WT/DS427/RW  
 
18 January 2018  
(18-0451) Page: 1/126 
  Original: English  
 
  
CHINA – ANTI -DUMPING AND COUNTERV AILING DUTY MEASURES  ON 
BROILER PRODUCTS FRO M THE UNITED STATES  
RECOURSE TO ARTICLE 21.5 OF THE DSU BY T HE UNITED  STATES  
REPORT OF THE PANEL  
 
 WT/DS427/RW  
 
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  TABLE OF  CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ................................ ........  12 
1.1   Complaint by the United  States  ................................ ................................ .................... 12 
1.2   Panel establishment and composition  ................................ ................................ ............ 12 
1.3   Panel proceedings  ................................ ................................ ................................ .......12 
1.3.1   General  ................................ ................................ ................................ .................. 12 
1.3.2    Preliminary ruling  ................................ ................................ ................................ ....13 
2   THE MEASURES AT ISSU E ................................ ................................ ..........................  13 
3   PARTIES' REQUESTS FO R FINDINGS AND RECOM MENDATIONS  ................................  13 
4   ARGUMENTS OF THE PAR TIES  ................................ ................................ ...................  15 
5   ARGUMENTS OF THE THI RD PARTIES  ................................ ................................ ........  15 
6   INTERIM REVIEW  ................................ ................................ ................................ ...... 15 
7   FINDINGS  ................................ ................................ ................................ .................  17 
7.1   General principles  ................................ ................................ ................................ .......17 
7.1.1   Treaty interpretation  ................................ ................................ ................................ 17 
7.1.2    Standard of review ................................ ................................ ................................ ...17 
7.1.3    Burden of proof  ................................ ................................ ................................ .......18 
7.1.4   Article 21.5 proceedings  ................................ ................................ ........................... 18 
7.2   Article 2.2.1.1 of the Anti -Dumping Agreement: the proper allocation of costs  ................... 19 
7.2.1    Introduction  ................................ ................................ ................................ ............ 19 
7.2.1.1    Our findings in the original report  ................................ ................................ ........... 19 
7.2.1.2    MOFCOM's redetermination  ................................ ................................ .................... 20 
7.2.1.2.1    Tyson  ................................ ................................ ................................ ............... 20 
7.2.1.2.1.1    Tyson's initial value -based cost allocation  ................................ ........................... 21 
7.2.1.2.1.2    MOFCOM's weight -based cost allocation  ................................ ............................. 21 
7.2.1.2.2    Pilgrim's Pride  ................................ ................................ ................................ ....22 
7.2.2    Main arguments of the parties  ................................ ................................ ................... 23 
7.2.2.1    United  States  ................................ ................................ ................................ .......23 
7.2.2.1.1    Tyson  ................................ ................................ ................................ ............... 23 
7.2.2.1.2    Pilgrim's Pride  ................................ ................................ ................................ ....23 
7.2.2.2    China  ................................ ................................ ................................ .................. 23 
7.2.2.2.1    Tyson  ................................ ................................ ................................ ............... 23 
7.2.2.2.2    Pilgrim's Pride  ................................ ................................ ................................ ....25 
7.2.2.3    Main arguments of the third parties  ................................ ................................ ......... 26 
7.2.3    Evaluation  ................................ ................................ ................................ .............. 26 
7.2.3.1    The law  ................................ ................................ ................................ ............... 26 
7.2.3.1.1    Consider  ................................ ................................ ................................ ........... 27 
7.2.3.1.2    All available evidence  ................................ ................................ ......................... 27 
7.2.3.1.3    Conclusion  ................................ ................................ ................................ ........ 29 WT/DS427/RW  
 
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  7.2.3.2    Tyson  ................................ ................................ ................................ .................. 30 
7.2.3.2.1    Preliminary observations  ................................ ................................ ..................... 30 
7.2.3.2.2    MOFCOM's rejection of Tyson's value -based cost allocation  ................................ ......31 
7.2.3.2.3    MOFCOM's use of weight -based cost allocation  ................................ ....................... 32 
7.2.3.2.4    Tyson's proposed weight -based methodology  ................................ ........................ 34 
7.2.3.2.5    "Historically utilized"  ................................ ................................ ........................... 35 
7.2.3.3    Pilgrim's Pr ide................................ ................................ ................................ .......36 
7.2.4    Conclusion  ................................ ................................ ................................ .............. 37 
7.3   Article 3.2 of the Anti -Dumping Agreement and Article 15.2 of the SCM Agreement: 
price effects  ................................ ................................ ................................ ...................... 37 
7.3.1    Introduction  ................................ ................................ ................................ ............ 37 
7.3.1.1    Our findings in the original report  ................................ ................................ ........... 37 
7.3.1.2    The redetermination's consideration of price effects  ................................ .................. 38 
7.3.1.2.1    Price undercutting  ................................ ................................ .............................. 38 
7.3.1.2.2    Price suppression  ................................ ................................ ............................... 39 
7.3.2    Main arguments of the parties  ................................ ................................ ................... 40 
7.3.2.1    Price undercutting  ................................ ................................ ................................ .40 
7.3.2.1.1    United  States  ................................ ................................ ................................ .....40 
7.3.2.1.2    China  ................................ ................................ ................................ ................ 40 
7.3.2.2    Price suppression  ................................ ................................ ................................ ..41 
7.3.2.2.1    United  States  ................................ ................................ ................................ .....41 
7.3.2.2.2    China  ................................ ................................ ................................ ................ 42 
7.3.3    Evaluation  ................................ ................................ ................................ .............. 42 
7.3.3.1    Price undercutting  ................................ ................................ ................................ .42 
7.3.3.1.1    Price comparison  ................................ ................................ ................................ 42 
7.3.3.1.2    Representativeness  ................................ ................................ ............................ 45 
7.3.3.2    Price suppression  ................................ ................................ ................................ ..47 
7.3.4    Conclusion  ................................ ................................ ................................ .............. 48 
7.4   Article 3.4 of the Anti -Dumping Agreement and Article 15.4 of the SCM Agreement: 
impact on the domestic industry  ................................ ................................ .......................... 48 
7.4.1    Introduction  ................................ ................................ ................................ ............ 48 
7.4.2    Main arguments of the parties  ................................ ................................ ................... 48 
7.4.2.1    United  States  ................................ ................................ ................................ .......48 
7.4.2.2    China  ................................ ................................ ................................ .................. 49 
7.4.3    Evaluation  ................................ ................................ ................................ .............. 50 
7.4.3.1    MOFCOM's redetermination  ................................ ................................ .................... 50 
7.4.3.2    The law  ................................ ................................ ................................ ............... 51 
7.4.3.3    Analysis  ................................ ................................ ................................ ............... 53 
7.4.3.3.1    Capacity utilization  ................................ ................................ ............................. 53 
7.4.3.3.1.1    MOFCOM's comparison  ................................ ................................ ..................... 53 
7.4.3. 3.1.2   Capacity utilization and overall analysis  ................................ .............................. 55 WT/DS427/RW  
 
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  7.4.3.3.2    Inventories  ................................ ................................ ................................ ........ 56 
7.4.3.3.3    Focus on part of the POI  ................................ ................................ ..................... 57 
7.4.3.3.4    "Potential" negative effect and future imports  ................................ ........................ 58 
7.4.4    Conclusion  ................................ ................................ ................................ .............. 59 
7.5   Article 3.5 of the Anti -Dumping Agreement and Article 15.5 of the SCM Agreement: 
causation  ................................ ................................ ................................ .......................... 60 
7.5.1    Introduction  ................................ ................................ ................................ ............ 60 
7.5.2    Main arguments of the parties  ................................ ................................ ................... 60 
7.5.2.1    United  States  ................................ ................................ ................................ .......60 
7.5.2.2    China  ................................ ................................ ................................ .................. 61 
7.5.3    Evaluation  ................................ ................................ ................................ .............. 62 
7.5.3.1    The law  ................................ ................................ ................................ ............... 62 
7.5.3.2    MOFCOM's redetermination  ................................ ................................ .................... 63 
7.5.3.2.1    Causation  ................................ ................................ ................................ .......... 63 
7.5.3.2.2    Non-attribution  ................................ ................................ ................................ ..64 
7.5.3.3    Analysis  ................................ ................................ ................................ ............... 65 
7.5.3.3.1    Subject import volumes did not increase at the expense of the domestic 
industry  ................................ ................................ ................................ ............................ 65 
7.5.3.3.2    MOFCOM failed to reconcile its analysis with evidence of improved 
performance  ................................ ................................ ................................ ...................... 67 
7.5.3.3.3    Constraints on domestic production of chicken feet  ................................ ................ 68 
7.5.4    Conclusion  ................................ ................................ ................................ .............. 68 
7.6   Article 6.1 of the Anti -Dumping Agreement and Article 12.1 of the SCM Agreement: 
notice and ample opportunity to present  written evidence  ................................ ....................... 69 
7.6.1    Introduction  ................................ ................................ ................................ ............ 69 
7.6.2    Main arguments of the parties  ................................ ................................ ................... 69 
7.6.2.1    United  States  ................................ ................................ ................................ .......69 
7.6.2.2    China  ................................ ................................ ................................ .................. 70 
7.6.3    Main arguments of the third parties  ................................ ................................ ........... 71 
7.6.4    Evaluation  ................................ ................................ ................................ .............. 71 
7.6.4.1    The law  ................................ ................................ ................................ ............... 71 
7.6.4.1.1    All interested parties ................................ ................................ ........................... 72 
7.6.4.1.2    Shall be given notice  ................................ ................................ .......................... 73 
7.6.4.1.3    Of the information which the authorities require  ................................ ..................... 74 
7.6.4.2    The facts ................................ ................................ ................................ .............. 75 
7.6.4.3    Analysis  ................................ ................................ ................................ ............... 75 
7.6.4.3.1    Notice  requirement  ................................ ................................ ............................. 75 
7.6.4.3.1.1    Notice of Initiation  ................................ ................................ ........................... 76 
7.6.4.3.1.2    General Verification Letter  ................................ ................................ ................ 77 
7.6.4.3.1.3    Non-confidential sum maries  ................................ ................................ .............. 79 
7.6.4.3.1.4    Conclusion  ................................ ................................ ................................ ......79 
7.6.4.3.2    Obligation to provide ample opportunity to present written evidence  ........................ 80 WT/DS427/RW  
 
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  7.6.5    Conclusion  ................................ ................................ ................................ .............. 80 
7.7   Article 6.4 of the Anti -Dumping Agreement and Arti cle 12.3 of the SCM Agreement: 
timely opportunities to see information and to prepare presentations on the basis of this 
information  ................................ ................................ ................................ ....................... 80 
7.7.1    Introduction  ................................ ................................ ................................ ............ 80 
7.7.2    Main arguments of the parties  ................................ ................................ ................... 80 
7.7.2.1    United  States  ................................ ................................ ................................ .......80 
7.7.2.2   China  ................................ ................................ ................................ .................. 81 
7.7.3    Main arguments of the third parties  ................................ ................................ ........... 82 
7.7.4    Evaluation  ................................ ................................ ................................ .............. 82 
7.7.4.1    The law  ................................ ................................ ................................ ............... 82 
7.7.4.1.1    Whenever practicable provide timely opportunities to see  ................................ ........ 83 
7.7.4.1.2    All information  ................................ ................................ ................................ ...83 
7.7.4.1.2.1    That is relevant to the presentation of their cases  ................................ ............... 83 
7.7.4.1.2.2    That is not confidential as defined in paragraph 5  ................................ ................ 84 
7.7.4.1.2.3    That is used by the authorities  ................................ ................................ .......... 84 
7.7.4.1.3    Provide timely opportunities … to prepare presentations on the basis of this 
information  ................................ ................................ ................................ ....................... 85 
7.7.4.2    Analysis  ................................ ................................ ................................ ............... 85 
7.7.4.2.1    Providing timely opportunities to see  ................................ ................................ ....85 
7.7.4.2.1.1    Preliminary observations  ................................ ................................ .................. 85 
7.7.4.2.1.2    Non-confidential pricing information  ................................ ................................ ..87 
7.7.4.2.1.3    The identities of the Chinese producers  ................................ .............................. 90 
7.7.4.2.1.4    Requests for  information  ................................ ................................ .................. 90 
7.7.4.2.1.5    Additional "context" regarding the data in the non -confidential summaries 
and aggregate data  ................................ ................................ ................................ ............ 92 
7.7.4.2.1.6    Information in respect of "sampling"  ................................ ................................ ..93 
7.7.4.2.2    Opportunities to prepare presentations  ................................ ................................ .93 
7.7.4.2.3    Issues rel ated to the non -confidential treatment of information  ................................ 93 
7.7.5    Conclusion  ................................ ................................ ................................ .............. 94 
7.8   Article 6.8 of the Anti -Dumping Agreement and paragraphs 3 and 5 of Annex II: 
facts available  ................................ ................................ ................................ ................... 94 
7.8.1    Introduction  ................................ ................................ ................................ ............ 94 
7.8.2    Factual background  ................................ ................................ ................................ ..94 
7.8.3    Main arguments of the parties  ................................ ................................ ................... 95 
7.8.3.1    United  States  ................................ ................................ ................................ .......95 
7.8.3.2    China  ................................ ................................ ................................ .................. 96 
7.8.4    Main arguments of third parties  ................................ ................................ ................. 97 
7.8.5    Evaluation  ................................ ................................ ................................ .............. 98 
7.8.5.1    The law  ................................ ................................ ................................ ............... 98 
7.8.5.2    Analysis  ................................ ................................ ................................ ............... 99 
7.8.5.2.1    China's response in respect of paragraph 3 of Annex II  ................................ .........  100 WT/DS427/RW  
 
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  7.8.5.2.2    China's response in respect of paragraph 5 of Annex II  ................................ .........  101 
7.8.6    Conclusion  ................................ ................................ ................................ ............  102 
7.9   Article 6.9 of the Anti -Dumping Agreement: essential facts  ................................ ............  102 
7.9.1    Introduction  ................................ ................................ ................................ ..........  102 
7.9.2    Main arguments of the parties  ................................ ................................ .................  103 
7.9.2.1    United  States  ................................ ................................ ................................ ..... 103 
7.9.2.2    China  ................................ ................................ ................................ ................  103 
7.9.3    Evaluation  ................................ ................................ ................................ ............  104 
7.9.3.1    The law  ................................ ................................ ................................ .............  104 
7.9.3.1.1    Essential facts ................................ ................................ ................................ .. 104 
7.9.3.1.2    The obligation to "inform"  ................................ ................................ .................  105 
7.9.3.1.3    Conclusion  ................................ ................................ ................................ ...... 106 
7.9.3.2    Analysis  ................................ ................................ ................................ .............  106 
7.9.3.2.1    Disclosure obligation in respect of dumping margin calculations  .............................  106 
7.9.3.2.2    Disclosure obl igation in respect of the "original" data of Pilgrim's Pride  ...................  107 
7.9.3.2.3    Disclosure obligation in respect of the data of Keystone  ................................ ........  111 
7.9.4    Conclusion  ................................ ................................ ................................ ............  117 
7.10   Article 9.4(i) of the Anti -Dumping Agreement: maximum amount of anti -dumping 
duty for imports from exporters not individually examined  ................................ ....................  118 
7.10.1    Findings of the Panel in the original report  ................................ ..............................  118 
7.10.2    MOFCOM's find ings in the redetermination  ................................ ..............................  118 
7.10.3    Main arguments of the parties  ................................ ................................ ...............  119 
7.10.3.1    United  States  ................................ ................................ ................................ .... 119 
7.10.3.2    China  ................................ ................................ ................................ ...............  120 
7.10.4    Evaluation  ................................ ................................ ................................ ...........  120 
7.10.4.1    The law  ................................ ................................ ................................ ............  120 
7.10.4.2    Analysis  ................................ ................................ ................................ ...........  121 
7.10.5    Conclusion  ................................ ................................ ................................ ..........  122 
7.11   Articles 12.2 and 12.2.2 of the Anti -Dumping Agreement and Articles 22.3 and 
22.5 of the SCM Agreement: pub lic notice  ................................ ................................ ...........  122 
7.11.1    Introduction  ................................ ................................ ................................ ........  122 
7.11.2    Main arguments of the parties  ................................ ................................ ...............  122 
7.11.2.1    United  States  ................................ ................................ ................................ .... 122 
7.11.2.2    China  ................................ ................................ ................................ ...............  123 
7.11.3    The law  ................................ ................................ ................................ ..............  123 
7.11.4    Analysis and conclusion  ................................ ................................ ........................  124 
7.12   Consequential claims  ................................ ................................ ...............................  125 
8   CONCLUSIONS AND RECO MMENDATION  ................................ ................................ . 125  
 WT/DS427/RW  
 
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  LIST OF ANNEXES  
ANNEX A  
WORKING PROCEDURES O F THE PANEL AND INTE RIM REVIEW  
Contents  Page  
Annex  A-1 Working Procedures  of the Panel  A-2 
Annex  A-2 Additional Working Procedures of the Panel concerning Business Confidential 
Information  A-6 
Annex A -3 Interim Review  A-8 
ANNEX B  
ARGUMENTS OF THE UNITED  STATES  
Contents  Page  
Annex  B-1 Executive summary of the First Written Submission of the United  States  B-2 
Annex  B-2 Executive summary of the Second Written Submission of the United  States  B-10 
Annex  B-3 Executive summary of the Opening Oral Statement of the United  States  at the 
Substantive Meeting of the Panel  B-18 
ANNEX C  
ARGUMENTS OF CHINA  
Contents  Page  
Annex  C-1 Executive summary of the First Written Submission of China  C-2 
Annex  C-2 Executive summary of the Second Written Submission of China  C-10 
Annex  C-3 Executive summary of the Oral Statements of China at the Substantive Meeting 
of the Panel  C-18 
ANNEX D  
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex  D-1 Integrated executive summary of the arguments of the European Union  D-2 
Annex  D-2 Integrated executive summary of the arguments of Japan  D-4 
ANNEX E 
PRELIMINARY RULING  
Contents  Page  
Annex E -1 Ruling by the Panel on jurisdictional issues dated 22 March 2017  E-2 
 WT/DS427/RW  
 
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  CASES CITED IN THIS REPORT  
Short title  Full case title and citation  
Argentina – Hides and 
Leather (Article 21.3(c))  Award of the Arbitrator, Argentina – Measures Affecting the Export of Bovine 
Hides and the Import of Finished Leather – Arbitration under Article 21.3(c) of 
the DSU , WT/DS155/10 , 31 August 2001, DSR 2001:XII, p. 6013  
Canada – Aircraft 
(Articl e 21.5 – Brazil)  Appellate Body Report, Canada – Measures Affecting the Export of Civilian 
Aircraft – Recourse by Brazil to Article 21.5 of the DSU , WT/DS70/AB/RW , 
adopted 4 August 2000, DSR 2000:IX, p. 4299  
China – Broiler Products  Panel Report, China  Anti-Dumping and Countervailing Duty Measures on 
Broiler Products from the United  States , WT/DS427/R  and Add.1, adopted 
25 September  2013, DSR 2013:IV, p. 1041  
China – Cellulose Pulp  Panel Report, China – Anti-Dumping Measures on Imports of Cellulose Pulp from 
Canada , WT/DS483/R  and Add.1, adopted 22 May 2017  
China – GOES  Appellate Body Report, China – Countervailing and Anti -Dumping Duties on 
Grain Oriented Flat -Rolled Electrical Steel from the United  States , 
WT/DS414/AB/R , adopted 16 November 2012, DSR 2012:XII, p. 6251 
China – HP-SSST (Japan) / 
China – HP-SSST (EU)  Appellate Body Reports, China – Measures Imposing Anti -Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP -SSST") from Japan / 
China – Measures Imposing Anti -Dumping Duties on High-Performanc e Stainless 
Steel Seamless Tubes ("HP -SSST") from the European Union , WT/DS 454/AB/R  
and Add.1 / WT/DS460/AB/R  and Add.1, adopted 28  October 2015  
China – HP-SSST (Japan) / 
China – HP-SSST (EU)  Panel Reports, China – Measures Impos ing Anti -Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP -SSST") from Japan / 
China – Measures Imposing Anti -Dump ing Duties on High -Performance Stainless 
Steel Seamless Tubes ("HP -SSST") from the European Union , WT/DS454/R  and 
Add.1 / WT/DS460/R , Add.1 and Corr.1 , adopted 28  October 2015, as m odified 
by Appel late Body Reports WT/DS454/AB/R / WT/DS460/AB/R  
China – X-Ray Equipment  Panel Report,  China – Definitive Anti -Dumping Duties on X -Ray Security 
Inspection Equipment from the European Union , WT/DS425/R  and Add.1, 
adopted 24 April 2013, DSR 2013:III, p. 659  
EC – Bed L inen Panel Report, European Communities – Anti-Dumping Duties on Imports of 
Cotton -Type Bed Linen from India , WT/DS141/R , adopted 12 March 2001, as 
modified by Appellate Body Report WT/DS141/AB/R, DSR 2001:VI, p.  2077 
EC – Bed Linen  
(Article  21.5 – India)  Appellate Body Report, European Communities – Anti-Dumping Duties on 
Impor ts of Cotton -Type Bed Linen from India – Recourse to Article  21.5 of the 
DSU by India , WT/DS141/AB/RW , adopted 24 April 2003, DSR 2003:III, p.  965 
EC – Bed Linen  
(Article  21.5 – India)  Panel Report, European Communities – Anti-Dumping Duties on Imports of 
Cotton -Type Bed Linen from India – Recourse to Article  21.5 of the DSU  by 
India, WT/DS141/RW , adopted 24 April 2003, as modified by Appellate Body 
Report WT /DS141/AB/RW, DSR 2003:IV, p.  1269 
EC – Fasteners (China)  Appellate Body Report, European Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China , WT/DS397/AB/R , 
adopted 28 July 2011, DSR 2011:VII, p. 3995  
EC – Fasteners (China)  Panel Report, European Communities – Definitive  Anti-Dumping Measures on 
Certain Iron or Steel Fasteners from China , WT/DS 397/R  and Corr .1, adopted 
28 July 2011, as modified by Appellate  Body Report WT/DS397/AB/R, 
DSR 2011:VIII, p. 4289  
EC – Fasteners (China) 
(Article  21.5 – China)  Appellate Body Report, European Communities – Definitive Anti -Dumping 
Measures on Certain Iron  or Steel Fasteners f rom China – Recourse to 
Article  21.5 of the DSU by China , WT/DS 397/AB/RW  and Add.1 , adopted 
12 February 2016  
EC – Fasteners (China) 
(Article  21.5 – China)  Panel Report, European Communities – Definitive Anti -Dumping Measures on 
Certain Iron or Steel Fasteners from China – Recourse to Article 21.5 of the 
DSU by China , WT/DS397/RW  and Add.1 , adopted 12 February 2016, as 
modified  by Appellate Body Report WT/DS397/AB/RW  
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R , WT/DS48/AB/R , adopted 13 February 1998, 
DSR 1998:I, p. 135  WT/DS427/RW  
 
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  Short title  Full case title and citation  
EC – Poultry  Appellate Body Report, European Communities – Measures Affectin g the 
Importation of Certain Poultry Products , WT/DS69/AB/R, adopted 23 July 1998, 
DSR 1998:V, p. 2031  
EC – Salmon (Norway)  Panel Report, European Communities – Anti-Dumping Measure on Farmed 
Salmon from Norway , WT/DS337/R , adopted 1 5 January 2008, and Corr.1, 
DSR 2008:I, p. 3  
EC – Tube or Pipe Fittings  Appellate Body Report, European Communities – Anti-Dumping Duties on 
Malleable Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/AB/R , adopted 
18 August 2003, DSR 2003:VI, p. 2613  
EC and certain member 
States – Large Civil Aircraft  Appellate Body Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R , adopted 
1 June 2011, DSR 2011:I, p. 7  
EU – Biodiesel (Argentina)  Appellate Body Report, European Union – Anti-Dumping Measures on Biodiesel 
from Argentina , WT/DS473/AB/R  and Add.1, adopted 26  October  2016 
EU – Footwear (China)  Panel Report, European Union – Anti-Dumping Measures on Certain Footwear 
from China , WT/DS405/R , adopted 22 February 2012, DSR 2012:IX, p. 4585  
India – Quantitative 
Restrictions  Panel Report, India – Quantitative Restrictions on Imports of Agricultural, 
Textile and Industrial Products , WT/DS90/R, adopted 22 September 1999, 
upheld by Appellate Body Report WT/DS90/AB/R, DSR 1999:V, p. 1799  
Mexico – Anti-Dumping 
Measures on Rice  Appellate Body Report, Mexico – Definitive Anti -Dumping Measures on Beef and 
Rice, Complaint with Respect to Rice , WT/DS295/AB/R , adopted 
20 December  2005, DSR 2005:XXII, p. 10853  
Russia – Commercial 
Vehicles  Panel Report, Russia  – Anti-Dumping Duties on Light Commercial Vehicles from 
Germany and Italy , WT/DS479/R  and Add. 1, circulated to WTO Members 
27 January 2017 [app ealed by Russia 20 February 2017]  
Thailand – H-Beams  Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections 
of Iron or Non -Alloy Steel and H -Beams from Poland , WT/DS122/R , adopted 
5 April 2001, as modified by Appellate  Body Report WT/DS12 2/AB/R, 
DSR 2001:VII, p. 2741  
Ukraine – Passenger Cars  Panel Report, Ukraine – Definitive Safeguard Measures on Certain Passenger 
Cars, WT/DS468/R  and Add.1, adopted 20 July 2015  
US – Clove Cigarettes  Appellate Body Report, United  States  – Measures Affecting the Production and 
Sale of Clove Cigarettes , WT/DS406/AB/R , adopted 24 April 2012, 
DSR 2012:  XI, p. 5751  
US – COOL  Appellate Body Reports, United States – Certain Country of Origin Labelling 
(COOL) Requirements , WT/DS384/AB/R /  WT/DS386/AB/R, adopted 
23 July 2012, DSR 2012:V, p. 2449  
US – Countervailing Duty 
Investigation on DRAMS  Appellate Body Report, United  States  – Countervailing Duty In vestigation on 
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea , 
WT/DS296/AB/R , adopted 20 July 2005, DSR 2005:XVI, p. 8131  
US – Gasoline  Appellate Body Report, United  States  – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R , adop ted 20 May 1996, DSR 1996:I, p.  3 
US – Hot-Rolled Steel  Appellate Body Report, United  States  – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R , adopted 
23 August  2001, DSR 2001:X, p. 4697  
US – Hot-Rolled Steel  Panel Report, United  States  – Anti-Dumping Measures on Certain Hot -Rolled 
Steel Products from Japan , WT/DS184/R , adopted 23 August 2001 modified by 
Appellate Body Report WT/DS184/AB/R, DSR 2001:X, p. 4769  
US – Lamb  Appellate Body Report, United  States  – Safeguard Measures on Imports of 
Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia , 
WT/DS1 77/AB/R , WT/DS178/AB/R , adopt ed 16 May 2001, DSR 2001:IX, 
p. 4051 
US – Large Civil Aircraft 
(2nd complaint) 
(Article  21.5 – EU) Panel Report,  United  States  – Measures Affecting Trade in Large Civil Aircraft 
(Second Complaint) – Recourse to Article 21.5 of the DSU by the European 
Union , WT/DS353/RW  and Add.1, circulated to WTO Members 9 June 2017 
[appealed by the European Union 29 June 2017]  
US – Oil Country Tubular 
Goods Sunset Reviews  Appellate Body Report, United  States  – Sunset Reviews of Anti -Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R , 
adopted 17 December 2004, DSR 2004:VII, p. 3257  WT/DS427/RW  
 
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  Short title  Full case title and citation  
US – Shrimp II (Viet Nam)  Panel Report, United  States  – Anti-Dumping Measures on Certain Shrimp from 
Viet Nam , WT/DS429/R  and Add.1, adopted 22 April 2015, upheld by Appellate 
Body Repor t WT/DS429/AB/R  
US – Softwood Lumber IV 
(Article 21.5 – Canada)  Appellate Body Report, United  States  – Final Countervailing Duty Determination 
with Respect to Certain Softwood Lumber from Canada – Recourse by Canada 
to Article 21.5 of the DSU , WT/DS257/AB/RW , adopted 20 December 2005, 
DSR 2005:XXIII, p. 11357  
US – Softwood Lumber IV 
(Article 21.5 – Canada)  Panel Report, United  States  – Final Countervailing Duty Determination with 
Respect to Certain Softwood Lumber from Canada – Recourse by Canada to 
Article 21.5 [of the DSU] , WT/DS257/RW , adopted 20 December 2005, upheld 
by Appellate Body Report WT/ DS257/AB/RW, DSR 2005:XXIII, p.  11401  
US – Softwood Lumber V  Appellate Body Report, United  States  – Final Dumping Determination on 
Softwood Lumber from Canada , WT/DS264/AB/R , adopted 31 August 2004, 
DSR 2004:V, p. 1875  
US – Softwood Lumber VI 
(Article 21.5 – Canada)  Appellate Body Report, United  States  – Investigation of the International Trade 
Commission in Softwood Lumber fr om Canada – Recourse to Article  21.5 of the 
DSU by Canada , WT/DS277/AB/RW , adop ted 9 May 2006, and Corr.1, 
DSR 2006:XI, p. 4865  
US – Steel Plate  Panel Report, United  States  – Anti-Dumping and Countervailing Measures on 
Steel Plate from India , WT/DS206/R  and Co rr.1, adopted 29 July 2002, 
DSR 2002:VI, p. 2073  
US – Steel Safeguards  Appellate Body Report, United  States  – Definitive Safeguard Measures on 
Imports of Certain Steel Products , WT/DS248/AB/R , WT/DS249/AB/R , 
WT/DS251/AB/R , WT/DS252/AB/R , WT/DS253/AB/R , WT/DS254/AB/R , 
WT/DS258/AB/R , WT/DS259/AB/R , adopted 10 December 2003, DSR  2003:VII, 
p. 3117  
US – Wheat Gluten  Appellate Body Report, United  States  – Definitive Safeguard Measures on 
Imports of Wheat Gluten from the European Communities , WT/DS166/AB/R , 
adopted 19 Janu ary 2001, DSR 2001:II, p. 717  
US – Wool Shirts and 
Blouses  Appellate Body Report, United  States  – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R , adopted 23 May 1997, and 
Corr.1, DSR 1997:I, p. 323  
US – Zeroing (Japan) 
(Article  21.5 – Japan)  Appellate Body Report, United  States  – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan , 
WT/DS322/AB/RW , adopted 31 August 2009, DSR 2009:VIII, p. 3441  
 
 
  WT/DS427/RW  
 
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  ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
Anti-Dumping Agreement  Agreement on Implementation of Article VI of the General Agreement on Tariffs 
and Trade 1994  
AUV Average unit values  
CIF Cost, insurance, freight  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
GATT 1994  General Agreement on Tariffs and Trade 1994  
JT&N Jincheng Tongda & Neal  
Keystone  Keystone Foods, LLC  
MOFCOM  Ministry of Commerce of the People 's Republic of China  
Pilgrim's  Pride Pilgrim's Pride Corporation  
POI Period of investigation  
Redetermination  Ministry of Commerce, Notice No. 44 of 8 July 2014 of the Redetermination of 
the Reinvestigation on the Anti -dumping and Countervailing Measures Imposed 
on the Broiler Products Originating in the US  
SCM Agreement  Agreement on Subsidies and Countervailing Measures  
Steptoe  Steptoe & Johnson LLP  
RMB Chinese Renminbi   
Tyson  Tyson Foods, Inc.  
Vienna Convention  Vienna Convention on the Law of Treaties, Do ne at Vienna, 23 May 1969, 
1155 UNTS 331; 8 International Legal Materials  679 
WTO World Trade Organization  
 WT/DS427/RW  
 
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  1  INTRODUCTION  
1.1  Complaint by the United  States  
1.1.  This compliance dispute concerns the challenge by the United  States  to measures taken by 
China to comply with the rulings and recommendations of the Dispute Settlement Body (DSB) in 
the original proceeding  China – Anti-Dumping and Countervailing Duty Measures on Broiler 
Products from the United  States . 
1.2.  Paragraph 1 of the Agreed Procedures under Articles 21 and 22 of the Understanding on 
Rules and Procedures Governing the Settlement of Disputes  (DSU) reached between the 
United  States  and China states that "[s]hould the United  States  consider that the situation 
described in Article 21.5 of the DSU exists, the United  States  will request that China enter into 
consultations with the United  States ." The United  States  considered that China's measures taken 
to comply with the recommendation s and rulings of the DSB in China – Anti-Dumping and 
Countervailing Duty Measures on Broiler Products from the United  States  are not consistent with 
the covered a greements and therefore requested, on 17 May 2016, that China enter into 
consultations.  
1.3.  Consul tations were held on 24 May 2016, but failed to resolve the dispute . 
1.2  Panel establishment and composition  
1.4.  On 27 May 2016 , the United  States  requested the establishment of a panel pursuant to 
Article s 6 and 21.5  of the DSU with standard terms of reference.1 
1.5.  At its meeting on 22 June 2016 , the DSB referred this dispute, if possible , to the original 
Panel, in accordance with Article 21.5 of the DSU.  
1.6.  The Panel's terms of reference are the following:  
To examine, in the light of the relevant provisions of the cove red agreements cited by 
the parties to the dispute, the matter referred to the DSB by the United  States  in 
document s WT/DS 427/11 and WT/DS427/11/Corr.1  and to make such findings as will 
assist the DSB in making the recommendations or in giving the rulings provided for in 
those agreements.2 
1.7.  In accordance with Article 21.5 of the DSU, the Panel was composed on 18 July 2016 as 
follows:  
Chairperson:  Mr Faizullah Khilji  
Members:   Mr Serge Fréchette  
 Ms Claudia Orozco  
1.8.  Brazil, Ecuador, the European Union,  and Japan  reserved their rights to participate in the 
Panel proceedings as third parties.  
1.3  Panel proceedings  
1.3.1   General  
1.9.  After consult ing the parties, the Panel : 
a. adopted its Working Procedures3 and timetable on 9 November 2016;  
b. revised the timetable on 1 December 2016, and again on 4 July 2017; and  
                                                
1 Request for the establishment of a panel by the United  States, WT/ DS427/11 and 
WT/DS427/11/Corr.1  (United  States' panel request) . 
2 Constitution note of the Panel, WT/DS427/12.  
3 See the Panel's Working Procedures in Annex A -1. WT/DS427/RW  
 
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  c. adopted, on 22 November 2016, additional procedures for the protection of Business 
Confidential Information (BCI).4 
1.10.   The Panel held its substantive meeting with the parties on 25 and 26 April 2017 . A session 
with the third parties took place on 26 April 2017 . The Panel issued its Interim Report to the 
parties on 22 September 2017 . The Panel issued its Final Report to the parties on 
17 November  2017.  
1.11.   In these panel proceedings, each party raised concerns regarding the late submission of 
exhibits by the other party , outside of the deadlines prescribed by the Working Procedures adopted 
by the Panel.5 As necessary and  appropriate, we address the  substance of the se concerns in our 
findings below. We do , however, stress the importance of adherence by all parties and 
third parties to the time -limits for filing submissions provided for in the timetable, including 
exhibits , in the interests of fairness and the orderly conduct of panel proceedings.  
1.3.2    Preliminary ruling  
1.12.   In its first and second written submissions, China requested the Panel to rule that certain 
claims addressed by the United  States  are not within the scope of its request for the establishment 
of a panel in this dispute and are therefore not within the juri sdiction of this Panel. The 
United  States  responded to China's request in its second written submission.  
1.13.   By communication dated 22 March 2017, the Panel issued a preliminary ruling , set out in 
Annex E-1. 
2  THE MEASURES AT ISSU E 
2.1.  This dispute concerns measures  taken by China to implement the DSB recommendations and 
rulings in China – Anti-Dumping and Countervailing Duty Measures on Broiler Products from the 
United  States . These measures comprise the Ministry of Commerce of the People 's Republic of 
China ( MOFCOM )'s redetermination6 issued on 8 July 2014  and the continued imposition of 
anti-dumping and countervailing duties on imports of broiler  products from the United  States . 
3  PARTIES' REQUESTS FO R FINDINGS AND RECOM MENDATIONS  
3.1.  The United  States  requests that the Panel find that the measures at issue are inconsistent 
with the following provisions7: 
a. Articles 3.1 and 3.2  of the Agreement on Impleme ntation of Article VI of the General 
Agreement on Tariffs and Trade 1994  (Anti-Dumping Agreement ), and  Articles 15.1 
and 15.2 of the  Agreement on Subsidies and Countervailing Measures  (SCM Agreement ), 
because MOFCOM's analysis of the alleged price effects of imports under investigation 
did not involve an objective examination of the record and was not base d on positive 
evidence. For example, MOFCOM:  
i. failed to account for differences in the product mix between the average unit value  
(AUV)  of subject imports and the AUV of domestic sales;  
ii. failed to explain how it collected product -specific pricing data in the  reinvestigation, 
why data was solicited from only four domestic producers, and what proportion of 
total domestic industry sales were covered by the data;  
                                                
4 See Additional Working Procedures of the Panel concerning Business Confidential Information , 
Annex  A-2. 
5 United  States' general comments on China's response  to Panel questions, paras. 2 -4; China's letter 
dated  12 June 2017 to the Chairperson of the Panel . 
6 Ministry of Commerce, Notice No. 44 of 8 July 2014 of the Redetermination of the Reinvestigation on 
the Anti -dumping and Countervailing Measures Imposed o n the Broiler Products Originating in the US 
(Redetermination), (Exhibit CHN -1 (translated version), also submitted as Exhibit USA -9 (translated version)).  
7 As set out in the United  States' panel request.  WT/DS427/RW  
 
