  to consider whether Russia has 
established that Ukraine 's authority failed to provide a reasoned and adequate explanation for its 
determination.  Here, Ukraine explains that the recorded cost for natural gas is artificial because it 
is set by the Governmen t of Russia.  In these circumstances, an unbiased and objective 
investigating authority could have found that a State -determined natural gas price was not a real, 
economic cost.  Just as a price between affiliated parties may be artificial because it does no t 
reflect an arm 's-length price, so too a State -determined price may be artificial because the seller is 
similarly not free to sell at the price it determines, and therefore price does not reflect the 
interaction between independent buyers and sellers.  
B. Use of Out -of-Country Sources to Derive the Cost of Production  
7. Ukraine is correct that the panel and Appellate Body in EU – Biodiesel "did not exclude the 
possibility that an investigating authority may use information and evidence outside the country o f 
origin to determine the prices in the country of origin. " Rather, as the Appellate Body explained, 
when an authority rejects cost data under the second condition of the first sentence of 
Article  2.2.1.1, information from out -of-country sources could be u sed to arrive at the cost of 
production in the country of origin, albeit the benchmark chosen may need to be adapted to reflect 
the market conditions in the origin country.  
8. The Appellate Body in EU – Biodiesel  correctly differentiated "costs" from "information or 
evidence " used to establish "costs" by observing "that Article 2.2 of the Anti -Dumping Agreement 
and Article  VI:1(b)(ii) of the GATT 1994 do not contain additional words or qualifying language 
specifying the type of evidence that must be used, o r limiting the sources of information or 
evidence to only those sources inside the country of origin. " As the Appellate Body recognized, 
"these provisions do not preclude the possibility that the authority may also need to look for such 
information from so urces outside the country. " Accordingly, Articles 2.2 and 2.2.1.1 do not 
preclude an investigating authority from looking to sources outside the country of origin for 
information or evidence about costs associated with the production of the product under 
consideration and may use such information or evidence to determine an exporter 's or producer 's 
cost of production in the country of origin.  
II. CLAIMS REGARDING THE  RELATIONSHIP BETWEEN  ARTICLES 3 AND 11.3  
9. The obligations set forth in Article 3 do not apply directly to likelihood -of-injury 
determinations in sunset reviews conducted under Article  11.3. As the Appellate Body observed in 
US – Oil Country Tubular Goods Sunset Reviews , the Anti -Dumping Agreement distinguishes 
between "'determination[s] of in jury' addressed in Article 3, and determinations of likelihood of 
'continuation or recurrence . . . of injury ', addressed in Article 11.3. " Article 11.3 contains no 
cross-reference to Article 3 that would make Article 3 provisions applicable to sunset revi ews. As 
further explained by the Appellate Body in US – Oil Country Tubular Goods Sunset Reviews , "for 
the 'review ' of a determination of injury that has already been established in acc ordance with 
Article  3, Article  11.3 does not require that injury again  be determ ined in accordance with 
Article  3."  
10. Although Article 3.1 does not apply to sunset reviews, the United States nonetheless agrees 
with Russia that investigating authorities must base likelihood -of-injury determinations on an 
objective examination of positive evidence under Article 11.3, and the authority 's evaluation of the 
evidence must be unbiased and objective.  An authority may look to Article 3 for guidance in 
conducting its likelihood -of-injury analysis, but it is not required to d o so. 
 