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  iii. failed to explain how the alleged price underselling could have suppressed domestic 
prices in the fir st half of 2009 when similar underselling had no price suppressive 
effects at other points during the period of investigation  (POI) ; and  
iv. failed to address evidence that prices for domestically produced products that 
competed with subject imports declined f ar less than prices for other domestic 
products in the first half of 2009.  
b. Articles 3.1 and 3.4  of the Anti -Dumping Agreement , and Articles 15.1 and 15.4  of the 
SCM Agreement , because MOFCOM's findings that subject imports had an adverse 
impact on the dome stic industry did not involve an objective evaluation of all relevant 
economic factors and indices having a bearing on the state of the industry. For example, 
MOFCOM did not address economic evidence and factors that contradicted its finding 
that the indus try was suffering material injury on account of US imports.  
c. Articles 3.1 and 3.5  of the Anti -Dumping Agreement , and Articles 15.1 and 15.5  of the 
SCM Agreement , because MOFCOM's determination that subject imports were causing 
injury to the domestic industr y was not based on an examination of all relevant 
evidence, including that subject import volume did not increase at the expense of the 
domestic industry and that a large portion of subject imports consisted of products that 
could not have been injurious, and was based on MOFCOM's flawed price and impact 
analyses.  
d. Articles 6.4 and 6.5  of the Anti -Dumping Agreement , and Articles 12.3 and 12.4  of the 
SCM Agreement , because during the reinvestigation MOFCOM did not provide interested 
parties timely opportuniti es to see all non -confidential information that was relevant to 
their case and that was used by the investigating authority, and MOFCOM treated 
information as confidential absent good cause. For example, MOFCOM failed to disclose 
the questionnaires it subm itted to Chinese domestic producers during the 
reinvestigation.  
e. Article 6.1 of the Anti -Dumping Agreement and Article 12.1 of the SCM Agreement 
because during the reinvestigation MOFCOM did not provide notice of the information 
that MOFCOM required and did  not provide interested parties ample opportunity to 
present in writing all evidence they considered relevant. For example, MOFCOM did not 
disclose the questionnaires it submitted to Chinese domestic producers during the 
reinvestigation.  
f. Article 6.9 of the  Anti-Dumping Agreement and Article 12.8 of the SCM Agreement 
because MOFCOM failed to inform interested Members and parties of the essential facts 
under consideration which form the basis for its decision to apply definitive measures. 
For example, MOFCOM did not disclose the calculations utilized to determine the 
dumping and subsidy margins for US producers.  
g. Articles 12.2 and 12.2.2  of the Anti -Dumping Agreement , and Articles 22.3 and 22.5  of 
the SCM Agreement , because MOFCOM failed to provide in sufficien t detail the findings 
and conclusions reached on all issues of fact and law it considered material, all relevant 
information on matters of fact and law and the reasons which led to the imposition of 
final measures, and the reasons for the acceptance or rej ection of relevant arguments or 
claims. For example, MOFCOM's explanations with respect to its findings for its material 
injury determination fail to address key arguments made by interested parties.  
h. Articles 2.2 and 2.2.1.1  of the Anti -Dumping Agreement  because MOFCOM improperly 
calculated the cost of production for US producers, failed to calculate costs on the basis 
of the records kept by the US producers under investigation, and did not consider all 
available evidence on the proper allocation of costs . For example, MOFCOM allocated 
production costs of non -subject merchandise to subject merchandise and failed to 
properly allocate processing costs for subject merchandise.  
i. Article 9.4 of the Anti -Dumping Agreement because MOFCOM applied to imports from 
producers and exporters not included in the examination – and to which the application WT/DS427/RW  
 
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  of facts available was not warranted – an anti -dumping duty that exceeded the weighted 
average margin of dumping established with respect to the selected exporters or 
producers. For example, MOFCOM failed to correctly c alculate dumping margins for 
US interested parties, and then applied a rate to imports from producers and exporters 
not included in the examination that exceeded the selected exporters or producers' 
weighted average margin of dumping.  
j. Article 6.8 and Annex II of the Anti -Dumping Agreement (including, inter alia , 
paragraphs 1, 3, 5, and 6) because MOFCOM made determinations for US producers on 
the basis of the facts available even though it:  
i. failed to specify i n detail the information required from interested parties and the 
manner in which it should be structured;  
ii. did not take into account verifiable and appropriately submitted information; and  
iii. failed to provide supplying parties of the reasons evidence or info rmation was 
rejected and an opportunity to provide further explanations.  
k. Article 1 of the Anti -Dumping Agreement as a consequence of the breaches of the 
Anti-Dumping Agreement described above.  
l. Article 10 of the SCM Agreement as a consequ ence of the breaches of the 
SCM Agreement described above.  
m. Article VI of the General Agreement on Tariffs and Trade ( GATT ) 1994 as a consequence 
of the breaches of the Anti -Dumping Agreement  and the SCM Agreement described 
above.  
3.2.  China requests that the Panel reject t he US claims in this dispute in their entirety.  
4  ARGUMENTS OF THE PAR TIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the 
Panel in accordance with paragraph 18 of the Working Procedures .8 
5  ARGUMENTS OF THE THI RD PARTI ES 
5.1.  The arguments of the European Union and Japan  are reflected in their executive summaries, 
provided in accordance with paragraph 19 of the Working Procedures .9 Brazil and Ecuador  did not 
submit written or oral arguments to the Panel.  
6  INTERIM REVIEW  
6.1.  We is sued the Interim Report to the parties on 22 September 2017. On 28 September 2017 
China requested a one week extension of the deadline for submitting written requests for the Panel 
to review aspects of the interim report.10 On 29 September 2017 we sought comments from the 
United States. On 2 October 2017 the United States submitted a response in which it agreed to 
China's request for an extension on conditio n that  there be no change in the date for the release of 
the Final R eport.11 On 3 October 2017, the Chair of the Panel transmitted the following 
communication to the parties:  
I refer to China's letter of 28 September 2017 and the response of the United States 
in its letter of 2 October 2017. China requests that the Panel ex tend the time -period 
for comments on the Interim Report from 6 October to 13 October 2017, to 
accommodate a Chinese national holiday. In the event China's request is acceded to, 
                                                
8 See the parties' executive summaries in Annexes B-1 to B-3 and C -1 to C -3. 
9 See the European Union's and Japan's executive summaries in Annexes D -1 and D -2. 
10 Letter dated 28 September 2017 from China to the Panel.  
11 Letter dated 2 October 2017 from the United States to the Panel.  WT/DS427/RW  
 
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  the United States requests a commensurate extension of the deadline for commen ts 
without further delay in the issuance of the final report.  
My colleagues and I are sensitive to the importance of accommodating national 
holidays in timetables where possible. It may be recalled, for instance, that following 
their comments at the organi zational meeting, the parties' requests to avoid domestic 
holiday periods (Thanksgiving, Christmas and Chinese New Year) were accommodated 
in setting the dates for the first and second written submissions.  
It may also be kindly recalled that both parties were provided with the final revised 
timetable on 4 July 2017. China did not raise any concerns about the timetable at that 
time or, indeed, at any point before its letter of 28 September 2017. In its letter, 
China merely requests a one -week delay in the d eadline for submission of requests for 
interim review. It neither explains why it failed to alert the Panel earlier of the 
possible impact of the Chinese National Day holiday on its ability to comment on the 
Interim Report, nor explains why it failed to do  so at this point until nearly a week 
after it  received the Interim Report.  
It needs emphasizing that the Panel is mindful of the importance of national holidays, 
and recalls that it took such holidays into account in establishing the original timetable 
in this dispute. However, the Panel is also concerned with preserving the integrity of 
dispute settlement procedures and protecting the rights of both parties. In this regard, 
the Panel considers that it is necessary, as a rule, for a party to a dispute to:  
1. raise procedural objections at the earliest point at which it becomes 
or ought to become aware of the facts underlying those objections; 
and 
 
2. if it is unable to do so, set out clearly in its request for a remedy 
the reason why it could not have made its objections earlier.  
China's letter of 28 September 2017 came very late in the proceedings – well after 
China knew, or should have known, of the  potential conflict with its holiday. China's 
letter contains no explanation or justification for raising its objection so late in the 
proceedings, more than two months after the final revised timetable was issued to the 
parties. Please note that the Unite d States requests a commensurate extension of the 
deadline for comments, in the event that China's request is acceded to, but further 
asks that the issuance of the final report not be delayed. It is not possible for the 
Panel to accommodate both parties in  this matter. In these circumstances, and having 
considered the interests of both parties and of orderly proceedings and the needs of 
the Panel, the Panel has decided on balance to deny China's request for an extension 
of time to request review of precise aspects of the interim report.  
The dates for the remainder of this dispute, as set forth in the Timetable circulated to 
the parties on 4 July 2017 are therefore confirmed:  
 Deadline for parties to request review of part(s) of the report and 
to request inter im review meeting: 6 October 2017 , 5 p.m.  
 Interim review meeting, if requested – If no meeting requested, 
deadline for comments on requests for review: 20 October 2017 , 
5 p.m.  
 Issuance of final report to the parties: 17 November 20 17, 
5 p.m.12 
6.2.  The parties s ubmitted their written requests for the Panel to review aspects of the interim 
report and subsequent comments on those requests in accordance with the established deadlines . 
                                                
12 Emphasis original.  WT/DS427/RW  
 
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  7  FINDINGS  
7.1  General principles  
7.1.1   Treaty interpretation  
7.1.  Article  3.2 of the DSU provides that the WTO dispute settlement system serves to clarify the 
existing provisions of the covered agreements "in accordance with customary rules of 
interpretatio n of public international law".  Article  17.6(ii) of the Anti -Dumping Agreement similarly 
requires  panels to interpret that Agreement's provisions in accordance with the customary rules of 
interpretation of public international law.13 Articles  31 and 32 of the Vienna Convention on the Law 
of Treaties codify in part these customary rules.14 Finally, WTO M inisters have recognized with 
respect to the Anti -Dumping Agreement and Part V of the SCM Agreement, "the need for the 
consist ent resolution of disputes arising from anti -dumping and countervailing duty measures".15 
7.1.2   Standard of review  
7.2.  Article  11 of the DSU provides that:  
[A] panel should make an objective assessment of the matter before it, including an 
objective assessment of the facts of the case and the applicability of and conformity 
with the relevant covered agreements.  
In additio n, Article  17.6 of the Anti -Dumping Agreement sets out the special standard of review 
applicable to disputes under the Anti -Dumping Agreement:  
(i) in its assessment of the facts of the matter, the panel shall determine whether 
the authorities' establishmen t of the facts was proper and whether their evaluation of 
those facts was unbiased and objective. If the establishment of the facts was proper 
and the evaluation was unbiased and objective, even though the panel might have 
reached a different conclusion, t he evaluation shall not be overturned;  
(ii) the panel shall interpret the relevant provisions of the Agreement in accordance 
with customary rules of interpretation of public international law. Where the panel 
finds that a relevant provision of the Agreemen t admits of more than one permissible 
interpretation, the panel shall find the authorities' measure to be in conformity with 
the Agreement if it rests upon one of those permissible interpretations.  
Thus, Article  11 of the DSU and  Article  17.6 of the Anti -Dumping Agreement together establish the 
standard of review that a panel is required to apply with respect to both the factual and the legal 
aspects of the present dispute. This means that in reviewing the investigating authority's 
determination in this di spute, we must:  
a. examine whether the authority has provided a reasoned16 and adequate17 explanation as 
to: 
                                                
13 Article  17.6(ii) also provides that if a panel finds that a provision of the Anti -Dumping Agreement 
admits of more than one permissible interpretation, it shall uphold a measure that rests upon one of those 
interpretations.  
14 Appellate Body Report, US – Gasoline , p. 17.  
15 Declaration on Dispute Settlement Pursuant to the Agreement on Implementation of Article VI of the 
General Agreement on Tariffs and Trade 1994 or Part V of the Agreement on Subsidies and Countervailing 
Measures . 
16 Appellate Body Report, US – Softwood Lumber VI (Article  21.5 – Canada) , para. 93: "[t] he panel's 
scrutiny should test whether the reasoning of the authority is coherent and internally consistent. " 
17 Appellate Body Report, US – Softwood Lumber VI (Article  21.5 – Canada) , para. 93: "[w] hat is 
'adequate' will inevitably depend on the facts and circumstances of the case and the particular claims made, 
but several general lines of inquiry are likely to be relevant. " WT/DS427/RW  
 
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  i. how the evidence on the record supported its factual findings18, and  
ii. how those factual findings support the overall determination19;  
b. not conduct a de novo review of the evidence or substitute our judgment for that of the 
investigating authority;  
c. limit our examination to the evidence that was before the investigating authority during 
the course of the investigation20;  
d. take into account all such eviden ce submitted by the parties to the dispute21; and  
e. not simply defer to the conclusions of the investigating authority: our examination of 
those conclusions must be "in -depth" and "critical and searching".22 
7.1.3   Burden of proof  
7.3.  In WTO dispute settlement, "the burd en of proof rests upon the party, whether complaining 
or defending, who asserts the affirmative of a particular claim or defence".23 Where a party 
"adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then 
shifts to th e other party, who will fail unless it adduces sufficient evidence to rebut the 
presumption".24 A complaining party establishes a prima facie  case where, in the absence of 
effective refutation by the defending party, a panel is required as a matter of law t o rule in favour 
of the complaining party.25 
7.1.4   Article 21.5 proceedings  
7.4.  A panel in an Article 21.5 proceeding related to anti -dumping and countervailing 
investigations has three key and closely related responsibilities. It is charged with making findings 
as to whether:  
a. the measures found inconsistent with the WTO Agreement have been brought into 
conformity;  
b. the "measures taken to comply"26 are otherwise substa ntively consistent with the 
WTO Agreement27; and  
c. in seeking to bring itself into compliance, the investi gating authority observed the 
procedural protections of the relevant WTO agreements in the compliance 
investigation/determination/proceedings.  
                                                
18 Appellate Body Report, US – Softwood Lumber VI (Article  21.5 – Canada), para. 93: "[t] he panel 
must undertake an in -depth examination of whether the explanations given disclose how the investigating 
authority treated the facts and evidence in the record and whether there was positive evidence before it to 
support the infe rences made and conclusions reached by it. " 
19 Appellate Body Reports, US – Countervailing Duty Investigation on DRAMS , para. 186; US – Lamb , 
para. 103. See also Appellate Body Report, US – Softwood Lumber VI (Article  21.5 – Canada) , para. 93: "[t] he 
panel must examine whether the explanations provided demonstrate that the investigating authority took 
proper account of the complexities of the data before it, and that it explained why it rejected or discounted 
alternative explanations and interpretations of t he record evidence. " 
20 Anti-Dumping Agreement , Article 17.5(ii) ; Appellate Body Report , US – Countervailing Duty 
Investigation on DRAMS , para. 187.  
21 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS , para. 187.  
22 Appellate Body Report, US – Softwood Lumber VI (Article  21.5 – Canada) , para. 93. 
23 Appellate Body Report, US – Wool Shirts and Blouses , p. 14. 
24 Appellate Body Report, US – Wool Shirts and Blouses , p. 14. 
25 Appellate Body Report, EC – Hormones , paras. 98  and 104. 
26 Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 77 ; and Panel 
Report s, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 4.41 ; US – Large Civil Aircraft 
(2nd complaint) (Article 21.5 – EU), paras. 7.160  and 7.165 . 
27 Appellate Body Report , Canada – Aircraft (Article 21.5 – Brazil) , paras. 40 -41. WT/DS427/RW  
 
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  7.5.  In a compliance reinvestigation and redetermination it is not enough for an investigating 
authority to only addre ss specific items of concerns identified by a panel in its original report 
finding inconsistency/ies. Although resolving  problems identified by a panel in an original 
proceeding may well be the sine qua non  in bringing the measure at issue into conformity, an 
adopted panel report requires a Member to bring its measu re into conformity with the 
WTO Agreement/s at issue, and not just the specific findings.  
7.2  Article 2.2.1.1  of the Anti -Dumping Agreement : the proper allocation of costs  
7.2.1   Introduction  
7.2.1.1   Our findings in the original report  
7.6.  In the original report, we made certain findings under the first and the second sentences of 
Article 2.2.1.1 of the Anti -Dumping Agreement, which provide:  
For the purpose of paragraph  2, costs shall normally be calculated on the basis of 
records kept by the exporter or producer under investigation, provided that such 
records are in accordance with the generally accepted accounting principles of the 
exporting country and reasonably refl ect the costs associated with the production and 
sale of the product under consideration. Authorities shall consider all available 
evidence on the proper allocation of costs, including that which is made available by 
the exporter or producer in the course of the investigation provided that such 
allocations have been historically utilized by the exporter or producer, in particular in 
relation to establishing appropriate amortization and depreciation periods and 
allowances for capital expenditures and other d evelopment costs.  
The issue before us in this proceeding is whether, in its redetermination, MOFCOM complied with 
the second  sentence of Article 2.2.1.1. Given the structure of the provision and the arguments of 
the parties in these proceedings, it is useful to briefly revisit our findings under both sentences of 
Article 2.2.1.1:  
First sentence  
a. The two conditions of the first s entence of Article 2.2.1.1 are cumulative28: for the 
requirement to use the respondents' books and records to apply, those books and 
records must be both consistent with Generally Acceptable Accounting Principles and 
reasonably reflect costs associated with  production and sale.29  
b. An investigating authority is required to explain why it has declined to use a 
respondent's books and records.30 
c. MOFCOM did not explain its decision not to use the books and records of Keystone 
Foods, LLC ( Keystone ) and Tyson Foods, Inc. (Tyson ), but in respect of Pilgrim's Pride 
Corporation  (Pilgrim's Pride ) it specifically found "the data as originally submitted was 
irreconcilable and that the information to correct the errors was untimely" .31 
d. China acted inconsistently with the first sentence of Article 2.2.1.1 when MOFCOM 
declined to use Keystone's and Tyson's books and records in calculating the cost of 
production for determini ng normal value.  
e. With respect to Pilgrim's Pride, MOFCOM explained its reasons for departing from the  
norm and declining to use Pil grim's Pride books and records. Therefore, with respect to 
                                                
28 Panel Report, EC – Salmon (Norway) , para. 7.483.  
29 Panel Report, China – Broiler Products , para. 7.166.  
30 Panel Report, China – Broiler Products , para. 7.161.  
31 Panel Report, China – Broiler Products , para. 7.173.  WT/DS427/RW  
 
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  Pilgrim's Pride, the United  States  did not establish that China acted inconsistently with 
the first sentence of Article 2.2.1.1.32 
Second sentence  
a. The requirement to "c onsider" evidence goes beyond merely taking note of evidence; it 
entails examining, and weighing the merits of, relevant evidence.33 
b. An investigating authority is required to engage in "some degree of deliberation" in 
considering "all available evidence … s o as to ensure that there is a proper allocation of 
costs" .34 
c. Although an investigating authority will not always have to examine and weigh the 
merits of e vidence relating to alternative allocation methodologies, the circumstances of 
a particular case may r equire such consideration in o rder to act co nsistently with 
Article  2.2.1.135 and this must be reflected in the record of its decision.36 
d. "Given the explanations and alternative cost methodologies proposed to MOFCOM by the 
respondents , there was 'compelling evidence' that more than one a llocation methodology 
potentially may be appropriate. Therefore, MOFCOM was required to reflect on and 
weigh the merits of the various allocation methodologies" .37 
e. MOFCOM acted inconsistently with the second sentence of Article  2.2.1.1 because there 
was "no evidence on the record of the investigation that the merits of the alternative 
allocation methodologies put forward by the respondents  after the Preliminary 
Anti-Dumping Determination were weighed or reflected upon" .38 
f. MOFCOM' s straight allocation of total processing costs to all products necessarily means 
that it included costs solely associated with processing certain  subject broiler products in 
its calculation of costs to all subject broiler products.39 
g. Evidence relied upon b y China did not support its position that "the per pound costs 
assigned to each product were derived from total cost minus the costs associated with 
the production of the products derived from a chicken that are not in the list" .40 
h. MOFCOM acted inconsistent ly with the second sentence of Article 2.2.1.1 also because it 
"improperly allocated  costs from certain products derived from a chicken to other 
products derived from a chicken" .41  
7.2.1.2   MOFCOM's redetermination  
7.2.1.2.1   Tyson  
7.7.  For certain product models, the volume of like products sold in the domestic market 
accounted for less than 5% of Tyson's total volume of "the product concerned"42 exported to 
China. Accordingly, MOFCOM proceeded to construct the normal value "by using weighted average 
production cost , plus reasona ble expenses and profit".43 
                                                
32 Panel Report, China – Broiler Products , para. 7.175.  
33 Panel Report, China – Broiler Products , para. 7.187.  
34 Panel Report, China – Broiler Products , para. 7.188.  
35 Panel Report, China – Broiler Products , para. 7.190.  
36 Panel Report, China – Broiler Products , para. 7.192.  
37 Panel Report, China – Broiler Products , para. 7.193. (emphasis added)  
38 Panel Report, China – Broiler Products , para. 7.195. (emphasis added)  
39 Panel Report, China – Broiler Products , para. 7.196.  
40 Panel Report, China – Broiler Products , para. 7.197.  
41 Panel Report, China – Broiler Products , para. 7.197. (emphasis added)  
42 We understand that by "product concerned", the determination is referring to chicken feet and not the 
subject prod ucts as a whole.  
43 Redetermination, (Exhibit CHN -1 (translated version)), p. 28. (emphasis added)  WT/DS427/RW  
 
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  7.2.1.2.1.1   Tyson's initial value -based cost allocation  
7.8.  At the time of the original investigation , Tyson was transitioning from one accounting system 
to another. Under the new system44, it allocated costs to various broiler product models on the 
basis of their value in the US domestic market. Wing -tips, feet, and gizzards – some of the broiler 
product models exported to China – were classified as "offal", which has a low value in the 
US market45; costs were allocated accordingly, with additiona l adjustments for freight and 
processing. MOFCOM found that "excessive meat cost were [ sic] allocated to certain products 
disproportionately, while other products were allocated almost no meat cost".46 
7.9.  In the reinvestigation , MOFCOM "conducted further inves tigation on the allocation method of 
meat cost and on the processing cost of each product model" for Tyson.47 MOFCOM found that:  
a. In respect of certain broiler product models (such as chicken feet) valued and costed as 
offal, "export sales prices were much h igher than the prices of other offal products sold 
in the domestic market" .48  
b. Tyson did not allocate costs on the basis of "overall sales price" to those broiler product 
models, but rather costs on the basis of their domestic  price.49 
c. Tyson did not allocate  various other common costs (such as feed and common 
processing) to these broiler product models.  
MOFCOM determined that Tyson's records did not "reasonably reflect the production cost 
associated with the product concerned".50 
7.2.1.2.1.2   MOFCOM's weight -based cost al location  
7.10.   In the original investigation, MOFCOM found that:  
a. "it was not able to distinguish which feeds were specifically used to produce which parts 
of the product concerned";  
b. "weight -based method could be more objective and more reasonable than the 
value -based method … [to] reflect the production cost associated with the product 
concerned"51; and  
c. "[t]he weight -based methodology … would not allocate too much meat costs to a part of 
products, while allocate almost none of meat cost to other part of the produc ts".52 
In its comments in the original investigation and then again in the questionnaire response to the 
reinvestigation, Tyson argued that:  
[I]f the Ministry of Commerce insists to use the weight -based cost allocation method 
in the final determination, it  shall consider all products gener ated from live chickens, 
and use the cost data re -submitted by Tyson company.53  
MOFCOM considered Tyson's approach "not reasonable"54 because:  
                                                
44 Tyson "transitioned from a fully -absorbed cost system to a standard cost system " during the POI. 
(United  States' first written submission, para. 123). " Tyson explained that it used stand ard costs for the 
first half of 2009, rather than for the entire period of investigation, because those were the only standard costs 
available during the reinvestigation. " (United  States' first written submission, para. 12 4). 
45 Redetermination, (Exhibit CHN -1 (translated version)) , p. 28.  
46 Redetermination, (Exhibit CHN -1 (translated version)) , p. 29.  
47 Redetermination, (Exhibit CHN -1 (translated version)) , p. 30. 
48 Redetermination, (Exhibit CHN -1 (translated version)), p. 30. 
49 We will refer to this as a domestic -value -only cost allocation.  
50 Redetermination, (Exhibit CHN -1 (translated version)), p. 31.  
51 Redetermination, (Exhibit CHN -1 (translated version)) , p. 33.  
52 Redetermination, (Exhibit CHN -1 (translated version)) , p. 35. 
53 Redetermination, (Exhibit CHN -1 (translated version)) , p. 3 6. 
54 Redetermination, (Exhibit CHN -1 (translated version)), p. 36.  WT/DS427/RW  
 
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  a. Tyson's methodology did not account for weight loss due to dead birds or birds 
"inappropriate for processing"55; 
b. "during the original investigation and re -investigation, the Investigating Authority 
calculated the production costs of each model of the products concerned  … this 
production cost didn't include that of the non -concerned pro ducts, such as feather, 
blood, etc. … [t]he cost allocation method for other products generated from the live 
chicken products (e.g. feather, blood, deep processed product, cooked product) is not 
the target of this investigation"56; 
c. "costs of live chickens were monthly different during the period of the investigation. The 
Company did not explain in details [sic] which parts of live chickens were used for the 
production of the product concerned, and which parts were used for the production of 
other products"57; and  
d. "by using the method claimed  by the Company to calculate the cost, the total cost of the 
product concerned would be lower than the total cost of the product concerned in the 
Company's accounting book, but the Company did not explain in details what c ost was 
reduced therefrom".58 
7.11.   MOFCOM then issued detailed supplemental questionnaires in the reinvestigation to 
ascertain processing costs per product model.  It found that, "the production cost data submitted 
by the Company in the responses to the original investigation and the re -investiga tion could not 
fully and truly reflect the actual production cost of all models of the product concerned".59 
Accordingly, i t determined that:  
a. "the meat cost for all models of the product concerned  should be calculated by using the 
weight based methodology";  
b. "processing cost of common process should be allocated to all products by using the 
weight -based methodology";  
c. "processin g cost incurred for the particular product should be allocated to the particular 
product"; and  
d. "production costs for all models of the product concerned  should be determined on the 
basis of facts available and best information available".60 
7.2.1.2.2   Pilgrim's Pride  
7.12.   MOFCOM determined that:  
Since the Dispute Settlement Report does not address the determination of the 
investigating authority on the Company's normal value, export price, price adjusted 
items and [cost, insurance, freight (CIF)] price, the investigating au thority decides in 
the re -investigation to maintain the determination of the original investigation with 
respect to the Company's normal value, export price, price adjusted items and CIF 
price.61 
7.13.   In the reinvestigation, MOFCOM sought to comply with the Pane l's findings regarding 
disclosure in its original report. In doing so, MOFCOM "found a calculation mistake" and proceeded 
to correct the error.62 In its redetermination, MOFCOM stressed that it did not "change the 
                                                
55 Redetermination, (Exhibit CHN -1 (translated version)), p. 36.  
56 Redetermination, (Exhibit CHN -1 (translated version)) , fn 30. (emphasis added)  
57 Redetermination, (Exhibit CHN -1 (translated version)) , p. 37. 
58 Redetermination, (Exhibit CHN -1 (translated version)) , p. 37. 
59 Redetermination, (Exhibit CHN -1 (translated version)) , p. 42. 
60 Redetermination, (Exhibit CHN -1 (trans lated version)) , p. 43 (emphasis added). This indicates that 
blood, feathers, and viscera were excluded from the calculation.  
61 Redetermination, (Exhibit CHN -1 (translated version)) , p. 54. 
62 Redetermination, (Exhibit CHN -1 (translated version)) , p. 54. WT/DS427/RW  
 
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  determination method and source of data wit h respect to the normal value and the export price in 
the original investigation", but rather corrected faulty calculations.63  
7.2.2   Main  arguments of the parties  
7.2.2.1   United  States  
7.14.   MOFCOM failed to ensure a proper cost allocation in respect of Tyson and Pilgrim's Pr ide and 
therefore acted inconsistently with the second sentence of Article 2.2.1.1 .64 
7.2.2.1.1   Tyson  
7.15.   In the redetermination, MOFCOM purported to apply a weight -based cost allocation 
methodology to determine the cost of production of the products at issue. It calcula ted the 
per-pound cost of production by dividing the total cost of producing a chicken by the weight of the 
chicken less the weight of certain by -products; specifically, it excluded the weight of blood, 
feathers , and organs, on the basis that they were not  "used for human consumption".  
7.16.   MOFCOM's approach is inconsistent with the second sentence of Article 2.2.1.1, which 
requires a " proper  allocation of costs". A "proper" cost allocation must be internally coherent.  If 
MOFCOM applies a weight -based cost alloc ation methodology, it must fully account for all products 
that are produced from the live birds, including by -products. To do so, MOFCOM would have had to 
divide the total cost of the live birds by their total weight.65 Tyson did report this total cost in t he 
event that MOFCOM rejected Tyson's value -based allocation approach and decided instead to 
adopt a weight -based allocation.66 MOFCOM's exclusion of by -products not "used for human 
consumption" is not relevant in this context "since the joint costs of the chicken are used to 
produce non -subject merchandise – and they are being distributed to only certain products".67  
7.2.2.1.2   Pilgrim's Pride  
7.17.   MOFCOM failed to consider any alternative allocation methodologies for Pilgrim's Pride.68 
The Panel in its original report found that "there was insufficient evidence of consideration [by 
MOFCOM] of alternative allocation methodologies presented by the respondents".69 "The 
respondents" included Pilgrim's Pride.70 MOFCOM was required "to address that deficiency in its 
redetermination, and its failure to do so is inconsistent with China's WTO obligations".71 To ensure 
"a neutral, fact -driven consideration of the 'proper' allocation of costs", MOFCOM was required to 
"consider[] data submitted by Pilg rim's Pride – whether flawed or not".72 Regardless of whether 
the Panel in its original report had made this finding specifically in respect of Pilgrim's Pride, 
because the measure is within its terms of reference, the Panel is required to address the claim . 
7.2.2.2   China  
7.2.2.2.1   Tyson  
7.18.   In its original report, the Panel did not "engage in any specific interpretation of what the 
word 'proper' in Article 2.2.1.1 meant, or what specific obligation that word created".73 While 
"some of the Panel's language in the original report c ould be read to suggest a substantive 
                                                
63 Redetermination, (Exhibit CHN -1 (translated version)) , p. 55; see also R edacted Version of Disclosure 
Narrative Provided to Pilgrim 's Pride , (Exhibit CHN -46), p. 1 . 
64 In its panel request, the United  States also cited Article 2.2 of the Anti -Dumping Agreem ent. The 
United  States does not develop any arguments in any of its submissions in respect of an alleged violation of 
Article 2.2. We therefore do not further address the claim in respect of Article 2.2.  
65 United  States ' first written submission, para . 93. 
66 United  States' response to Panel question No. 24(c), para. 60.  
67 United  States' response to Panel question No. 24(a), para. 57.  
68 United  States ' first written submission, para. 102. 
69 United  States' first written submission, para. 101 (referring to Panel Report, China – Broiler Products , 
paras. 7.193 and 7.198).  
70 United  States' second written submission, para. 118.  
71 United  States' second written submission, para. 116.  
72 United  States ' second written submission, para. 119.  
73 China's response to Panel question No. 31, para. 118.  WT/DS427/RW  
 
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  obligation"74, the Panel in the original report "did not present any interpretation that focused 
specifically on the legal issue of whether the second sentence of Article 2.2.1.1 imposes a 
substantive obligation or the nature of that obligation". For this reason, this "is the legal issue that 
the Panel should address anew in this proceeding".75  
7.19.   First, the only obligation in the second sentence of Article 2.2.1.1 is to consider  all available 
evidence; there is no substant ive obligation to allocate  costs properly.76 MOFCOM did consider all 
available evidence  on the proper allocation of costs, including Tyson's proposed cost allocation 
methodology. The redetermination discusses Tyson's proposed cost allocation methodology, 
satisfying the three -part test set out by the Panel in its original report for "consideration" within 
the meaning of second sentence of Article 2.2.1.1.77  
7.20.   Second, the information at issue is not "evidence" because it was not "historically 
utilized"78; therefo re, there was no obligation to consider it.79  
7.21.   Third, even if the second sentence of Article 2.2.1.1 contains substantive obligations, the 
Panel in its original report did not define the term "proper".80 
7.22.   Fourth, the Panel's "finding in [paragraph] 7.198 [of its original report] was based on the 
Panel's understanding of the facts at that time. These facts have been significantly clarified during 
the re -investigation and this Article 21.5 proceeding".81 
7.23.   MOFCOM met the requirements of Article 2.2.1.1 because it:  
a. asked Tyson "for the breakdown of sales into subject and non -subject merchandise", 
adding a clarification with respect to "non -subject merchandise" that "products not for 
human consumption, such as chicken feather, chicken blood, internal organs" are not 
subject products82; 
b. sought Tyson's own allocation method for dividing subject and non -subject products83 
and accepted Tyson's division84; 
c. found that Tyson "reasonably drew distinctions between higher revenue and lower 
revenue products"85 and accepted "Tyson's normal accounting approach for this initial 
distinction into subject and non -subject merchandise"86; 
d. considered "the evidence about the proper way to allocate costs among the specific 
products within the subset of edible subject products"87 and "realized tha t the Tyson's 
[sic] value -based method in fact introduced a distortion by using a very low value of 
                                                
74 China's response to Panel question No. 31, para. 119.  
75 China's response to Panel question No. 31, para. 119.  
76 China's first written submission, para. 147.  
77 China's first written submission, paras. 164 -165. 
78 China's response to Panel question No. 31, para. 128.  
79 China's first written submission, para. 166; response to Panel question No. 31, para. 128.  
80 China's response to Panel question No. 31, para. 125.  
81 China's response to Panel question No. 31, para. 127. Specifically, according to China, the 
United  States incorrectly alleges that "MOFCOM did not allocate any costs to blood and feather":  
China believes the Panel now has a sufficient factual basis to d ismiss that U.S. fiction. As 
discussed extensively in response to Question 24(g) above, MOFCOM simply left in place the 
assignment of costs to blood and feathers that Tyson itself has used in the ordinary course of 
business.  
82 China's response to Panel que stion No. 24(a), para. 63.  
83 China's response to Panel question No. 24(a), para. 64.  
84 China specifically argues that MOFCOM accepted " as the initial step  the division of products into 
subject and non -subject, and the Tyson assignment of total costs into t hose two buckets. " (China's second 
written submission, para. 175 (emphasis added)). China acknowledges that Tyson's breakdown was based on 
MOFCOM's own product definition: " According to MOFCOM 's request in the re -investigation, Tyson confirmed 
that the rep orted cost of the subject products in the original investigation did not cover the cost of the 
non-subject products, such as feathers and blood. " (China's response to Panel question No. 24(b), para. 65).  
85 China's second written submission, para. 175.  
86 China's second written submission, para. 175.  
87 China's second written submission, para. 176.  WT/DS427/RW  
 
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  offal (or price of waste products) to establish costs for the certain products (like chicken 
paws)"88; and  
e. rejected Tyson's proposed cost allocation methodo logy as not correctly reflecting costs.89  
Article 2.2.1.1 focuses on the "product under consideration" . Therefore, including products not 
under consideration, such as the by -products at issue here, would not "reasonably reflect" the cost 
of the products at  issue.90 The US approach would require that " even though Tyson had itself 
assigned few costs to inedible waste products, MOFCOM had to go back and take costs that Tyson 
had itself allocated to edible broiler parts, and reallocate them back to the inedible waste products 
based on weight. "91 MOFCOM accepted the total meat costs of the subject products reported by 
Tyson, and then allocated that total meat cost to individual models of the subject broiler products 
based on weight.92 
7.2.2.2.2   Pilgrim's Pride  
7.24.   The claim is no t within the Panel's terms of reference. Even if it were:  
a. the Panel in its original report "never found any inconsistency with the second sentence 
of Article 2.2.1.1 with regard to MOFCOM's determination for Pilgrim's Pride"93; 
b. the reference to "respondents " in the original report is only to Tyson and Keystone94 
because:  
i. the Panel's summary of the arguments does not refer to Pilgrim's Pride95, 
ii. the Panel's analysis does not mention Pilgrim's Pride96, 
iii. the only finding specific to Pilgrim's Pride was in respect of  the first sentence of 
Article 2.2.1.197, and 
iv. the Panel in its original report could not have found that MOFCOM should have 
considered Pilgrim's Pride's alternative methodologies, because "[t]he errors in the 
[sic] Pilgrim's Pride data rendered any alternative allocations largely irrelevant, since 
they would have been based on fundamentally flawed information that had not been 
corrected on a timely basis"98; 
c. because the Panel did  not find any inconsistencies in an original panel report, China 
cannot b e found not to have implemented a finding in a subsequent Article 21.5 
dispute99; and  
d. if there are any ambiguities in the original report, they should be resolved in favour of 
China because "it would be unfair to penalize China for not specifically addressi ng an 
issue not raised in the Panel Report".100 
                                                
88 China's second written submission, para. 176. We will refer to the product concerned, variously 
described as chicken "feet" or "paws", as "chicken feet".  
89 China' s first written submission, para. 166: "In particular, in both the original determination and the 
redetermination, MOFCOM expressly considered and rejected the alternative cost allocation method which 
Tyson proposed."  
90 China's first written submission, p ara. 171.  
91 China's second written submission, para. 177.  
92 China's response to Panel question No. 24(h), para. 98.  
93 China's first written submission, para. 136.  
94 China's first written submission, para. 137.  
95 China's first written submission, para. 138.  
96 China's first written submission, para. 138.  
97 China's first written submission, para. 138.  
98 China's first written submission, para. 139.  
99 China's first written submission, para. 136.  
100 China's first written submission, para. 142.  WT/DS427/RW  
 