11. Finally, an investigating authority 's likelihood -of-injury determination under Article 11.3 
must be made in an objective manner based on positive facts, but Article 11.3 does not prescribe 
the particular factors that must be considered or the me thodology used by an authority.  Trade 
barriers in third country markets can be relevant to an authority 's likelihood -of-injury 
determination.  Therefore, an authority could reasonably find that trade barriers in third country 
markets make an increase in sub ject import volume after expiry of a duty more likely by limiting 
the availability of other export markets to absorb any additional exports from the subject 
producers and exporters.  WT/DS493/ R/Add.1  
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  III. CLAIMS REGARDING ART ICLE 6.8 AND ANNEX I I 
12. Article 6.8 and Annex I I set forth the conditions under which an investigating authority may 
make a determination on the basis of facts available.  They do not govern how an investigating 
authority is to calculate dumping margins.  Those conditions are provided for in Article 2.  
Therefore, the United States agrees with Ukraine that the cooperation of Russian respondents is 
not pertinent to the question of whether Ukraine 's decision not to rely on the cost data reported by 
those parties with respect to its determination of dumping i s consistent with its obligations under 
Article 2.2.1.1 of the Anti -Dumping Agreement.  
IV. CLAIMS REGARDING ART ICLES 6.2 AND 6.9  
13. Article 6.2 provides, in part, that all parties shall have a full opportunity to defend their 
interests throughout an anti -dumping investigation.  Article 6.9 further requires that an 
investigating authority, "before a final determination is made, inform all interested parties of the 
essential facts under consideration which form the basis for the decision whether to apply 
definitive measures. " The disclosure obligation of Article 6.9, while it does not extend to all facts, 
does extend to those facts which are "salient for a decision to apply definitive measures. "  
14. Absent a full disclosure of the "essential facts " forming the basis for consideration of an 
underlying dumping determination, it might not be possible for an interested party to identify 
whether the determination contains clerical or mathematical errors or even whether the 
investigating authority properl y considered the factual information before it.  In this regard, the 
United States agrees with the panel in China – Broiler Products  that an investigating authority, 
with respect to a determination of the existence and margin of dumping, should disclose: (1 ) the 
data used in the determinations of normal value (including constructed value) and export price; 
(2) sales that were used in comparison between normal value and export price; (3) any 
adjustments for differences that affect price comparability; and (4)  the formulas applied to the 
data. Failure to provide this information could result in an interested party being unable to defend 
its interests within the meaning of Articles 6.2 and 6.9 because it would not be able to sufficiently 
identify which issues, i f any, are adverse to its interests.  
V. CLAIMS REGARDING ART ICLES 12.2 AND 12.2. 2 
15. Article 12.2 obligates investigating authorities to set forth "the findings and conclusions on 
all issues of fact and law considered material by the investigating authori t[y]." To this end, 
Article  12.2.2 provides that the authority 's public notice or separate report on a final affirmative 
determination shall contain "all relevant information on the matters of fact and law and reasons 
which have led to the imposition of fi nal measures . . . as well as the reasons for the acceptance or 
rejection of relevant arguments or claims made by exporters or importers. " Therefore, disclosure 
by the investigating authority, including a mere reference to data in possession of an interest ed 
party, may not necessarily constitute disclosure of "relevant information on matters of fact and law 
and reasons which have led to the imposition of final measures, " because an interested party may 
not be able to discern from the reference whether the d ata in its possession was accurately used, 
or whether there were mathematical errors in the calculation using the data.   
16. At a minimum, the calculations employed by an investigating authority to determine 
dumping margins, and the data underlying the cal culations, constitute "relevant information on 
matters of fact and law and reasons which have led to the imposition of final measures " within the 
meaning of Article 12.2.2.  Such calculations are the mathematical basis for arriving at the 
dumping margins im posed by an authority.  They thus are highly "relevant " to the decision to apply 
final measures, and because they consist of sales and cost data and mathematical uses of these 
data, they are "matters of fact " within the meaning of Articles 12.2 and 12.2.2.  
EXECUTIVE SUMMARY OF  U.S. THIRD PARTY ORA L STATEMENT  
17. Contrary to Russia 's position, Articles 2.2.1.1 and 2.2 permit an investigating authority to 
reject or adjust recorded prices or costs where that authority 's decision to do so is based on a 
reasoned and adequate explanation.  None of the parties or third parties appear to dispute that 
recorded costs may be rejected or adjusted where they are artificial transfer prices between 
affiliated entities.  In such a situation, where a producer charges its affili ate an artificially low price 
for a production input, an authority may reject or adjust the transfer price of that input to reflect WT/DS493/ R/Add.1  
BCI deleted, as indicated [[***]]  
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  its real cost in the domestic market.  A non -arm's-length transaction for an input subsequently 
used in producing merchandise  subject to an anti -dumping proceeding therefore provides a clear 
example where an authority may look beyond the four corners of a respondent 's records to 
determine whether they "reasonably reflect the costs associated with the production and sale of 
the product under consideration " within the meaning of Article 2.2.1.1.  
18. As Ukraine characterizes the facts, the situation created by the Russian Government 's 
intervention is analogous to a non -arm's-length transaction because the recorded cost for natural 
gas in Russia is set by the Russian Government and is "not the result of market forces. " In these 
circumstances, an unbiased and objective investigating authority could have found that the price 
for natural gas in Russia is an artificial price in that it do es not reasonably reflect the price that 
would otherwise be determined by independent interactions between a seller and a buyer in a free 
market.  This then could be another practice, similar to the recordation of non -arm's-length 
transactions, which may af fect the reliability of the reported costs.  Accordingly, these 
circumstances could well constitute grounds to substitute or adjust that cost under Article 2.2.1.1, 
depending on the facts of the case and the conclusions the authority draws from those facts.  
19. Finally, as the Appellate Body explained in EU – Biodiesel , when an authority rejects cost 
data under the second condition of Article 2.2.1.1, information from out -of-country sources could 
be used to arrive at the cost of production in the country of origin.  In certain circumstances, the 
proxy chosen may need to be adapted to reflect market conditions in the country of origin.  That 
said, in doing so, the authority should not be required to adapt those costs in a way that 
reintroduces the distortions th at led it to substitute the recorded cost.  
EXECUTIVE SUMMARY OF  U.S. THIRD PARTY RES PONSES TO QUESTIONS  
20. The Panel 's question asks whether "an investigating authority [is] permitted to examine the 
reasonableness of the costs themselves. " The premise of this question does not comport either 
with the text and structure of Article 2.2.1.1 of the Anti -Dumping Agreement, or with the U.S. 
understanding of the correct interpretation of this provision.   
21. First, the phrase "costs themselves " used in the questi on seems to imply that an authority 
must otherwise limit its examination to the figures recorded in the books and records of the 
producers.  This proposition is inconsistent with, and even contrary to, what is provided for in 
Article  2.2.1.1.  Indeed, Articl e 2.2.1.1 affirmatively provides that an authority may consider 
whether the producer 's "records . . .  reasonably reflect the costs associated with the production 
and sale of the product under consideration. " That is, two items should be compared:  (1) the 
recorded costs should be compared with (2) those costs (whether or not contained somewhere in 
the producer 's books and records) associated with the production and sale of the product under 
consideration.  The authority thus is clearly not limited to examinin g the recorded "costs 
themselves. " 
22. Second, the phrase "reasonableness of the costs " is vague and misleading – this phrase is 
not contained in Article 2.2.1.1, and is not an element of what the United States understands to be 
the proper interpretation o f Article 2.2.1.1.  Rather, the inquiry under this second condition in the 
first sentence of Article 2.2.1.1 is whether the producer 's "records . . .  reasonably reflect  the costs 
associated with the production and sale of the product under consideration. " Thus, the application 
of Article 2.2.1.1 – contrary to what is arguably implied by the question – does not turn on some 
vague inquiry into the "reasonableness of costs. " Rather, the inquiry is aimed at the extent to 
which the figures recorded in the books and records correspond to those costs associated with the 
production and sale of the product at issue.  
23. Turning to Norway 's reading of Article 2.2.1.1, Norway 's interpretation does not accurately 
reflect the text of this article, especially when read in  context with Articles 2.1 and 2.2 of the Anti -
Dumping Agreement.  First, Article 2.1 requires an investigating authority to include in the 
calculation of normal value only those sales "in the ordinary course of trade. " As the Appellate 
Body has noted, ther e could be many reasons why sales of the like product, destined for 
consumption in the exporting country, may be incompatible with market -determined, "'normal ' 
commercial practices " or principles, and thus not an appropriate basis for the calculation of no rmal 
value.  WT/DS493/ R/Add.1  
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  24. Second, when no sales of the like product in the ordinary course of trade exist in the 
domestic market of the exporting country, or such sales do not permit a proper comparison 
because of "the particular market situation " or the low volume of sales in the domestic market, 
Article  2.2 prescribes two alternative data sources that may provide for a "proper comparison. " 
Under either alternative, the margin of dumping shall be determined by comparison with a "normal 
value " that reflects normal co mmercial practices or principles.  
25. If the investigating authority decides to calculate normal va lue based on cost data, 
Article  2.2.1.1, together with Article 2.2.2, provides the framework for this determination.  
Article  2.2.1.1 references costs "associated with  the production and sale of the product under 
consideration. " The term "associated with " suggests a more general connection between the 
relevant costs and the production or sale of the product under consideration and supports an 
economic con ception of costs.  Pursuant to Article 2.2.1.1, and as the Appellate Body has 
concluded, the "costs associated with the production and sale of the product under consideration " 
must be considered as referring to "those costs that have a genuine relationship with the 
production and sale of the product under consideration.  This is because these are the costs that, 
together with other elements, would otherwise form the basis for the [comparable] price of the like 
product if it were sold in the ordinary course of  trade in the domestic market. " 
26. The term "normally " as it appears in Article 2.2.1.1 further suggests that this provision 
should not be read to limit "costs" to those actually incurred.  Definitions for the term "normally " 
include "in a regular manner, " "under . . . ordinary conditions, " or "as a rule, ordinarily. " The term 
"normally " thus indicates that there may be conditions in which costs should not be calculated 
based on the records kept by the exporter or producer under investigation.  
27. Finally, the Appellate Body in EU – Biodiesel  confirmed that an authority, in ascertaining 
whether the records kept by the exporter or producer under investigation reasonably reflect the 
costs of production, could "'examine the reliability and accuracy of the costs  recorded in the 
records of the producers/exporters ' to determine, in particular, whether all costs incurred are 
captured, whether the costs incurred have been over - or understated and whether non -arms-
length transactions or other practices affect the reli ability of the reported costs. " 
28. In sum, Article 2.2.1.1 cannot be interpreted such that the costs reported in the records 
kept by the exporter or producer under investigation must be accepted without any consideration.  
To the contrary, an authority may  examine such records.  That examination may include, inter alia , 
a consideration of whether the costs kept by the exporter or producer under investigation do not 
"reasonably reflect " the real economic costs associated with the production and sale of the pr oduct 
under consideration.  In such a situation, an unbiased and objective investigating authority would 
have a basis under the Anti -Dumping Agreement to reject or adjust a cost that does not reflect a 
normal commercial practice or principle, so long as its  determination was based on a reasoned and 
adequate explanation.  
_______________  
 
 
 WT/DS493/ R/Add.1  
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  ANNEX D 
PANEL COMMUNICATIONS  
Contents  Page  
Annex  D-1 Communication dated 23 August 2017 regarding deadlines set out in the  
timetable for this dispute  83 
Annex  D-2 Communication dated 23 August 2017 regarding Ukraine's first integrated 
executive summary  84 
Annex  D-3 Communication dated 30 August 2017  85 
Annex  D-4 Communication dated 12 September 2017  86 
Annex  D-5 Communication dated 21 September 2017  88 
Annex  D-6 Communication dated 16 October 2017  89 
 
 
  WT/DS493/ R/Add.1  
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  ANNEX D -1 
COMMUNICATION DATED 23 AUGUST 2017 REGAR DING DEADLINES SET OUT  
IN THE  TIMETABLE FOR THIS D ISPUTE   
In this communication, we address issues arising out of Ukraine's refusal to submit a written 
response to the questions posed to it by the Russian Federation (Russia) following the first 
substantive mee ting, on the ground that it did not receive these questions from Russia by 5 p.m. 
on the due date set out in the timetable. In addressing these issues, we have considered the 
comments made by Ukraine and Russia on this matter, includi ng those presented on 
18 August  2017.  
 
We recall that the deadline set out in the timetable for each party to pose questions to the other 
party following the first substantive meeting, to which it wished to receive a response in writing 
was 5 p.m. on 28 July 2017. The deadline for the other party to submit its written response to 
these questions was 5 p.m. on 14 August 2017. The Working Procedures adopted in this dispute 
require parties to file all submissions, including the written questions to the other party through 
the Digit al Dispute Settlement Registry (DDSR), which is the electronic platform maintained by the 
WTO Secretariat for official filings in this dispute.1 
 
Russia informed us through email, at 6.47 p.m. on 28 July 2017, that while it uploaded its 
questions to Ukrain e at 4.57 p.m. on 28 July 2017, due to a technical error in the DDSR, these 
questions were not released to the other users, including Ukraine at that time.2 Russia further 
explained that after it became aware of this technical error, it re -uploaded these q uestions on the 
DDSR at 5.57 p.m. on 28 July 2017. The DDSR time log shows that the questions became 
available to other users, including Ukraine at 5.57 p.m. Ukraine does not suggest otherwise. Thus, 
Ukraine had access to these questions on 28 July, albeit  57 minutes after the deadline of 5 p.m. 
Further, Ukraine was copied on this email from Russia, and thus aware as of 28 July 2017 about 
Russia's explanations for this delay.  
 
Ukraine did not object to this 57 minutes delay at any time prior to the expiry o f the deadline on 
14 August 2017 for receipt of its written response to questions posed by Russia, or inform us that 
it would not file its response on account of this delay. We became aware of Ukraine's decision to 
not file this response only on 15 August 2017, when, in response to a query by the Secretariat, 
Ukraine stated that it would not be filing this response as it did not receive Russia's questions 
within the deadline.  
 
In these circumstances, we deeply regret that Ukraine unilaterally decided to not  file its response 
on account of this delay, and then failed to communicate its decision on this matter to the Panel 
and Russia in a timely manner. We also regret that despite having sufficient time to do so, Ukraine 
failed to raise its objections regardin g the delay faced in accessing Russia's questions in a timely 
fashion.  
 
Nonetheless, having considered the parties' comments on this matter, and taking into account the 
minimal delay faced by Ukraine in accessing these questions, the Panel asks Ukraine to provide its 
written response to the questions posed by Russia to Ukraine on 28 July 2017, by 5 p.m. on 
25 August 2017. The Panel will not grant any request for an extension of this deadline.  
 
 
                                                
1 Working Procedures, para. 26. This paragraph also sets out circumstances wherei n official filings may 
be made through a system other than the DDSR.  
2 We have no reason to question Russia's explanations regarding the technical error on the DDSR, and it 
does appear that the DDSR did not release these written questions at 5 p.m. on 28 July 2017 to other users 
because of a technical issue in the system. The issue was that instead of releasing the questions initially 
uploaded by Russia to other users, including Ukraine at 5 p.m. on 28 July 2017, the DDSR system incorrectly 
applied a diffe rent release deadline of 5 p.m. on 24 November 2017.  WT/DS493/ R/Add.1  
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  ANNEX D -2 
COMMUNICATION DATED 23 AUGUST 2017 REGAR DING UKRAINE'S  
FIRST INTEGRATED EXE CUTIVE SUMMARY  
The Panel notes Ukraine's clarification on 21 August 2017 that as part of its first integrated 
executive summary, it has submitted an (i) executive summary of the first written submission of 
Ukraine and (ii) executive summary of the oral statement of Ukraine. The combined length of 
these two documents, excluding the c over pages, exceeds 15 pages.  
 