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  7.2.2.3   Main arguments of the t hird parties  
7.25.   The European Union  argues that in respect of the first claim, the second sentence of 
Article  2.2.1.1 contains a substantive obligation of proper cost allocation. A cost alloc ation 
methodology must be applied in a coherent manner. In case of a weight -based cost allocation 
methodology, costs which occur with regard to the whole chicken must, in principle, be spread 
over all broiler products according to their weight.101 
7.26.   In respect  of the second claim, the findings made by the Panel in the original report in 
relation to the second sentence of Article 2.2.1.1 also relate to Pilgrim's Pride. But even if this 
should not be the case, the redetermination would nevertheless be subject to scrutiny in these 
compliance proceedings regarding the issue in dispute.102 
7.2.3   Evaluation  
7.2.3.1   The law  
7.27.   Article 2.2.1.1 of the Anti -Dumping Agreement provides (for ease of reference, we set out 
the three sentences separately):  
For the purpose of paragraph 2, costs shall normally be calculated on the basis of 
records kept by the exporter or producer under investigation, provided that such 
records are in accordance with the generally accepted accounting principles of the 
exporting  country and reasonably reflect the costs associated with the production and 
sale of the product under consideration.  
Authorities shall consider all available evidence on the proper allocation of costs, 
including that which is made available by the export er or producer in the course of the 
investigation provided that such allocations have been historically utilized by the 
exporter or producer, in particular in relation to establishing appropriate amortization 
and depreciation periods and allowances for cap ital expenditures and other 
development costs.  
Unless already reflected in the cost allocations under this sub -paragraph, costs shall 
be adjusted appropriately for those non -recurring items of cost which benefit future 
and/or current production, or for ci rcumstances in which costs during the period of 
investigation are affected by start -up operations.  
7.28.   "Paragraph 2", referred to in the first sentence is Article 2.2 of the 
Anti-Dumping  Agreement, which provides:  
When there are no sales of the like product in  the ordinary course of trade in the 
domestic market of the exporting country or when, because of the particular market 
situation or the low volume of the sales in the domestic market of the exporting 
country, such sales do not permit a proper comparison, the margin of dumping shall 
be determined by comparison with  a comparable price of the like product when 
exported to an appropriate third country, provided that this price is representative, or 
with the cost of production  in the country of origin plus a re asonable amount for 
administrative, selling and general costs and for profits.103 
Thus, by its own terms Article 2.2.1.1 sets out parameters for a methodology  for arriving at a 
proper allocation of costs necessary to arrive at a "cost of production" that may  be used in 
constructing a normal value for purposes of the comparison required under Article 2.2. This 
requires, in the context of the second sentence of Article 2.2.1.1, the investigating authority to 
"consider … all available evidence on the proper allo cation of costs".  
                                                
101 European Union's third -party submission, paras. 29 -30. 
102 European Union's third -party submission, paras. 33 -34. 
103 Emphasis added; fn omitted.  WT/DS427/RW  
 
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  7.2.3.1.1   Consider  
7.29.   The first sentence of Article 2.2.1.1 requires that "costs shall normally be calculated on the 
basis of records kept by the exporter or producer under investigation". The use of the term 
"normally" in a legal obligation indicates  a rule from which derogations are permitted subject to 
the conditions set out in the legal provision.104 In respect of Article 2.2.1.1, this means that to 
calculate  cost of production for the purposes of Article 2.2 , the rule for the information to be used 
is that the investigating authority relies on the records kept by the exporter or producer under 
investigation, except  where the conditions for the application of the rule, set out in the 
provision105, are not met.  
7.30.   The second sentence relates to the methodo logy for allocating costs: an investigating 
authority must "consider" all evidence on proper cost allocation. This consideration is not to be 
undertaken in the abstract. In context, its purpose is clear: to ensure that cost elements for the 
subject product  are properly determined for, we recall, purposes of constructing a normal value for 
that product. The consideration of evidence as to cost allocation methodology goes to the heart of 
what Article 2.2.1.1 is about: coming up with a properly allocated  cost of production for the 
product under investigation for use by an investigating authority in constructing a normal value for 
that product. This is further confirmed by the third sentence: "[u]nless already reflected in the cost 
allocations under this sub -paragraph". Fundamentally, a normal value for a product cannot be 
properly constructed unless costs of production are properly allocated to that product, and a 
proper allocation of costs cannot happen without consideration of all available evidence on the 
proper allocation of costs.  
7.31.   Accordingly, Article 2.2.1.1 sets out an integrated obligation to calculate a cost of 
production for purposes of the comparison required under Article 2.2, with two elements:  
a. in the first sentence, the rule as to the information t o be used, including allocated costs; 
and  
b. in the second sentence, the method for resolving issues of allocation when those records 
cannot be used in this respect:  
i. consideration of all evidence as to proper allocation; and  
ii. choosing an appropriate methodo logy to ensure a proper allocation of costs of 
production to the subject product in constructing normal value.  
7.2.3.1.2   All available evidence  
7.32.   Where an investigating authority constructs normal value on the basis of cost of production, 
and determines that the recor ds of an exporter or a producer are not appropriate for purposes of 
properly allocating costs to the subject product, the second  sentence sets out the evidentiary  basis 
for the investigating authority's choice of a cost allocation methodology. The investig ating 
authority is required to "consider":  
a. all; 
b. available;  
c. evidence;  
d. on the proper allocation of costs:  
                                                
104 Panel Report, China – Broiler Products , para. 7.161. See also Appellate Body Report, US – Clove 
Cigarettes , para. 273.  
105 Those conditions are that those records are "in accordance with the generally accepted accounting 
principles of the exporting country " and "reasonably reflect the costs associated with the production and sale of 
the product under consideration ". WT/DS427/RW  
 
- 28 - 
 
  i. including that which is made available by the exporter or producer in the course of 
the investigation; and  
ii. provided that such allocations have been historically utilized by the exporter or 
producer, in particular in relation to establishing appropriate amortization and 
depreciation periods and allowances for capital expenditures and other development 
costs.  
7.33.   The term "evidence" is not defined in the An ti-Dumping Agreement. It is not necessary for 
us to do so in this case; at a minimum, it encompasses information provided to an investigating 
authority by an interested party, whether or not positive, accurate or adequate. Nothing in the 
Anti-Dumping Agree ment, or the WTO Agreement as a whole, suggests that information loses its 
character as "evidence" by virtue of failing to meet certain criteria. Whether the evidence meets 
these criteria is a separate matter for the investigating authority to consider.  
7.34.   First, given the requirements of Article 2.2.1.1, the evidence must be "on the proper 
allocation of costs". The qualifier "proper" has a range of meanings, not all of which are relevant 
for the purposes of the Anti -Dumping Agreement; it is in the context in which the term is found 
and with a view to giving effect to Article 2.2.1.1 that the relevant "ordinary meaning" is revealed:  
a. The first sentence of Article 2.2.1.1 refers to "records [that] reasonably reflect the costs 
associated with the production and sa le of the product under consideration ".106  
b. The last sentence of the same subparagraph provides that "costs shall be adjusted 
appropriately " for certain items or in respect of certain circumstances.107  
c. Article 2.2.2 refers to costs that are "based on actual d ata pertaining to production and 
sales in the ordinary course of trade" of the product at issue.  
7.35.   Thus, for example, evidence that a particular allocation methodology reasonably reflects the 
cost of production of the product at issue, evidence of "appropria te" adjustments to costs, or 
evidence that certain costs relate to production of the product in question, is evidence "on the 
proper allocation of costs". We do not mean to suggest that in every instance, there is a single 
"correct" allocation to be determ ined upon considering the evidence on cost allocation 
methodologies. Indeed, the use of the term "proper" suggests due deference to the circumstances 
of a product's life -cycle or a producer's or an exporter's production line and business model, as 
well as the availability of data and different accounting systems used.108 
7.36.   Second, the reference to "all available" evidence requires, in our view, consideration of all 
evidence that is available to the investigating authority. The phrase beginning "including" makes 
clear that certain types of evidence must be considered if available, but does not limit the scope of 
"all available evidence" that must be considered in any  event. Rather, it establishes, for instance, 
that an investigating authority must consider evidence on the proper allocation of costs made 
available by the exporter or producer where such allocations have been historically utilized, even if 
that exporter or producer's records were rejected  as the basis for calculating costs under the first 
sentence of Article 2.2.1.1. Merely because an investigating authority determines that the records 
kept by an exporter or producer are not in accordance with the general ly accepted accounting 
principles of the exporting country or do not reasonably reflect the costs associated with the 
production and sale of the product under consideration does not necessarily mean that the cost 
allocation methodologies  reflected in those  records may not be appropriate if properly applied 
using appropriate information. An investigating authority may not summarily dismiss evidence of 
cost allocation provided by the exporter or producer that it had historically used.  
7.37.   This recognizes a comme rcial reality: the cost allocations in a company's records may be 
used for multiple reasons in internal accounting systems, but not, one would expect, generally in 
                                                
106 Emphasis added.  
107 Emphasis added.  
108 We recall also China's arguments, based on dictionary definitions, that "proper" means "suitable" and 
"appropriate". (China's second written submission, para. 131). This is also consistent with China's reliance on 
the equally authentic French and Spanish version: juste and adecuada , which China translates as "just, fair, 
appropriate" and "suitable, appropriate". (China's second written submission, para. 132).  WT/DS427/RW  
 
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  anticipation of an anti -dumping investigation. Where an exporter has historically utilized a  cost 
allocation methodology, this suggests that the methodology was, in fact, not put in place for the 
sole purpose of the investigation. Thus, as noted above, even if  the actual data on costs as 
reported in the records are rejected under the first senten ce, the allocation methodology reflected 
in those records may nonetheless result in a proper allocation of costs if applied to a different set 
of data.  
7.38.   In the light of the above, evidence of allocation in the records of an exporter, where such 
allocation i s historically utilized, must be "considered" – alongside all other evidence  – to arrive at 
an allocation methodology that can generate a "proper allocation of costs" in calculating "cost of 
production" for the "purposes of paragraph 2".  
7.2.3.1.3   Conclusion  
7.39.   To appr eciate the import of the second sentence of Article 2.2.1.1, the entirety of the 
provision should be considered as a single obligation with multiple parts:  
a. When an investigating authority constructs a normal value for purposes of the 
comparison under Artic le 2.2, Article 2.2.1.1 sets out two requirements for the 
calculation of costs of production . 
b. Where the conditions of the first sentence are met, an investigating authority must use 
the information reported in the records kept by the exporter or producer i n question to 
calculate cost of production for the product and the producer in question. This is the 
"normal" method, and an investigating authority may not reject the records without 
having first established, and explained, why the records are either not in accordance 
with the generally accepted accounting principles of the exporting country or do not  
reasonably reflect the costs associated with the production and sale of the product under 
consideration.  
c. When  questions of cost allocation  arise in calculat ing cost of production for the purposes  
of constructing a normal value for purposes of the comparison under Article 2.2, whether 
or not on the basis of :  
i. the information in the producer's records, or  
ii. an alternative set of data because the producer's recor ds are rejected under the first 
sentence of Article 2.2.1.1 .  
d. The investigating authority must consider all available evidence  related to the proper 
allocation of costs.  
e. This evidence includes:  
i. evidence made available by exporters and producers, where the  cost allocation was 
historically utilized: this includes evidence of cost allocation methodologies in records 
rejected under the first sentence, where the allocation is historically utilized;  
ii. calculations, data, and allocation methodologies generated by a n exporter at the 
behest or request of the investigating authority; and  
iii. alternative allocation methodologies put forward by an exporter or producer during 
the investigative process (including a reinvestigation), either on its own, or to 
address concerns or  questions raised by the investigating authority, in, for example 
questionnaires or follow -up questions, verification, etc.  
f. Article 2.2.1.1 requires an investigating authority not just to "consider" certain evidence 
but to do so with a view to a proper all ocation of costs for the purposes of Article 2.2.  
g. There may be  no single "proper" allocation of costs . An investigating authority's  cost 
allocation is proper when it is appropriate to the facts and circumstances of the producer WT/DS427/RW  
 
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  and product in question, and  is arrived at following  the investigating authority's  
consideration of all available relevant evidence.  
h. An investigating authority must adequately explain its consideration of the evidence and 
its choice of allocation methodology based on that consideration as one that, if applied 
properl y, will result in a proper allocation of costs.  
7.2.3.2   Tyson  
7.40.   We recall the product description set out in the redetermination:  
Detailed description of the product concerned: broiler products after slaughter and 
processing of living broiler chickens, including whole chickens, parts of whole chicken 
after cutting, by -products of broiler chickens, regardless whether it is fresh, chilled or 
frozen. Living chickens, broiler products packed in cans and other similar wa ys, broiler 
sausages and similar products, cooked broiler products are all not included in the 
scope of the investigation.  
Main application: the main application of the broiler products in domestic market is for 
human consumption, which normally reach the consumers directly or indirectly 
through whole -sales or retail -sales channels such as agricultural products markets or 
supermarkets, and through the catering industry.109 
7.41.   The product description, the exclusions, and the "usage" or "application" have not chan ged 
substantially from the original investigation.110 
7.2.3.2.1   Preliminary observations  
7.42.   At the outset, we address two arguments that appear to have formed the core of each 
party's case.  
7.43.   The United  States  argues that MOFCOM's allocation methodology was not "internally  
coherent" and therefore did not constitute "proper allocation" because MOFCOM used two different 
cost allocation methodologies for different parts of a chicken: for feathers, blood, and inedible 
viscera, MOFCOM relied on Tyson's cost allocation based on d omestic market values; for all other 
models it used a weight -based  allocation. Even granting that MOFCOM used two different cost 
allocation methodologies, this alone does not demon strate that China  acted inconsistently with 
Article 2.2.1.1, for at least tw o reasons.  
7.44.   First, nothing in the text or context of Article 2.2.1.1 suggests that a "proper" allocation of 
costs is necessarily one that is "consistent", "internally coherent", or follows the same "logic" 
throughout. We see nothing in the text of the provi sion or in the concept of a "proper" allocation of 
cost that would require an investigating authority to use the same  cost allocation methodology in 
every instance  a cost allocation is necessary  in an investigation . For instance, different stages of a 
subject product's production cycle, or the production of different models of a subject product, or 
the production of by -products in the process of producing a subject product, may all raise 
questions of the proper allocation of costs. We see no inherent reason  that all such questions must 
be resolved by appl ying the same cost allocation methodology in a given investigation. An 
interpretation that would so narrow the meaning of "proper cost allocation" would be inconsistent 
with our understanding of the provisio n as requiring consideration of evidence of cost allocation 
that is appropriate to the circumstances.  
                                                
109 Redetermination, (Exhibit CHN -1 (translated version)), p. 2 . 
110 Panel Report, China – Broiler Products , fn 8:  
Specific description of the subject merchandise: chicken products into which alive [ sic] broiler is 
slaughtered and processed, including whole chicken without cutting into pieces, cuts and offal, 
side produ ct of chicken products, fresh, chilled or frozen. The product scope does not include live 
chicken, chicken products in can or other kinds of packages or preservations, the chicken 
sausage and like products, and cooked chicken products.  
Major usage: Broiler  products or chicken products are used in the domestic market of China for 
human food directly through markets and supermarkets by retail or wholesale and indirectly 
through catering.  WT/DS427/RW  
 
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  7.45.   Second, nothing in the facts of this case as presented and argued to us demonstrates why, 
in the particular circumstances of this case, the use of the sam e cost allocation methodology 
throughout was necessary. The US argument that MOFCOM was required to use a "consistent" or 
"internally coherent" cost allocation methodology is not based on the circumstances of either 
Tyson or the broiler products at issue.  For one thing, nothing in the record suggests that any 
evidence on whether such consistency would be necessary from an accounting or a commercial 
perspective  was provided to MOFCOM . For another, we  can envision a variety of situations in which 
strict consi stency in the application of cost allocation methodologies might not be necessary or 
appropriate. For example, large manufacturing conglomerates with multiple subsidiaries, factories 
and business lines may well employ different cost accounting methodologie s internally across their 
operations, vertically and horizontally. It would be neither practicable nor reasonable for such a 
company, in responding to an anti -dumping investigation involving one of its products, to be 
required to provide cost data for that  product based on a "consistent methodology" of cost 
allocation. As we have stated, we see nothing in Article 2.2.1.1 or its context that would require an 
investigating authority to use the same  cost allocation methodology in respect of a product 
throughou t. Of course, to the extent that an investigating authority uses more than one cost 
allocation methodology in calculating costs of production for purposes of determining normal 
value, the basis for this approach would have to be reasonable and adequately e xplained in its 
determination.  
7.46.   China  asserts that it relied upon Tyson's value -based methodology for the first step of the 
cost allocation exercise (allocating costs between subject and non -subject goods) and argues that 
"[i]t is hard to fault MOFCOM for a ccepting Tyson's normal accounting approach for this initial 
distinction into subject and non -subject merchandise".111 We recall that MOFCOM provided Tyson a 
"clarification" that , according to MOFCOM,  defined the scope of subject and non -subject broiler 
products, i.e. those models that were and were not the subject of the investigation.112 As we 
understand it, MOFCOM was well aware of Tyson's use of value -based cost allocation methodology 
– indeed, this was the very subject matter of the original case under Article 2.2.1.1, first sentence. 
Thus, when MOFCOM "clarified " the scope of the subj ect product definition, it in all likelihood was 
fully aware that Tyson would apply a value -based cost allocation to distinguish subject and 
non-subject broiler product models. However, the fact that MOFCOM "accepted" this initial cost 
allocation does not elucidate in any way the reasons for its shift to a different cost allocation 
methodology at a later stage. Accordingly , we do not consider it relevant to our analysis.  
7.2.3.2.2   MOFCOM's rejection of Tyson's value -based cost allocation  
7.47.   MOFCOM accepted Tyson's init ial cost allocation between "subject and non -subject 
merchandise" on the basis of a value -based  cost allocation methodology. MOFCOM did so because 
it found that Tyson's value -based cost allocation between subject and non -subject products 
"reasonably  drew d istinctions between higher revenue and lower revenue products" .113 MOFCOM 
did not, therefore, apparently have any objections in principle to the use of a value -based cost 
allocation in general or Tyson's value -based methodology specifically.  
7.48.   MOFCOM next con sidered "the evidence about the proper way to allocate costs among the 
specific products within the subset of edible subject products" .114 According to China, in examining 
Tyson's cost allocation among subject product models:  
MOFCOM realized that the [sic] Tyson's value -based method in fact introduced a 
distortion by using a very low value of offal (or price of waste products) to establish 
costs for the certain products (like chicken paws).115 
MOFCOM considered the use of the value of offal "a distortion" in Ty son's subject product 
allocation because, unlike certain other product models valued as offal in the United  States , 
chicken feet had a consumer  market outside  the United  States  that valued those product models 
more highly. Accordingly:  
                                                
111 China's second written submission, para. 175.  
112 This clarification re lated to the "main application" of the subject products. (See fn 110 and related 
text above; and Panel Report, China – Broiler Products , fn 340).  
113 China's second written submission, para. 175. (emphasis added)  
114 China's second written submission, para. 176.  
115 China's second written submission, para. 176.  WT/DS427/RW  
 
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  MOFCOM then reasonab ly and objectively concluded that for this anti -dumping 
investigation, a weight -based allocation was more reasonable method than the Tyson 
value -based method to allocate costs among those products that were physically 
subject products.116 
7.49.   The United  States  argues that, "[t]he essence of the problem is the internal inconsistency of 
MOFCOM's logic concerning a weight -based methodology" .117 The "logic" the United  States  refers 
to concerns the application of MOFCOM's weight -based methodology. The United  States  argues, 
"under that logic, an objective investigating authority would need to account for all products that 
derive revenue and then allocate cost by weight to all of them ".118 That is, for the United  States , 
as a matter of logic, if a weight -based methodology is  used to allocate costs among the subject 
product models, then the same methodology should have been used to allocate costs between 
subject and non -subject broiler product models, since both generated revenue.  
7.50.   We have found that nothing in Article 2.2.1.1 requires an investigation authority to apply 
the same  methodology to allocate costs at different stages of its investigation. An investigating 
authority may use different cost allocation methodologies consistently with the second sentence of 
Article 2.2.1. 1, so long as :  
a. the reasons for doing so are unbiased and reasonable in the circumstances ; 
b. the methodology chosen results in a proper allocation of costs ; and  
c. the investigating authority explains its choice as between different methodologies.  
7.51.   The United  States  does not dispute that certain subject products have value in the Chinese 
consumer market that they do not have in the US market. MOFCOM's rejection of a value -based 
cost allocation that does not capture the value of a product model in its pri ncipal market does not , 
for the purposes of the second sentence of Article 2.2.1.1,  strike us as inherently biased or 
unreasonable.  
7.2.3.2.3   MOFCOM's use of weight -based cost allocation  
7.52.   We now turn to the question of whether MOFCOM consider ed all available evidence  before it 
on the proper allocation of costs. MOFCOM decided to use a weight -based cost allocation for the 
subject broiler products. The costs allocated among different models of subject broiler products 
were those Tyson had allocated to all subject produc ts on the basis of its domestic value -based 
methodology. MOFCOM rejected that methodology for allocating costs among the different models 
of subject broiler products. We found in the original report that : 
Of the two types of methodologies for doing so that  were discussed in this case – one 
based on relative sales value ("value -based allocation") and one based on the weight 
of the products ("weight -based allocation"), the Panel is of the view that neither 
method is in principle inherently unreasonable.119 
Having identified a problem with an exporter's cost allocation methodology, an investigating 
authority that is required to consider all available evidence may not, however, disregard evidence 
related to that allocation, and use its own methodology, without an explanation of its decision that 
is reasoned and adequate.  
7.53.   MOFCOM accepted Tyson's domestic -value -only allocation of costs between subject and 
non-subject products on the basis that it drew a reasonable distinction "between higher revenue 
and lower revenue  products". For the allocation of cost s among subject broiler product models, 
however, MOFCOM in the redetermination concluded that a weight -based allocation methodology 
better reflected the costs o f production of subject product models, than a methodology  based on 
                                                
116 China's second written submission, para. 176.  
117 United  States' first written submission, para.  91. 
118 United  States' first written submission, para. 91. (emphasis added)  
119 Panel Report, China – Broiler Products , para. 7.167. (fns omitted)  WT/DS427/RW  
 
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  their value on the domestic market of the exporting country. In this respect, MOFCOM made the 
following observations:  
a. "[p]roduction cost means the necessary expenses invested by a producer to produce 
products , rather than the income that a produc er can gain from sales of a product"120; 
and 
b. MOFCOM "was not able to distinguish which feeds were specifically used to produce 
which parts of the product concerned".121 
In respect of subject product models, MOFCOM decided to allocate "the necessary expenses 
invested by a producer to produce products" on the basis of the weight of the entire broiler less 
the weight of feathers, blood, and viscera – because, it stated, the latter were non -subject 
products.  
7.54.   There is no dispute between the parties that feathers, bl ood, and viscera are not "produced" 
for human consumption. At the same time, while there is no evidence directly on the record on this 
subject, it should be uncontroversial for us to take notice of the fact that feathers, blood, and 
viscera are essential p arts of a live broiler, and thus they are intrinsic to  the production  of the 
subject broiler product models. MOFCOM does not explain why the cost of "producing" feathers, 
blood, and viscera is not part of "the necessary expenses invested by a producer to p roduce" the 
subject product  models. Nowhere in the redetermination does MOFCOM explain  why it was 
appropriate to exclude from its weight -based allocation of costs of producing subject product 
models "necessary expenses" of producing a live bird, merely bec ause it had accepted an 
allocation of costs between subject and non -subject products based on domestic market value, i.e. 
"the income that a producer can gain from sales of a product".  
7.55.   In respect of MOFCOM's exclusion of feathers, blood, and viscera, Chin a argues that these 
products were "waste".122 We note in this regard MOFCOM's finding in the redetermination that 
"offal" (which includes viscera) can be turned into "feedstuff"123, as well as the reference to 
"feather meal"124, indicating that the products at issue were perhaps low -value by -products, but 
not "waste". Eve n if characterizing the product models at issue as "waste" were an explanation for 
its choice of methodology, this clearly was not a finding that MOFCOM made.  
7.56.   China further argues that in the re determination, MOFCOM stressed that feathers, blood, 
and viscera were not subject products. We had found otherwise in our original report125, but that is 
of no moment here: in our view, the distinction between subject and non-subject products or 
product mode ls is not, in itself , determinative for the purposes of determining whether MOFCOM, 
considering all evidence on the proper allocation of costs, came to a reasoned conclusion in 
choosing a methodology to allocate  costs to subject broiler product models. On the facts of this 
case, we note:  
a. MOFCOM could, and did, isolate the cost of production of a broiler;  
b. in respect of a broiler, MOFCOM found that it could not distinguish between the costs of 
feed used to grow breast meat and feed used to grow chicken feet;  
c. feathers, blood, and viscera are broiler product models that, while according to China not 
subject to the investigation, are no less intrinsic to the production of a live broiler than 
subject broiler product models such as its breasts or feet; and  
d. the other non-subject products comprised "[l]iving chickens, broiler products packed in 
cans and other similar ways, broiler sausages and similar products, cooked broiler 
                                                
120 Redetermination, (Exhibit CHN -1 (translated version)) , p. 35. (emphasis added)  
121 Redetermination, (Exhibit CH N-1 (translated version)) , p. 33.  
122 China's first written submission, para s. 123 and 166; responses to Panel question No. 24(b), 
para. 65 and No. 29, para. 108. 
123 Redetermination, (Exhibit CHN -1 (translated version)), p. 34 (citing with apparent approval t he 
petitioner's submission).  
124 Redetermination, (Exhibit CHN -1 (translated version)), p. 34.  
125 Panel Report, China – Broiler Products , fn 340.  WT/DS427/RW  
 
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  products"126 – they do not form part of a single live broiler that will be slaughtered and  
separated into various product models before export, and are thus not intrinsic to the 
production of subject broiler product models.  
7.57.   Article 2.2.1.1, second sentence requires consideration of all evidence on the proper  
allocation of costs, and a proper allocat ion of costs by an investigating authority is one that is 
appropriate to the circumstances of the subject product/product models and the company. We 
have already found that:  
a. nothing in Article 2.2.1.1 requires an investigating authority to apply a single c ost 
allocation methodology in all aspects of its investigation; and  
b. in the facts of this case, use of both a value -based methodology and weight -based 
methodology was not, in itself, unreasonable.  
7.58.   However, in the facts of this case, certain of the broiler p roduct models identified by 
MOFCOM as "non -subject" were inseparable from and intrinsic to the production of the subject 
broiler product models. In its consideration  of all available evidence related to a proper  cost 
allocation, MOFCOM was required, at a m inimum, to explain why the concern – that allocations 
must "reasonably reflect costs" of production – it relied upon to choose a weight -based cost  
allocation for subject product models nonetheless allowed for the exclusion of certain parts of a 
live broile r (feathers, blood, and viscera) that are necessarily part of the production of the subject  
broiler product models from its cost allocation.  
7.59.   For this reason, we conclude that China  did no t act consistently with the second sentence of 
Article  2.2.1.1  of the  Anti-Dumping Agreement .  
7.2.3.2.4   Tyson's proposed weight -based methodology  
7.60.   Tyson proposed a weight -based allocation methodology that took into account feathers, 
blood, and viscera. MOFCOM found this approach "not reasonable".127 
7.61.   First, MOFCOM identified problems of  an accounting nature in Tyson's proposed 
weight -based cost allocation:  
a. Tyson's methodology did not account for weight loss due to dead birds or birds 
"inappropriate for processing"128; 
b. "costs of live chickens were monthly different during the period of the  investigation. The 
Company did not explain in details  [sic] which parts of live chickens were used for the 
production of the product concerned, and which parts were used for the production of 
other products"129; and  
c. "by using the method claimed by the Compa ny to calculate the cost, the total cost of the 
product concerned would be lower than the total cost of the product concerned in the 
Company's accounting book, but the Company did not explain in details [sic] what cost 
was reduced therefrom".130 
Tyson disputed that these problems justified rejecting its proposed methodology.  
7.62.   When an investigating authority identifies "problems" with evidence made available to it by 
a producer purporting to reflect a proper cost allocation methodology and disregar ds the evidence 
or the methodology on that basis, it must explain why those problems support a decision that the 
proposed methodology is inappropriate. In this instance, MOFCOM nowhere explains how any of 
                                                
126 Redetermination, (Exhibit CHN -1 (translated version)), p. 2.  
127 Redetermination, (Exhibit CHN -1 (translated version)), p. 36.  
128 Redetermination, (Exhibit CHN -1 (translated version)), p. 36.  
129 Redetermination, (Exhibit CHN -1 (translated version)), p. 37.  
130 Redetermination, (Exhibit CHN -1 (translated version)), p. 37.  WT/DS427/RW  
 
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  the accounting problems it identified justified the  conclusion that the weight -based cost allocation 
proposed by Tyson was not reasonable.  
7.63.   Second, MOFCOM found that:  
[D]uring the original investigation and re -investigation, the Investigating Authority 
calculated the production costs of each model of the p roducts concerned  … this 
production cost didn't include that of the non -concerned products, such as feather, 
blood, etc. … [t]he cost allocation method for other products generated from the live 
chicken products (e.g. feather, blood, deep processed product , cooked product) is not 
the target of this investigation.131 
As MOFCOM itself acknowledged, albeit indirectly, the production costs of "each model of the 
products concerned" are not separable from the production costs of the live broiler from which 
both sub ject and non -subject products derive: the same feed that allows chicken breasts and 
chicken feet to grow, also enables the growth and "production" of feathers, blood, and viscera, 
without which neither feet nor breasts would exist. As well, MOFCOM's observ ation that "[t]he cost 
allocation method for other products generated from the live chicken products … is not the target 
of this investigation" is true, but not germane . This is because the distinction between subject and 
non-subject products by Tyson, bas ed on domestic -value and accepted by MOFCOM, in fact 
resulted in the following formula:  
 Total cost of product ion - cost of non -subject goods = cost of subject goods  
And so the cost figure that MOFCOM used in its weight -based cost  allocation for subject p roducts 
was inextricably linked to "[t]he cost allocation method for other [non-subject] products generated 
from the live chicken products". As we have explained, Article 2.2.1.1 does not require an 
investigating authority to use the same cost allocation m ethodology throughout the investigation. 
Nevertheless, in respect of cost allocation to parts of a single animal, reliance on a value -based 
distinction between subject and non -subject products, in a context where the costs of producing 
both are entwined, d oes not suffice in itself to justify rejecting evidence of a proposed 
methodology that purports to take this into account.  
7.64.   For these reasons, we conclude that China  did no t act consistently with the second sentence 
of Article  2.2.1.1  of the Anti -Dumping A greement . 
7.2.3.2.5   "Historically utilized"  
7.65.   China argues that MOFCOM had no obligation to consider Tyson's weight -based cost 
allocation methodology because it did not constitute "evidence" for the purposes of 
Article  2.2.1.1.132 MOFCOM does not appear to have addresse d this point at all in the 
redetermination. Indeed, MOFCOM states that it conducted the reinvestigation "[b]ased on the 
evidence submitted by the interest [ sic] parties and evidence collected by the Investigating 
Authority in the original investigation and  re-investigation"133 and makes no distinction between 
"evidence submitted" and a putative category of "information submitted that did not constitute 
evidence". China's argument is thus after the fact justification and cannot play a part in our review 
of the  consistency of the redetermination with Article 2.2.1.1.  
7.66.   In any event, China's argument does not demonstrate that MOFCOM acted consistently with 
the second sentence of Article 2.2.1.1, for the following two reasons.  
7.67.   First, nothing in the WTO Agreement d efines "evidence" or makes a distinction between 
information that is "evidence" and information that is not. Information that purports to support an 
asserted fact is evidence; it may be good or bad, weak or strong, relevant, or not.  
                                                
131 Redetermination, (Exhibit CHN -1 (translated version)), fn 30. (emphasis original)  
132 China's first written submission, para s. 163 and 166; second written submission, paras. 144 
and 146. 
133 Redetermination, (Exhibit CHN -1 (translated version)) , p. 1. WT/DS427/RW  
 
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  7.68.   Second, the subordinate  clause starting with "including" does not limit the scope of the 
evidence to be considered; rather, it confirms the breadth  of the phrase "all available evidence". 
This is a fortiori the case where, as here, the evidence submitted is expressly developed by an 
exporter or producer a t the behest or request of an investigating authority , or in response to its 
concerns. We recall that MOFCOM had rejected Tyson's data based on its historical  cost allocation 
methodology and demanded that Tyson generate new data  based on a methodology inconsistent 
with Tyson's accounting system. To read the subordinate phrase in the second sentence as 
permitting an investigating authority to ignore any evidence of proper cost allocation unless  it is 
"historically utilized" would mean that an investigating authority could simply ignore information 
and data submitted in response to its own questions and purporting to satisfy requirements 
without even examining it or weighing its merits.  
7.69.   This strikes us as an unacceptable outcome and an unwarranted limitation of the explicit 
requirement to consider " all available evidence ". Having failed to do so in this case, MOFCOM could 
not reje ct the data submitted by Tyson  based on the methodology it developed in an effort to 
conform to MOFCOM's  requirements, solely because that methodology was not "historically 
utilized", as China contends.  
7.70.   For th ese reason s, we conclude that China  did not act consistently with the second sentence 
of Article 2.2.1.1  of the Anti -Dumping Agreement . 
7.2.3.3   Pilgrim's Pride  
7.71.   The threshold legal question before us with respect to MOFCOM's redeterm ination regarding 
Pilgrim's Prid e is whether, in our original report, our findings under  the second sentence of 
Article  2.2.1.1 applied in respect of Pilgrim's Pride, or were limited to Tyson and Keystone. In the 
original report we identified the ques tion we were to resolve as " whether MOFCOM took into 
consideration 'compelling evidence' with respect to the reasonableness of its own methodol ogy and 
available alternatives".134 We then mad e the following observation:  
China has not provided any citations to the record of the investigation where MOFCOM 
deliberated or explained the weight -based methodology it chose to apply or why it 
chose that methodology over the alternatives proposed by the  respondents. All of the 
evidence of consideration that China points to in its submissions relates to MOFCOM's 
consideration of the original books and records of the respondents, rather than to the 
appropriateness of MOFCOM's allocations or the alternative  methodologies that 
Keystone and Tyson proposed.135 
7.72.   According to China, this finding – including our specific references to Keystone and Tyson – 
should be read against the background of our findings in respect of Pilgrim's Pride . In particular,  
China relies on our findings in the original report in respect of evidence submitted by Pilgrim's 
Pride as to its cost allocation methodology:  
MOFCOM's basis for rejecting the costs as recorded in the respondent's books and 
records is not the unreasonableness of the allocation, but rather a specific 
determination that the data as originally submitted was irreconcilable and that the 
information to  correct the errors was untimely. … Indeed, Pilgrim's Pride's Comments 
on the Preliminary Anti -Dumping Disclosure acknowledge and confirm that the data 
was incorrect as Pilgrim's Pride goes into great detail describing how the errors 
arose .136 
                                                
134 In arriving at our findings, we relied on the stat ement of the Appellate Body in US – Softwood 
Lumber V  that:  
[W]here there is compelling evidence available to the investigating authority that more than one 
allocation methodology potentially may be appropriate to ensure that there is a proper allocation 
of costs —the investigating authority may be required to "reflect on" and "weigh the merits of" 
evidence that relates to such alternative allocation methodologies, in order to satisfy the 
requirement to "consider all available evidence".  
(Panel Report, China – Broiler Products , para. 7.189 (quoting Appellate Body Report, US – Softwood Lumber V , 
para. 138))  
135 Panel Report, China – Broiler Products , para 7.194.  
136 Panel Report, China – Broiler Products , para 7.173. (emphasis added)  WT/DS427/RW  
 
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  7.73.   We note, of co urse, that these findings were made in the context of the first sentence of 
Article 2.2.1.1. Nothing in our original findings suggests that  the fact that an investigating 
authority finds data to be "incorrect" or "irreconcilable" under the first sentence  is or would be 
relevant in respect of "evidence" of a "potentially … appropriate" allocation methodology that an 
investigating authority would be required to "consider" under the second sentence . Nothing in our 
findings in the original report referring to " respondents" could be read to exclude any respondent 
on the basis that its data were rejected, consistently with the first sentence of Article 2.2.1.1, as 
being not a proper basis for the determination of costs of production.  
7.74.   Consequently, we confirm that in the original report we found China  to have acted 
inconsistently with the second sentence of Article 2.2.1.1 in respect of "respondents", including 
Pilgrim's Pride as well as Tyson and Keystone. MOFCOM did not reinvestigate Pilgrim's Pride in this 
contex t or do anything else to satisfy its implementation obligations. Thus, we conclude that China  
acted inconsistently with the second sentence of Article 2.2.1.1 of the Anti -Dumping Agreement 
with respect to Pilgrim's Pride.  
7.2.4   Conclusion  
7.75.   In respect of Tyson, China did not act consistently with Article 2.2.1.1 of the 
Anti-Dumping  Agreement because:  
a. MOFCOM  did not explain why the concern – that allocations must "reasonably reflect 
costs" of production – it had relied upon to choose a weight -based cost allocation f or 
subject produc t models nonetheless allowed for the exclusion of certain parts of a live 
broiler (feathers, blood, and viscera) that are necessarily part of the production of the 
subject  broiler product models from its cost allocation; and  
b. MOFCOM did not  provide a reasoned and adequate explanation for its rejection of 
Tyson's alternative weight -based cost allocation methodology.  
7.76.   In respect of Pilgrim's Pride, China  did not act consistently with Article 2.2.1.1  of the 
Anti-Dumping Agreement  because:  
a. in the original report we found China  to have acted  inconsistently with the 
second  sentence of Article 2.2.1.1 in respect of Pilgrim's Pride; and  
b. China  did not in any way address this implementation obligation.  
7.3  Article 3.2  of the Anti -Dumping Agreement and Article 15.2  of the SCM Agreement : 
price effects  
7.3.1   Introduction  
7.3.1.1   Our findings in the original report  
7.77.   We found in the original report that:  
a. an investigating authority has "a certain level of discretion" in the methodology used for 
a price effects analysis137;  
b. that discretion is not unbounded: Article 3.2 of the Anti -Dumping Agreement and 
Article  15.2 of the SCM Agreement138 require that "the prices being compared must 
correspond to products and transactions that are comparable "139; 
c. "price comparability  needs to be e xamined any time that a price comparison is 
performed in the context of a price undercutting analysis"140; and  
d. where an investigating authority performs a price comparison on the basis of a "basket" 
of products or sales transactions, it must:  
                                                