Paragraph 20 of the Working Procedures states that each "integrated executive summary shall be 
limited to no more than 15 pages". Thus, Ukraine's submission in this regard exceeds the page 
limit set out in the Working Procedu res. 
 
Considering Ukraine has submitted two separate executive summaries as part of its integrated 
executive summary, and bearing in mind the two documents combined exceed the page limit 
specified in the Working Procedures, the Panel will accept only one o f the two executive summaries 
filed by Ukraine as the integrated executive summary for the purposes of paragraph 20 of the 
Working Procedures. Please let the Panel know by 5 p.m. on 28 August 2017  which of the two 
executive summaries filed by Ukraine shoul d be treated by the Panel as the first integrated 
executive summary for the purpose of paragraph 20 of the Working Procedures.  
 
No new submissions may be made at this stage as part of the first integrated executive summary.  
 WT/DS493/ R/Add.1  
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  ANNEX D -3 
COMMUNICATION DATED 30 AUGUST 2017  
The Panel takes note of Ukraine's message of 29 August 2017 that it did not have access to the 
DDSR  system from 24 -28 August 2017, on account of public holidays in Ukraine between 
24-27 August, and technical difficulties in accessing the DDSR on 28 August. Thus, Ukraine was 
unable to access the communications sent by the Panel at around 8.14 p.m. (Genev a time) on 
23 August 2017, including the communication asking Ukraine to respond to the written questions 
posed to it by Russia following the first substantive meeting by 5 p.m. on 28 August 2017 . 
 
The Panel recalls that in its communication it had stated that it would not grant any request for an 
extension of the deadline of 5 p.m. on 28 August for Ukraine to respond to the written questions 
posed by Russia. However, the Panel acknowledges the particular difficulties faced by Ukraine due 
to which it could not file its response within the set deadline. The Panel asks Ukraine to provide its 
written response to the questions posed by Russia on 28 July 2017, by 5 p.m. on Friday, 
1 September , in accordance with paragraph 26 of the Working Procedures.  
 
In settin g this new deadline, the Panel has taken into consideration the fact that the original 
deadline to respond to these questions was 14 August 2017, Ukraine chose not to submit its 
response on this date on account of a 57 minutes delay faced in accessing thes e questions, and 
failed to inform the Panel of its decision to not file a response for this reason till 15 August 2017.  
 
The Panel also acknowledges Ukraine's submission that the integrated executive summary of its 
oral statements should be treated as the first integrated executive summary for the purposes of 
this dispute.  
 WT/DS493/ R/Add.1  
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  ANNEX D -4 
COMMUNICATION DATED 12 SEPTEMBER 2017  
Having considered Russia's communication of 6 September 2017, and the communications cross -
referred therein, the Panel has decided as follows:  
 
2  EXTENSION OF DEADLIN E FOR REBUTTAL SUBMI SSION (SECOND WRITTE N 
SUBMISSION)  
The Panel acknowledges Russia's concern that while Ukraine's written response to questions posed 
to it by Russia following the first substantive meeting was due on 14 August 2017, the responses 
were ultimately filed on 1 September 2017. The reasons for this delay and the Panel's decisions in 
this reg ard, are discussed in the Panel's communications of 23 August 2017 and 30 August 2017.  
 
Russia submits that this delay deprived it of an adequate opportunity to prepare its rebuttal 
submission, which, per the timetable is due on 15 September 2017. Russia r equests the Panel to 
extend the deadline for the rebuttal submission to 25 September 2017.  
 
Upon consideration of the reasons put forth by Russia for its request for extension, the Panel 
agrees to extend the deadline for the rebuttal submissions by Russia and Ukraine to 5 p.m. on 
25 September 2017 . 
 
3  RUSSIA'S CONCERNS RE GARDING PANEL'S COMM UNICATION OF 23 AUGU ST 2017  
The Panel refers to Russia's statement in its communication of 6 September  2017, about its deep 
concerns regarding the wording used in the Panel's communication of 23 August 2017 
characterizing the situation that occurred in relation to Ukraine's response to Russia's questions. 
Russia does not identify the specific wording in th is communication that it has concerns about, but 
asks the Panel to note, for the record of this dispute, that Russia met the deadline for submitting 
its questions to the other party. Russia welcomes, inter alia , in the Panel Report  a correction 
highlightin g that Russia met the deadline for filing its questions to the other party following the 
first substantive meeting.  
 
In the Panel's view, its communication of 23 August 2017 does not suggest that Russia did not file 
its questions to Ukraine following the f irst substantive meeting within the deadline of 5 p.m. on 
28 July 2017. On the contrary, the communication acknowledges Russia's statement in its email of 
28 July 2017 that it uploaded these questions at 4.57 p.m. on 28 July 2017, which is before the 
deadl ine of 5 p.m., and that due to a technical error in the DDSR, these questions were not 
released to other users, including Ukraine at that time. In footnote 2 of the communication, the 
Panel states that it has no reason to question Russia's explanations reg arding the technical error in 
the DDSR, and further clarifies that it does appear that the "DDSR did not release these written 
questions at 5 p.m. on 28 July 2017" to other users because of a "technical issue in the system". 
Thus, we consider the communica tion is clear that due to a technical issue in the DDSR, rather 
than due to an error on part of Russia, Ukraine had access to the questions at 5.57 p.m., instead 
of 5 p.m. The communication also notes a delay of 57 minutes in Ukraine having "access" to the  
questions, not in Russia filing them.  
 
Thus, to the extent Russia's concern is that the Panel's communication of 23 August 2017 suggests 
that Russia did not file the questions to Ukraine following the first substantive meeting by the 
deadline of 5 p.m. o n 28 July 2017, the Panel does not share Russia's concern, and does not 
consider any revision to this communication to be necessary.  
 
Procedural issues arising in this dispute, including this one, will be appropriately reflected in the 
descriptive part of the Panel Report.  
 WT/DS493/ R/Add.1  
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  4  PROPOSED MODIFICATIO N TO WORKING PROCEDU RES 
The Panel proposes a modification to the working procedures for this dispute to more specifically 
address situations where a party uploads submissions or exhibits on the DDSR  without facing any 
apparent technical difficulty, but other users, including the other party, do not have access to 
them due to, inter alia , technical issues relating to the DDSR.  
 
In particular, the Panel proposes the addition of the following footnote ( underlined) to 
paragraph  26(a) of the Working Procedures:  
 
 
Each party and third party shall submit all documents to the Panel by filing them via 
the Digital Dispute Settlement Registry (DDSR) by 5.00  p.m. (Geneva time) on the 
due dates established by the Panel. The electronic version uploaded into the DDSR 
shall constitute the official version for the purposes of the record of the dispute. 
Upload into the DDSR shall also constitute electronic service on the Panel, the other 
party, and the third parties.1 In case any party or third party is unable to meet the 
5.00 p.m. deadline because of technical difficulties in uploading these documents into 
the DDSR, the party or third party concerned shall contact the DS Registry without 
delay and provide an electronic version of all documents to be submitted to the Panel 
by e -mail, except for any exhibits. The e -mail shall be addressed to 
DSRegistry@wto.org and the other party and, where appropriate, the third parties. 
The documents sent by email shall be filed no later  than 5.30 p.m. on the date 
due.The exhibits shall also be filed with the DS Registry (office No. 2047) and 
provided to the other party and, where appropriate, the third parties by no later than 
5:30 p.m., but shall be submitted on a CD -ROM, DVD, or USB st ick, together with the 
DDSR E -docket template.  
---  
1 When a party uploads a document on the DDSR, in accordance with this paragraph, it shall 
also send a message on the DDSR to the Panel, through the Secretariat, and the other party, 
identifying the docum ent, including  exhibits uploaded. The other party shall inform, through the 
DDSR, the DS Registry and the party which uploaded the document, promptly and in any case, 
no later than 5 p.m. the next working day, if it does not have access to any document ide ntified 
in that message.  
The parties are requested to provide their comments on the proposed modification to the working 
procedures by 5 p.m.  on 15 September 2017 . 
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  ANNEX D -5 
COMMUNICATION DATED 21 SEPTEMBER 2017  
Pursuant to Russia's communication of 6 September 2017, the Panel proposed a modification to 
the working procedures for this dispute to more specifically address situations where a party 
uploads submissions and/or exhibits into the DDSR without facing any apparent technical difficulty, 
but other users, including the other party, do not have access to them due to, inter alia , technical 
issues relating to the DDSR. The Panel invited comments from the parties on this proposed 
modification on 12 September 2017.   
 
Having considered the parties' responses on 15 September 2017, the Panel has amended the 
working procedures by adding a footnote to Paragraph 26(a). No other change has been made to 
the working procedures. The revised working procedures have been upload ed into the DDSR.  
 WT/DS493/ R/Add.1  
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  ANNEX D -6 
COMMUNICATION DATED 16 OCTOBER 2017  
Having considered the requests made by the Russian Federation (Russia ) in its letter of 
29 September 2017, and Ukraine's comments on 10 October 2017 on these requests, the Panel 
has decided as follows:  
 
a. The Panel declines Russia's request to ask Ukraine, pursuant to Article 13 of the DSU, to 
provide full confidential version of the questionnaire responses filed by the domestic industry, 
including all exhibits thereto, or at least the information contained in sections 4.2, 7 and 8 of 
these questionnaire responses, as the Panel does not find it necessary to seek this inf ormation 
at this stage.  
b. The Panel notes Russia's objections to Ukraine's designation of Exhibits UKR -42, UKR-53, UKR -
54 and UKR -55 as BCI.  
  Regarding Exhibit UKR -42, Ukraine acknowledges that this exhibit was inadvertently 
designated as BCI. In light of t his acknowledgment, the Panel will not treat Exhibit UKR -42 as 
BCI, pursuant to the BCI procedures.  
   With respect to Exhibits UKR -53, UKR -54 and UKR -55, the Panel notes that pursuant to 
paragraph 3 of its BCI procedures, in deciding " whether information subject to an objection 
should be treated as BCI for purposes of these Panel proceedings, [the Panel] will  consider 
whether disclosure of the information in question could cause serious harm to the interests of 
the originator(s) of the information ." Ukraine invokes Article 32 of its domestic anti -dumping 
law to justify the BCI designation of these exhibits.  
  The Panel intends to pose questions to the parties at the second substantive meeting to gain 
more clarity on this justification put forth by Ukraine, and then take a decision as to whether 
Exhibits UKR -53, UKR -54 and UKR -55 should continue to be treated as BCI for the purpose of 
these proceedings. Pending the Panel's decision in this regard, the parties should continue to 
treat these exhibits a s BCI.  
c. The Panel notes Russia's request that the Panel oblige Ukraine to submit a n English  translation 
in full of Exhibits UKR -46A, UKR -47A, UKR -48-A and UKR -49A, which are in the Ukrainian 
language. The Panel recalls that these exhibits were submitted by Ukraine in its written 
responses to Russia's questions following  the first substantive meeting.  Ukraine filed certain 
parts of these exhibits in English because it considers that only certain parts of these exhibits 
were relevant to answer the questions po sed by Russia. The limited English translation is in 
Exhibits UKR-46B, UKR -47B, UKR -48-B and UKR -49B. 
In its responses, Ukraine also filed Exhibit UKR -50, and stated that this exhibit provides an 
overview of the parts of Exhibits  UKR-46 – UKR-49 where conf identiality has been claimed by 
the relevant domestic producers. The Panel notes that the cross references in Exhibit UKR -50 
appear to be to the Ukrainian version of the exhibits, and not the English version.  
In the Panel's view, w hile it is for each party  to decide how to respond to questions posed by 
the other party, those responses must be filed in accordance with the Working Procedures. In 
this regard, paragraph 9 of the Working Procedures stipulates that "[w] here the  original 
language of exhibits is no t a WTO working language, the submitting party or third party shall 
submit a translation into the WTO working language of the submission  at the same time".  
Considering Exhibits UKR -46A, UKR -47A, UKR -48A and UKR -49A are not in an official WTO 
language, the Panel will limit its review to those parts of the exhibits that are filed in English, 
namely, Exhibits UKR -46B, UKR -47B, UKR -48B and UKR -49B. If Ukraine wishes that the Panel 
take into account any other part of the se exhibits, in part, or in full, it should file these exhibits 
in a WTO working language, consistent with paragrap h 9 of the Working Procedures. WT/DS493/ R/Add.1  
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ANNEX E 
INTERIM REVIEW  
Contents  Page  
Annex  E-1 Interim Review  91 
 