137 Panel Report, China – Broiler Products , para. 7.474.  
138 We will refer to these as Articles 3.2 and 15.2.  
139 Panel Report, China – Broiler Products , para. 7.475. (emphasis added)  
140 Panel Report, China – Broiler Products , para. 7.479. (emphasis added)  WT/DS427/RW  
 
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  i. "ensure that the groups of products or transactions compared on both sides of the 
equation are sufficiently similar so that any price differential can reasonably be said 
to result from 'price undercutting' and not merely from differences in the composition 
of the two b askets being compared"141, or 
ii. "make adjustments to control and adjust for relevant differences in the physical or 
other characteristics of the product".142 
7.78.   Turning to MOFCOM's determination, we took note of China's arguments that:  
a. the "like product" at issue w as a broiler and nothing in the Anti-Dumping Agreement or 
the SCM Agreement requires " a price comparison on the basis of product segments 
within the single like product "143; and  
b. "MOFCOM … considered that all chicken parts competed and were substitutable with  one 
another ".144 
7.79.   We found in the original report that, as a matter of fact:  
a. "the product mix varied considerably between the two sets of data compared by 
MOFCOM in the investigations at issue "145; and  
b. "the information before MOFCOM … revealed important price differences between the 
different broiler products".146 
7.80.   We concluded that:  
China acted inconsistently with Articles 3.1/15.1 and 3.2/15.2 because MOFCOM relied 
for its findings of price undercutting on a comparison of subject import and domestic 
average unit  values that included different product mixes  without taking any steps to 
control for differences in physical characteristics affecting price comparability or 
making necessary adjustments .147 
7.3.1.2   The redetermination's consideration of price effects  
7.3.1.2.1   Price undercu tting  
7.81.    In the preliminary determination in the original investigation, MOFCOM had found that "the 
product concerned had caused price undercutting and suppression to the like product of the 
domestic industry" .148 The US interested parties objected that, "ther e is apparent difference in the 
product mixes between the imported product concerned and the domestic like product" .149 In 
response to these concerns, in the redetermination MOFCOM considered that it "can apply 
appropriate methodology based on specific facts  of specific case" .150 To that end, MOFCOM:  
a. "conducted on -site verifications on four domestic producers in the reinvestigation";  
b. "collected supplemental sales data that distinguish the different product specifications";  
                                                
141 Panel Report, China – Broiler Pr oducts , para. 7.483.  
142 Panel Report, China – Broiler Products , para. 7.483. See also ibid. para. 7.479: " the need for 
adjustments necessarily depends on the factual circumstances of the case and the evidence before the 
authority ". 
143 Panel Report, China – Broiler Products , para. 7.468.  
144 Panel Report, China – Broiler Products , para. 7.605 (emphasis added); see also ibid. para. 7.468: 
"MOFCOM's methodology … recognises the substitutability among different types of products ". 
145 Panel Report, China – Broiler P roducts , para. 7.490.  
146 Panel Report, China – Broiler Products , para. 7.490.  
147 Panel Report, China – Broiler Products , para. 7.494. (emphasis added)  
148 Redetermination, (Exhibit CHN -1 (translated version)), p. 73.  
149 Redetermination, (Exhibit CHN -1 (translated version)), p. 74.  
150 Redetermination, (Exhibit CHN -1 (translated version)), p. 74.  WT/DS427/RW  
 
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  c. "analyzed these sales data"; and  
d. "cross-checked with the Customs import data of the product concerned and the data 
provided in the injury questionnaire responses of the exporters" .151 
7.82.   On the basis of its reverification of the data, MOFCOM:  
a. did not consider it necessary to conduct a new underselling analysis, as it had 
"confirmed" the reliability of the results of the original investigation and analysis;  
b. found that "the basic facts on which the U.S. relevant claims were based are not 
consistent with the actual situation"152; and  
c. "considere d that the selling prices of the different product specifications in the domestic 
market supported by these evidences are representative" .153 
7.3.1.2.2   Price suppression  
7.83.   MOFCOM in the redetermination found that the volume and market share of imports of the 
product con cerned had increased continuously since 2006. It also found that the "import price of 
the product concerned had significant effect on the selling prices of the like product of the 
domestic industry" .154 Specifically, according to MOFCOM:  
[B]ecause the import  volume of the product concerned increased continuously 
afterwards, the import price further undercut the price of the like product of the 
domestic industry, resulted in the selling price of the like product of the domestic 
industry was further suppressed [sic] … 
During the investigation period, the increase of the import volume of the product 
concerned was obtained by making low -priced sales. Such low -prices [sic] sales 
caused price undercutting to the selling prices of the like product of the domestic 
industry, and further more suppressed the prices of the like product of the domestic 
industry significantly … [.]155 
7.84.   In response to the arguments of the interested parties, MOFCOM noted that there was no 
disagreement with "the trend of substantial increase of t he absolute  import volume".156 MOFCOM 
was not, however, required to look at increases in relative  terms as well. In particular, MOFCOM:  
[C]onsidered that, from 2006 to 2008, although the domestic market had a 
continuously high demand in broiler products, the domestic like product also obtained 
some market shares . However, that did not imply that the domestic industry did not 
suffer from injury. On the contrary, because the import volume of the product 
concerned increased substantially and the import price rem ained at a relatively low 
                                                
151 Redetermination, (Exhibit CHN -1 (translated version)), p. 74.  
152 Redetermination, (Exhibit CHN -1 (translated version)) , p. 75.  Because at issue is MOFCOM's 
methodology, the actual numbers are not essential for the Panel's determination. For the sake of 
completeness, we note that MOFCOM found that chicken feet, wings, and gizzards did not, in the Chinese 
market , belong to "broiler p roducts of lowest value". Looking specifically at certain components of its own 
comparator basket of products, MOFCOM found that chicken breasts (included in the domestic basket but not 
in the import basket) were actually priced lower than chicken feet. On  this basis, "the product specifications 
similar to the imported product concerned, as produced and sold by the domestic industry, belong to the 
product specifications of relatively high price."  
153 Redetermination, (Exhibit CHN -1 (translated version)) , p. 7 4. 
154 Redetermination, (Exhibit CHN -1 (translated version)) , p. 70.  According to MOFCOM:  
During the investigation period, the dumped and subsidized imports were imported in a large 
quantity  and sold, which suppressed the selling price of the like product of  the domestic industry 
significantly, the selling price had been below the sales cost for a long period of time , and the 
domestic industry could not obtain reasonable profit margin, and the like product was in losses 
all the time.  
(emphasis added)  
155 Redete rmination, (Exhibit CHN -1 (translated version)) , p. 7 1. (emphasis added)  
156 Redetermination, (Exhibit CHN -1 (translated version)) , p. 72. (emphasis added)  WT/DS427/RW  
 
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  level, resulted in significantly undercutting and suppression to the domestic like 
product …  
… 
[T]he effect of the import volume of the product concerned on the domestic industry 
should be investigated comprehensively combined wi th the situation of change of the 
import price in the corresponding period.157 
7.85.   According to MOFCOM:  
[T]he data indicates that the import price of the product concerned was still lower 
than the price of the domestic like product, and significantly undercut th e price of the 
domestic like product. Affected by this, the domestic like product was forced to reduce 
the price substantially to maintain market share.158 
7.3.2   Main a rguments of the parties  
7.3.2.1   Price undercutting  
7.3.2.1.1   United  States  
7.86.   MOFCOM's  price effects  analysis remains inconsistent with Articles 3.1 and 3.2 of the 
Anti-Dumping Agreement and Articles 15.1 and 15.2 of the SCM Agreement159, for two reasons.  
7.87.   First, the Panel in the original report found that China failed to ensure price comparability 
because it did not control f or differences in product mix when comparing the prices of different 
chicken products. MOFCOM, however, "took no action that complied with the Panel 's 
instructions".160 It based its underselling findings "on the very same comparisons of t he average 
unit value of subject imports to the average unit value of domestic industry sales that the original 
panel found deficient".161  
7.88.   Second, China does not demonstrate that data collected from only four of the 17 domestic 
producers included in the dom estic industry were representative. In particular, MOFCOM did not 
disclose why it narrowed down the sample, the methodology for selecting the producers , or their 
share in the total domestic sales.162 The data relied on cannot be considered as "positive evide nce" 
and the analysis as an "objective examination" wit hin the meaning of Article 3.1 of the 
Anti-Dumping Agreement and Article 15.1 of the SCM Agreement163; MOFCOM's analysis  is also 
inconsistent with the requirements in  Article 3.2 of the Anti -Dumping Agre ement and Article  15.2 
of the SCM Agreement164 that the injury analysis focus on the "domestic industry".165 Where 
"samples " are used, they must be properly representative.  
7.3.2.1.2   China  
7.89.   MOFCOM used AUVs rather than model -specific prices to compare price trends; the 
WTO Agreement permits reliance on AUVs for price comparison purposes166 and Articles 3.2 
and 15.2 do not mandate a particular price -comparison methodology.167 Following the Panel's 
findings  in the original report, MOFCOM collected additional data from four dom estic producers to 
determine whether, as a factual matter, the product types exported by the United  States  were in 
                                                
157 Redetermination, (Exhibit CHN -1 (translated version)) , p. 7 3. (emphasis added)  
158 Redetermination, (Exhibit CHN -1 (translated version)) , p. 7 6. 
159 We will refer to these as Articles 3.1, 3.2, 15.1, and 15.2.  
160 United  States' second written submission, para. 149.  
161 United  States' second written submission, para. 149.  
162 United  States ' first written submission, para s. 135, 136, and 146.  
163 We will refer to these as Articles 3.1 and 15.1.  
164 We will refer to these as Articles 3.2 and 15.2.  
165 United  States ' first written submission, para . 142.  
166 China's first written submission, para. 277.  
167 China's first written submission, para. 278.  WT/DS427/RW  
 
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  fact low -value products in China 's market or were high -value products.168 MOFCOM found  that the 
subject imports consisted of products  higher in  value169 than the domestic like product used in 
determining AUVs. As a result, the initial use of AUVs in the original investigation was in fact 
biased in favour  of the respondents. In this light, MOFCOM did not need to make any adjustments 
for differences in the product mix in the redetermination.170 
7.90.   The underselling analysis therefore remained  exactly the same as in the original 
investigation and is thus based on data from all domestic producers included in the original 
investigation. The more limited data c ollected in the redetermination served only to confirm that 
there was no bias in the original method (using aggregate AUVs rather than product -specific prices 
for the underselling analysis); for this more limited purpose, collecting data from four domestic  
producers was fully sufficient.  
7.91.   MOFCOM's choice of the four domestic firms from which it sought additional data during the 
reinvestigation was based on time and resource constraints and MOFCOM's familiarity with the four 
firms.171 For three of the four firms MOFCOM had conducted full verifications in the original 
proceedings ; the fourth was the largest of those for which it had conducted more limited 
verifications.  MOFCOM made a specific finding in its redetermination, based on a r eview of all the 
evidence, "that the selling prices of the different product specifications in the domestic market 
supported by these evidences are representative".172 
7.3.2.2   Price suppression  
7.3.2.2.1   United  States  
7.92.   MOFCOM's price suppression finding relied exclusively on the flawed finding of price 
underselling. Because the latter was flawed, the former was also necessarily inconsistent with 
Articles 3.1, 3.2, 15.1, and 15.2.173  
7.93.   The underselling analysis and product -specific pricing data did not support MOFCOM's 
findings of  price suppression in the first half of 2009 because the evidence did not show any 
correlation between the alleged underselling and price suppression.174 Specifically:  
a. The long -term trend in the domestic industry's net loss does not support the conclusion 
of price suppression.  
i. The domestic industry's decrease in losses (due to prices increasing more than the 
increase in costs) during the period 2006 to 2008 is inconsistent with a finding of 
price suppression.  
ii. MOFCOM failed to explain or investigate how the a lleged underselling could have 
suppressed domestic prices in the first half of 2009 when similar underselling had no 
price suppressive effects between 2006 and 2008.175 
                                                
168 China's response to Panel question No. 45(b), para. 166.  
169 China's response to Panel question No. 45(b), para. 167: " pricing evidence collected by MOFCOM 
through verification during the re -investigation  process further established a pricing spectrum showing 
products like paws to be high value. " 
170 This conclusion was based on the following analysis:  (a) MOFCOM identified those product models 
mainly exporte d from the United States; (b) f or those product models, MOFCOM calculated the overall average 
(domestic) price from price data collected from the four domestic producers selected during the 
reinvestigation ; (c) this  overall domestic price was relatively high; and (d)  on that basis MOFCOM inferred that 
the correspo nding product models  exported from the US belong to higher -value product models. (China's first 
written submission, paras.  270-272). China further noted:  
[T]he verification and data collection were used to establish price relationships across product 
types , irrespective of their absolute values, to demonstrate that price differences shown in a 
comparison of aggregate AUVs drawn from the industry as a whole was not merely the result of 
product mix but could reasonably be attributed to price undercutting.  
(China's response to Panel's question No. 45(c), para. 168)  
171 China's first written submission, para. 295.  
172 China's response to Panel question No. 45(c), para. 168.  
173 United  States ' first written submission, para s. 151-157. 
174 United  States ' first written submission, para s. 151, 158, and 159.  
175 United  States ' first written submission, para . 158.  WT/DS427/RW  
 
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  b. The short -term price trend for domestic product types competing directly with subject 
imports compared to the price trend for other domestic product types suggests that 
other factors unrelated to the dumped imports were responsible for the alleged price 
suppression.176 MOFCOM disregarded evidence that prices for domestically produced 
products that competed directly with most subject imports (i.e. chicken drumsticks, feet, 
and gizzards) declined far less than prices for other domesti c products in the first half 
of 2009.  
7.3.2.2.2   China  
7.94.   In relation  to the United  States ' first argument, t he price suppression finding relied not only 
on the underselling analysis but also on the effects  of increased volumes of imports and the 
combined effects of both .177 
7.95.   In relation  to the United  States ' second argument:  
a. The legal standard under Ar ticles 3.2 and 15.2 is not a full causation analysis but ask s 
whether subject imports have "explanatory force" for the price suppression. MOFCOM 
made such a showing  on the basis of the correlation between domesti c and import 
prices, the consistent underselling and losses of the domestic industry, the increase in 
the margin of price undercutting in 2008, and the consistent increase in import 
volume.178 
b. Regarding  the US argument on decreasing losses,  losses only narro wed in 2007 which 
cannot preclude a finding of price suppression on the basis of the totality of the evidence 
over the full period, in particular the increase in volume and market share of subject 
imports.179 
c. Regarding the US argument on price suppression du ring the first half of 2009 being 
driven by other factors180: 
i. the US argument is not compatible with MOFCO M's aggregate approach;  
ii. there was a price undercutting effect for the product as a whole and model -specific 
prices fell even if the degree of the decline varied between product models; and  
iii. the price decline for those product models directly competing with imports was still 
"significant".  
7.3.3   Evaluation  
7.3.3.1   Price undercutting  
7.3.3.1.1   Price comparison  
7.96.   We recall the second sentence of Article 3.2  of the Anti -Dumping Agreement : 
With regard to the effect of the dumped imports on prices, the investigating 
authorities shall consider whether there has been a significant price undercutting by 
the dumped imports as compared  with the price of a like produ ct of the importing 
Member … [.]181 
                                                
176 United  States ' first written submission, para . 159.  
177 China's first written submission, paras. 302 -310. 
178 China's first written submission, paras. 317 -320. 
179 China's first written submission, paras. 321 -322. 
180 China's first written submission, paras. 323 -327. 
181 Emphasis added. Article 15.2 of the SCM Agreement is essentially identical.  WT/DS427/RW  
 
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  As we observed in the original report, "price comparability has to be ensured in terms of the 
various features of the products and transactions being compared".182 We concluded that, as a 
matter of law, where an authority:  
[P]erforms a price comparison on the basis of a "basket" of products or sales 
transactions, the authority must ensure that the groups of products or transactions 
compared on both sides of the equation are sufficiently similar so that any price 
differential  can reasonably be said to result from "price undercutting" and not merely 
from differences in the composition of the two baskets being compared. Alternatively, 
the authority must make adjustments to control and adjust for relevant differences in 
the physi cal or other characteristics of the product.183 
7.97.   Neither party has directed us to any developments since that would require us to revisit this 
finding.  
7.98.   Article 3 of the Anti -Dumping Agreement and Article 15 of the SCM Agreement184 set out 
the rules and conditi ons that a pply with respect to the determination of injury, which is one of the 
fundamental prerequisites for the imposition of an anti -dumping measure.185 The provisions of 
Article s 3 and 15  requiring consideration, examination, and evaluation of various fa ctors 
contemplate "a logical progression of inquiry leading to an investigating authority's ultimate injury 
and causation determination".186 The price comparison required in Articles 3.2 and 15.2 is an 
important analytical step in an investigating authority 's injury a nd causation analysis under 
Article  3.5 of the Anti -Dumping Agreement and Article 15.5 of the SCM Agreement. It requires an 
investigating authority  to consider whether any observed significant price undercutting is " the 
effect of  the dumped impo rts".187 A price comparison under Articles 3.2 and 15.2 is thus not a 
static snapshot of the relationship between two prices (or averages).  It requires, rather, a dynamic 
consideration of two sets of prices in a specific market context and within a given tim e-frame. The 
consideration must address whether observed movements in domestic prices are the effect  of the 
prices of the dumped imports.  
7.99.   The facts relevant to our Articles 3.2 and 15.2 analysis in this proceeding may be 
summari zed as follows:  
a. In the origi nal case, MOFCOM disagreed with the arguments of US interested parties that 
imports from the United  States  contained "low value" products, as opposed to what the 
United  States  characteri zed as "high value" domestic product models in the domestic 
comparator  basket.188 
b. In the redetermination, MOFCOM sought to verify whether "the selling prices of the 
different product specifications in the domestic market supported by these evidences 
[sic] are representative".189 
c. MOFCOM selected four domestic producers for additi onal verification of data and 
obtained further product -specific information from these companies. The data verified 
and gathered were not for the purpose of comparing prices, but rather, "to establish 
price relationships across product types, irrespective of their absolute values".190 
                                                
182 Panel Report, China – Broiler Products , para 7.480.  
183 Panel Report, China – Broiler Products , para. 7.483. We note that the parties did not appeal our 
findings.  
184 We will refer to these as Articles 3 and 15.  
185 Panel Report, China – Cellulose Pulp , para. 7.11.  
186 Appellate Body Report, China – GOES , para. 128; Panel Report, China – Cellulose Pulp , para. 7.14 . 
187 Emphasis added.  
188 Panel Report, China – Broiler Products , para. 7.469.  
189 Redetermination, (Exhibit CHN -1 (translated version)), p. 74.  
190 China's response to Panel question No. 45(c), para. 168.  WT/DS427/RW  
 
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  d. The data gathered from the four domestic producers indicated that product models 
identified by the United  States  as "low value"191 or "high value" do not have similar 
"values" in the Chinese market192, at least for those producers, and could not be 
considered "low value".  
e. In the light of this model -specific evidence, MOFCOM considered that the domestic 
benchmark AUV it used for its p rice underselling analysis was more "conservative"193 
than an AUV based on a basket of product models in cluding only models in the 
US-export basket.  
7.100.   The discussion of comparability in our original report concentrated on the following point: 
to consider whether the AUV of a basket of imported goods has had the effect of  undercutting the 
AUV of a basket of dom estic like products, the product composition of the two baskets must be 
"comparable" such that the price of the products in one basket can have an effect on the price of 
the products in the other basket. This is because where the baskets are composed of di fferent 
product models a consideration of the effect of  the price of a basket of imported goods on the 
prices of the basket of domestic goods becomes complicated : the more the divergence in 
composition, the less accurate the comparison of average values an d the less reliable any 
consideration of the effects of one set of prices (or AUVs) on another.  
7.101.   In the original investigation194, MOFCOM's price comparison was further complicated by at 
least two other factors, and these complicati ons were not addressed or rectified in the 
redetermination.  
7.102.   First, in considering the price effects of dumped imports, MOFCOM undertook a price 
comparison bet ween two baskets of dissimilar compositions and considered the effects of the AUV 
of a smaller import basket on the AUV of a larger domestic basket. In the original  case MOFCOM 
had found that the "like product" for the purposes of the investigation was a b roiler and not 
specific product models , and that many of the product models at issue were substitutable in the 
Chinese mark et.195 MOFCOM was thus aware of potential price effects as a result  of competition 
among  product models within  each basket. Given substitutability of the product models within the 
larger domestic basket, there was some risk that price effects were the effects of competition from 
product models within the domestic basket that were not in the dumped import basket.  
7.103.   Second, we note the observation by the United  States  that, "MOFCOM found that chilled 
chicken cuts accounted for 40 to 47 percent of subject imports an d chicken feet accounted for 
29 to 39 percent of subject imports, depending on the year".196 We recall the model -specific prices 
that MOFCOM found in the cours e of the reve rification. Given the range of prices  among the 
various product models and the change in the composition  of the domestic basket from year to 
year, it is not a given that any observed price effects are "not merely from differences in the 
compos ition of the two baskets being compared" .197 An unbiased and objective investigating 
authority would be expected to seek to control for these variations in considering the effect of the 
prices of subject imports on the prices of the domestic like product.  
                                                
191 Redetermination, (Exhibit CHN -1 (translated version)), p. 75: "the main product specifications 
exported from the U.S. to China were frozen chicken with bones (normally most of them are chicken legs, 
HS 02071411), chicken wing (HS02071421), paw (HS 02071422), gizzard (HS 05040021)".  
192 Redetermination, (Exhibit CHN -1 (translated version)), p. 75:  
From 2006 to first half year of 2009, the average prices of chicken legs sold by domestic 
producers in domestic market were 9,676 RMB, 12,566 RMB, 13,656 RMB and 11,875 RMB per 
ton, the average prices of chicken paw were 10,198 RMB, 12,142 RMB, 12,958 RMB and 
12,837  RMB per ton, while at the same period the average prices of chicken breast were 
9,342  RMB, 11,489 RMB, 12,573 RMB and 11,031 RMB per ton. According to the above data, the 
product spec ifications similar to the imported product concerned, as produced and sold by the 
domestic industry, belong to the product specifications of relatively high price.  
193 Redetermination, (Exhibit CHN -1 (translated version)), p. 75.  
194 We underline that MOFCOM d id not undertake to reopen the investigation to consider price effects, 
but reverified its data and gathered additional information. On this basis, it found that the AUVs it relied upon 
in its consideration of price effects in the original investigation we re "conservative".  
195 Panel Report, China – Broiler Products , para. 7.605 (referring to the Preliminary Determination in the 
original investigation, (Original Exhibit USA -2)). 
196 United  States' second written submission, para. 150 (referring to Redeterminati on, (Exhibit USA -9 
(translated version) , section VII(ii)(2)) . 
197 Panel Report, China – Broiler Products , para. 7.483.  WT/DS427/RW  
 
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  7.104.   As a matter of law, we continue to be of the view that:  
a. a simple comparison of prices in respect of baskets with different compositions does not 
indicate the effect of one set of prices (of the subject import basket) on the other set of 
prices (the domestic  basket, compri sing a larger number of product models); and  
b. where AUVs are based on baskets whose product mixes are not comparable, an 
investigating authority is required to seek to "control for differences in physical 
characteristics affecting price comp arability or making necessary adjustments".198  
7.105.   China argues that the reverification amounted to "controlling" for the different basket 
compositions, because it demonstrated that the domestic AUVs used for comparison purposes are 
more "conservative" than an AUV that might be derived from a bask et composed of the same 
product models as the subject imports.199 While we might agree with China that, at least for the 
four producers subject to reverification , domestic AUVs appear to be more "conservative" than the 
dumped import AUVs, given our specific findings in the original case and the requirements of 
Article 3.2, this alone does not suffice to demonstrate that MOFCOM controlled for the different 
composition  of the two baskets for the specific purpose of consideri ng the effects of the price of 
subject imports  on a comparator basket of the domestic like product.  
7.106.   In the original report, we did not find, because Articles 3.2 and 15.2 do not require, that in 
a price comparison, MOFCOM had to adopt the "lower of the two" price benchmarks; our findings 
were about the comparability  of the baskets rather than the relativ e value of different AUVs. The 
fact that a domestic AUV is more or less "conservative" or might otherwise benefit exporters or 
foreign producers does not affect our analysis. Rather, at issue under Articles 3.2 and 15.2 is the 
effect of subject imports on domestic like product prices during the POI. This requires that the 
baskets of goods used for comparison be comparable, or at least that any price comparison 
controls for or adjusts in respect of different compositions to ensure sufficient comparability.  
7.107.   In this light, we find that MOFCOM's "reverification" did not suffice to bring China's 
measure into conformity with its obligations under Articles 3.2 of the Anti -Dumping Agreement and 
15.2 of the SCM Agreement , in that it failed to address the comparabilit y of AUVs derived from 
different baskets of products for the purpose of  considering the effects of prices of subject imports 
on domestic like product prices.200 
7.3.3.1.2   Representativeness  
7.108.   In response to the arguments of the United  States  that the data collected from four 
domestic companies were  not representative , China submits that in its view:  
[T]he "representativeness" of the selected producers [is] a question regarding price 
comparability of specific products, which was not the purpose of the MOFCOM 
verification  exercise and collection of supplemental information.201 … 
China further argues that:  
The exercise did not require any direct product price comparisons, but merely to 
establish  pricing relationships across product types, whatever the absolute prices may 
be.202 
[P]ricing evidence collected by MOFCOM through verification during the 
re-investigation process further established  a pricing spectrum showing products like 
paws to be high value.  None of the U.S. interested parties submitted any evidence or 
                                                
198 Panel Report, China – Broiler Products , para. 7.494.  
199 China's second written submission, para. 262; opening statement at the meeting of the Panel, 
para. 46. 
200 We do not mean to suggest, of course, that all MOFCOM had to do was to address the findings of the 
Panel in its original report. At issue in this case  is the consistency of the redetermination with "the covered 
agreements".  
201 China's response to Panel question No. 45(b), para. 165.  
202 China's response to Panel question No. 45(b), para. 166. (emphasis added)  WT/DS427/RW  
 
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  argument duri ng the re -investigation process in an attempt to rebut these facts and 
common knowledge.203 
7.109.   The question of "representativeness" arises in the context of "sampling". Sampling is an 
exercise in which observations about the whole of a population  are based on d ata collected from a 
subset of that population . The methodology used to sample from a larger population depends on 
the type of analysis being performed, but may include simple random sampling or systematic 
sampling. Whatever the sampling methodology, in the context of the Anti -Dumping Agreement 
and th e SCM Agreement, application of sampling as an analytical tool is valid where it can be 
demonstrated that the sample is sufficiently representative  to allow for a reasoned conclusion 
about the population as a whole.204 In this instance, MOFCOM obtained addit ional data from four 
domestic producers205 on "volume, value, and unit value on a product -specific basis"206 in the 
context of analysing " pricing relationships across product types ". According to China, this was done 
"to establish" such relationships, in respe ct of not only the four domestic producers subject to 
verification, but also the domestic industry as defined. Moreover, according to China, "pricing 
evidence collected by MOFCOM through verification during the re -investigation process further 
established  a pricing spectrum".207  
7.110.   That is, on the basis of data gathered from a sub set of the population ( four producers), 
MOFCOM drew certain conclusions about the population as a whole ("a pricing spectrum" or 
"pricing relationships across product types" in respect  of all domestic producers  defined as the 
domestic industry ). This is, in effect, a sampling exercise, regardless of the methodology employed 
by MOFCOM.  
7.111.   Nothing in Articles 3.2 and 15.2 – or, indeed, in Articles 3 and 15 as a whole – expressly 
prohibits or  permits, or specifically regulates, sampling as an analytical methodology.208 
Nonetheless , any sample that is used to "establish" a conclusion about the population a s a whole 
must be representative.209 An unbiased and objective investigating authority cannot reasonably 
                                                
203 China's response to Panel question No. 45(b),  para. 167. (emphasis added)  
204 See in particular, Appellate Body Report, EC – Fasteners (China) , para. 436:  
[W]e disagree with China's contention that the only way to ensure representativeness is through 
a statistically valid sample. In our view, as long a s the domestic industry is defined consistently 
with the Anti-Dumping Agreement , and that the sample selected is representative of the 
domestic industry , an investigating authority has discretion in deciding the method with which it 
selects a sample. A statistically valid sample is a proper way to ensure the representativeness of 
the sample. Yet, the Anti-Dumping Agreement  imposes no obligation on an inve stigating 
authority always to resort to statistically valid samples.  
(emphasis added)  
"Representativeness" is not about the methodology of sampling; even a randomly selected sample may need 
to be controlled to ensure representativeness, such that any obser vations based on the sample can be validly 
extended to the population as a whole.  
205 There were 17 domestic producers in the "domestic industry". (Redetermination, (Exhibit CHN -1 
(translated version)), pp. 26 -27). 
206 China's response to Panel question No. 5( c), para. 14.  
207 China's response to Panel question No. 45(b), para. 167. (emphasis added)  
208 Appellate Body Report, EC – Fasteners (China) , para. 435:  
Turning to the substance of China's claims, we note that the Anti-Dumping Agreement  is silent 
on the issue  of whether sampling may be used for purposes of the injury  determination. The  
Agreement thus does not prevent an authority from using samples to determine injury, and 
China does  not contest this view.  
And para. 436:  
[B]ecause the Anti-Dumping Agreement  does not specify whether sampling is  allowed for 
purposes of an injury determination, it also does not contain guidance on how sampling  should 
be conducted.  
209 Sampling is generally concerned with gathering data from a sub -set of a population for the purpose 
of drawing conclusions about the population as a whole. In this instance, the investigating authority  already 
had considerable  data – not just of the sub -set, but of the population as a whole; indeed, China stresses that 
the reason why MOFCOM reverified th e four companies was that it knew the sub -set sampled. We are 
sympathetic to MOFCOM's stated reason for the selection: given tight timelines, it is not unreasonable for an 
investigating authority to seek data from producers that have already been verified and that are familiar to it. 
At the same time, and especially given the lack of any explanation in the redetermination for the choice of 
these  producers, t his sequence of events might well give rise to an appearance of selecting among domestic 
producers based on their data  to ensure a particular outcome , which would not be consistent with an objective 
analysis of the evidence . We need not and do not make any findings on this point, but only note that 
MOFCOM's approach was not without risk.  WT/DS427/RW  
 
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  draw conclusions about a population as a whole based on data gathered from a subset that is not 
representative.  
7.112.   The redetermination is silent  as to the selection criteria, the selection process, and the 
representativeness of the sample . The expl anations proffered by China in its submissions do not in 
any way address the question of representativeness  of the sample, but rather contend that the 
choice of the four companies reverified was not arbitrary. Accordingly, even if MOFCOM's 
"reverification"  amounted to the type of "control" required for a proper price comparison, MOFCOM 
did not explain  in the redetermination in what way its sample was suff iciently representative that it 
could draw a reasoned conclusion about the population as a whole.  
7.113.   In this light, we find that China  did not act consistently with Article s 3.2 of the 
Anti-Dumping Agreement and 15.2  of the SCM Agreement because  in conducting its 
"reverification", MOFCOM failed to explain in what way the companies chosen were 
"representat ive" such that a consideration of price effects based on data for these companies could 
be generalised to the domestic industry.   
7.3.3.2   Price suppression  
7.114.   We found in the original report that even if there were contributing factors, at a minimum 
price undercuttin g was a factor in MOFCOM's price suppression analysis.210 
7.115.   For the redetermination, MOFCOM merely "confirmed" through the rever ification of the 
four companies that the comparator basket was a "conservative" one a nd that its price 
undercutting analysis was acc urate but left its original price effects analysis unchanged. MOFCOM 
did not, in the redetermination, seek to "disentangle" price undercutting, price suppression , and 
volume and market -share effects. We refer, for example, to MOFCOM's response to the argum ent 
that part of the injury to the domestic industry was attributable to grain price increases:  
[B]ecause the import price of the product concerned was always lower than the 
average selling price of the like product of the domestic industry, it undercut th e price 
of the like product significantly, resulted in the suppression on the selling price of the 
domestic like product, and could not pass through the cost caused by price increase of 
raw materials downward, and the due price increase of the like product  which should 
have occurred hadn 't been realized.211 
And again, responding to the pork price argument of the interested parties:  
While its price was significantly lower than that of the domestic like product, it caused 
apparent suppression on the price incre ase of the domestic like product, and the price 
was lower than the production cost for a long time, and could not gain the profit 
margin. Therefore, the low -priced activity of the product concerned was the direct 
reason causing the injury to the like produ ct of the domestic market  [sic].212  
7.116.   In this light, we find that China  acted inconsistently with Articles 3.2 of the 
Anti-Dumping  Agreement and 15.2 of the SCM Agreement because MOFCOM's  consideration of 
price suppression still rests on  its consideration of price undercutting, such that its price 
suppression analysis was undermined by a flawed analysis of price undercutting.  
                                                
210 Panel Report , China – Broiler Products , para. 7.511. In arriving at this conclusion, we relied on the 
findings of the Appellate Body in China – GOES  to the effect that:  
MOFCOM's Determinations do not separately or independently discuss the impact of the volume 
and incre ased market share of subject imports on the ability of domestic producers to sell at 
prices that would cover their costs of production. In these circumstances, we find ourselves 
unable to disentangle the respective contribution, in MOFCOM's determinations,  of price 
undercutting and of volume and market share effects on the resulting price suppression.   
(Panel Report , China – Broiler Products , para. 7.511 ) 
211 Redetermination, (Exhibit CHN -1 (translated version)), p. 85.  
212 Redetermination, (Exhibit CHN -1 (tran slated version)), p. 88.  WT/DS427/RW  
 
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  7.117.   Having made findings in respect of price undercutting and in the light of the foregoing, it is 
not necessary or use ful for us to make additional findings in respect of the second line of argument 
of the United  States  regarding price suppression.  
7.3.4   Conclusion  
7.118.   For the foregoing reasons, we find that:  
a. China  acted inconsistently with Article 3.2 of the Anti -Dumping Agreement  and 
Article  15.2 of the SCM Agreement in respect of price undercutting;  
b. China  acted inconsistently with  Article 3.2 of the Anti -Dumping Agreement  and 
Article  15.2 of the SCM Agreement in respect of price suppression; and  
c. as a consequence, China  acted inconsistently with Article 3.1 of the 
Anti-Dumping  Agreement and Article 15.1 of the SCM Agreement.  
7.4  Article 3.4  of the Anti -Dumping Agreement  and Article 15.4  of the SCM Agreement : 
impact on the domestic industry  
7.4.1   Introduction  
7.119.   In our original report we found MOFCOM's consideration of price undercutting and price 
suppression inconsistent with Articles 3.1 and 3.2 of the Anti -Dumping Agreement and 
Articles  15.1 and 15.2 of the SCM Agreement.213 We did not consider that making additional 
findings in  respect of Article 3.4 of the Anti -Dumping Agreem ent and Article 15.4 of the 
SCM Agreement214 would help the parties in resolving the dispute because:  
a. MOFCOM's examination of the state of the domestic industry was "inextricably linked" to 
its flawed conside ration of price effects; and   
b. implementing the report on Articles 3.2 and 15.2 would require MOFCOM to re -examine 
its the impact of subject imports.  
7.120.   In this implementation proceeding, the United  States  again asserts that MOFCOM erred in 
various aspects of  its examination of the impact of subject imports :  
a. In its redetermination, MOFCOM limited the scope of its reinvestigation to "the 
implementation of the rulings and recommendation of the DS427 Panel on the issues of 
injury and causality".215  
b. MOFCOM did not  examine differ ent or additional information; its evaluation of all 
relevant factors is not different from that in its original investigation.  
In these circumstances, to assist the parties to secure a positive resolution to the current dispute, 
we conside r it appropriate to make findings with respect to the US claims .216 
7.4.2   Main a rguments of the p arties  
7.4.2.1   United  States  
7.121.   MOFCOM's  impact analysis did not reflect an "examination of the impact of the subject 
imports on the domestic industry concerned" and an "evaluation of all relevant economic factors 
and indices having a bearing on the state of the industry" as required by Articles  3.4 and 15.4, for 
three reasons.  
                                                
213 We will refer to these as Articles 3.1, 3.2, 15.1, and 15.2 or, where appropriate, Articles 3.2 
and 15.2. 
214 We will refer to these as Articles 3.4 and 15.4.  
215 Redetermination, (Exhibit CHN -1 (translated version)), p. 15.  
216 This also reflects Japan's suggestion to the Panel in its third-party statement, para. 5.  WT/DS427/RW  
 
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  7.122.   First, MOFCOM relied exclusively217 (or primarily218) on a flawed analysis of the decrease in 
capacity utilization and an increase in end -of-year inventories, instead of evaluating all relevant 
factors and taking into account  evidence that nearly all other facto rs were positive for the 
period  2006 to 2008.219  
7.123.   Regarding  capacity utilization:  
a. MOFCOM ignored that between 2006 and 2008 the decline in capacity utilization was due 
to the fact that the domestic industry's capacity inc reased in excess of demand 
growth.220 
b. The decline in capacity utilization between 2006 and 2008 was also not the effect of 
subject imports because their share of apparent consumption increased entirely at the 
expense of non -subject imports, not at the expens e of the domestic industry, whose 
share of apparent consumption also increased.221 
7.124.   Regarding  end-of-period inventories, MOFCOM focused on an absolute  increase in domestic 
industry end -of-period inventories. The relative  increase in end -of-period inventories,  both as a 
share of domestic industry production and as a share of domestic industry shipments, ranged 
between only 2.9% and 3.5% for the period 2006 -2008, which was not significant.222 
7.125.   Second:  
[B]y China's own admission, MOFCOM's impact analysis focused on the first half of 
2009, when the domestic industry's performance lagged, while failing to account for 
the impact of subject imports on the domestic industry between 2006 and 2008, when 
the domestic industry's performance strengthened.223 
MOFCOM was required to consider the impact of subject imports on the domestic industry during 
the entire POI, including those periods in which the industry's performance improved.224 MOFCOM 
was not entitled to "focus" its impact analysis "on the financial indicators that were c onsistently 
weak throughout the period of investigation" to the exclusion of other contradictory factors.225 
7.126.   Third, China expressly argues that MOFCOM also considered potential future imports. 
However, " future subject imports could have no impact whatsoever on the domestic industry 
during the period of investigation ".226 
7.4.2.2   China  
7.127.   US arguments in respect of capacity utilization are problematic because:  
a. they relate to causation, which is irrelevant under Articles 3.4 and 15.4227; 
b. MOFCOM did not base its evaluation pri marily or exclusively on capacity utilization, but 
evaluated " all of the injury facto rs, both individually and collectively"228; 
c. the observed capacity expansion is in part the result of "a shift from smaller producers to 
large producers", reflecting the "recent trend in the Chinese market" of "larger firms 
consolidating a growing portion of the market"229; and  
                                                