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ANNEX E -1 
INTERIM REVIEW  
1  INTRODUCTION  
1.  In accordance with Article  15.3 of the DSU, this Annex sets out our discussion of the arguments 
made at the interim review stage. We have revised certain aspects of the Interim  Report in light of 
the parties' comments. In addition, we have made certain ed itorial changes to improve the clarity 
and accuracy of the Final Report, or to correct typographical and non -substantive errors, including 
those suggested by the parties. The footnote numbers in the Final Report have changed due to 
these revisions. The foo tnote numbers indicated in this Annex pertain to those in the Final Report, 
but we have also indicated the footnote numbers in the Interim Report where they differ from 
those in the Final Report. The paragraph numbers in the Final Report remain unchanged.  
2  SPECIFIC REQUESTS FO R REVIEW SUBMITTED B Y THE PARTIES  
2.1  Paragraph 7.62  
2.  Russia requests us to modify this paragraph to accurately reflect its arguments under 
Article  11.1 of the Anti -Dumping Agreement.1 Ukraine asks us to reject Russia's request because it 
sees no merit in it.2 
3.  We have made some minor changes to more closely reflect the actual language used by Russia 
in its submissions. However, we do not find it necessary to modify this paragraph in the manner 
proposed by Russia as we consider the changes that we made to be sufficient to accurately reflect 
Russia's arguments.  
2.2  Paragraph 7.64, footnote 107  
4.  Russia requests us to add two additional sentences in footnote 107  to paragraph 7.64 in order 
to reflect  two additional arguments.3 First, Russia asserts t hat in footnote 294 of its second written 
submission it questioned the accuracy of the transportation costs used by MEDT of Ukraine to 
calculate the surrogate price of gas and asks us to reflect this argument in the Final Report. 
Second, Russia asks us to reflect its argument that the surrogate price of gas could not be 
considered to be the price of gas in Russia. Ukraine asks us to reject Russia's request as the 
original footnote in the Interim Report was clear and correct.4 Ukraine also asserts that the 
arguments referred by Russia were submitted at a late stage in panel proceedings, and should 
therefore not be accepted.5 
5.  We consider the additions requested by Russia to be unnecessary. We note that parties are free 
to reflect their arguments in their execu tive summaries, annexed to the Final Report, as they deem 
fit, and we see no reason to reproduce these specific arguments in the Final Report. We also note 
that the second argument is adequately reflected in paragraph 7.94 of this Report. Therefore, we 
decline Russia's  request.  
2.3  Paragraphs 7.71, 7.95, and 7.99  
6.  Russia requests us to make certain changes to accurately reflect the text of Article  2.2 of the 
Anti-Dumping Agreement.6 Ukraine asks us to reject Russia's request because it does not see any 
problem i n these paragraphs.7 
                                                
1 Russia's request for interim review, para.  2. 
2 Ukraine's comments on Russia's request for interim review, para.  3. 
3 Russia's request for interim review, para.  3. 
4 Ukraine's comments on Russia's requ est for interim review, para.  5. 
5 Ukraine's comments on Russia's request for interim review, para.  5. 
6 Russia's request for interim review, para.  5. WT/DS493/ R/Add.1  
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  7.  We have made the changes suggested by Russia to accurately reflect the text of Article  2.2 of 
the Anti -Dumping Agreement.  
2.4  Paragraph 7.74  
8.  Ukraine requests us to reflect in the Final Report the  additional reasons that it presented in its  
submissions, apart from the dominant position of Gazprom in domestic Russian market, for why 
the gas prices set by other independent suppliers in Russia were aligned with the gas price of 
Gazprom.8 Russia asks us to decline Ukraine's request because the I nterim Report  accurately and 
fully reflects Ukraine's position  on the matter .9 Russia also asserts that contrary to what Ukraine 
alleges in its request, Gazprom's dominant position in the domestic Russian market was the only 
reason that Ukraine provided in  its submissions for the alleged pricing behaviour of independent 
gas suppliers.10 
9.  We reject Ukraine's request as we do not find it necessary to reflect these additional reasons 
presented by Ukraine as they do not add to the clarity or accuracy of the Final  Report, which 
already reflects the main arguments of Ukraine on this matter.11 
2.5  Paragraph 7.75  
10.  Russia requests us to make three specific modifications to more accurately reflect its 
arguments. First, Russia asks us to replace the word "provide" with the wor d "constitute" to more 
accurately reflect the language that it used in its submissions.12 Second, Russia asks us to add a 
footnote to this paragraph to reflect certain arguments that it made in its submissions.13 Third, 
Russia asks us to modify footnote 129 to paragraph 7.75 to reflect the "focal point" of Russia's 
position that "all [of] Ukraine's arguments, reasons and evidence related to the cost of production 
of an input used for manufacturing of the product u nder consideration are irrelevant to this 
dispute".14 Ukraine states that the Interim Report already reflects Russia's arguments on this 
point, submits that no further modification or addition in this paragraph is necessary, and asks us 
to not add a footnot e to this paragraph, as requested by Russia.15 
11.  We have made the first modification proposed by Russia to more closely reflect the language 
that it used in its submissions. We decline to make the second and third modifications proposed by 
Russia as we do not  find it necessary to reflect these arguments in the Final Report. Parties, as 
noted above, are free to reflect their arguments in their executive summaries  as they deem fit.  
2.6  Paragraph 7.80  
12.  Russia requests us to delete a part of the fourth sentence of this  paragraph to avoid any 
assumptions based on hypothetical situations that are not necessary for the effective resolution of 
this dispute, and which in its view may have far reaching and misleading effects well beyond the 
scope of this dispute.16 Ukraine ask s us to reject Russia's request.17 
13.  We note that we made the observation alluded by Russia in rejecting, as ex post facto  
rationalization, Ukraine's argument based on the use of the word "normally" in Article  2.2.1.1. We 
limited our review to the parties' ar guments on the second condition of Article  2.2.1.1 and offered 
no views on whether an investigating authority's rejection of certain costs incurred by an exporter 
or producer could be justified based on the use of the word "normally" in Article  2.2.1.1. 
                                                                                                                                                  
7 Ukraine's comments on Russia's request for interim review, para.  7. 
8 Ukraine's request for interim rev iew, para.  5.  
9 Russia's comments on Ukraine's request for interim review, para.  4.  
10 Russia's comments on Ukraine's request for interim review, para.  7. 
11 As noted in footnote 159 of the Report, MEDT of Ukraine did not find that the gas prices of 
indepe ndent suppliers were aligned with the gas price of Gazprom. Ukraine has not suggested in its comments 
on the interim report that MEDT of Ukraine actually made such a finding. Thus, the additional reasons provided 
by Ukraine are not integral to our evaluati on and findings.  
12 Russia's request for interim review, para.  7. 
13 Russia's request for interim review, para.  8. 
14 Russia's request for interim review, para.  9. 
15 Ukraine's comments on Russia's request for interim review, para.  9. 
16 Russia's request for in terim review, para.  10. 
17 Ukraine's comments on Russia's request for interim review, para.  11. WT/DS493/ R/Add.1  
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  Therefore, we do not consider, and Russia does not explain why, our observations will have the 
"far reaching and misleading effects" contemplated by Russia. In addition, we note that deleting 
part of the fourth sentence in the manner proposed by Russia will make the sentence less clear. 
Therefore, we decline Russia's request.  
2.7  Paragraph 7.82  
14.  Russia requests us to make certain additions in this paragraph to properly reflect its 
arguments.18 Ukraine asks us to reject Russia's request.19 
15.  We decline Russia's request  as the additions proposed by Russia are unnecessary, and will 
also affect the clarity of the Final Report.  
2.8  Paragraph 7.83  
16.  Russia requests us to add a footnote to this paragraph to reflect its arguments in full.20 
Ukraine asks us to reject Russia's request.21 
17.  We decline Russia's request as the additions proposed by Russia are unnecessary, and will 
also affect the clarity of the Final Report.  
2.9  Paragraph 7.88  
18.  Russia requests us to make certain changes in paragraph 7.88 to accurately reflect the facts 
of this dis pute.22 In particular, Russia objects to the part of this paragraph, where, while recalling 
the factual 2basis of MEDT of Ukraine's findings set out in paragraph 7.73 of the Interim Report, 
we stated that MEDT of Ukraine had found that the gas prices in the  domestic Russian market 
were not based "on commercial considerations" due to governmental regulation of the domestic 
gas prices in Russia.23 Russia submits that MEDT of Ukraine only referred to the absence of 
"commercial considerations" in gas prices set i n Russia when alluding to the discussions of WTO 
Members during the accession process of Russia to the WTO.24 Thus, in Russia's view, MEDT of 
Ukraine did not make any finding as such that gas prices in Russia were not set based on 
commercial considerations.  Ukraine asks us to reject Russia's  request.25 
19.  We recall that while setting out the factual basis of MEDT of Ukraine's findings in 
paragraph  7.73 of the Interim Report with respect to cost adjustments, we noted MEDT of 
Ukraine's finding that the gas price i n the domestic Russian  market was not a "market price", as 
the state controlled the price of gas. However, while cross -referring in paragraph 7.88 to the 
factual basis of MEDT of Ukraine's findings set out in paragraph 7.73 we stated that it had found 
that the price in Russia was not based on "commercial considerations". For consistency in our use 
of terminologies across the Final Report, and specifically paragraphs 7.73 and 7.88, we have 
deleted the reference to a price not based on commercial consideratio ns in paragraph 7.88. 
Instead, we note in paragraph 7.88, like we did in paragraph 7.73, that MEDT of Ukraine found 
that the gas price in Russia was not a market price. This change does not affect our analysis with 
respect to Russia's claim under Article  2.2.1.1 of the Anti -Dumping Agreement.  
2.10  Paragraph 7.89  
20.  Russia requests us to insert quotation marks around the terms "normal" or "normal 
circumstances" in the third sentence of paragraph 7.89 so as to clarify that these terms refer to 
                                                
18 Russia's request for interim review, para.  11. 
19 Ukraine's comments on Russia's request for interim review, para.  13. 
20 Russia's request for interim review, para.  12. 
21 Ukraine's comments on Russia's request for interim review, para.  15. 
22 Russia's request for interim review, para.  13. 
23 Russia's request for interim review, para.  13. 
24 Russia's request for interim review, para. 13. 
25 Ukraine's comments on Russia's request for interim review, para.  17. WT/DS493/ R/Add.1  
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  Ukraine's own views on the matter. Russia also requests us to add a citation to Ukraine's first 
written submission at the end of this paragraph.26 Ukraine does not comment on this request.  
21.  The third sentence of paragraph 7.89 reflects our own assessment, and not Ukraine's 
argumen ts. Thus, we do not find it necessary to cite Ukraine's first written submission at the end 
of this sentence, or add the quotation marks suggested by Russia. Nonetheless, we have slightly 
modified this sentence to enhance the clarity of our analysis.  
2.11  Paragraph 7.90  
22.  Russia requests us to insert a footnote after the first sentence of paragraph 7.90 to reflect an 
additional argument that it made.27 Ukraine asks us to dismiss Russia's request.28 
23.   The additions proposed by Russia are not integral to our evalu ation and findings, and do not 
add to the clarity of the Final Report. Therefore, we deny Russia's request.  
2.12  Paragraph 7.93  
24.  Russia requests us to add certain citations in footnote 165 to paragraph 7.93 to make 
references to Russia's arguments complete and a ccurate.29 Ukraine does not comment on this 
request.  
25.  We have added the citations suggested by Russia.  
2.13  Paragraph 7.94  
26.  Russia requests  us to make certain additions in this paragraph to more completely  reflect its 
arguments.30 Ukraine asks us to dismiss this request.31 
27.  We reject Russia's request as the proposed arguments are adequately reflected in other parts 
of this Report.32 
2.14  Paragraph 7.104  
28.  Russia requests  us to make certain additions in this paragraph to more completely  reflect its 
arguments  with respect to its claim under Article  2.2.1 of the Anti -Dumping Agreement .33 Ukraine 
asks us to reject this request.34 
29.  The additions proposed by Russia are not integral to our evaluation and findings. Therefore, 
we reject Russia's request.  
2.15  Paragraph 7.105  
30.  Russia requests us to add certain citations in footnote 188 to paragraph 7.105 to make 
references to Russia's arguments more complete and accurate.35 Ukraine does not comment on 
this request.  
31.  We have added the citations suggested by Russia.  
                                                