217 United  States ' first written submission, para . 170.  
218 United  States ' first written submission, para . 182.  
219 United  States ' first written submission, para s. 165 and  171. 
220 United  States ' first written submission, para s. 172 -173. 
221 United  States ' first written submission, para . 174.  
222 United  States ' first written submission, para s. 177 and 179.  
223 United  States' second written submission, para. 168.  
224 United  States' second written submission, para. 170.  
225 United  States' second written submission, para. 171 (quoting China's first written submission, 
para. 350).  
226 United  States' second written submission, para. 172.  
227 China's first written submission, pa ra. 358.  
228 China's second written submission, para. 301.  
229 China's first written submission, para. 357.  WT/DS427/RW  
 
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  d. the "allegation that ca pacity grew in excess of increasing consumption is not factually 
true".230  
7.128.   In respect of inventories, the United  States  failed to consider that inventories were growing 
in absolute and relative terms and MOFCOM had discretion on which basis to evaluate this  
factor.231 
7.129.   In respect of US arguments on the POI, the United  States  focuses on the period from 2006 
to 2008, and only on various non -financial indicators of the health of the domestic industry232, 
ignoring the most recent part of the POI, the first half of 20 09.233 Thus, the United  States : 
a. improperly focused on volume indicators and ignored the weak financial indicators;  
b. improperly focused on the period 2006 -2008 and ignored the most recent period, the 
first half of 2009;  
c. ignored the "cumulative impact of consi stent pre -tax losses"234; and  
d. did not take account of expected near term trends.  
7.130.   By contrast, in its evaluation, MOFCOM " considered all of the evidence for the period as a 
whole "235 and put particular weight on236: 
a. negative financial indicators over the full POI; 
b. the deterioration in most injury factors during the first half of 2009237; and  
c. expected negative near term trends.238 
7.4.3   Evaluation  
7.4.3.1   MOFCOM's redetermination  
7.131.   MOFCOM conducted the reinvestigation on "procedural and substantive issues which 
formed the basis ofr [ sic] the original anti -dumping measure and original countervailing 
measure".239 On injury, MOFCOM limited the scope of the reinvestigation to "the implementation of 
the rulings and recommendation of the DS427 Panel on the issues of injury and causality".240 
MOFCOM did not examine any additional or different information in its redetermination, and based 
on largely the same evaluation of the facts, reached the same conclusions regarding the impact of 
subject imports on the domestic industry as in the original investigation.  
                                                
230 China's first written submission, para. 356:  
The United  States makes a misleading comparison of percentages that are being applied to very 
different b ase numbers – 780,700 metric tons is a 26 percent increase from 2.98 million, while 
955,600 metric tons is only a 17 percent increase from 5.64 million tons. But the denominator 
for the consumption increase is almost twice the size of the denominator for t he reported 
domestic capacity.  
(fn omitted)  
231 China's first written submission, paras. 360 -365. 
232 China's first written submission, para. 339.  
233 China's first written submission, para. 340.  
234 China's second written submission, para. 312.  
235 China's second w ritten submission, para. 300.  
236 China's first written submission, paras. 340 -350. 
237 China's first written submission, para. 342:  
Aside from noting these negative indicators, the MOFCOM Redetermination also specifically 
highlighted this shift in 2009 . MOFC OM noted that: " [i]n the first half of 2009, all the economic 
indexes of domestic industry continued to deteriorate ". The MOFCOM focus on 2009 could not be 
mistaken . 
(emphasis added; fn omitted)  
238 China's first written submission, para. 344.  
239 Redetermination, (Exhibit CHN -1 (translated version)), p. 1.  
240 Redetermination, (Exhibit CHN -1 (translated version)), p. 15.  WT/DS427/RW  
 
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  7.132.   MOFCOM found that volume indicators were generally improving in 2006 -2008. Financial 
indicators appeared generally weak and fluctuated over the same period. However, based on a 
comparison between the first half of 2008 and the first half of  2009, all indicators showed declining 
performance in the first half of 2009.  
Table 1: Market trends  
Factor  Observed trends  
Output volume of the 
domestic industry  Increased throughout the 2006 -2008 period, declined (by 4.37 percen tage 
points) from H1 2008 to H1 2009.  
Capacity utilization  Remained at around 79 -80% throughout the 2006 -2008 period, decreased by 
9.78 percentage points from H1 2008 to H1 2009, to 66.48%.241 
Sales quantities  Increased throughout the 2006 -2008 per iod, dropped in H1 2009 by 
7.74 percentage points compared to H1 2008.  
Market share  Increased slightly throughout the 2006 -2008 period (37.81% in 2006, 
41.62% in 2007, 42.42% in 2008), decreased very slightly in H1 2009 to 
42.19%.242 
Sales price  Increased in the 2006 -2008 period, decreased in H1 2009.243 
Gross profit margin  Fluctuated over the period considered; generally negative except for 2007; 
and worsened markedly in H1 2009: -2.46% in 2006, 5.03% in 2007, -0.21% 
in 2008, and -4.37% in H1 2009.  
Sales income  Year-on-year increase of 57.62% in 2007 and 19.65% in 2008; declined 
26.80% from H1 2008 to H1 2009.  
Profit before tax  Negative throughout the period considered: -1.208 billion RMB in 
2006, -0.084 billion RMB in 2007, -1.359 billion RMB in 2008, an d -1.090 
billion RMB in H1 2009. Losses grew by 1511.72% from 2007 to 2008 and by 
307.28% from H1 2008 to H1 2009.  
Return on investment  Negative throughout the period considered: -13.42% in 2006, -0.86% in 
2007, -12.18% in 2008 , and -9.10% H1 2009 over H1  2008; year -on-year 
change of 12.56%, -11.31%, and -6.69% in 2007, 2008, and H1 2009.  
Employment figures  Increased in 2006 -2008, but decreased by 11.29% in H1 2009.244 
Labour  productivity  Remained more or less stable over POI.  
Per capita payroll  Rose throughout POI.  
Ending inventory  Increased in absolute numbers during POI, from 68,257 tons in 2006 to 
91,713 tons in 2007, 98,755 tons in 2008, and 105,402 tons in  H1 2009. 
Year-on-year increase of 34.36% to 2007, 7.68% to 2008, and 6 .73% to 
H1 2009 over  H1 2008.  
Net cash flows from 
operating activities  Fluctuated: -218 million RMB in 2006, -10 million RMB in 2007, 
+69 million  RMB in 2008, -433 million RMB in H1 2009.  
Source:  Redetermination, (Exhibit CHN -1 (translated version)), pp. 65 -68 and 78.  
7.4.3.2   The l aw 
7.133.   Article 3.4 of the Anti -Dumping Agreement provides:  
The examination of the impact of the dumped imports on the domestic industry 
concerned shall include an evaluation of all relevant economic factors and indices 
having a bearing on the state of the indu stry, including actual and potential decline in 
sales, profits, output, market share, productivity, return on investments, or utilization 
of capacity; factors affecting domestic prices; the magnitude of the margin of 
dumping; actual and potential negative effects on cash flow, inventories, employment, 
wages, growth, ability to raise capital or investments.  
                                                
241 The baseline is not, however, constant. Capacity expanded throughout the period.  
242 MOFCOM found that the " growth rate " in the do mestic industry's market share in the first half of 
2009 "dropped by 4.80% " over that in the same period of 2008 . It is not clear what MOFCOM means in its 
references to a decrease in the "growth rate".  
243 MOFCOM noted that the "growth rate in the first half  of 2009 dropped by 20.65% from that in the 
same period of 2008" . 
244 Total employment fell to 2006 levels, whereas total wages rose by over 40% in the same period.  WT/DS427/RW  
 
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  7.134.   Article 3 does not establish a strict order of analysis. It sets out substantive requirements 
for the determination of injury. T he "consideration" requi red by Article 3.2 and the "examination" 
set out in Article 3.4 are meant to contribute to, rather than duplicate, the determination of 
causation required under Article 3.5.245 Article 3.4 requires an "examination" of the impact of the 
dumped imports includi ng an "evaluation" of all relevant economic factors having a bearing on the 
state of the domestic industry. This examination involves consideration of the "explanatory force of 
subject imports for the state of the domestic industry".246 The fifteen factors l isted in Article 3.4 
are not exhaustive; other "economic factors" might well be relevant, and no one or several of the 
factors examined necessarily give decisive guidance. In examining the impact of dumped imports:  
a. "[T]here is no requirement in Article 3. 4 that each and every injury factor, individually, 
must be indicative of injury."247 
b. The factors and indices evaluated under Article 3.4 may be found to be "negative" in 
terms of the state of the industry even in the absence of "an actual decline in 
performa nce".248 Similarly, "positive" trends (that is, where there is no absolute decline) 
may nonetheless be negative in terms of the state of the industry, for instance "when 
those increases are significantly less than the expansion in demand".249  
c. Even if there ar e no actual declines – in absolute or relative terms – an investigating 
authority may consider potential  negative effects or declines in the industry. At issue 
when a "potential negative effect " is evaluated is still the impact of imports during the 
POI on the domestic industry  during the POI , and not the possible impact of future 
(possible or likely) imports on the future state of the industry.250 What is relevant is the 
existence of a latent, as yet unrealized  decline (again, in absolute or relative terms).   
d. Nothing in Article 3.4 prohibits an investigating authority from focussing on a part of the 
POI and undertaking a more detailed analysis of developments during that part of the 
POI in examining the impact of imports.251 
                                                
245 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.205 (referring to 
Appellate Body Report, China – GOES , para. 149).  
246 Appellate Body Report, China – GOES , para. 149  
247 Panel Report, EC – Bed Linen (Article 21.5 – India) , para. 6.163.  That panel went on to observe that:  
[T]he fact that one or mor e factors do not, taken individually, point toward injury, does not 
preclude the possibility of a finding that there is material injury. An examination of the impact of 
the dumped imports on the domestic industry under Article 3.4 includes an evaluation of  all 
relevant economic factors having a bearing on the state of the industry to produce an overall 
impression of the  state of the domestic industry.  
See also Panel Report, Thailand – H-Beams , para. 7.249:  
While we do not consider that such positive trends in a number of factors during the [POI] would 
necessarily preclude the investigating authorities from making an affirmative determination of 
injury … such positive movements in a number of factors would require a compelling explanation 
of why and how, in l ight of such apparent positive trends, the domestic industry was, or 
remained, injured within the meaning of the Agreement. In particular, we consider that such a 
situation would require a thorough and persuasive explanation as to whether and how such 
positive movements were outweighed by any other factors and indices which might be moving in 
a negative direction during the [POI].  
248 Panel Report, EC – Fasteners (China) , para. 7.402:  
Our view is supported by the text of Article 3.4, which requires investigat ing authorities to 
evaluate all relevant factors, "including actual and potential decline" in certain factors, and 
"actual or potential negative effects" on certain other factors. The New Shorter Oxford English 
Dictionary defines "potential" as "Possible a s opp[osed] to actual; capable of coming into being 
or action; latent". The use of the word "potential" in the context of the Article 3.4 non -exhaustive 
list of relevant economic factors indicates to us that a decline need not have occurred during the 
period under consideration in order for an investigating authority to find injury.  
(fn omitted)  
249 Panel Report, EC – Fasteners (China) , para. 7.403.  
250 The impact of future imports on the future state of the industry is a question to be examined in the 
context of determining whether there is a threat of injury to the domestic industry.  
251 Panel Report, Russia – Commercial Vehicles , para. 7.41 (adoption/appeal pending).  WT/DS427/RW  
 
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  7.4.3.3   Analysis  
7.4.3.3.1   Capacity utilization  
7.135.   As we  understand it, the US argument rests on two factual bases: first, that the domestic 
industry's capacity increased in excess of growth in demand; and second, that MOFCOM relied on  
negative trends in  inventories and capacity utilization rates without regard  for positive trends in 
other areas in the redetermination. The United  States  relies on the following data:  
a. Domestic industry capacity increased by 780,000 tons, or 26.2%, in 2006 -2008.  
b. Domestic demand (apparent consumption) increased by 955,000 tons, or 1 7%, in 
2006-2008 and the domestic industry's share of apparent consumption increased from 
37.81% to 42.2% in 2006 -2008.252 
According to the United  States , MOFCOM's reliance on capacity utilization rates without considering 
that total capacity (the denominato r in the rates being compared) was actually expanding in this 
period was misplaced.  
7.4.3.3.1.1   MOFCOM's comparison  
7.136.   In discussing "capacity utilization" in the redetermination, MOFCOM sets out capacity 
utilization rates for each of 2006, 2007, 2008, and the first half  of 2009. It notes minor increases 
in the first three years and a decline in the first half of 2009 of 9.78 percentage points compared 
with the first half of 2008.253 MOFCOM had also made the following findings in respect of 
production capacity, which establ ishes the denominator in the calculation of capacity utilization:  
a. a continuous increase of domestic demand  in broiler products, resulting in  
b. expansion of capacity  in each covered period254: 
Table 2: Production capacity  
 2006  2007  2008  2009 (H1)  
Capacity (tons)  2,980,700  3,525,600  3,761,400  1,978,200  
Increase (over previous corresponding 
period)   18.28%  6.69%  9.70%  
Source:  Redetermination, (Exhibit CHN -1 (translated version)), p. 65.  
7.137.   In MOFCOM's discussion of the change in capacity utilization rates, there is no recognition 
that industry capacity – the denominator in the calculation of capacity utilization – was increasing 
throughout the POI. This is not just a question of "causation",  as China argues.255 The 
US argument, as we understand it, is about the reliability of MOFCOM's comparison of capacity 
utilization rates  over time in evaluating the impact of subject imports on the domestic industry: 
given the changing denominators, comparin g raw percentages without some examination of the 
context would not enable an investigating authority to objectively evaluate  capacity utilization as a 
factor in the examination of the impact of imports on the domestic i ndustry, as required by 
Article  3.4. 
7.138.   China argues that an investigating authority has discretion in its choice of analytical 
methodology in examining and evaluating data related to the state of the domestic market. We 
agree. However, that discretion is not unlimited: an investigating authori ty must use whatever 
methodology it chooses to objectively examine the evidence before it. If either the methodology it 
employs or the evidence on which it relies is not appropriate to the analytical task before it, an 
                                                
252 United  States ' first written submission, para. 174 (referring to Redetermination, (Exhibit US A-9 
(translated version)) . 
253 Redetermination, (Exhibit CHN -1 (translated version)), p. 65  
254 Redetermination, (Exhibit CHN -1 (translated version)), p. 65.  
255 Or, for that matter, non -attribution. (China's first written submission, para. 358).  WT/DS427/RW  
 
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  investigating authority is unlikely t o be able to conduct the objective examination and evaluation 
that is required by the Anti-Dumping Agreement and the SCM Agreement . Thus, for instance, 
when examining trends or comparing data, an investigating authority may not rely upon 
conclusions based on flawed methodology in the evaluation of a relevant economic factor; 
otherwise, any "comparison" would say little about the impact of dumped or subsidized imports on 
the state of the domestic industry.  
7.139.   A capacity utilization rate involves two figures: a  numerator (the volume of production) 
and a denominator (the available production capacity of the domestic industry). Rates may be 
meaningfully compared  for the domestic industry over a period of time where:  
a. at least one factor is, or is kept, constant;  
b. if both factors vary over time, at least one factor is controlled or adjusted for any 
changes; or  
c. if both factors vary over time and are not controlled or adjusted for any changes, a 
reasonable explanation of the circumstances and any reliance on the compar ison is 
provided.  
We stress that there is nothing inherently wrong about comparing rates over time where both the 
numerator and the denominator change. Indeed, we do not understand the United  States  to be 
arguing that such a comparison is always faulty; t he United  States  does not challenge the rate 
comparisons related to market share, profits or return on investment, even though in each case 
both factors were in a state of flux over the POI.  
7.140.   Rather, the US argument is that, on the facts of this case, becau se the domestic industry 
capacity increased throughout the POI, a simple comparison of rates was unreliable for the 
purposes of evaluating the impact of subject imports  on the domestic industry. We agree. In the 
absence of any effort by MOFCOM to either co ntrol or adjust for this change, or any explanation of 
the circumstances and why reliance on the comparison was nonetheless appropriate, we cannot 
conclude that MOFCOM's examination was such as would be expected of an objective investigating 
authority in t his context. MOFCOM merely set out figures for "apparent consumption" and 
"production quantity", but did not put the capacity utilization rates in perspective. MOFCOM's 
response to the objections of the interested parties during the redetermination in fact  highlights its 
failure to engage with the question:  
[D]ata indicated that: when the domestic demand increased continuously, the 
production capacity utilization rate from 2006 to 2008 was lower than 80%, but … in 
the first half of 2009, the domestic deman d further increased, but the production 
quantity of the like product of the domestic industry didn't increase correspondingly 
with the increase of production capacity, instead, it decreased by 4.37% compared to 
the same period of the previous year.256 
MOFCOM did not address the problem of comparability of the rates in the light of continuous 
increases in production capacity. Given those increases, it is not clear what, if anything, the 
comparison of capacity utilization rates might explain in respect of  the impact of imports . For 
instance, MOFCOM did not take into account in its evaluation:  
a. whether capacity was increasing in response to, in tandem with , or ahead of domestic 
demand;  
b. in what way any of these might affect the significance of any compariso n of capacity 
utilization rates; or 
c. how shifts in the industry from smaller producers outside the defined domestic 
industry257 to larger producers within it could explain or affect the reliability of the data 
before it.  
                                                
256 Redeterminati on, (Exhibit CHN -1 (translated version)) , p. 78.  
257 As argued before us by China.  WT/DS427/RW  
 
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  7.141.   On the basis of the information and ex planation set out in the redetermination, we find 
that MOFCOM did not  provide a reasoned and adequate explanation of its examination of "capacity 
utilization" rates.  
7.4.3.3.1.2   Capacity utilization and overall analysis  
7.142.   The parties disagree about the importance of "c apacity utilization rates" in MOFCOM's 
overall examination of the impact of subject imports. The United  States  argues that this was one 
of two negative factors on which MOFCOM impermissibly relied excessively. China responds that 
MOFCOM:  
a. "reasonably focused on the adverse condition of the domestic industry at the end of its 
period of investigation, noting the sharp deterioration in numerous indicators of domestic 
industry health in the first half of 2009"258; and  
b. "made a simple point about capacity util ization in its Redetermination – it was 
persistently low over the period of investigation".259 
7.143.   China argues that " although the authority must address each factor, the authority need not 
show that each individual factor by itself has been linked to subject im ports".260 We agree.261 
Under Articles 3.4 and 15.4, the necessary corollary to this observation is that an investigating 
authority in examining the impact of subject imports must evaluate " all relevant economic factors" 
not in isolation from , but rather in relation to , one another. Capacity utilization is not just 
"a simple point"; it is one of the factors required to be evaluated under Article 3.4. A capacity 
utilization comparison that is not reasonable affects not just this one factor, but the entire 
examin ation of the impact of subject imports. This is apparent from China's own arguments:  
But regardless of the increase in domestic capacity, the rate of capacity utilization 
would have been higher than it was, but for the presence of increasing volumes of 
subject imports.262 
Where capacity increases outstrip increases in market demand, even a constant or declining 
volume of subject imports could result in a decline in capacity utilization without any decline in 
domestic production. We recall that MOFCOM found th at: "When capacity utilization rate is at a 
relatively high level, the production of more chicken breast means increase of production quantity 
of more other broiler products."263 Combined with  China's argument about cross -price el asticity of 
all broiler prod uct models264, this would suggest that an expansion of production capacity in China 
would result in greater production of other  broiler product models than wings and feet, with 
consequent impa ct on the prices of all product models. This is why an integrated  examination of all 
of the factors evaluated is necessary in the examination of the impact of subject imports, and thus 
why a flawed capacity utilization comparison results in a flawed exa mination under Articles 3.4 
and 15.4. 
7.144.   In this light, it is not neces sary for us to determine whether MOFCOM's capacity utilization 
rate evaluation was "central" to its overall findings, as the United  States  argues, or a "simple 
point", as China contends. Because MOFCOM's evaluation of "capacity utilization rates" was flawe d, 
its overall examination of all relevant economic factors  was inconsistent with Articles  3.4 of the 
Anti-Dumping Agreement and 15.4  of the SCM Agreement . 
                                                
258 China's first written submission, para. 350.  
259 China's first written submission, para. 354.  
260 China's second written submission, para. 317.  
261 Panel Report, EC – Bed Linen (Article 21.5 – India) , para. 6.163: "there is no requirement in 
Article  3.4 that each and every injury factor, individually, must be indicative of injury ". 
262 China's second written submission, para. 320.  
263 Redetermination, (Exhibit CHN -1 (translated versi on)), p. 69.  
264 Panel Report, China – Broiler Products , para. 7.605: "MOFCOM … considered that all chicken parts 
competed and were  substitutable with one another ". See also para. 7.468: " MOFCOM's methodology … 
recognises the substitutability among different  types of products ". WT/DS427/RW  
 
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  7.4.3.3.2   Inventories  
7.145.   The United  States  does not dispute that inventories rose in both absolute and relative 
terms. Rather, according to the United  States : 
a. "MOFCOM focused on the purported increase in end -of-period inventories", while the 
observed relative  increases were not significant265; and  
b. MOFCOM relied exclusively266 (or primarily267) on such flawed analysis.  
We have two observations in respect of these arguments.  
7.146.   First, under Articles 3.4 and 15.4, an investigating authority is required to evaluate  "all 
economic factors" including " actual and potential negative effects  on … inventories ".268 The 
United  States  does not argue that MOFCOM did not do so; nor does it argue that inventories did 
not increase.269 Rather, it argues that the observed negative effects were not "significant". The 
word "significant" does not appear in the text of the provis ions, and the United States  has not 
directed us to any authority that would require us to read a requirement to consider the 
significance of negative effects on inventories into Articles 3.4 and 15.4. Even if the "significance" 
of that increase were a required consideration  in this context, the United  States  has not put 
forward any argument or explanation to demonstrate that the 2.9% or 3.5% increases are not 
"significant" in terms of the effect of imports on inventories in the specific context of the Chinese 
broiler market.  
7.147.   And even if we agree that the observed inventory increases  were not "significant"  by 
whatever measure , the United  States  has not explained how this observation undermines 
MOFCOM's examination of the impact of subject imports in the context of its evaluati on of all 
relevant economic factors. We recall that even positive  trends may indicate negative effects; in 
itself, an inventory increase that is not "significant" does not establish that the increase has no 
negative effects.  
7.148.   Second , nothing in the redeterm ination suggests that its evaluation of inventories was the 
sole or the primary focus of MOFCOM's examination of the impact of subject imports. After setting 
out the fifteen factors, MOFCOM set out the various factors it had considered, of which the "endin g 
inventories" factor was one : 
However, the capacity utilization of the like product of the domestic industry during 
the same period always remain [sic] at a relatively low level, the ending inventories 
presented an increasing trend. Because the selling price of the like product of the 
domestic industry remained below the sales cost for the long period of time, it 
resulted in that the like product of the domestic industry could not obtain reasonable 
profit margins, and the pre -tax profits of the like prod uct of the domestic industry 
remained negative. … During the investigation period, the operational cash net flow of 
the like product experienced relatively significant fluctuations, which also influenced 
investment and financing activities of the domestic industry.270 
The United  States  has not explained in what way this paragraph represents undue reliance on this 
one factor.  
                                                
265 United  States ' first written submission, para s. 177 and 179.  
266 United  States ' first written submission, para . 170.  
267 United  States ' first written submission, para . 182.  
268 Emphasis added.  
269 United  States' first written submission, par a. 179 (emphasis added; fn omitted):  
End-of-period inventories as a share of domestic industry production  increased only from 
2.9 percent in 2006 to 3.3 percent in 2008, while end -of-period inventories as a share of 
domestic industry shipments increased only from 3.2 percent in 2006 to 3.5 percent in 2008 . 
These ratios … did not increase significantly between 2006 and 2008 . 
270 Redetermination, (Exhibit CHN -1 (translated version)) , p. 68.  WT/DS427/RW  
 
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  7.149.   In the light of the above, we find that the United  States  has not established that 
MOFCOM's evaluation of inventories was inconsistent with Articles 3.4 of the 
Anti-Dumping  Agreement and 15.4  of the SCM Agreement .  
7.4.3.3.3   Focus on part of the POI  
7.150.   The United  States  argues that:  
[B]y China's own admission, MOFCOM's impa ct analysis focused on the first half of 
2009, when the domestic industry's performance lagged, while failing to account for 
the impact of subject imports on the domestic industry between 2006 and 2008, when 
the domestic industry's performance strengthened .271 
The United  States  does not contest that industry performance "lagged" in the last half -year of the 
POI. As well, the United  States  does not contest MOFCOM's findings that some factors evaluated 
showed negative effects throughout the POI.272 Rather, it ass erts that "the domestic industry's 
performance strengthened" in 2006 -2008, that MOFCOM did not adequately "focus" on this period 
and that MOFCOM focused its examination of impact "on the financial indicators that were 
consistently weak throughout the perio d of investigation", to the exclusion of other contradictory 
factors.273  
7.151.   In its redetermination, MOFCOM examined the information regarding each relevant factor 
and described both positive and negative developments, where relevant, in absolute  and relative 
terms, for the entire period:  
The above evidence indicates that, during the investigation period, in order to meet 
the increasing demand of the domestic market, from 2006 to 2008, the production 
capacity, production quantity and sales volume of the like pro duct of the domestic  
industry all increased, and the indicators including market share, employment, per 
capita wages and labor productivity also increased in different degrees. However, the 
capacity utilization of the like product of the domestic industry during the same peri od 
always remain [sic] at a relatively low level, the ending inventories presented an 
increasing trend. Because the selling price of the like product of the domestic industry 
remained below the sales cost for the long period of time, it  resulted in that the like 
product of the domestic industry could not obtain reasonable profit margins, and the 
pre-tax profits of the like product of the domestic industry remained negative. … In 
the first half of 2009, all the economic indexes of domesti c industry continued to  
deteriorate.274 
7.152.   Even if we were to agree with the US assertion that MOFCOM "focused" on the first half of 
2009, this does not, in itself , establish that MOFCOM acted incon sistently with 
Articles  3.4 and 15.4. In this respect, we make three observations . 
7.153.   First, n othing in Articles 3.1, 3.4, 15.1, or 15.4 prevents an investigating authority from 
"focusing" on a part of the POI, as long as it does not ignore relevant data and arguments, and its 
resulting determination is one that an objec tive and unbiased investigating authority could reach 
based on the evidence and arguments before it and the explanations given. The United  States  has 
not demonstrated that MOFCOM's "focus" was unreasonable or resulted in any lack of objectivity; 
the fact t hat there were or might have been different trends in the preceding time -frame (which 
MOFCOM did discuss) does not, without more, suggest lack of objectivity in focussing on the most 
recent information.  
                                                
271 United  States' second written submission, para. 168.  
272 Profit befor e tax : negative, at 2006, 2007, 2008 , and H1 2009,  
at -1.208  billion  RMB,  -0.084  billion RMB, -1.359 billion RMB and -1.09 billion RMB (i.e. increase of the loss by 
1511.7 2% in 2008 vs 2007 and of 307.28% from H1 2008 to H1 2009).  
Return on investment : negative at -13.42%, -0.86%, -12.18% and -9.10%, in 2006, 2007, 2008 , 
and H1 2009; year -on-year growth of 12.56%, -11.31%, and -6.69% in 2007, 2008 , and H1 2009 .  
Net cash flows from operating activities : fluctuated: -218 million RMB in 2006, -10 million RMB in 
2007, +69 million RMB in 2008, -433 million RMB in H1 2009.  (Redetermination, (Exhibit CHN -1 (translated 
version)), pp. 67, 68, and 78).  
273 United  States' second written submission, para. 171.  
274 Redetermination, (Exhibit CHN -1 (translated version)), p.  68. (emphasis added)  WT/DS427/RW  
 
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  7.154.   Second, t he fact that industry performance might hav e "strengthened" in the 2006 -2008 
period does not, in itself, bring into question MOFCOM's determination based on its focus on 2009. 
Even positive trends in earlier parts of the POI may serve as evidence of negative effects275; here, 
domestic  industry perfor mance "strengthened" in some areas, though not others, and to the 
extent there were positive trends, it was in the context of an expanding market.276 At the same 
time, as MOFCOM noted, in the first half of 2009, "the losses were close to that  of the whole ye ar 
of 2008".277 The fact that it focused on the most recent data showing major losses does not, in 
itself, demonstrate that MOFCOM's examination was not objective or unreasonable.  
7.155.   Third, i t is not unreasonable or not objective for an investigating authority to examine the 
cumulative  impact of imports on a domestic industry, but focus its attention on the end of the 
period examined, when dumping and /or subsidization of imports has been found.  
7.156.   We find therefore that the United  States  has not established that M OFCOM's "focus" on the 
last part of the POI resulted in an examination of the impact of subject imports on the domestic 
industry inconsistent with the requirements of Articles 3.4 of the Anti -Dumping Agreement 
and 15.4 of the SCM Agreement . 
7.4.3.3.4   "Potential" neg ative effect and future imports  
7.157.   MOFCOM had found that US exporters "may expand exports to China and will cause further 
adverse impact on the domestic industry".278 In its first written submission China argued  that the 
United  States  "improperly disregards MOF COM's discussion of the continuing trend of U.S. 
exports".279 The United  States  replied that " future subject imports could have no impact 
whatsoever on the domestic industry during the period of investigation ".280 
7.158.   According to China, "the text of Articles 3.4 and 15.4 contemplate [ sic] evaluation  of both 
current adverse trends but also future declines".281 It argues that the phrase "all relevant 
economic factors" in Article 3.4 is "a phrase that itself can include both present and future 
trends"282, and "[t]o avoid  any ambiguity, the text goes on to  specify that these economic factors 
include the 'actual and potential decline' in a number of specifically enumerated factors".283 In 
particular, China relies on the findings of the panel in EC – Fasteners (China) to the e ffect that:  
a. "potential" means "poss ible as opp{osed} to actual; capable of coming into being or 
action; latent"; and  
b. "a decline need not have occurred during the period under consideration in order for an 
investigation authority to find injury".284 
7.159.   We recall  that in EC – Fasteners (China)  the facts showed not "potential" decline but rather 
relative  decline.285 The panel's exploration of the meaning of "potential" was, in this light, not 
essential to its findings; for that reason, we do not consider that the dis cussion is necessarily 
relevant  to or persuasive for our consideration of this issue. More to the point in the context of this 
                                                
275 Panel Report, EC – Fasteners (China) , para. 7.403.  
276 A fact that the United  States readily acknowledges.  
277 Redetermination, (Exhibit CHN -1 (translated version)) , p. 68.  
278 Redetermination, (Exhibit CHN -1 (translated version)) , p. 70.  
279 China's first written submission, para. 344.  
280 United  States' second written submission, para. 172.  
281 China's first written submission, para. 345.  
282 China's first written submission, para. 345.  
283 China's first written submission, para. 345.  
284 China's first written submission, para. 346 (quoting Panel Report, EC – Fasteners (China) , 
para. 7.402).  
285 Panel Report, EC – Fasteners (China) , paras. 7.399 -7.404. In that case, China alleged that since the 
4.4% profit margin achieved during the investiga tion period was close to the 5% level the European 
Commission considered appropriate, and profitability doubled between 2003 and the investigation period, there 
was no basis to conclude that dumped imports had a negative effect on profitability. The panel observed that 
"[t]he use of the word  'potential ' in the context of the Article 3.4 non exhaustive list of relevant economic 
factors indicates to us that a decline need not have occurred during the period under consideration in order for 
an investigating au thority to find injury ". The panel concluded that the European Commission's evaluation that 
the increase in profitability was disproportionately low when compared to the increase in demand, was 
objective.  WT/DS427/RW  
 
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  case is that MOFCOM's redetermination does not, in fact, appear to address "potential decline" in 
the sense that term is use in A rticles 3.4 and 15.4.  
7.160.   Articles  3.4 and 15.4 are concerned with the impact of imports during a recent past period 
on the present  state of the domestic industry, and not the impact of future imports on the future 
state of the industry. The latter is specifically addressed in Articles 3.7 and 15.7, which establish 
additional c riteria for consideration in the context of determining "threat of material injury". A 
"potential decline" in the sense of Articles 3.4 and 15.4 could not, in our view, be found t o support 
the view that material injury is "possible" as a result of future  imports, or that future  imports could 
cause injury in the future. Rather, "potential decline" as a relevant factor in the examination of the 
impact of subject imports on the presen t state of the domestic industry would have to be a 
consequence of the dumped or subsidized imports during the period examined . "Potential decline" 
exists where, despite the absence of an actual decline (in either absolute or relative terms) during 
the period examined , imports during the period examined  have an impact on the domestic industry 
such that there is a latent  or potential decline with respect to a particular factor which has not yet 
become manifest.  
7.161.   As part of its examination of the impact of sub ject imports, MOFCOM apparently 
considered the prospective impact of future  imports on the state of the industry as a relevant 
factor. This is not an appropriate consideration in the context of an examination of the impact of 
dumped and subsidized imports on the domestic industry as part of a determination of present 
material injury caused by those imports. In our view, MOFCOM's understanding of the relevance of 
future imports in the context of evaluation of a "potential decline" was not consistent with a p roper 
reading of Articles 3.4 and 15.4. In itself, this might suggest that the "potential decline" portions 
of MOFCOM's analysis are irrelevant, and nothing in the Agreements prohibits an investigating 
authority from examining or evaluating irrelevant fact ors if this does not otherwise have an impact 
on the investigating authority's overall examination and ultimate determination. In this case, 
however, China itself argues that MOFCOM relied  on this irrelevant factor. In this context, we 
cannot conclude that  MOFCOM's examination of the impact of subject imports was consistent with 
Article 3.4 of the Anti -Dumping Agreement and Article 15.4 of the SCM Agreement, as we cannot 
know what MOFCOM's conclusion would have been had it not relied on this irrelevant fact or. 
7.162.   In the light of the foregoing, we find that:  
a. the requirement to consider "potential decline" under Articles 3.4 and 15.4 relates to the 
impact of current imports on the domestic industry such that even absent actual 
declines, the potential for such dec lines to materialise may be relevant to the 
examination of the present impact of subject imports; and  
b. MOFCOM's overall examination and evaluation of all relevant economic factors was 
affected by its examination of and reliance on an irrelevant  factor – the impact of likely 
future imports – such that its examination of the impact of subject imports on the 
domestic industry is not consistent with Articles 3.4 and 15.4.  
7.4.4   Conclusion  
7.163.   We find that China  acted inconsistently with the requirements of Articles 3.4 of the 
Anti-Dumping Agreement and 15.4 of the SCM Agreement because:  
a. MOFCOM's  evaluation of "capacity utilization rates" was faulty; and  
b. MOFCOM  relied on an irrelevant economic factor when it examined the impact of likely 
future imports on "potential decline " in the domestic industry.  
7.164.   As a consequence, we find that China  acted inconsistently with Articles 3.1 of the 
Anti-Dumping Agreement and 15.1  of the SCM Agreement . 
7.165.   We further find that the United  States  has not established that China  acted inconsistently 
with Articles 3.1  and 3.4 of the Anti -Dumping Agreement , and Articles 15.1 and 15.4 of the 
SCM Agreement because of MOFCOM's:  WT/DS427/RW  
 
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  a. evaluation of inventories; or  
b. "focus" on the last part of the POI.  
7.5  Article 3.5  of the Anti -Dumping Agreement and Article 15.5  of the SCM Agreement : 
causation  
7.5.1   Introduction  
7.166.   In our original report we found MOFCOM's price undercutting and price suppression 
analysis inconsistent with Articles 3.1 and 3.2 of the Anti -Dumping Agreement and 
Articles  15.1 and 15.2 of the SCM Agreement.286 In the light of the relationship between the 
considerations set out in Article 3.2 of the Anti -Dumping Agreement and Article 15.2287 of the 
SCM Agreement and the demonstration of causation required by Article 3.5  of the 
Anti-Dumping  Agreement and Article  15.5 of the SCM Agreement288, we were not in a position to 
determine whether MOFCOM properly demonstrated the existence of a causal link between the 
subject imports and injury to the domestic industry. We observed t hat because China's 
implementation of the Pan el's findings in the original report concerning MOFCOM's consideration of 
price effects would necessarily require that it reconsider its findings of causation289 we did not 
consider it necessary for the resolution  of the dispute to make additional findings u nder 
Articles  3.5 and 15.5.  
7.167.   In this implementation proceeding, we have again found that MOFCOM's price effects 
analysis was not consistent with Articles 3.2 and 15.2. We have further found that MOFCOM's 
examination of the state of the industry was not cons istent with Articles 3.4 and 15.4. Solely 
based on these two findings, we cannot conclude that MOFCOM properly demonstrated the 
existence of a causal link between the subject imports and any injury to the domestic industry.  
7.168.   Having said that , we recognize that the Panel might well help the parties "secure a positive 
resolution of the current dispute" if it were to " to make  findings with respect to the claims of the 
United  States  that are within the terms of reference for this compliance proceeding".290 Therefore, 
in order to enable the parties to secure a positive resolution of the dispute, whether through 
implementation of DSB recommendations and rulings in this dispute or otherwise, we will consider 
the pa rties' arguments and make findings on the US claims under Article 3.5 of the 
Anti-Dumping  Agreement and Article 15.5 of the SCM Agreement.  
7.5.2   Main a rguments  of the parties  
7.5.2.1   United  States  
7.169.   The US claims of violation of Articles 3.5 and 15.5 rest on four arguments.  
7.170.   First, MOFCOM's demonstration of causation relied on its consideration of price effects, but 
MOFCOM's consideration of price underselling and price suppression are WTO -inconsistent , and 
there is also no evidence of price depression.  
7.171.   Second, MOFCOM ignored  record evidence that subject import volumes  did not increase at 
the expense of the domestic industry:  
a. the domestic industry gained market share at the same time as subject imports gained 
market share291; and  
b. MOFCOM did not examine or explain why such evidence did not undermine its finding of 
causation, rather MOFCOM insisted that Chinese law allowed it to consider either the 
                                                