26 Russia's request for interim review, para.  14. 
27 Russia's request for interim review, para.  15. 
28 Ukraine's comments on Russia's request for interim review, para.  19. 
29 Russia's request for interim review, para.  16. 
30 Russia's request for interim review, para.  17. 
31 Ukraine's comments on Russia's request for interim review, para.  21. 
32 See, e.g. Panel Report, para. 7.93.  
33 Russia's request for interim review, para.  19. 
34 Ukraine's comments on Russia's request for interim review, para.  23. 
35 Russia's request for interim review, para.  18. WT/DS493/ R/Add.1  
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  2.16  Paragraph 7.125  
32.  Russia requests us to include a reference to Article  2.2 of the Anti -Dumping Agreement in 
paragraph 7.125.36 Ukraine does not comment on this request.  
33.  We have added a reference to Article  2.2 of the Anti -Dumping Agreement to this paragraph 
pursuant to Russia's request.  
2.17  Paragraph 7.128  
34.  Russia requests us to insert a footnote in this paragraph reflecting additional citations to 
Russia's submissions to make references to its arguments complete and accurate.37 Ukraine does 
not comment on this req uest. 
35.  We have inserted a new footnote (footnote 225) reflecting the additional citations suggested 
by Russia.  
2.18  Section 7.5  
36.  Ukraine observes that Section 7.5 does not contain: (a) a detailed description regarding the 
competence of the Ukrainian courts in the  Ukrainian legal order; and (b)  reference to the fact that 
the Ukrainian courts confirmed that MEDT of Ukraine had correctly included EuroChem in the 
underlying reviews.38 Ukraine requests us to add these descriptions in the Final Report. Russia 
asks us to reject Ukraine's requests. In particular, Russia finds Ukraine's  requests to be unclear, 
vague, and imprecise, and considers them to go beyond the requirement under Article  15.2 of the 
DSU that a request for review be limited to "precise aspects" of the In terim Report.39 
37.  With respect to Ukraine's request that we add a detailed description regarding the 
competence of the Ukrainian courts in the Ukrainian legal order, we note that we have already set 
out the facts necessary to resolve Russia's claim, and suppo rt our reasoning. While Ukraine 
requests us to add a description regarding the Ukrainian legal order, it does not propose any 
particular edits or specify the precise additions that it wishes us to make in this regard. We do not 
consider that such additiona l descriptions would add to the clarity of the Final Report. We 
accordingly reject this aspect of Ukraine's request.  
38.  Regarding Ukraine's request to add a reference to the fact that the Ukrainian courts confirmed 
that MEDT of Ukraine had correctly included EuroChem in the underlying reviews, we do not 
consider that such additions would add to the clarity of the Report, or be necessary to resolve the 
claim. Therefore, we also reject this aspect of Ukraine's request.40 
2.19  Paragraph 7.150, footnote 27 2 (footnote 27 1 of Interim Report)  
39.  Ukraine requests  us to modify this footnote to correctly reflect the title of the Constitution of 
Ukraine.41 Russia does not comment on this request.  
40.  We have made the change suggested by Ukraine.  
                                                
36 Russia's request for interim review, para.  20. 
37 Russia's request for interim review, para.  21. 
38 Ukraine's request for interim review,  paras.  8. 
39 Russia's comments on Ukraine's request for interim review, paras.  11-12. 
40 We recall that in the Interim Report we found that the combined effect of Ukrainian court judgments, 
which found that EuroChem had a negative rate of dumping, and the i mplementation of these judgments 
through ICIT's 2010 amendment was that dumping margin for this producer in the original investigation phase 
was de minimis . We thus found that the obligation under the second sentence of Article  5.8 that authorities 
termina te the investigation against an exporter or producer found to have a de minimis  dumping margin in the 
original investigation was applicable in this case, and thus the Ukrainian authorities should have terminated the 
investigation against EuroChem. We do no t consider that the references to court judgments that upheld the 
Ukrainian authorities' decision to initiate the underlying reviews against Eurochem affect the probative value of 
the evidence we relied upon to find that in the original investigation phase  EuroChem was found to have a 
negative rate of dumping.  
41 Ukraine's request for interim review, para.  7. WT/DS493/ R/Add.1  
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  2.20  Paragraph 7.193  
41.  Russia requests us to reflect its argument that in the underlying reviews MEDT of Ukraine 
de facto resorted to facts available in rejecting the reported gas cost, and using the surrogate 
price of gas to calculate the cost of production of the investigated Russian producers.42 Ukraine 
does not comment on this request.  
42.  We have made the change suggested by Russia.  
2.21  Paragraph 7.233  
43.  Russia requests us to make two sets of changes in this paragraph. First, Russia requests us to 
add a sentence in footnote 424 (footno te 422 of Interim Report) to paragraph 7.233 to more 
completely reflect its arguments.43 Second, Russia requests us to insert a new footnote in this 
paragraph noting that at the second substantive meeting of the Panel, Russia replied to the 
"defence" raised  by Ukraine under Article  6.5 of the Anti -Dumping Agreement in response to 
Russia's claim under Article  6.9 of the Anti -Dumping Agreement.44 Ukraine asks us to reject 
Russia's request. In particular, Ukraine considers the additions proposed by Russia to be 
confusing, notes that Russia's arguments under Article  6.5 were ad equately reflected in 
paragraph  7.230 of the Interim Report, and disagrees with Russia's characterization of Ukraine's 
arguments under Article  6.5 as a "defence".  
44.  We do not consider that the  additional references to Russia's arguments to be necessary as 
they do not add to the clarity of the Final Report. Therefore, we reject Russia's requests.  
2.22  Paragraph 7.250  
45.  Russia requests us to add certain citations in footnote 452 (footnote 450 of Interim  Report) to 
paragraph 7.250.45 Ukraine does not comment on this request.  
46.  We have added certain citations in footnote 452, including those proposed by Russia.  
 
__________  
                                                
42 Russia's request for interim review, para. 22. 
43 Russia's request for interim review, para. 23. 
44 Russia's request for interim review, para. 24. 
45 Russia's request for interim review, para.  25.