286 We will refer to these as Articles 3.1, 3.2, 15.1 , and 15.2.  
287 We will refer to these as Articles 3.2 and 15.2.  
288 We will refer to these as Articles 3.5 and 15.5.  
289 Panel Report, China – Broiler Products , para. 7.584.  
290 Japan's third -party statement, para. 5.  
291 United  States ' first written submission, pa ra. 195.  WT/DS427/RW  
 
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  absolute volume increase or relative volume increase, but did not oblige it to conside r 
both.292 
7.172.   Third, MOFCOM failed  to reconcile its analysis with evidence that the domestic industry's 
performance had improved as subject import volume and market share increased:  
a. almost all indicators (market share, capacity, output, sales quantity, sales re venue, 
employment, decrease in loss) show an improvement in the domestic industry's 
performance between 2006 and 2008, the period during which subject import volume 
increased by 47%.293 Many performance indicators also show an improvement if the 
2006 figures  are compared to those for the first half of 2009294; 
b. MOFCOM predicated its demonstration of causation entirely on developments in the first 
half of 2009, whereas it was required to examine the causal relationship in relation to 
the entire POI, not just for a selected period295; and  
c. the domestic industry's lagging performance in the first half of 2009 could not have been 
the result of subject imports when the bulk of the increase in subject import volume – 
90% of the total increase – coincided with strengthenin g domestic industry performance 
during the 2006 -2008 period.296 
7.173.   Fourth, MOFCOM ignored evidence that the substantial proportion of subject imports 
consisting of chicken feet could not have been injurious because domestic producers were 
incapable of producing  more chicken feet without increasing production of other chicken products 
to uneconomic levels. Over 40% of subject imports consisted of chicken feet, which Chinese 
producers were incapable of supplying in adequate quantities.297 
7.5.2.2   China  
7.174.   MOFCOM did a proper c ausation analysis. It was only required to demonstrate that subject 
imports contributed in some meaningful way to the injury.298 MOFCOM based its determination of 
the existence of a causal link on a number of key factors, such as the increase in subject impo rt 
volume and market share, consistent underselling, price suppression, and the domestic industry's 
inability to use available capacity.299 In particular:  
a. MOFCOM did not ignore evidence about the domestic industry's market share.300 Rather, 
MOFCOM:  
i. acknowledge d and discussed the increase in market share of domestic firms; and  
ii. focused on the increase in absolute volume, the drop in market share in the first half 
of 2009 , and low prices/price suppression, which are sufficient to establish a causal 
link regardless of market share trends.  
b. MOFCOM did not rely on a flawed analysis of price effects301, and its conclusions on 
import volume and price suppression stand and sufficien tly support MOFCOM's causation 
analysis regardless of the Panel's findings on price undercutting.  
c. MOFCOM did not fail to reconcile its analysis of subject import volume and market share 
with its analysis of causation and the condition of the domestic indus try302: 
                                                
292 United  States ' first written submission, para s. 197 -198. 
293 United  States ' first written submission, para s. 203 -204. 
294 United  States ' first written submission, para . 205.  
295 United  States ' first written submission, para . 207.  
296 United  States ' first written submission, para s. 208 -209. 
297 United  States ' first written submission, para s. 215 -216. 
298 China's first written submission, para. 370.  
299 China's first written submission, para. 380.  
300 China's first written submission, paras. 383 -387. 
301 China's  first written submission, paras. 388 -394. 
302 China's first written submission, paras. 395 -402. WT/DS427/RW  
 
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  i. the United  States  wrongly focuses on the period 2006 -2008. MOFCOM drew a causal 
link between the increase of subject imports and the declining conditions particularly 
in the first half of 2009; and  
ii. the United  States  selectively relies on volume indicators and downplays in particular 
the sharply weaker financial performance, which MOFCOM relied upon. The 
US argument that the operating loss narrowed between 2006 and 2008 ignores the 
growth of the operating loss in abso lute terms (on which MOFCOM relied), the 
cumulative effect of continuing losses , and the increase in operative losses when 
taken as a percentage of sales.  
7.5.3   Evaluation  
7.5.3.1   The l aw 
7.175.   Article 3.5 of the Anti -Dumping Agreement provides:  
It must be demonstrated that t he dumped imports are, through the effects of 
dumping, as set forth in paragraphs  2 and  4, causing injury within the meaning of this 
Agreement.  The demonstration of a causal relationship between the dumped imports 
and the i njury to the domestic industry sh all be based on an examination of all 
relevant evidence before the authorities. The authorities shall also examine any known 
factors other than the dumped imports which at the same time are injuring the 
domestic industry, a nd the injuries caused by these o ther factors must not be 
attributed to the dumped imports. Factors which may be relevant in this respect 
include, inter alia, the volume and prices of imports not sold at dumping prices, 
contraction in demand or changes in the patterns of consumption, trad e restrictive 
practices of and competition between the foreign and domestic producers, 
developments in technology and the export performance and productivity of the 
domestic industry.303 
7.176.   Articles 3.5 and 15.5 thus requires that an investigating authority, on  the basis of an 
objective examination of positive evidence304: 
a. demonstrate that subject imports are causing injury to the domestic industry; and  
b. ensure that injury caused by other known factors is not attributed to the subject 
imports.  
In making its determ ination, the investigating authority must demonstrate a relationship of cause 
and effect, such that subject imports are shown to have contributed  to the injury to the domestic 
industry. Subject imports need not be "the" cause of the injury suffered by the domestic industry, 
provided they are "a" cause of such injury; that other factors may also have caused injury to the 
domestic industry is no bar to establishing this causal relationship.305 
 
7.177.   With respect to non -attribution, Articles 3.5 and 15.5 require an investigating authority to:  
a. examine other k nown factors that are causing injury to the domestic industry at the 
same time as subject imports; and  
b. not attribute to subject imports injury caused by such other factors.  
                                                
303 Article 15.5 is substantively the same.  
304 Panel Report, China  – Cellulose Pulp , para. 7.26:  
While the investigating authority must find a sufficiently clear c ontribution by dumped imports to 
demonstrate that they are causing material injury, and explain its determination in that regard, 
nothing in the first two sentences of Article  3.5 suggests that those imports must be the sole 
cause of that injury. The langu age of Article  3.5 as a whole seems clear – the "causal 
relationship" between dumped imports and material injury may exist  even though other factors 
are also contributing, "at the same time", to the situation of the domestic industry.  
305 Panel Report, Russi a – Commercial Vehicles , para. 7.178 (referring to Appellate Body Report, US – 
Wheat Gluten , para. 67) (adoption/appeal pending).  WT/DS427/RW  
 
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  Articles  3.5 and 15.5 also set out an il lustrative list. For these obligations to be triggered, however, 
Articles 3.5 and 15.5 require that the factor at issue be306: 
a. "known" to the investigating authority;  
b. a factor "other than dumped imports"; and  
c. injuring the domestic industry at the same time  as the dumped imports.  
The investigating authority must make an assessment of such other factors that involves 
"separating and distinguishing the injurious effects of the other factors from the injurious effects of 
the dumped [or subsidized] imports" .307 Neither Agreement, however, sets out specific guidance 
on how an investigating authority should undertake this assessment or ensure that injuries caused 
by other factors are not attributed to the subject imports.  
7.5.3.2   MOFCOM's r edetermination  
7.178.   At issue before us  is whether MOFCOM fulfilled the requirements of Articles 3.1, 3.5, 15.1, 
and 15.5 in demonstrating causation , and examining and ensuring non -attribution of injury. 
Because MOFCOM did not change its consideration of price effects, it relied on the same 
consideration in determining causation and non -attribution in the redetermination as in the Final 
Anti-Dumping and Countervailing Duties Determinations in the original dispute. In this section we 
summarize MOFCOM's findings in the redetermination to provide f actual context for our evaluation 
of the US claims.  
7.5.3.2.1   Causation  
7.179.   MOFCOM found that throughout the POI, both the volume and the market share of subject 
imports "increased continuously"308 against a background of a "significant effect on the selling 
prices of the  like product of the domestic industry" of those imports .309 At the same time, MOFCOM 
found that the domestic industry:  
[C]ould not further reduce its losses or turn losses into profits, and both the pre -tax 
profit rate and the rate of return on investment  were in an extremely low level  [sic]. 
In addition, the operational net cash flow fluctuated significantly which also affected 
investment and financing activities of the domestic industry.310 
7.180.   MOFCOM noted that even as "the demand of the domestic market increased continuously" 
in the course of the POI, the domestic industry's capacity utilization rate declined, most sharply 
between the first half of 2008 (79.96%) and the first half of 2009 (66%).311 It found a causal link 
                                                
306 Panel Report, Russia – Commercial Vehicles , para. 7.179 (referring to Appellate Body Reports, US – 
Hot-Rolled Steel , para. 223; China – GOES , para. 151; China – HP-SSST (Japan) / China – HP-SSST (EU) , 
para. 5.283; and  EC – Tube or Pipe Fittings , para. 175) (adoption/appeal pending).  
307 Appellate Body Reports, US – Hot-Rolled Steel , para. 223; EC –Tube or Pipe Fittings , para. 188 . 
308 Redetermination , (Exhibit CHN -1 (translated version) ), p. 70.  
309 Redetermination , (Exhibit CHN -1 (translated version) ), p. 70:  
During the investigation period, the developing trend of the import price of the product 
concerned and the selling price of the like product of the domestic industry were completely 
consistent, as they both increased from 2006 to 2008 and began to decrease in the first half of 
2009. The selling prices of the like product of the domestic industry and the import prices of the 
product concerned were closely related.  
[The price] of the product concerned was consistently lower than the selling price of the like 
product of the domestic industry, and a t the mean time [ sic], under the effect and support of the 
U.S government 's subsidies , in 2006, 2007, 2008 and the first half of 2009, was lower than the 
average selling price of the like product of the domestic market …  [.] 
We note, however, our findings in respect of MOFCOM's price effects analysis.  
310 Redetermination , (Exhibit CHN -1 (translated version) ), p. 71.  
311 Redetermination , (Exhibit CHN -1 (translated version) ), p. 71.  In particular:  
The production quantity and the sales volumes of the like product of the domestic industry and 
the import volume of the product concerned changed in t he opposite direction, the market share 
of the like product of the domestic industry and the market share of the product concerned 
changed in the opposite direction, the prices of the like production of the domestic industry and 
the prices of the productio n concerned changed in the same direction, which resulted in the 
sharp drop of the prices of the like product and more significant losses.  WT/DS427/RW  
 
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  between the "large quantity" of dum ped and subsidized imports originating in the United  States  
and material injury to the domestic broiler product industry.312 
7.181.   US interested parties313 had argued that "the absolute quantity of the product concerned 
did not increase greatly, and the increased qu antity just complemented the lost market share of 
other foreign producers in [sic] Chinese market".314 MOFCOM observed that China's anti -dumping 
law does not require an examination of both absolute and relative trends. As well, while the 
domestic like produc t gained market share in the first part of the POI, MOFCOM found that:  
[B]ecause the import volume of the product concerned increased substantially and the 
import price remained at a relatively low level, resulted in significant ly undercutting 
and suppress ion to the domestic like product; and the domestic like product, while to 
stabilize the market share, was forced to be sold at a price lower than the production 
cost [sic].315  
7.182.   US interested parties had also argued that during the POI, "several economic indi cators 
(production quantity, sales volume and sales revenue) presented a virtuously [ sic] increasing 
trend".316 MOFCOM found that because:  
[T]he domestic industry implemented some newly constructed projects and expansion 
projects, it was normal that the prod uction capacity, production quantity, sales 
volume and market share of the like product presented an increase to certain extent 
[sic] in general, but this did not mean that the domestic industry did not suffer from 
injury. These indicators were not decisiv e for determining the injury of the domestic 
industry in its development period, and could not change the fact that the effective 
use of the production capacity and the inventory of the domestic industry increased 
continuously during the investigation peri od; neither could it change the worsening 
financial situations of the domestic industry.317 
7.5.3.2.2   Non-attribution  
7.183.   MOFCOM found that during the POI, the dumped imports increased even as "the quantity 
of imports from other countries and regions dropped in general"318, while "apparent consumption 
of the broiler products in China increased".319 Accordingly, MOFCOM concluded, "the material 
injury currently suffered  by the domestic industry was not caused by the change of demand or 
change of consumption modes of the like pro duct of the domestic industry".320 MOFCOM examined 
the technological competitiveness of the industry and noted that, "the industry has developed in to 
a highly industrialized industry among domestic animal husbandry industries, with relatively 
complete industrial system and relatively smooth -running production chain".321 For this reason, 
"[t]here was no negative impact on the domestic industry caused by  backward production process 
and technology and mismanagement".322 There were, MOFCOM observed, "no policie s of limiting 
trade activities of the like product of the domestic industry".323 Exports of domestic products "were 
not significant enough to influence t he trend and conclusions of the relevant indicators of the like 
product of the domestic industry".324 There  was no force majeure  and the financial crisis had no 
substantive impact on the domestic market.325 
7.184.   US interested parties had argued that an increase in grain prices would affect the 
profitability of the broiler industry. MOFCOM noted the increased costs, bu t pointed out that:  
                                                
312 Redetermination , (Exhibit CHN -1 (translated version) ), p. 72.  
313 The US Poultry and Egg Export Council and the US Go vernment, in different submissions.  
314 Redetermination , (Exhibit CHN -1 (translated version) ), p. 72.  
315 Redetermination , (Exhibit CHN -1 (translated version) ), p. 7 3. 
316 Redetermination , (Exhibit CHN -1 (translated version) ), p. 7 7. 
317 Redetermination , (Exhibit CHN -1 (translated version) ), p. 7 8. 
318 Redetermination , (Exhibit CHN -1 (translated version) ), p. 81.  
319 Redetermination , (Exhibit CHN -1 (translated version) ), p. 81.  
320 Redetermination , (Exhibit CHN -1 (translated version) ), p. 81.  
321 Redetermination , (Exhibit CHN -1 (translated version) ), p. 81.  
322 Redetermination , (Exhibit CHN -1 (translated version) ), p. 82.  
323 Redetermination , (Exhibit CHN -1 (translated version) ), p. 82.  
324 Redetermination , (Exhibit CHN -1 (translated version) ), p. 82.  
325 Redetermination , (Exhibit CHN -1 (translated version) ), p. 83.  WT/DS427/RW  
 
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  [B]ecause the import price of the product concerned was always lower than the 
average selling price of the like product of the domestic industry, it undercut the price 
of the like product significantly, resul ted in the suppression on th e selling price of the 
domestic like product, and could not pass through the cost caused by price increase of 
raw materials downward, and the due price increase of the like product which should 
have occurred hadn't been realized.326  
7.185.   US interested parties ha d further contended that "the change of pork price was the main 
reason that the price of chicken decreased during the investigation period".327 MOFCOM concluded 
that the evidence did not show a link between chicken and pork prices, observing that "the chicke n 
price was not affected directly by the pork price, and was mainly decided by the supply and 
demand in the chicken market".328 MOFCOM stressed that:  
[T]he demand of the domestic market increased continuously during the investigation 
period, but the good mar ket environment didn't bring the due profit margin to the 
domestic industry. On the contrary, the impact of the low -priced import of the product 
concerned in a large quantity on the domestic industry was significant.329  
7.5.3.3   Analysis  
7.186.   We recall our findings that MOFCOM's consideration of price effects was not consistent with 
Articles 3.2 and 15.2. The United  States  argues that on that basis alone, MOFCOM's causation and 
non-attribution analyses and determination are not consistent wi th Articles 3.1, 3.5, 15.1, 
and 15.5. Price effects were one among a number of factors MOFCOM took into account in its 
causation determination; as we observed in the original report, because its price effects 
consideration was inconsistent with the relevant provisions, we cannot conclud e that MOFCOM 
properly demonstrated the existence of a causal link between the subject imports and any injury 
to the domestic industry. The United  States  raises three other arguments in this proceeding; we 
address these below.  
7.5.3.3.1   Subject import volumes did no t increase at the expense of the domestic 
industry  
7.187.   The United  States  argues that  "MOFCOM ignored evidence that subject import volume did 
not increa se at the expense of the domestic i ndustry "330 because it did not consider evidence that : 
a. the domestic industry  gained market share at the same time as subject imports;  
b. "the domestic industry gained more market share  between 2006 and the first half of 
2009, 4.38 percentage points, than the 3.92 percentage points gained by subject 
imports over the same period"331; 
c. "any increases in U.S. imports simply filled the gap left by Brazil and Argentina when 
they effectively exited the China [sic] market "332; and 
d. "40 percent of subject imports consisted of chicken paws that could not have injured the 
domestic industry, which was incapable of increasing its production of chicken paws ".333 
7.188.   In response to the arguments of US interested parties, MOFCOM found:  
As to the above claims, the investigating authority considered that, from 2006 to 
2008, although the domestic market had a conti nuously high demand in broiler 
products, the domestic like product also obtained some market shares. However, that 
                                                
326 Redetermination , (Exhibit CHN -1 (translated version) ), p. 85.  
327 Redetermination , (Exhibit CHN -1 (translated version) ), p. 86.  
328 Redetermination , (Exhibit CHN -1 (translated version) ), p. 87.  
329 Redetermination , (Exhibit CHN -1 (translated version) ), p. 8 8. 
330 United  States' second written submission, para. 175.  
331 United  States' first written submission, para. 196. (emphasis original)  
332 United  States' first written submission, fn 248.  
333 United  States' second written submission, para. 178.  WT/DS427/RW  
 
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  did not imply that the domestic industry did not suffer from injury. On the contrary, 
because the import volume of the product concerned incr eased substantially and the 
import price remained at a relatively low level, resulted in significantly undercutting 
and suppression to the domestic like product; and the domestic like product, while to 
stabilize the market share, was forced to be sold at a  price lower than the production 
cost. [sic]  
… 
When the market demand increased continuously, affected by the further increase of 
import volume of the product concerned and the continuous decline of price of the 
product concerned, the production quantity,  sales volume, capacity utilization rate and 
market share of the like product of the domestic market all presented a trend of 
decrease or reduction of different degrees.334 
7.189.   Articles 3.5 and 15.5 require an examination of "all relevant evidence" to establish a 
"causal relationship" between subject imports and material injury to the domestic industry. Neither 
Article  provide s specific guidance as to how individual pieces of evi dence – such as the volume of 
subject imports – should be taken into consideration in demonstrating causation.335 At a minimum, 
however, w here an interested party makes an argument before the investigating authority as to 
the impact of a given volume of impo rts or change in the volume of imports relative to domestic 
production  or other imports , an objective and unbiased investigating authority may not simply 
ignore the argument on the basis that it has considered the absolute volume of subject imports. 
There is no disagreement between the parties that such evidence was, indeed, put before 
MOFCOM ; the United  States  argues that MOFCOM " ignored evidence that subject import volume 
did not increase at the expense of the domestic i ndustry ". 
7.190.   We have examined MOFCOM's  findings in the light of the US argument. We note that 
MOFCOM started its analysis by referring directly to the argument of the US interested parties:  
The U.S. Poultry and Egg Export Council claimed in Comments after the Preliminary 
Determination that, fr om 2006 to 2008, the increase of the absolute import volume of 
the product concerned was to complement sales on the domestic market in China, and 
the sale volume of the domestic producers in China also increased in the 
corresponding period, so the import v olume of the product concerned had a small 
effect on the domestic industry. In the first half of 2009, the increase of the import 
volume of the product concerned was caused by "the seasonal characteristics".336  
Immediately following this paragraph, MOFCOM f ound that "because the import volume  of the 
product concerned increased substantially and the import price remained at a relatively low level, 
resulted in significantly undercutting and suppression to the domestic like product".337 And later, 
MOFCOM noted : "When the market demand increased continuously, affected by the further 
increase of import volume of the product concerned  and the continuous decline of price of the 
product concerned …".338 Given that MOFCOM expressly acknowledged the argument and 
responded to it, we cannot find that MOFCOM "ignored" the ev idence before it, as the 
United  States argues. Accordingly, we find that the United States has not established that China 
acted inconsistently with Articles 3.5 and 15.5 on the ground that MOFCOM ignored ev idence of 
import volumes in relation to market share.  
                                                
334 Redetermination , (Exhibit CHN -1 (translated version) ), p. 73.  
335 See, more generally, Panel Report, China – Cellulose Pulp : "Article 3 does not provide any specific 
guidance on how an investigating authority should undertake the examination of the relevant evidence in  
determining whether dumped imports are causing material injury. " Cf. Appellate Body Report, China – 
HP-SSST (Japan) / China – HP-SSST (EU ), para. 5.141 (citing Appellate Body Report, EC – Bed Linen 
(Article  21.5 – India) , paras. 113 and 118).  
336 Redetermination , (Exhibit CHN -1 (translated version) ), pp. 72 -73. 
337 Emphasis added.  
338 Emphasis added.  WT/DS427/RW  
 
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  7.5.3.3.2   MOFCOM failed  to reconcile its analysis with evidence of improved 
performance  
7.191.   This argument of the United  States  has four supporting parts; we address each in turn.  
7.192.   First, the United  States  argues that MOFCOM "failed to address" evidence that " the 
increase in subject import volume coincided with a significant improvement in the domestic 
industry 's performance ".339 We note, however, that the period in which the United  States  identifies 
certain "improvements" is not the entirety of the POI. MOFCOM did look at various trends in the 
POI, noted absolute and relative movements up and down, and drew certain conclusions. It did not 
"address" the data in the way the United  States  has done, but the United States  has simply 
reorgani zed data that MOFCOM did address, and appears to be arguing that MOFCOM's analysis is 
deficient because it did not address the data organized in the same way. This does not, however, 
suffice to demonstrate that what MOFCOM did w as insufficient or inconsistent with its obligations – 
merely that a different way of addressing the evidence might lead to a different outcome does not 
demonstrate error where, as here, there is no necessary reason why the different way should be 
preferre d. 
7.193.   Second, the United  States  notes " the lack of any positive evidence linking the increase  in 
subject import volume during the 2006 -2008 period to any significant decline  in the domestic 
industry 's performance ".340 MOFCOM, however, is not required to find an  actual  decline in the 
performance of the domestic industry in order to find injury caused by dumped and subsidized 
imports.341  
7.194.   Third, the United  States  argues that performance indicators show an improvement if 2006 
figures are compared to those for the fir st half of 2009. Again, we see no basis on which to 
conclude that MOFCOM was required to rely on such a comparison in its analysis.342 Indeed, in 
some instances, such a comparison, without due consideration of intervening trends in the data 
considered, might  well be misleading. The fact that certain performance indicators show 
improvement when data from 2006 are compared to data from 2009 says nothing about 
developments in the intervening period during which it is uncontested that the Chinese market 
expanded – for instance, whether any improvement tracked or lagged market expansion would 
seem to be a relevant consideration.  
7.195.   Fourth, the United  States  argues that MOFCOM predicated its causal link determination 
entirely on developments in the first half of 2009. However, it is clear that MOFCOM examined 
year-on-year trends in the first three years of the POI, and period -on-period movements for the 
last six months. More to the point, we see no basis to conclude that MOFCOM was precluded from 
focusing on the last pa rt of the POI, for at least three reasons:  
a. Performance indicators were moving in different directions throughout the first three 
years of the POI; most indicators, however, trended downward in the first half of 2009. 
MOFCOM was entitled to look at the info rmation before it and assess the cumulative 
impact of years of dumped imports on the domestic industry during the most recent 
period.  
b. Information regarding the most recent period is generally most relevant for an analysis 
of present material injury.  
c. An in vestigating authority is entitled to consider the possibility of a time -lag between 
dumped and subsidized imports and injury to the domestic industry through their 
effects.  
7.196.   In the light of the foregoing, we find that the United  States  has not established that China  
acted inconsistently with Articles 3.5 of the Anti -Dumping Agreement and 15.5 of the 
                                                
339 United  States' first written submission, para. 203. (emphasis original)  
340 United  States' fi rst written submission, para. 204. (emphasis original)  
341 Panel Report, EC – Fasteners (China) , paras. 7.402 -7.403.  
342 Panel Report, Russia – Commercial Vehicles , para. 7.41 and fn 138 (referring to Appellate Body 
Reports, US – Steel Safeguards , paras. 354 -355; and Mexico – Anti-Dumping Measures on Rice , para. 166; 
and Panel Report, Ukraine – Passenger Cars , para. 7.269) (adoption/appeal pending).  WT/DS427/RW  
 
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  SCM Agreement because  MOFCOM  "failed  to reconcile its analysis with evidence of improved 
performance" in the domestic industry.  
7.5.3.3.3   Constraints  on domestic production of chicken feet  
7.197.   The United  States  argues that domestic producers were incapable of producing more 
chicken feet without increasing production of other chicken product  models to uneconomic levels. 
The United  States  does not question t he fact, as found by MOFCOM, that the Chinese market was 
expanding, or that dumped and subsidized imports from the United  States  were increasing. China 
responds in two ways. First, it asserts that the domestic industry could " meet some of that 
demand with the excess capacity. In particular, since the domestic industry consistently had 
excess capacity of about 20 percen t, the domestic industry could have provided 20 percent more 
chicken paws ."343 China does not, however, identify where in the redetermination M OFCOM made 
this finding. Second:  
MOFCOM was correct when it found that subject imports of chicken paws were 
advers ely affecting the entire domestic industry producing the like product. The 
impact was felt on both domestic production of chicken paws, but a lso domestic 
production of other chicken parts.344 
7.198.   We recall our findings, under Article 12.2 of the Anti -Dumping Agreement and Article 22.2 
of the SCM Agreement, in the original report in respect of the same US argument: " MOFCOM 
acknowledged the argument in  its Preliminary Determinations and indicated that it considered that 
all chicken parts competed and were substitutable  with one another ".345 We concluded that:  
MOFCOM could in our view have satisfied its obligations under Articles 12.2 
and 12.2.2, and Articles 22.3 and 22.5 through a simple reference to its treatment of 
the issue in the Preliminary Determination.  
7.199.   In the redetermination, MOFCOM noted that " [t]he Investigating Authority has analyzed 
and made determination [sic] in the prelimin ary determination of the original investigation".346 
Indeed, in the preliminary determination, MOFCOM had found that:  
The Investigating Authority holds that as there are some differences between the 
Subject Products and the like products in terms of specific  feature, usage and quality, 
they may have their respective types or specifications, and the relationship between 
them does not necessarily constitute a one -to-one correspondence. However, such 
differences do not prevent the Investigating Authority from de eming products of 
different types or specifications as the same category of product for the purpose of 
investigation. In this case, chicken feet are included in scope of the Subject Products, 
therefore, the Investigating Authority has carried out investiga tion on import of all 
Subject Products including chicken feet, and has analyzed and examined injuries 
brought to the domestic industry by the Subject Products  [sic].347  
7.200.   We find that the United  States  has not established that China  acted inconsistently with 
Articles 3. 5 of the Anti -Dumping Agreement and 15.5 of the SCM Agreement on the ground that 
MOFCOM  failed  to adequately consider alleged market constraints on greater domestic production 
of chicken feet.  
7.5.4   Conclusion  
7.201.   We have found that MOFCOM's consideration  of price effects  was inconsistent with 
Articles  3.2 and 15.2. MOFCOM took into account p rice effects as one element of its determination 
of causation. We further find that China  acted inconsistently with Articles 3.5 and 15.5 by relying, 
                                                
343 China's second written submission, para. 351.(fn omitted)  
344 China's second written submission, para. 354.  
345 Panel Report, China – Broiler Products , para. 7.605.  
346 Redetermination , (Exhibit CHN -1 (translated version) ), p. 80.  
347 MOFCOM , Preliminary Determination in Anti -dumping Investigation on Imported White -feather 
Broiler Products from the U.S., (Exhibit USA -22 (translated version)), p. 31.  WT/DS427/RW  
 
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  in MOFCOM's demonstration of a causal link between the subject imports and injury to the 
domestic industry, on a defective consideration of price effects.  
7.202.   As a consequence, we find China  to have acted inconsistently with Articles 3.1 of the 
Anti-Dumping Agreement and 15.1  of the SCM Agreement . 
7.203.   We find, however, that the United  States  has not established that China  acted 
inconsistently with Articles 3.5 of the Anti -Dumping Agreement and 15.5 of the SCM Agreement 
because  MOFCOM : 
a. did not consider the volume of dumped im ports in both relative and absolute terms;  
b. "failed  to reconcile its analysis with evidence of improved performance" in the domestic 
industry; and  
c. failed  to adequately consider alleged market constraints on greater domestic production 
of chicken feet.  
7.6  Article 6.1 of the Anti -Dumping  Agreement and Article 12.1  of the SCM Agreement : 
notice and ample opportunity to present written evidence  
7.6.1   Introduction  
7.204.   In our original report, we found MOFCOM's consideration of price undercutting and price 
suppression inconsistent with Articles 3.1 and 3 .2 of the Anti -Dumping Agreement and 
Articles  15.1 and 15.2 of the SCM Agreement.348 During the reinvestigation, MOFCOM sought and 
collected new pricing data from four selected domestic Chinese producers and used these dat a for 
the purposes of its consideration of  price effects in the redetermination.  
7.205.   This claim concerns MOFCOM's procedural obligations under Article 6.1 of the 
Anti-Dumping Agreement and Article 12.1 of the SCM Agreement349 in respect of the interested 
partie s from the United  States  in the context of the request for pricing information from the 
Chinese producers.  
7.6.2   Main a rguments of the parties  
7.6.2.1   United  States  
7.206.   China  acted inconsistently with Articles 6.1 and 12.1 because MOFCOM  did not give notice 
to the investigated US producers and the US Government (US interested parties) of the 
information it required, the pricing data, from the Chinese producers during the reinvestigation.350  
7.207.   The notice requirements in Articles 6.1 and 12.1 are not limited to the interested party to 
which a  request for information is directed.351 In this instance, the provisions entitle "all interested 
parties", including the US interested parties, to notice of the information required from the Chinese 
producer s (as well as ample opportunity to present written  evidence).  
7.208.   The notice requirements relate to making all interested parties aware of the specific 
information that the investigating authority requires, including the specific questions and requests 
issued.352 Also, the notice has to come in advance, such th at interested parties are afforded the 
opportunity to defend their interests. These requirements were not met in this case.  
7.209.   China argues that read together, three documents in the reinvestigation record constitute 
the "notice" required by Article s 6.1 and 12.1: the Notice of Initiation, the General Verification 
Letter , and non -confidential summaries provided by the Chinese producers. Yet MOFCOM did not 
                                                
348 We will refer to these as Articles 3.1, 3.2, 15.1, and 15.2.  
349 We will refer to these as Art icles 6.1 and 12.1.  
350 United  States ' first written submission, para s. 40 and 42.  
351 United  States ' first written submission , para. 40; response to Panel question No. 1, para. 6.  
352 United  States' response to Panel question No. 1, paras. 1 and 3.  WT/DS427/RW  
 
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  identify the information it required of Chinese produ cers in any of these documents.353 They lacked 
the requi site content, in particular because they did not set out MOFCOM's questions or requests 
or in any other way identify the relevant information. Nor did they give notice to the US interested 
parties, in p articular to the extent that they were merely made ava ilable in MOFCOM's trade 
remedy public information room  without informing the US interested parties.354  
7.210.   Without notice of the information required from Chinese producers, the US interested 
parties were a lso necessarily denied ample opportunity to present wr itten evidence pursuant to the 
second requirement in Articles 6.1 and 12.1.355 None of the documents cited by China afforded 
such an opportunity.356 Without knowledge of the required information, there coul d be no basis for 
ample opportunity to present relevant evidence.357 Interested parties cannot address through 
relevant evidence what they do not know.358 
7.6.2.2   China  
7.211.   Articles 6.1 and 12.1  do not apply to the US interested parties in respect of information 
required of Chinese producers. Rather, these provisions "should be read more directly in relation to 
those interested parties that are the target of information requests".359 The obligation s to give 
notice and to provide ample opportunity therefore only concern those interested parties that are 
the target of an information request.360 This position is consistent with the arguments of the 
European Union.361 Article 6.4 of the Anti -Dumping Agreeme nt and Article 12.3 of the 
SCM Agreement would protect other interested parties, such as the US interested parties.  
7.212.   Even if applicable to interested parties not subject to an information request, the 
requirement to give "notice" has a flexible meaning and can be met by different means depending 
on the situation of the interested party.362 Articles 6.1 and Article 12.1  require:  
a. giving advance and "active notification" in respect of the party from whom information is 
required363; and  
b. access  to the required infor mation, in respect of all other interested parties, for example 
by placing the information provided in respo nse to the information request in a public 
reading room.364  
7.213.   MOFCOM complied with its obligations under Articles 6.1 and  12.1 as they apply in respect  
of US interested parties who were not the target of an information request. MOFCOM was not 
required to provide to US interested parties the precise questions MOFCOM put to the Chinese 
producers.365 MOFCOM provided appropriate notice  in respect of newly soli cited information  and its 
nature and scope, by way of366: 
                                                
353 United  States' second written submission, paras. 10 -34. 
354 United  States' response to Panel question No. 1, para. 4.  
355 United  States ' first written submission, para. 43; second  written submission,  paras. 8 and 10.  
356 United  States ' second  written submission, paras.  15-18, 24, 32, and 33.  
357 United  States ' second  written submission, para. 15.  
358 United  States ' second  written submission, para. 17.  
359 China's response to Panel question No. 4, para. 11.  
360 China's responses to Panel question No. 1(b), paras. 4 -5, No. 2, para. 7, and No. 4, para. 11. 
361 China's responses to Panel question No. 1(b), para. 5, No. 2, para. 7, and No. 4, para. 11.  The 
European Union is a third party in this dispute.  
362 China's res ponses to Panel question No. 1(a), para. 2, and No. 4, para. 10.  
363 China's second written submission, paras. 31 -32; response to Panel question Nos. 1(a) and (b), 
paras. 3-4. 
364 China's second written submission, paras. 32 and 34.  
365 China's second written su bmission, para. 35; see also comments on United  States' response on Panel 
question No. 1, para. 1.  
366 We understand China to rely on the following three procedural steps, but not on the subsequent 
injury disclosure, as relevant elements through which MOFCOM  allegedly gave notice. (China's first written 
submission, para. 53 ("procedural steps … before issuing the Disclosure of Injury Essential Facts dated on 
21 May 2014") and para. 60; second written submission, para. 28).  WT/DS427/RW  
 
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  a. the Notice of Initiation No. 88 (Notice of Initiation) of 25 December 2013.367 The Notice 
of Initiation indicat ed that evidence would be re -examined. It  referred to the scope of 
the Panel's finding in its original report, instead of providing interested parties with a 
listing of the specific information to be  requested from the Chinese producers;  
b. the General Verification Letter of 19 February 2014 address ed to Chinese producers and 
released in MOFCOM's trade remedy public information room , announcing on -the-spot 
"verifications "368; and  
c. the non -confidential summaries  of the sales data provided by the four Chinese producers  
made available on 20 May 2014 in MOF COM's trade remedy public information room.369 
7.214.   A violation of the notice requirement does not necessarily result in a violation of the 
obligation to give ample opportunity to present written evidence.370 In this instance, MOFCOM 
complied with its obligation to  provide US interested parties ample opportunit y to present written 
evidence because:  
a. it gave adequate notice to the US interested parties; and  
b. throughout the reinvestigation, US interested parties were free to present evidence, and 
in fact they did so.371  
7.6.3   Main a rguments of the third parties  
7.215.   The European Union argues that to avoid overburdening investigating authorities, 
Article s 6.1 and 12.1 should be interpreted narrowly. In particular the notice requirement should 
only concern information requests to thos e parties that are supposed to hold the relevant 
information but not to all other interested parties in an investigation.372 Likewise, the "ample 
opportunity" should not relate to opportunities to present written evidence on information provided 
by other interested parties.373 
7.6.4   Evaluation  
7.6.4.1   The law 
7.216.   Article 6.1 of the Anti -Dumping Agreement provides : 
All interested parties in an anti -dumping investigation shall be given notic e of the 
information which the authorities require and ample opportunity to present in writing 
all evidence which they consider relevant in respect of the investigation in question.  
The text of Article 12.1 of the  SCM Agreement is essentially identical, with references to 
"interested members" in addition to "all interested parties" and "countervailing duty" rather than 
"anti-dumping" investigation.  
                                                
367 MOFCOM, Announcement No. 88 on Cas efiling for WTO Rulings on China' s Measures of Imposing 
Countervailing and Antidumping Duties on White feather Broiler Chicken  (25 December 2013) 
(Announcement  No. 88 ), (Exhibit USA -1(translated version)); China's first written submission, para.  54; and 
second written submission, para. 36 . 
368 Letter from MOFCOM dated 19 February 2014 on Notification on on -spot Verifications  (General 
Verification Letter ), (Exhibit CHN -2 (translated version)); China's first written submission, para. 56; and 
second written submission, para. 37.  
369 Referred to  by China as the "public versions of verification exhibits and supplemental information". 
(China's first written submission, para. 58 ; second written submission, para.  41; and Post -Verification 
Supplemental Information co ncerning the Reinvestigation on the Anti -dumping and Countervailing  Measures 
Imposed on the Broiler Products Originating in the United  States  (20 May 2014 ) of Beijing Huadu, 
Shandong  Chunxue, Shandong Minhe, and Da Chan Wanda , (Exhibits CHN -4 through CHN -7 (translated 
versions)).  
370 China's response to Panel question No. 2(a), para. 8.  
371 China's second written submission, paras. 52 -53. 
372 European Union's third -party submission, paras. 18 -20; third -party statement, para. 4.  
373 European Union's third -party stat ement, para. 6.  WT/DS427/RW  
 
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  7.217.   Each provision thus establishes two obligations on the investigating authority concerning 
the conduct of the investigation:  
a. to give notice to all interested parties of information required by the investigating 
authorities; and  
b. to provide to all interested parties ample opportunity to present relevant evidence in 
writing.  
7.218.   Articles  6.1 and 12.1 enshrine fundamental due process rights.374 In each provision, the 
two obligations are distinct yet closely related, conferring rights on the same parties.375 The 
obligat ions in each provision are inextricably linked, given th at they are set out not only in the 
same paragraph but also in one single sentence. They must be read together; each obligation 
imparts meaning to the other. In particular, the second obligation clarifies a key purpose of giving 
notice of the information r equired to all interested parties: in order to present evidence that is 
"relevant in respect of the investigation in question ", they need to know what the "investigation" is 
about  – that is, what kind of information the investigating authority requires; an d implicit in 
"presenting" written evidence is preparing  such evidence, which requires foreknowledge of the 
contours of the investigation and time to do so.  
7.219.   Broken down to its constituent parts, the notice requirement has the following elements:  
a. "all inter ested parties";  
b. "shall be given notice"; and  
c. "of the information which the authorities require".  
Below, we consider the meaning of each of these phrases  in context and in the light of the express 
purpose of the requirement embedded in the provisions thems elves. 
7.6.4.1.1   All interested parties  
7.220.   "Interested parties", as defined in Article 6.11 of the Ant i-Dumping Agreement and 
Article  12.9 of the SCM Agreement, include exporters or foreign producers.376 The term "interested 
parties" as used in Articles  6.1 and 12.1 is m odified by the word "all". Unless otherwise defined or 
indicated, "all" means everyone. Nothing in Articles  6.1 and 12.1 suggests a different meaning of 
"all" in these provisions or otherwise suggests that "all" should be understood as anything other 
than all for purposes of both the notice requirement and the ample opportunity to present written 
evidence.  
7.221.   The context of the provisions supports the view that "all" means all. Where the drafters 
intended to make a distinction between various interested parties i n Article 6 of the 
Anti-Dumping  Agreement and Article 12 of the SCM Agreement, they did so expressly. For 
instance, the time -period for replies provided for in Article 6.1.1 of the Ant i-Dumping Agreement 
and Article  12.1.1 of the SCM Agreement is specifically for exporters or foreign producers receiving 
questionnaires.377 Had it been the intent of the drafters to limit the scope of the notice 
requirement or the ample opportunity to present written evidence to the recipients of information 
requests, t he drafters could have done so. This is not the case, in contrast to the immediately 
following provision  of Article 6.1.1 of the Anti -Dumping Agreemen t and Article 12.1.1 of the 
SCM Agreement.378 
                                                
374 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 241.  
375 "All interested parties" and, in case of Article 12.1  of the SCM Agreement , also "interested Members".  
376 Members may add to the list of who is considered a n interested party set out in Article  6.11 of the 
Anti-Dumping Agreement and Article 12.9 of the SCM Agreement.  
377 See also Article 6.1.3 of the Anti -Dumping Agreement and Article 12.1.3 of the SCM Agreement in 
respect of providing the full text of the writ ten application to the known exporters and to the authorities of the 
exporting Member, and upon request, to other interested parties.  
378 We also note the absence of any qualifier in respect of from whom the information is required. 
A requirement to give notice to all interested parties of "the information which the authorities require of them " 
would clearly establish a narrower scope for the notice requirement, as argued by China.  WT/DS427/RW  
 
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  7.222.   Nothing in the object and purpose of the Anti -Dumping Agreemen t or the SCM Agreement 
detracts from this conclusion.379 The provisions at issue here protect the right of interested parties 
to present written evidence relevant to the investigation. To give effect to this right , all interested 
parties have an interest in being given notice of the information that an investigating authority 
requires – not only of them but also of other interested parties – so that they may meaningfully 
participate and fully defend their interests in an investigation. Notice of information r equired is, in 
this sense, fundamental to having an "ample" opportunity to prepare and present written evidence  
relevant to the investigation . To limit the scope of "all interested parties" to a subgroup of 
interested parties, those of whom information is required , would thus impermissibly render 
Articles  6.1 and 12.1 ineffective . 
7.223.   In the light of the above, the meaning of "all " interested parties is properly understood 
literally. Where an investigating authority requires information from a particular intere sted party, 
that interested party is one of the "all interested parties" to whom notice must be given, and so 
too are all other interested parties, from whom the information is not required.380 
7.6.4.1.2   Shall be given notice  
7.224.   An obligation to give notice is a requirem ent to make aware, to transmit information – 
possibly in a summary fashion  – of a state of affairs.  In principle, the word "notice" denotes 
providing information in advance  of a given event.381 Nothing in Articles  6.1 and 12.1  establishes 
any guidance regarding the content, form or timing of notice. But turning  to the context we 
discern some guidance in this regard.  
7.225.   The immediate context of the notice obligation is, of course, the second obligation in 
Articles  6.1 and 12.1. As we have observed,  a key purpose of the notice obligation is to ensure 
that all interested parties have ample opportunity to present relevant written evidence ; implicit in 
this is that to "present" evidence that is "relevant", interested parties require time to prepare such  
evidence and enough information to be aware of what the investigation is about . The event in 
advance of which notice is to be given is, in the light of the context of the provisions, the 
"opportunities" referred to in the second half of the provision. This, in turn,  means that  the notice 
has to come sufficiently "in advance" of the point at which interested parties are to present written 
evidence in the investigation such that they have the time to do so in a meaningful fashion.382 
7.226.   The context of the obligat ion to give "ample opportunity" in Articles  6.1 and 12.1 and the 
broader context of Article 6 of the Anti -Dumping Agreement and Article 12 of the SCM Agreement 
as a whole provide additional guidance for the understanding of the obligation to "give notice":  
                                                
379 Appellate Body Re port, EU – Biodiesel  (Argentina ), para. 6.25: 
Taken as a whole, the object and purpose of the Anti -Dumping  Agreement is to recognize the 
right of Members to take anti -dumping measures to counteract injurious dumping while, at the 
same time, imposing substa ntive conditions and detailed procedural rules on anti -dumping 
investigations and on the imposition of anti -dumping measures.  
This view would seem to apply equally to Part V of the SCM Agreement, which establishes substantive and 
procedural rules on the investigation underlying and imposition of countervailing measures to counteract 
injurious dumping.  
380 In respect of the party from whom information is required, the notice of the information required is 
given through the information request itself, see Article 6.1.1  of the  Anti-Dumping Agreement  and 
Article  12.1.1 of the SCM Agreement, and thus no separate notice is needed, again supporting the conclusion 
that the recipients of the notice must also be parties other than those from whom information is require d. 
Regarding those other interested parties, the notice of the information required does not necessarily have to be 
given through the information request itself, see para. 7.233  below.  
381 For instance, it is also in this sense that the term "notice" has been used when describing the 
purpose of panel requests in the context of DSU Article 6.2, see e.g. Appellate Body Reports, EC and certain 
member States – Large Civil  Aircraft , paras. 640, 646, and 792; and US – Zeroing (Japan) (Article 21.5  – 
Japan ), para. 118.  
382 China refers to the terms "notified" and "public notice" in Article  12 of the Anti -Dumping Agreement 
and the requirement for "sufficient advance notice" in p aragrap h 5 of Annex  I of the Anti-Dumping Agreement. 
(China's response to Panel question No. 1(a), para. 3; comments on United  States' response to Panel question 
No. 1, para. 4). China argues that in the absence of such language  in Articles 6.1 and 12.1, " notice" has 
flexible meanings and in particular does not have to come in advance. In our view, however, the provisions 
China cites to do not detract from the temporal aspect of "notice" in Articles 6.1 and 12.1, as evidenced by the 
requirement to give "amp le opportunity".  WT/DS427/RW  
 
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  a. Article 6.1.2 of the Anti -Dumping Agreement and Article 12.1.2 of the SCM Agreement 
require that written evidence provided by one interested party "shall be made available 
promptly" to other participating interested parties;  
b. Article 6.2 of the Anti-Dumping Agreement establishes an obligation to "provide 
opportunities" for all interested parties to meet with parties with adverse interests;  
c. Article 6.4 of the Anti -Dumping Agreement and Article 12.3 of the SCM Agreement 
require that investigating a uthorities "provide timely opportunities" for all interested 
parties to see relevant non -confidential information used; and  
d. Article 6.9 of the Anti -Dumping Agreement and Article 12.8 of the SCM Agreement 
require the investigating authority to "inform" all interested parties of essential facts.  
7.227.   Although expressed in different ways, these provisions contemplate two modes of 
engagement between the investigating authority and interested parties in respect of the 
information in an investigation: the use of the v erb "inform" denotes some form of "active" 
engagement on the part of the investigating authority, whereas the other formulations suggest a 
more "passive" obligation to provide opportunities or to make available. The obligation to "give 
notice" at issue her e falls, in our view, closer to the requirement to "inform" on this spectrum of 
obligation, requiring a positive action on the part of the investigating authority.  
7.228.   We draw the following conclusions in respect of the obligation to give notice of the 
inform ation required.  
7.229.   First, Articles 6.1 and 12.1 require an investigating authority to actively provide something 
(in this instance "notice of the information which the authorities require") to all interested parties. 
This obligation entails reaching out and m aking all interested parties aware of the information in 
question. Thus, it cannot be satisfied by merely providing access to something that conveys the 
required notice.  
7.230.   Second, Articles 6.1 and 12.1 do not set out a specific time -frame for the giving of notice, 
but they do link the notice requirement with the obligation to give "ample opportunity" to present 
relevant written evidence. The timing of "notice" must, therefore, be understood in that specific 
context: sufficiently "in advance" that an interest ed parties will be able to prepare and present 
written evidence within the deadlines set by the investigating authority for submission of written 
evidence  on, inter alia , the matters as to which information was sought.383  
7.231.   Third, Article s 6.1 and 12.1 do not  set out specific requirements for the form of the notice 
or the modalities by which notice is to be given. Form and modalities remain within the discretion 
of the investigating authority.  There might be any number of ways for an investigating authority to  
give notice. In this regard, we are conscious of the concerns raised in respect of the administrative 
burden associated with giving notice of the information required to all interested parties. However, 
our interpretation does not require that an investigating authority give that notice immediately, or 
in individual communications to all other interested parties in each instance. An investigating 
authority may choose a manner of giving the required notice tha t imposes less of an 
administrative burd en. 
7.6.4.1.3   Of the information which the authorities require  
7.232.   The required content of the notice follows from the requirement that notice is to be given 
"of the information which the authorities require" , read in the light of the second half of the 
provision . The p articular information that an investigating authority requires from interested 
parties thus will determine what the notice must convey, and will vary with the circumstances. At a 
minimum, a notice must convey an understanding of what information is require d in order to 
enable all interested parties to prepare and submit relevant written evidence regarding the matters 
as to which information is sought.  
                                                
383 In respect of the party from whom information is required, the notice of the information required is 
given through the information request itself. The notice to all other interested parties from whom information is 
not required might be given later, possi bly even as late as after the information is received, if this is sufficiently 
early to allow other interested parties enough time to submit written evidence.  WT/DS427/RW  
 
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  7.233.   The obligation is to give notice  of the information required; it is not an obligation to 
disclose the infor mation request itself. Thus, an outline or description of the information required 
may well suffice to give the requisite notice. If an investigating authority issues a questionnaire to 
a particular interested party, sending or making available (to the ext ent this is made known to all 
other interested parties) this questionnaire to all other interested parties would certainly be one 
way of giving notice of the information the investigating authority requires. It is not, however, 
what the provisions necessar ily require: nothing in Articles  6.1 and 12.1 specifically requires an 
investigating authority to provide to all other interested parties the actual questions or requests 
issued to a particular interested party, although this might be effective and good pr actice in this 
context.  
7.234.   Articles  6.1 and 12.1 require notice of the information required  by the investigating 
authority to enable interested parties to prepare and submit relevant written evidence. For this 
reason, a notice that informs other interested pa rties of the information actually submitted  by the 
responding interested party(ies) does not, without more, constitute notice within the meaning of 
these provisions.  
7.6.4.2   The facts  
7.235.   During the reinvestigation, MOFCOM sought and obta ined new pricing data from 
four Chinese producers through on -the-spot visits (referred to by China and MOFCOM as 
"verification" visits).384 These took place in early May 2014.385 
7.236.   MOFCOM did not provide US interested parties with the questions posed to the Chinese 
producers, nor communicat e in any other form directly with US interested parties in respect of the 
data requested from the Chinese producers.  
7.237.   MOFCOM placed each of the three documents that China refers to as collectively 
constituting the alleged "notice" in its trade remedy public  information room for any interested 
party to consult. Other than through the Notice of Initiation, MOFCOM did not, at any point, 
actively inform the US interested parties that the documents would be or had been made available 
in the trade remedy public in formation room.386 
7.6.4.3   Analysis  
7.6.4.3.1   Notice requirement  
7.238.   China and the United  States  agree that " the scope of the notice requirement under the 
articles is not limited to the precise interested party from whom the information is requested ".387 
We agree. The US interested  parties were therefore entitled to notice of the information MOFCOM 
required from the Chinese producers.  
7.239.   China argues that MOFCOM did not act inconsistently with Article s 6.1 and 12.1 because 
"notice" has "flexible meanings" and can be "effected by differ ent means depending on the 
situation of the interested party".388 In respect of the interested party receiving the information 
request, advance and active notice must be given.389 For all other interested parties, those not 
recipients of the information reques t, "the disclosure obligation under Articles 6.1 and 12.1 would 
be satisfied as long as those parties are provided with access to the required information".390 On 
the facts of this case, China contends that MOFCOM discharged its obligation under Articles 6.1  
and 12.1  to give notice in three documents taken together: the Notice of Initiation, the General 
                                                
384 China's second  written submission, para . 39: " MOFCOM decided to use the verification as the tool to 
obtain further details on t he chicken part -specific prices ". 
385 China's second  written submission, para. 51 ; see also Redetermination , (Exhibit CHN -1 (translated 
version)) , p. 14.  
386 China's second  written submission, paras. 34 and 38; response to th e Panel's question No. 11, 
paras.  19-21. 
387 China's comments on United  States' response to Panel question  No. 1,  para. 2 (quoting 
United  States' response to Panel question No. 1 para. 6).  
388 China's responses to Panel question No. 1(a), para. 2, and No. 4, p ara. 10.  
389 China's second written submission, paras. 31 -32; response to Panel question Nos. 1 (a) and (b), 
paras. 3 -4. 
390 China's second written submission, para. 32.  WT/DS427/RW  
 
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  Verification Letter, and the non -confidential summaries of the sales data provided by the Chinese 
producers.  
7.240.   The issue before us therefore is w hether the documents invoked by China constitute, when 
viewed collectively391, notice to the US interested parties of the information MOFCOM required 
from the Chinese producers, pursuant to Articles 6.1 and  12.1. 
7.6.4.3.1.1   Notice of Initiation  
7.241.   The Notice of Initiation states:  
On September 25, 2013, WTO dispute settlement body passed the panel report on the 
dispute case of "China's antidumping and countervailing measures against 
whitefeather broiler chicken products originated in the U.S. ". 
… [T]he Ministry of Commerce decides t o reinvestigate this case in accordance with 
the rulings an d suggestions in above relevant reports of WTO upon the date of 
issuance.  
The Ministry of Commerce will re -examine the evidence and information obtained in 
the ori ginal anti -dumping and countervail ing investigations, and carry out 
reinvestigations through questionnaires, hearings, and other measures.392 
7.242.   We make three observations concerning this document.  
7.243.   First, China asserts that the reference in the Notice of Initiation to the "panel report" 
provide d sufficient notice of the information required by MOFCOM in its consideration of price 
effects under Article 3.2 of the Anti -Dumping Agreement and Article 15.2  of the 
SCM Agreement.393 However, our findings in the original report were not limited to price e ffects. 
Even if there had been a specific reference in the Notice of Initiation to our findings in the original 
report under Article 3.2 of the Anti -Dumping Agreement and Article 15.2 of the SCM Agreement, it 
is not clear that that would have amounted to n otice of the information required by MOFCOM in 
this reinvestigation. Indeed, our findings regarding price effects concerned the comparability of 
AUVs, whereas MOFCOM's information request to Chinese producers was with resp ect to a different 
issue.  
7.244.   Second,  China relies on the reference to " questionnaires, hearings, and other measures" to 
be carried out during the reinvestigation. This is, however, solely a reference to the means by 
which MOFCOM might gather information, and  says nothing about the informatio n that might or 
would be required. Articles 6.1 and 12.1 do not set out a notice requirement in respect of how 
information required is obtained, but in respect of what information is, in fact, required. In this 
instance, stating that information may be sou ght through questionnaires, hearings or other means, 
gives no indication of "the information" that MOFCOM requires. It is possible that conveying, or 
even making available (if that is made known to the interested parties), the relevant questionnaire 
to all  interested parties would suffice to give notice regarding "the information" that an 
investigating authority requires. By contrast, merely indicating that there may be "questionnaires" 
in the document giving notice of the initiation of a proceeding conveys  no understanding at all in 
respect of "the information" that is or may be required in those questionnaires.  
7.245.   Third, China confirmed that "the earliest moment when US interested parties could learn of 
the fact that MOFCOM required information from Chinese p roducers and gain an understanding of 
what information was required" was through reading the General Verification Letter, dated 
19 February 2014 .394 In itself, this undermines China's reliance on the Notice of Initiation as one of 
the documents constituting notice for the purposes of Article 6.1 of the Anti -Dumping Agreement 
and Article 12.1 of the SCM Agreement.  
                                                
391 We understand that China is not arguing that each document could, on its own, be charact erized as 
"notice" consistent with  Article 6.1 of the Anti -Dumping Agreement  and Article 12.1  of the SCM Agreement . 
392 Announcement No. 88 , (Exhibit USA -1(translated version)) , p. 1; China's first written submission, 
para. 54. 
393 China's second  written submi ssion, para. 36.  
394 China's response to Panel question Nos. 5(e) (i) and (ii), paras. 16 -17. WT/DS427/RW  
 
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  7.246.   In the light of the above, we question whether the Notice of Initiation could have 
contributed to giving the requi red notice through the three docum ents at issue, considered in their 
totality.395 
7.6.4.3.1.2   General Verification Letter  
7.247.   China also relies on the General Verification Letter in support of its position that MOFCOM 
fulfilled the notice requirement. China asserts that this letter was placed in MOFCOM 's trade 
remedy public information room on 19 February 2014. The letter was addressed to the Chinese 
producers subject to the on -the-spot verification and data collection.396 It states in part:  
You are requested to prepare for th e verification beforehand and full y cooperate with 
the Investigating Team during the verification. Please prepare all the materials and 
produce relevant evidence in view of the Panel Report.397 
7.248.   The United  States  contends that the General Verification Letter constitutes neither in form 
nor in  substance a notice pursuant to Articles 6.1 and 12.1.398 
7.249.   The letter refers to a "verification" and requests the Chinese producers to "prepare all the 
materials and produce relevant evidence". It does not mention that additi onal data may or will be 
required;  perforce, it does not identify what information might or would be required. Reference to 
a "verification", "all the materials" and "relevant evidence" does not provide any understanding of 
"the information" that MOFCOM required; mentioning certain sources  of information ("materials", 
"evidence") does not suffice to provide notice of the information required. As we have observed, 
the reference to the "Panel Report", without more, does not provide additional clarification.399 
Substantively, the contribution of  the letter to MOFCOM's fulfilment of the "notice" requirement is 
questionable at best.  
7.250.   MOFCOM placed the letter in its trade remedy public information room but did not actively 
inform US interested parties of the letter, nor of the fact that it was availa ble in MOFCOM's trade 
remedy public information room .400 The Notice of Initiation did refer interested parties to the trade 
remedy public information room. Thus, interested parties that routinely "monitored the public 
reading room"401 presumably would have become aware of the letter soon after it was placed in 
that room .402 The Notice of Initiation states in this regard:  
Any interested parties may refer to the public evidence and information via Trade 
Remedy Public Information Room of th e Ministry of Commerce. The Ministry of 
Commerce will guarantee the legal rights of interested parties though such procedures 
as disclosing information and providing chances for statem ent of opinions and 
comments.403 
Thus, as we understand it, China argues t hat: 
a. the Notice of Initiation referred interested parties to the public information room for 
access to public evidence and information;  
b. MOFCOM placed the General Verification Letter in the public information room;  
                                                
395 China's initial argument was that the Notice of Initiation ( 25 December 2013)  was part of a series of 
three documents that taken together  amounted to a notice of the information required within the meaning of 
Article 6.1 of the Anti -Dumping Agreement  and Article 12.1  of the SCM Agreement . 
396 General Verification Letter , (Exhibit CHN -2 (translated version)) , p. 1; China's first written 
submis sion, para. 56. 
397 General Verification Letter , (Exhibit CHN -2 (translated version)) , p. 1; China's first written 
submission, para. 56. 
398 United  States' second written submission, paras. 20 -23. 
399 China's second written submission, para. 38 . 
400 China's second  written submission, para. 38. 
401 China's response to Panel question No. 11, para. 20.  
402 China's response to Panel question No. 11, paras. 19 -21. 
403 Announcement No. 88 , (Exhibit USA -1 (translated version)), p. 1.  WT/DS427/RW  
 
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  c. an online index404 was immediately updated t o list the non -confidential summaries as 
available in the public information room; and  
d. the General Verification Letter conveyed more precision about the information required 
of the Chinese producers.  
7.251.   China argues that "Article 6.1 of the AD Agreement and Article 12.1 of the SCM Agreement 
do not mandate the specific means that investigating authorities must follow to provide notice".405 
We agree. Nothing in Article 6.1 or  12.1 specifies the form of a notice or how it is to be given. An 
investigating authority  may give notice to all interested parties either individually in each instance 
that information is required or through more generalized means; properly worded and transmitted, 
a notice of initiation or verification letters might, singly or together, const itute "notice" within the 
meaning of Article 6.1 of the Anti -Dumping Agreement and Article 12.1 of the SCM Agreement.  
7.252.   In this case, however, the Notice of Initiation simply refers all interested parties to the 
public information room but does not indicate  what would be made available and when.406 A 
general reference in the Notice of Initiation to a designated location where public information can 
be consulted, in connection with subsequ ently making available at that location a document that 
purports to conve y an understanding of the information required , does not suffice to give notice 
within the meaning of Articles 6.1 and 12.1. MOFCOM did not inform interested parties of the 
placing of the document allegedly conveying the notice of the information required in the public 
reading room. Rather, int erested parties were expected  "to avail themselves of the public reading 
room to review themselves the public record" and thus to identify on their own the fact that a 
notice of the information required of Chinese pro ducers had been given.407 However, under 
Articles  6.1 and 12.1  it is for MOFCOM to "give" the interested parties notice – an obligation 
to give notice  cannot be satisfied by expecting the interested parties to monitor the investigating 
authority to ensure they remain informed when the interested parties are not informed that that is 
the mechanism by which such notice will be given to them . China's position reduces the notice 
requirement to an obligation to make a general statement that interested par ties may consult 
information in the public information room. The notice requirement would be stripped of its link to 
the information required; it would no longer be "of the information which authorities require". Such 
"notice" would fall short of the due p rocess function of Articles 6.1 and 12.1 . A panel may not 
adopt an interpretation that would render a treaty provision, or part of it, ineffective, and we do 
not do so in this instance . 
7.253.   The fact that informatio n was only requested for what China alleges to  be a "limited 
purpose" does not absolve MOFCOM of the obligation to comply with Articles 6.1 and 12.1.408 The 
obligation under the notice requirement to inform all interested parties of the information required 
is not subject to any limitations with respect  to the purpose or use for which information is 
required.  
7.254.   In view of the above, for at least two reasons  we are not convince d that the General 
Verification Letter contributed to MOFCOM giving notice to the US interested parties through the 
three documents at issue considered together:  
a. the letter did not convey any understanding of the additional (pricing) information 
MOFCOM required from the Chinese producers and thus did not relate to the information 
required; and  
b. by merely placing the letter in MOFCOM's trade remedy public information room in 
connection with a reference to that room in the Notice of Initiation, MOFCOM failed to 
give notice.  
                                                
404 According to China, the online index funct ions as an overview of the content accessible in the trade 
remedy public information ro om. The online index is accessible through MOFCOM's main web page.  China does 
not, however, suggest that the online index provides for any mechanism that (proactively) a lerts interested 
parties that and when a document is made available. (China's response to Panel question No. 13, 
paras.  23-24). 
405 China's comments on United  States' response to Panel question No. 1, para. 2.  
406 Also, the Notice of Initiation does not refer to the online index.  
407 China's comments on United  States' response to Panel question No. 3, para. 8  
408 See, ho wever, China's second written submission, para. 39.  WT/DS427/RW  
 
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  7.6.4.3.1.3   Non-confidential summaries  
7.255.   China refers to the non -confidential summaries of the data provided by the Chinese 
produce rs as the last of the three documents through which MOFCOM allegedly satisfied the notice 
requirement at  issue.409 Chinese producers prepared these non -confidential summaries of 
information they provided to MOFCOM, and MOFCOM placed them its trade remedy pub lic 
information room on 20 May 2014.410 
7.256.   Even if the non -confidential summaries conveyed the information re quired, MOFCOM failed 
to give US interested parties notice  in respect of these documents. MOFCOM placed the 
non-confidential summaries in its trade reme dy public information room. As with the General 
Verification Letter, this does not fulfil China's obligation in respect of the notice requirement. China 
neither alleges, nor provides evidence to suggest, that MOFCOM informed US interested parties 
specifica lly that the non -confidential summaries would be or were available in the trade remedy 
public information room. Merely making information available in this room without, in any way, 
calling the attention of the interested parties to this information is, however, not sufficient for 
purposes of Articles  6.1 and 12.1.  
7.257.   We are therefore not persuaded that the non -confidential summaries contributed to 
ensuring MOFCOM's compliance with the obligation to give notice.  
7.6.4.3.1.4   Conclusion  
7.258.   China argues that the three doc uments at issue collectively satisfy the obligation to give 
"notice" pursuant to Articles 6.1 and 12.1. While each document may ha ve some connection to 
China's obligation to give notice of the information required, none , in our view,  makes enough of a 
contribution such that, taken together, they suffice to demonstrate that MOFCOM gave notice to 
US interested parties of the informatio n required consistently with the requirements of Articles 6.1 
and 12.1.  
7.259.   Neither the Notice of Initiation, nor the General Ver ification Letter conveyed any 
understanding in respect of "the information" that MOFCOM required. In respect of the General 
Verification Letter and the non -confidential summaries, MOFCOM also failed to convey to interested 
parties the fact that these docum ents were available for consultation in its trade remedy public 
information room. This failure was not remedied through the Notice of Initiation, which merely 
informed interested parties that evidence and information would be available in that room, but in  
no way informed them that notices required by Articles 6.1 and 12.1  would also be made available 
in the reading room . Therefore, all three documents , even considered together,  do not add up to a 
complete whole whereby MOFCOM could have given the US intere sted parties notice of the 
information required from the Chinese producers.  
7.260.   Consequently, we find that China acted inconsistently with th e notice requirement in 
Article  6.1 of the Anti -Dumping Agreement and Article 12.1 of the SCM Agreement by failing to 
give notice to US interested parties of the information it required of Chinese producers during the 
reinvestigation.  
                                                
409 Post-Verification Supplemental Information con cerning the Reinvestigation on the Anti -dumping and 
Countervailing  Measures Imposed on the Broiler Products Originating in the United  States  (20 May 2014 ) of 
Beijing Huadu, Shandong Chunxue, Shandong Minhe, and Da Chan Wanda , (Exhibits CHN -4 through CHN -7 
(translated versions)) . 
410 In the context of Article 6.4 of the Anti -Dumping Agreement and Article 12.3 of the SCM Agreement, 
the United  States disputes that these summaries were made available in MOFCOM's trade remedy public 
information r oom. China has, ho wever, provided an internal registration document that states that 
"Post-Verification Supplemental Information Concerning the Re -Investigation on the  Anti-dumping and 
countervailing Measures Imposed on the Broiler  Products (public version) " of the four Chi nese producers in 
question was received by the trade remedy public information r oom on 20 May 2014. (Reading Room for Public 
Information on Trade Remedy, Acknowledgement of Receipt of Documents (20 May 2014), (Exhibit CHN -44)). 
See below, paras. 7.298 -7.299 . WT/DS427/RW  
 
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  7.6.4.3.2   Obligation to provide ample opportunity to present written evidence  
7.261.   The United  States  argues that as a consequence of MOFCOM's failure to pr ovide notice of 
the required information, MOFCOM also failed to provide the US interested parties with ample 
opportunity to present written evidence.  
7.262.   We have found that MOFCOM failed to give notice to the US interested parties and that 
China thereby acted inconsistently with the notice requirement in Articles 6.1 and 1 2.1. In this 
context, it is not necessary for us to make additional findings as to whether, as a consequence of 
the violation of the notice requirement, MOFCOM also failed to give interested p arties ample 
opportunity to present in writing all evidence which they consider relevant.411 
7.6.5   Conclusion  
7.263.   The United  States  has established that MOFCOM did not give notice to the US interested 
parties of the information it required from Chinese producers durin g the reinvestigation. We 
therefore find that China acted incons istently with the notice requirement in Article 6.1 of the 
Anti-Dumping Agreement and Article 12.1 of the SCM Agreement. As a consequence, it is not 
necessary for us to make additional finding s in respect of the obligation to provide ample 
opportunities to  present written evidence under the same provisions.  
7.7  Article 6.4  of the Anti -Dumping Agreement  and Article 12.3  of the SCM Agreement : 
timely opportunities to see information and to prepare presentations on the basis of this 
information  
7.7.1   Introduction  
7.264.   In our original report, we found MOFCOM's consideration of price undercutting and price 
suppression inconsistent with Articles 3.1 and 3.2 of the Anti -Dumping Agreement and  
Articles  15.1 and 15.2 of the SCM Agreement. During the reinvestigation, MOFCOM sought and 
collected new pricing data from four selected Chinese domestic producers and used these data in 
its consideration of price effects in the redetermination.  
7.265.   This claim concerns whether MOFCO M acted in accordance with its obligations under 
Article  6.4 of the  Anti-Dumping Agreement and Article 12.3 of the SCM Agreement to provide US 
interested parties timely opportunities to see information and to prepare presentations on the 
basis of this info rmation, specifically with reference to information with respect to price effects.412 
7.7.2   Main a rguments of the p arties  
7.7.2.1   United  States  
7.266.   MOFCOM failed to provide US interested parties timely opportunities to see information in 
respect of:  
a. non-confidential summaries  of pricing data provided by four Chinese producers during 
the reinvestigation at the request of MOFCOM413; 
                                                
411 We also do not need to resolve, as a general matter, whether a vio lation of the obligation to give 
notice of the information required necessarily results in a violation of the obligation to give ample opportunity 
to present written evidence.  
412 We will refer to these as Articles 6.4 and 12.3.  
413 United  States ' first written submission, para.  53; response to Panel question No. 6(a), paras. 17 -18. 
At paragraph 59 of its opening statement, the United  States indicates that " MOFCOM was required to disclose 
not only the public summaries, but also the full data ". At paragraph 56 of its second written submission, the 
United  States argues that the release of non -confidential summaries did not fulfil the obligation of Article s 6.4 
and 12.3. In its response to Panel question No. 6(b)(i), para. 21, the United  States clarifies that it is not 
asserting that US interested parties were entitled to see Chinese producers' confidential data. We therefore 
understand the US claim to be limited to non -confidential information, including the non -confidential 
summaries.  WT/DS427/RW  
 
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  b. the precise identities of these Chinese producers414; 
c. MOFCOM's questions or requests issued to these Chinese producers415; 
d. the "context "416 of these data, including "the specific products for which pricing was 
requested, whether the pricing was requested and/or r eported on the basis of one sale, 
quarterly sales, annual sales, or sampled invoices; and what quantity of each producer 's 
sales, or of  the domestic industry 's sales, were represented by the pricing sample"417; 
e. aggregate data reflecting the information received from the Chinese producers418; and  
f. MOFCOM's "basis for selecting [the four Chinese] producers for the sample and its 
methodology for collecting pricing data from them".419 
7.267.   MOFCOM did not make available non -confidential summaries of the pricing data provided 
by the Chinese producers in MOFCOM's trade remedy public information room on 20 May 2014, as 
China alleges.420 Even if this were the ca se, MOFCOM did not give notice to the US interested 
parties, as required by Articles 6.4 and 12.3.421 Moreover, in the light of the injury disclosure on 
21 May 2014 and the deadline for comments one week later, the opportunity was not "timely" for 
purposes o f these provisions.422 
7.268.   MOFCOM's failure to provide timely opportunities to see the information at issue 
"necessarily" resulted in a breach of the obligation to provide timely opportunities to prepare 
presentations on the basis of that information.423 Also, a h earing that China refers to "in no way 
provided interested parties with an opportunity to prepare present ations" and "itself breached 
AD Agreement Article 6.4 and SCM Agreement Article 12.3".424 
7.7.2.2   China  
7.269.   MOFCOM acted consistently with Articles 6.4 and 12.3. The se provisions do not require 
active disclosure of information.425 They contain an obligation of a passive nature that MOFCOM 
satisfied by releasing the information at issue in its trade remedy public information room. 
Moreover, the United  States  did not demo nstrate that MOFCOM had denied a request by the US 
interested parties to see the information.426 
7.270.   Regarding the pricin g data and identities  of the Chinese producers, M OFCOM provided 
timely opportunities for all interested parties to see this information through non-confidential 
summaries  submitted by Chinese  producers of the information provided by them during the 
verifications. These non -confidential s ummaries were rec eived by MOFCOM and made available to 
US interested parties in its trade remedy public information room on 20 May 2014.427 They 
                                                
414 United  States ' first written submission, para.  53. 
415 United  States ' first written submission, para.  53; responses to Panel question No. 6(b)(i), para. 21, 
and No.  7, paras. 28 -29. 
416 United  States ' second written submission, para. 57.  
417 United  States ' response to Panel question No. 6(b)(i), para. 23.  
418 United  States' responses to Panel question No. 6(b)(i), paras. 21 and 23, and No. 6(b)(ii), para. 25.  
419 United  States ' first written submission, para.  150. 
420 United  States' response to Panel question No. 6(a), paras.  17-18; comments on China's response to 
Panel question No. 11, para. 24. 
421 United  States' second written submission, paras. 55 and 59; responses to Panel question No. 6(a), 
para. 19, No. 6(b)(i), paras. 22 and 23, and No. 10, paras. 36 -37. 
422 United  States'  second written submission, paras. 54 -55; responses to Panel question No. 6(b)(i), 
para. 23, and No. 9, paras. 34 -35. 
423 United  States ' first written submission, para . 62; second written submission, paras. 60 and 62.  
424 United  States ' second  written submissi on, paras. 61 -62. 
425 China's second  written submission, para.  86. 
426 China's second  written submission, para.  87. 
427 China's first written submission, para. 90. WT/DS427/RW  
 
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  contained indexed information on unit prices, sales quantity and value.428 They also disclosed in 
full the precise identities of the  Chinese producers.429 
7.271.   In respect of the alleged questions or requests posed by MOFCOM, MOFCOM did not issue 
any questionnaires to the Chinese producers in order to collect additional information. MOFCOM 
was also not under an obligation under Articles 6.4 an d 12.3 to give opportunities to see its oral 
questions or requests.430 The questions or requests posed by MOFCOM were not "information" that 
was "used" by MOFCOM within the meaning of Articles 6.4 and 12.3.431 
7.272.   MOFCOM also afforded US interested parties the opp ortunity to prepare presentations 
because it complied with its obligation to give US interested parties opportunities to see all 
information.432 Also, Pilgrim's Pride met with MOFCOM in a disclosure meeting433 and all 
US interested parties in fact presented th eir cases in a hearing with MOFCOM.434 
7.7.3   Main a rguments of the third parties  
7.273.   The European Union argues that "relevant information" pursuant to Articles 6.4 and 12.3  
includes information requests addressed to other interested parties .435 "Timely opportunities" 
within the meaning of these provisions must enable interested parties to provide their comments 
on content, reliability and probative value of the information (and possible counter -evidence).  To 
this end, the information must be made available early enough i n the process that the comments 
can still be taken into account in the decision -making of the investigating authorities.436 Making 
the inform ation available in an electronic or physical reading room  satisfies the obligation to 
provide opportunities to see the information. There is no requirement to give notice to the 
interested parties that the information is made available.437 
7.7.4   Evaluation  
7.7.4.1   The law  
7.274.    Article 6.4 of the Anti -Dumping Agreement provides:  
The authorities shall whenever practicable provide timely opportunities for all 
interested parties to see all information that is relevant to the presentation of their 
cases, that is not confidential as defined in paragraph 5, and that is used by the 
authorities in an anti -dumping investigation, and to prepare pr esentations on the 
basis of this information.  
The text of Article 12.3 of the SCM Agreement is essentially identical, with references to "all 
interested Members and interested parties" instead of "all interested parties", "paragraph 4" 
instead of "paragrap h 5" and "countervailing duty" rather than "anti -dumping" investigation.  
 
7.275.   Each provision thus requires the investigating authorities to:  
a. whenever practicable, provide timely opportunities for all interested parties ;  
b. to see  all information  that is : 
i. relevant  to the presentation of their cases , 
                                                
428 China's first written submission, para s. 90 and 92.  
429 China's second  written submission, para.  89. 
430 China's second  written submission, para.  85; comments on United  States' responses to Panel 
question No. 6(b)(ii), para. 16, No. 7, para. 17, and No. 8, para. 18.  
431 China's comments on United  States' response to Panel question No. 8, para. 18.  
432 China's first written submission, para. 94.  
433 China's second  written submission, para.  90. 
434 China's first written submission, para. 95; second  written submission, para.  91. 
435 European Union's third -party statement, para. 5.  
436 European Union's third -party subm ission, para. 14.  
437 European Union's third -party statement, para. 5.  WT/DS427/RW  
 
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  ii. not confidential  as defined in paragraph 5 , and 
iii. used by the authorities  in the in vestigation; and  
c. to prepare presentations on the basis of this information.  
We address each of these criteria below.  
7.7.4.1.1   Whenever prac ticable provide timely opportunities  to see  
7.276.   "Timely opportunities" to see information must be provided "whenever practicable" 
throughout the investigation: they must be timely enough for the interested party to be able to 
prepare presentations on the basis  of the information seen.438 Whether "timely opportunities" have 
been provided to see information must be considered in the light of the circumstances of each 
case, including the specific information at issue, the step of the investigation to which such 
information relates, and the practicability of disclosure at certain points in time in the investigation 
vis-à-vis other s.439  
7.277.   The obligation is to " provide … opportunities " to see all information. The verb "provide" 
refers to opportunities, not to the information itself. The obligation is to give opportunities to see 
the information, not to convey the information itself. At paragraph s 7.226  and 7.227  above, we 
observed that the modes of engagement between the investigating authority and interes ted 
parties in respect of information contemplated in  Article 6 of the Anti -Dumping Agreement and 
Article 12 of the SCM Agreement ranged along a spectrum from some form of active engagement 
on the part of the investigating authority to "passive" obligation s. The obligation to "provide … 
opportunities" falls closer to the passive  end of the spectrum. Thus, the obligation to "provide … 
opportunities" to see information requires an investigating authority to make available  or to 
provide access to  the informati on at issue. It is not an "active" disclosure obligation in the sense 
that it requires  an investigating authority to  reach out to the interested parties, in particular by 
giving notice to, or otherwise informing the interested parties.  
7.278.   Nothing in Articles 6.4 and 12.3  sets out conditions for the manner in which an 
investigating authority must "provide … opportunities". An investigating authority may proceed in 
any number of ways, including by making available the information in a physical or electronic 
reading room.  
7.7.4.1.2   All information  
7.279.   Articles 6.4 and 12.3  refer to "all information". The provisions thus apply to a broad range 
of information qualified only by three cumulative conditions: the information must be "relevant  to 
the presentation of [the interested parties']  cases ", "not confidential" and "used by the 
authorities".440 The information may take various forms, including facts or raw data submitted by 
the interested parties and information that has been processed, organized or summarized by the 
investigati ng authority.441 An investigating authority's reasoning, internal deliberations, analysis or 
methodologies in respect of the information, however, do not constitute "information" subject to 
the obligations under Articles 6.4 and 12.3.442 
7.7.4.1.2.1   That is relevant to th e presentation of their cases  
7.280.   Information is "relevant" for purposes of Articles 6.4 and 12.3  when the interested party 
considers that the information is relevant to the presentation of its case  in the context of the 
investigation .443 
                                                
438 Panel Report, EU – Footwear (China) , paras. 7.602 and 7.650  (quoting Panel Report, EC – Salmon 
(Norway) , para.  7.769).  
439 Appellate Body Report, EC – Fasteners (China) (Article 21.5 – China), para. 5.122.  
440 Appellate Body Report, EC – Fasteners  (China) , paras. 480 and 495.  
441 Appellate Body Report, EC – Fasteners  (China) , paras. 480 and 495.  
442 Appellate Body Report, EC – Fasteners  (China) , para. 495; Panel Report, EU – Footwear (China ), 
para. 7.603.  
443 Appellate Body Reports, EC – Tube or Pipe Fittings , para. 145; EC – Fasteners  (China) , para. 479; 
and EC – Fasteners (China) (Article 21.5 – China) , para. 5.111.  WT/DS427/RW  
 
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  7.7.4.1.2.2   That is not confidenti al as defined in paragraph 5  
7.281.   Articles 6.4 and 12.3  only relate to information "that is not confidential as defined in 
paragraph 5 [paragraph 4 of the SCM Agreement]". Thus, information that has been accorded 
confidential treatment in accordance with Article  6.5 of the An ti-Dumping Agreement or 
Article  12.4 of the SCM Agreement is excluded from the scope of these provisions. If information 
has been treated as confidential in a manner that does not conform  to the requirements of 
Article  6.5 of the Anti -Dumping  Agreement  or Article 12.4 of the SCM Agreement, there is no legal 
basis for according it confidential treatment and such information wou ld, for the purposes of 
Article  6.4 of the Anti -Dumping Agreement, be considered as information "that is not confidenti al 
as defined in paragraph 5".444 
7.7.4.1.2.3   That is used by the authorities  
7.282.   The "information" covered by Articles 6.4 and 12.3 is information that is relevant, 
non-confidential and used by the authorities. The term "used" is not further defined in the 
Anti-Dumping Agreement or the SCM Agreement, or indeed elsewhere in the WTO Agreement ; it 
can have a  broader or a narrower meaning . A narrow interpretation of the term "used" might 
restrict the information at issue to only those specific items of information that an investigating 
authority in fact relies upon in making its determinations. This interpretation has been rejected by 
panels and the Appellate Body.445 A broader interpretation of the term might include all 
information that in one way or another comes before th e investigating authority; there are other 
interpretations possible along this spectrum. For purposes of our task, it suffices to say that 
nothing in the term "used" in itself  tells us where to draw the appropriate line.  
7.283.   In this light, we turn to the imme diate context. The information , we recall, must be 
non-confidential  and relevant  "to the presentation of [the interested parties'] cases". The term 
"used" thus further limits  the scope of information that  is covered by the provisions. An overly 
narrow inte rpretation of the term "used" could so limit the scope of such information as to 
undermine the due process protection given by Articles 6.4 and 12.3, denying an interested party 
the opportunity to see non -confidential information that is relevant to the pr esentation of its case.  
7.284.   We now turn to the broader context. Article 6.9 of the Anti -Dumping Agreement and 
Article 12.8 of the SCM Agreement establish an obligation to disclose the essential facts under 
consideration which form the basis for  the decision w hether or not to apply definitive measures. 
The "essential facts" for purposes of this provision are not all the facts before the investigating 
authority.446 It would thus appear that where the negotiators envisaged a "narrow" scope of 
information, i.e. fact s that, while they may be "used" are not necessarily "essential", they could 
and did formulate their intent in precise terms. While previous decisions suggest an 
unacknowledged premise that information for purposes of Articles 6.4 and 12.3 is in the nature  of 
data, facts or other evidence bearing on the issues to be resolved by an investigating authority, it 
                                                
444 Appellate Body Report, EC – Fasteners (China) (Article 21.5 – China) , para. 5 .101. The same 
conclusion applies in respect of Article 12.3 of the SCM Agreement.  
445 Whether the information was "used" by the authority does not depend on whether the 
authority specifical ly relied on that information. Rather, it depends on whether the inf ormation is 
related to "a required step in the anti -dumping investigation". Thus, Article 6.4 concerns 
information relating to "issues which the investigating authority is required to consider under the 
[Anti-Dumping Agreement], or which it does, in fact, consider, in the exercise of its discretion, 
during the course of an anti -dumping investigation ."  
(Appellate Body  Report, EC-Fasteners (China) , para. 479  (quoting Appellate Body Report, EC – Tube or Pipe 
Fittings , para. 147 ; and Panel Report, EC – Salmon (Norway) , para. 7.769 ) (fns omitted) ) 
446 Appellate Body Report, China – GOES , para. 240 (" Articles 6.9 and 12.8 do not require the disclosure 
of all the facts that are before an authority but, instead, those that are 'essential'; a word that carries a 
conno tation of significant, important, or salient.")  The Panel in EC – Salmon ( Norway)  observed that:  
[E]ssential facts under consideration which form the basis of the decision whether to apply 
definitive measures" are the body of facts essential to the determ inations that must be made by 
the investigating authority before it can decide whether to apply def initive measures. That is, 
they are the facts necessary to the process of analysis and decision -making by the investigating 
authority, not only those that su pport t he decision ultimately reached.  
(Panel Report, EC – Salmon (Norway) , para. 7.807) WT/DS427/RW  
 
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  does not necessarily follow  that the understanding of information "used" must be so limited.447 The 
reference to information "used" in Articles 6.4 and 1 2.3, by contrast to Articles 6.9 and 12.8, thus 
suggests that information "used" may be broader than facts or data relevant to the issues that 
must be, or actually are, resolved in an investigation. Contextual guidance, though limited, 
therefore supports t he view that a broader interpretation of the concept of information "used" is 
warranted.  
7.285.   The purpose of Articles 6.4 and 12.3, to which we must give effect in interpreting them, is 
clear: Interested parties must be able to prepare presentations on the basi s of information which is 
before the investigating authority which they consider relevant, and which they are to be given 
opportunities to see under the first part of the provisions. Articles 6.4 and 12.3 are among the 
important procedural safeguards that ensure that interested parties can defend their interests. Our 
interpretation of the term "used" ought, we believe, give effect to  this important purpose.  
7.286.   In the light of the above, we conclude that information "used" within the meaning of 
Articles 6.4 of the Anti -Dumping Agreement and 12.3 of the SCM Agreement can be broader than 
facts or data relating to issues which the investigating authority is required to consider, or which it 
does, in fact, consider  in the course of an anti -dumping or countervailing duty investigation . 
Whether a particular item of information is one that is "used" by the authorities in a broader sense 
will depend on the facts and circumstances of each case.  
7.7.4.1.3   Provide timely opportunities … to prepare presentations on the basis of this 
information  
7.287.   The two obligations in Articles 6.4 and 12.3  are distinct, yet related. In particular, the 
second obligation concerns providing opportunities to  prepare presentations "on the basis of this 
information" – that is, the information that interested  parties must be given timely opportunities to 
see. Where an investigating authority has not provided any opportunity to see relevant and 
non-confidential information that is used by it, i t perforce cannot provide any opportunity to 
prepare presentations on the basis of this information . However, where an opportunity to see 
information is provided, it may be found to be insufficient if it is not provided in sufficient time to 
allow the inte rested parties seeing the information to prepare presentations based  on it. 
7.7.4.2   Analysis  
7.288.   The United  States  brings its claim under Articles 6.4 and 12.3  in respect of the 
opportunities to see different items of "information" and to prepare presentations on the basis of 
this information. We address each of these below.  
7.7.4.2.1   Providing  timely opportunities to see  
7.7.4.2.1.1   Preliminary observations  
7.289.   China argues first that the US claim fails because the United  States  has not demonstrated 
that the US interested parties requested to see the information at issue and that MOFCOM denied 
such request. According to China , an investigating authority does not need to take any action at all 
in order to comply with Articles 6.4 and 12.3, unless an interested party requests to see the 
information at issue. It relies on the statement of the panel in EC – Fastene rs (China)  that: 
                                                
447 But see Panel Report, EU – Footwear (China) , para. 7.612 . The Panel noted that " the mere fact that 
information 'relates ' to a particular issue that is before the investigating authority does not esta blish that the 
information was ' used' by the author ity in making its determination". It went on to observe that it failed:  
[T]o see how the "sending of the questionnaires " or "requests to complete questionnaire 
responses " could have constituted information per se that was "used" by Commission [sic] in the 
selection of the sample, which we understand to be the relevant determination. We do not see 
the relevance of the dates on whi ch questionnaires were sent to the substantive issues in volved 
in selecting the sample.  Indeed, we see nothing in the evidence before us that would indicate 
that the Commission "used" the fact that the anti -dumping questionnaires were sent to the 
sampled E U producers on 10 October 2008 in any way in the sample determination.  
(Panel Report, EU – Footwear (China) , para. 7.612 ) WT/DS427/RW  
 
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  [A] violation of Article 6.4 would normally require a showing that the investigating 
authorities denied an interested party's request  to see information used by the 
author ities, which was relevant to the presentation of that interested par ty's case and 
which was not confidential.448 
7.290.   Articles 6.4 and 12.3  contain "limited" procedural and due process rights449; they are 
limited by the requirements that providing opportunities be "practicable" and that the information 
be "relevant", "not confidential" and "used". China asks the Panel to further limit the rights of 
interested parties beyond the limitations already expressly set forth in the provisions by 
introducing a requirement for a "request".  
7.291.   We do not find any basis for requiring a "re quest" to see information before a claim of 
violation of Articles 6.4 and 12.3  can be made. Textually, the obligation is for investigating 
authorities to "provide" opportunities. This is in contrast to other obligations in Article 6 of the 
Anti-Dumping Agr eement and Article 12 of the SCM Agreement that condition the obligation to 
"provide opportunities" or to "make available" on a "request":  
a. Article 6.1.3 of the Anti -Dumping Agreement and Article 12.1.3 of the SCM Agreement 
require that the investigating au thority "shall provide" the written application to the 
known exporters and the authorities of the exporting Member (without reference to any 
request), and "shall make it available, upon request , to other interested parties 
involved"450; and  
b. Article 6.2 of th e Anti -Dumping Agreement conditions the obligation to "provide 
opportunities" to meet with adverse interests with the phrase "on request".451 
The fact that the "relevance" of the information must be assessed from the perspective of the 
interested party does not detract from our understanding that investigating authorities must 
provide opportunities irrespective of a request to see the information being made.452 Interested 
parties that are not aware of the existence of certain information before the investigatin g authority 
obviously cannot make a request to see that information.453 Such interested parties may well be 
most in need of the due process protection afforded by Articles 6.4 and 12.3. Yet, a requirement 
for a request would render void their right to have a n opportunity to see information of which they 
are unaware.454 Attributing such a meaning to a treaty provision would lead to an unreasonable 
result . 
7.292.   The failure to provide opportunities to see certain information is a violation by omission. 
There are  eviden tiary challenges associated with a claim based on an alleged omission. It may be 
difficult to prove the absence of an opportunity to see information. From an evidentiary 
perspective, it is therefore useful if a complainant can demonstrate, by reference to record 
evidence, that an interested party requested to see information that the investigating authority 
then failed to make available. But the absence of a request by an interested party in itself does 
not, as a matter of law or fact, mean that an investig ating authority has satisfied its obligation to 
provide timely opportunities to see information under Articles 6.4 and 12.3. Viewed in context, t he 
quotation from EC – Fasteners (China)  relied on by China does not support its position to the 
contrary. The panel in that case had already observed that Article 6.4 did not require an 
investigating authority to "actively disclose" information, and was addressing China's argument 
that "the investigating authorities were under the obligation to provide " informatio n even in the 
absence of a request.455 The panel rejected the view that there was any obligation to actively 
                                                
448 Panel Report, EC – Fasteners (China) , para. 7.480; China's second written submission, para. 87; and 
comments on United  States' resp onse to Panel question No. 10, para. 21. 
449 Panel Reports, EC – Fasteners (China) , para. 7.479; EU – Footwear (China) , para. 7.601 . 
450 Emphasis added.  
451 Similarly, Article 6.2 of the Anti -Dumping Agreement and Article 12.2 of the SCM Agreement provide 
a righ t to present information orally "[up] on justification".  
452 An investigating authority may well prefer to rely on an interested party's request to assure itself of 
the "relevance" of information.  
453 This is particularly problematic where, as in the case at h and, the investigating authority also failed 
to give interested parties notice of the information required pursuant to Article 6.1 of the 
Anti-Dumping  Agreement and Article 12.1 of the SCM Agreement.  
454 But see Panel Report, EC – Fasteners (China) (Article 21.5 – China) , para. 7.78.  
455 Emphasis added.  WT/DS427/RW  
 
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  disclose information under Article  6.4. In this context, the statement  that a " violation of Article 6.4 
would normally require a showing tha t the investigating authorities denied an interested party's 
request to see information" in our view reflects that one way of demonstrating a violation of 
Article  6.4 would be to show that a request to see information was denied. This does not, however, 
mean tha t such a request (and denial) are necessary in order to demonstrate a violation of 
Articles  6.4 and  12.3.  
7.293.   In this case, the United  States  does not assert that a request by the US interested parties 
to see the information at issue was made and rejected. Rather, the United  States  points to a 
statement of the US Government to MOFCOM during the reinvestigation asserting a lack of 
procedural fai rness  to support its contention that interested parties were not provided timely 
opportunities to see information . Specifically, in respect of the information solicited from the 
Chinese producers, the US Government asserted to MOFCOM that US interested par ties had no 
understanding of what evidence  MOFCOM had obtained and relied upon during the 
reinvestigation.456 This is in our view evidence supporting the US allegation that MOFCOM did not 
provide opportunities to see information.  
7.7.4.2.1.2   Non-confidential pricing inf ormation  
7.294.   The United  States  claims that MOFCOM did not provide timely opportunities to see 
non-confidential pricing information submitted by the Chinese producers to MOFCOM. It refers in 
this regard to the fact that non -confidential summaries are not mentio ned in the injury 
disclosure.457 China conte nds that on 20 May 2014, MOFCOM made available in its trade remedy 
public information room  non-confidential summaries which contained  indexed pricing data from 
four Chinese producers.458 
7.295.   There is no disagreement betw een the parties that the pricing data contained in the 
non-confidential summaries constituted information that was relevant to the US interested 
parties'  presentations of their cases, not confidential as defined in paragraph 5 of Article 6 of the 
Anti-Dump ing Agreement (and paragraph 4 of Article 12 of the SCM Agreement) and used by 
MOFCOM. Thus, it is clear that the information at issue falls within the scope of Articles 6.4 
and 12.3. 
7.296.   The disagreement between the parties relates to whether, as a matter of fact, the 
non-confidential summaries were made available in MOFCOM's trade remedy public information 
room and, if so, whether the opportunities to see that information were "timely". We address each 
issue in turn below.  
7.297.   First, regarding whether the non -confidential summaries were in fact made avai lable in 
MOFCOM's trade remedy public information room , China contends that MOFCOM made them 
available there on 20 May 2014, relying on an internal "acknowledgement of receipt" from 
MOFCOM's trade remedy public information room , Exhibit CHN -44. This document, dated 
20 May 2014, acknowledges "receipt of a total of four documents of Post -Verification Supplemental 
Information Concerning the Re -Investigation on the Anti -dumping and countervailing Measures 
Imposed on the Broiler Products (public version)" from t he four Chinese producers in question.  
7.298.   The United  States  argues that Exhibit CHN -44 do es not demonstrate that the 
non-confidential summaries were made available in the trade remedy public information room . The 
exhibit acknowledges "receipt" of the non -confidential summaries by the trade remedy public 
information room , but does not confirm that the documents were actually placed in the trade 
remedy public information room .459 Moreover, while there is a signature on the receipt by the 
                                                
456 Statement of the US Government for MOFCOM's Injury Hearing, (Exhibit USA -10), pp. 1 -2 of the 
English translation . 
457 United  States' response to Panel question No. 6(a), paras. 17 -18. 
458 Post-Verification Supplemental Information concerning the Reinvestigation on the Anti -dumping and 
Countervailing  Measures Imposed on the Broiler Products Originating in the United  States  (20 May 2014 ) of 
Beijing Huadu, Shandong Chunxue, Shandong Minhe, and Da Chan Wanda , (Exhibits CHN -4 through CHN -7 
(translated versions)) . 
459 United  States' comments on China's response to Panel question No. 11, para. 24.  WT/DS427/RW  
 
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  submitter, a n investigating official , there is no signature by a MOFCOM official in the requisite 
signat ure line acknowledging  receipt .460 
7.299.   While the United  States  notes that the receipt is not signed by an official of the trade 
remedy publ ic information room , the United  States  does not assert that the receipt was not issued 
by MOFCOM's trade remedy public information room . It is not clear to us that an internal 
acknowledgement issued  by the "Reading Room for Public Information on Trade Reme dy" of 
MOFCOM's "Trade Remedy and Investigation Bureau" loses its probative value merely because it is 
not signed  at the appropriate place by a responsible official. The United  States  further argues that 
there is a distinction between an acknowledgement of receipt  of the non -confidential summaries 
and a confirmation that these summaries were made available . We agree. But this might well be a 
formal distinction without a material differ ence in this case. We note, for example, that :  
a. the English translation version of the redetermination provided by China refers to all 
non-confidential information being "released to" MOFCOM's trade remedy public 
information room  during the reinvestigation461; 
b. the same passages in the English translation of the redetermination submitted by the 
United  States  refer to non -confiden tial information being "delivered to" the trade remedy 
public information room462; and   
c. both translations state that non -confidential i nformation was "released" or "delivered" in 
accordance with domestic rules on non -confidential information, information acc ess and 
disclosure, so that all interested parties were able to "search for [look up], read, extract 
and [photo -] copy" non -confident ial information.463  
In this context, in our view  the references to "release", "delivery" or "receipt" refer to the making 
available  of non -confidential information in MOFCOM's trade remedy public information room .464 
On balance, we therefore find that the acknowledgement issued by the trade remedy 
public  information room , understood in the light of the redetermination, supports the conclusion 
that MOFCOM made  the non -confidential summaries  available in its trade remed y 
public  information room  on 20 May 2014, thus giving US interested parties opportunities to see the 
information at issue.465  
7.300.   We now turn to the second issue, whether MOFCOM provided these opportunities in a 
timely  fashion. T he non -confidential summaries of  the pricing  data were made available on 
20 May 2014. The final injury disclosure was made on 21 May 2014, and a deadline for comments 
of ten days was established.466 The redetermination was issued on 8 July 2014, taking effect on 
9 July 2014.467 
7.301.   The United  States emphasizes MOFCOM's obligation pursuant to Articles 6.4 and 12.3  to 
provide "timely" opportunities to see the information at issue, and asserts that MOFCOM failed to 
do so.468 The US position is largely predicated on its view that MOFCOM did not make the 
non-confidential summaries available at all, and we have found otherwise . As a consequence of 
our decision, any alleged lack of timeliness cannot be simply a con sequence of fai ling to make the 
information available, but must be assessed on its own merits.  
7.302.   The United  States  also argues that:  
                                                
460 United  States' comments on China's response to Panel question No. 11, para. 24.  
461 Redetermination, ( Exhibit CHN -1 (translated version)), pp. 9 and 13.  
462 Redetermination, ( Exhibit  USA-9 (translated version)), pp. 7 and 12.  
463 Redetermination, ( Exhibit CHN -1 (translated version)), pp. 9 and 13; and Exhibit USA -9 (translated 
version), pp. 7 and 12.  
464 We note in this regar d that to do otherwise might imply a lack of good faith in MOFCOM's actions, 
which we consider without any foundation and inappropriate in the circumstances of this case.  
465 Contrary to the US assertion, MOFCOM was not required under Article s 6.4 and 12.3  to notify  US 
interested parties  that the non -confidential summaries had been made available . (See para. 7.277  above).  
466 Letter from MOFCOM dated 21 May 2014 on disclosure of the determination regarding injury, 
(Exhibit  USA-8 (translated version)), p. 1.  
467 Redetermination, (Exhibit CHN -1 (translated v ersion)), pp. 1 and 3.  
468 United  States' second written submission, paras. 54, 55, and 59; response to Panel question 
No. 6(a), para. 20.  See also response to Panel question No 9, paras. 34 -35. WT/DS427/RW  
 
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  [E]ven if U.S. interested parties happened upon the summaries [on 20 May 2014] … 
they still would not have an opportunity to make timely pre sentations based on these 
summaries before MOFCOM issued its [final injury disclosure] – a report which is 
essentially equivalent to a draft opinion.469  
[R]egardless of whether or not MOFCOM actually released information to this public 
reading room [the fac t that this would have been] the day before it issued the [final 
injury disclosure] … hardly reflects a timely effort by China to enable interested 
parties to review information relevant to the presentation of their cases – as required 
by AD Agreement Arti cle 6.4 and SCM Agreement 12.3.470 
MOFCOM did not give notice to the US interested parties, as required by Articles 6.4 and 12.3 .471 
Without notice, and thus knowledge of the existence of the non -confidential summaries in 
MOFCOM's trade remedy public informati on room , US interested parties did not have a "timely" 
opportunity to see the information.472 Moreover, the opportunities to see the information were not 
"timely" because the non -confidential summaries were made available only one day before  the 
injury discl osure was issued.473 Thus, US interested parties did not " have an opportunity to make 
timely  presentations based on these summaries before  MOFCOM issued its [injury disclosure] – a 
report which is essentially equivalent to a draft opinion".474 
7.303.   We understand th e US position to be that the pricing information at issue here was made 
available too late before the issuance of the injury disclosure to be considered "timely". The 
United  States  does not, however, explain how the issuance of the final injury disclosure limited the 
opportunity of the US interested parties to see the information and prepare submissions based on 
it in time to prepare and submit submissions commenting on the final in jury disclosure . Nor has 
the United  States  demonstrated that the 10 day period for comments on the injury disclosure was 
not sufficient to allow US interested parties to see the pricing information in MOFCOM's trade 
remedy public information room  and prepa re presentations based on it, to be submitted as 
comments on the injury disclosure. Timeliness in this context depends on whether interested 
parties can defend their interests, in particular by preparing (and submitting) presentations based 
on the informat ion at issue.475 This must be assessed on a case -by-case basis.476 In this instance 
the United  States  has not demonstrated on the basis of the specific circumstances of the case, that 
the US interested parties did not have timely  opportunities to see the infor mation because the 
non-confidential summaries were only made available on 20 May 2014. In particular, by focusing 
its arguments on the assertion that there was " no opportunity whatsoever" to see the 
information477, the United  States  has not demonst rated that  in the circumstances of this case the 
US interested parties were unable to prepare presentations because they lacked "timely" 
opportunities to see the non -confidential summaries.478 
                                                
469 United  States ' response to Panel question No. 6(b)(i), para. 23. 
470 United  States' response to Panel question No. 9, para. 35 (internal quotations and fn omitted). 
Similarly, but in the context of Article 6.1 of the Anti -Dumping Agreement and Article 12.1 of the 
SCM Agreement, United  States' second written submission , paras. 25, 33, and 48.  
471 United  States' second written submission, paras. 55 and 59; responses to Panel question No. 6(a), 
para. 19, No. 6(b)(i), paras. 22 -23, and No. 10, paras. 36 -37. 
472 United  States' second written submission, para. 55; responses to P anel question No. 6(a), para. 20, 
and No. 9, para. 35.  
473 United  States ' responses to  Panel question No. 6(a), para s. 18 and 20, and No. 9, para. 35.  
474 United  States ' response to  Panel question No.  6(b)(i) , para . 23 (emphasis added). We note that the 
United  States does not even assert, unlike in the context of its claim under Article 6.1  of the 
Anti-Dumping  Agreement  and Article 12.1  of the SCM Agreement, that t he period for comments following the 
injury disclosure was not enough to provide "timely" opportun ities to see the information (and to prepare 
presentations on this basis) . 
475 Such presentations " are the principal mechanisms through which  an [interested party] can defend its 
interests". (Appellate Body Report, EC – Tube or Pipe Fittings , para. 149).  
476 Appellate Body Report, EC – Fasteners (China) (Article 21.5 – China) , para. 5.122. This case also 
relates to a situation in which the opportunities to see the information were provided towards the end of the 
investigat ion when the final disclosure was  made. 
477 United  States' response to Panel question No. 9, para. 34. (emphasis added)  
478 Moreover, the United  States makes certain arguments in relation to the conduct of a hearing that 
allegedly impaired the US interested parties' ability to make presentations . None of these arguments are, 
however, relevant for the issue of the timeliness of the opportunity to see information provided through the 
making available of the non -confidential summaries on 20 May 2014.  WT/DS427/RW  
 
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  7.304.   In respect of the non -confidential summaries, the  United  States  has thus failed to 
demonstrate that MOFCOM did not provide timely opportunities to see the information and to 
prepare presentations based on it with in the meaning of Articles 6.4 of the 
Anti-Dumping  Agreement and 12.3  of the SCM Agreement .  
7.7.4.2.1.3   The identities of the Chinese producers  
7.305.   The United  States  claims that MOFCOM did not provide timely opportunities to see the 
identities of the Chinese producers from whom MOFCOM required pricing information.  
7.306.   Each non -confidential summary provided by the Chinese producers indica ted the name, 
and thus the precise identity , of the respective responding producer.479 Above, we found that 
MOFCOM made available the non -confidential summaries on 20 May 2014 and that the 
United  States  has not established that MOFCOM failed to provide timel y opportunities to see these 
summaries and prepare presentations. Consequently, the same analysis and conclusions apply to 
the identities of the Chinese producers that were included in those n on-confidential summaries.480 
7.307.   We therefore find that the United  States  has not established its claim under Articles 6.4  of 
the Anti -Dumping Agreement  and 12.3  of the SCM Agreement in respect of the identities of the 
Chinese producers.  
7.7.4.2.1.4   Requests for i nformation  
7.308.   The United  States  argues that MOFCOM acted inconsiste ntly with Articles 6.4 and 12.3  
because it did not provide timely opportunities for US interested parties to see the questions or 
requests for information that MOFCOM put to the Chinese producers in order to require additional 
pricing data.  China argues th at MOFCOM did not issue any questionnaires to the Chinese producers 
which MOFCOM could have provid ed interested parties an opportunity to see.  
7.309.   There is no disagreement between the parties that MOFCOM did request additional 
information from the Chinese producers in some way, even if not through formal questionnaires or 
other written requests. Moreover, it is undisputed that MOFCOM did not provide  any opportunities 
for US interested parties to view the requests for information it put to the Chinese producers, in 
whatever form.  
7.310.   The first question we must address is whether MOFCOM's requests for additional 
information, in whatever form, to the four Ch inese companies constitute "information" within the 
meaning of Articles 6.4 and 12.3. This is the first time a panel has been called upon to consider 
whether requests for information, in whatever form, fall within the scope of the term "information" 
in Art icles 6.4 and 12.3. Nothing in these provisions or jurisprudence481 suggests that 
"information" in Articles 6.4 and 12.3 refers solely to information in the form of evidence or data 
that is submitted to or obtaine d by an investigating authority. We see no re ason to exclude, 
a priori , requests for information from the scope of "information" within the meaning of Articles 6.4 
and 12. 3. 
7.311.   China also argues that there is no obligation under Articles 6.4 and 12.3 to reduce into 
writing oral questions or requests of information and to make them available in that form to all 
other interested parties.482 This is true. However, the "information" in respect of which the 
investigating authority has to provide timely opportunities to see is not further qualified in respect 
of its form; indeed, it "may take various forms …".483 Nothing in Articles 6.4 and 12. 3 limits the 
                                                
479 Post-Verification Supplemental Information conce rning the Reinvestigation on the Anti -dumping and 
Countervailing  Measures Imposed on the Broiler Products Originating in the United  States  (20 May 2014 ) of 
Beijing Huadu, Shandong Chunxue, Shandong Minhe, and Da Chan Wanda , (Exhibits CHN -4 through CHN -7 
(translated versions)) , each on pp. 1 -2. 
480 Our conclusion assumes that the identities of the responding Chinese producers are relevant to the 
presentation of the US interested parties' cases and used by the authorities, but we express no views as to 
whether this assumption is, in fact, justified.  
481 The Appellate Body refers to information "including data submitted by the interested parties". 
(Appellate Body Report, EC – Fasteners  (China) , para. 480).  
482 China's  comments on United  States' response to Panel ques tion No. 8, para.  18. 
483 Appellate Body Report, EC – Fasteners  (China) , para. 480.  WT/DS427/RW  
 
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  information at issue to written information. Context is helpful in this respect: the text in 
Articles  6 and 12 is sp ecific when the obligation concerns informati on or evidence in a particular 
form. For example, Article 6.1 refers to an opportunity to "present in writing  all evidence", 
Article  6.1.2 to "evidence presented in writing" , and Article 6.2 to an opportunity, upon 
justification, to "present other informat ion orally". In this light, the obligation in 
Articles  6.4 and 12.3 relates to any type of information, whether or not it is in writing, including 
oral requests for information. In fact, it would undermine the due process protection afforded by 
the obligat ion to provide timely  opportunities to see information if an investigating authority could 
avoid giving such opportunities simply by avoiding putting the information at issue into writing. 
Thus, the term "information" in Articles 6.4 and 12.3, includ es requests for information, even if 
made orally.  
7.312.   We recall that there are three limitations on the kinds of information subject to the 
requirements of Articles 6.4 and 12.3 , and these limitations are cumulative.  We now turn to the 
third of these484: whether the requests for information at issue here, whatever their form, 
constitute information that was "used" by MOFCOM. The United  States  contends that the requests 
were "used" because they were "applied by MOFCOM to generate new injury findings"485 and 
because they "constituted a 'required step in the anti -dumping investigation'", in line with the 
findings of the  Appellate Body in EC – Tube or Pipe  Fittings .486 In response to the Panel's oral 
questions at the substantive meeting, the United  States  argued  that the requests were "used" 
because  
a. they were "critical to how MOFCOM reached its ultimate finding";  
b. they were " how MOFCOM got the information that it claims is so critical to its injury 
analysis";  
c. "MOFCOM had to deliver [them] to a party to obtain somethi ng"; and  
d. they "serve[d] a function", here to obtain more information.  
7.313.   China argues that:  
a. the US position would mean that "any action taken by an authority as part of its conduct 
in an investigation could be construed as 'related' to a 'required step' in an  antidumping 
(or countervailing duty) investigation". This interpretation would result in an 
administrative burden that is "impossible to administer"; and  
b. the Appellate Body's findings in EC – Tube or Pipe  Fittings  specifically concern the 
characterization of data as "information" that is "used" by an investigating authority, not 
an (oral) request for information.487 
7.314.   We recall our finding at paragraph 7.286  above that the term "used" within the meaning of 
Articles 6.4 and 12.3 is not limited to information in the nature of data, facts or other evidence 
relating to issues which the investigating authority is required to consider,  or which it does, in fact, 
consider in the course of an anti -dumping or countervailing duty investigation. We further note our 
finding in paragraph 7.311  that oral  requests for information constitute "information" for the 
purposes of Articles 6.4 and 12.3.  There is no dispute in this case that MOFCOM made, in some 
form, requests for information to four Chinese producers, that it received pricing data in response 
to those request s, and  that it  took that data into consideration in making findings on price 
undercutting in the redetermination. We make the following observations:  
a. our finding in the original report under Article 3.2 of the Anti -Dumping Agreement 
related to the composition and comparability of product baskets;  
                                                
484 There is no dispute between the parties as to relevance; we deal with the confidentiality issue below.  
485 We note in fact that the information requests were used to generate additional data , which in turn 
were used in considering the issue of injury.  
486 United  States' response to Panel question No. 8, paras. 30 -31. 
487 China's  comments on United  States' response  to Panel question No. 8, para.  18. WT/DS427/RW  
 
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  b. in seeking to address this finding in the reinvestigation MOFCOM collected and evaluated 
pricing data for various broiler product models. The reinvestigation thus  did not directly 
pertain to the comp osition and comparability of the product baskets whose prices 
MOFCOM then compared; and  
c. the requests for information to Chinese producers link the pricing information to the 
issue of composition and comparability of product baskets addressed in our origina l 
finding. Thus, in the specific circumstance of this case, those requests for information 
constitute background and context for understanding and evaluating the pricing data 
submitted by the producers in light of the issue to be addressed.  
We therefore co nsider that , in the facts of this case,  the requests for information constituted 
information used by MOFCOM in the sense of Articles 6.4 and 12. 3, in the reinvestigation.  
7.315.   In view of the above, we find that China acted inconsistently with Articles 6.4 of the 
Anti-Dumping Agreement and 12.3 of the SCM Agreement because MOFCOM failed to provide 
timely opportunities for the US interested parties to see the requests for information issued to the 
Chinese producers.  
7.7.4.2.1.5   Additional "context"  regarding the data in the n on-confidential summaries 
and aggregate data  
7.316.   The United  States  claims that MOFCOM did not provide opportunities to see the 
"context"488 of the pricing information in the non -confidential summaries, including "the specific 
products for whi ch pricing was reque sted, whether the pricing was requested and/or reported on 
the basis of one sale, quarterly sales, annual sales, or sampled invoices; and what quantity of each 
producer 's sales, or of the domestic industry 's sales, were represented by the pricing sample".489 
The United  States  also claims that MOFCOM did not provide opportunities to see "aggregate data 
reflecting the information received from the four [Chinese] producers".490 
7.317.   The United  States  did not demonstrate that these items of "context" themselves constitute 
"information" that was "relevant", "non -confidential" and "used" within the meaning of 
Articles  6.4 and 12.3. Thus, there is no basis for us to find that MOFCOM was required to provide 
timely opportunities to interested parties to see these item s of "context". Moreover, the thrust of 
the US argument is that "the content of these summaries omitted certain critical relevant 
information that does not, on its face, appear to be data that is 'by nature confidential'".491 The 
United  States  has not, howev er, demonstrated in what way  certain non -confidential information 
"was withheld" from the non -confidential summaries.492 There is no evidence before us to suggest 
that the non -confidential summaries were in fact incomplete. To the extent that the United  States 
takes issue with the confidential treatment of certain information as such, this would fall within the 
scope of a claim under Article 6.5 of the Anti -Dumping Agreement and Article  12.4 of the 
SCM Agreement, which the United  States  has not made, not within a claim under 
Articles  6.4 and 12.3.  
7.318.   With respect to " aggregate data reflecting the information received from the four [Chinese] 
producers", there is also no evidence that MOFCOM had, in addition to t he pricing information 
itself, non-confidential aggr egate information that it used but in respect of which it failed to 
provide timely opportunities to see. Indeed, the formulation of the US argument suggests that the 
United  States  might have preferred that the pricing information from the four producers were 
provided in a non -confidential aggregate form and made available to interested parties to see. 
Articles 6.4 and 12.3  do not, however, establish any right to see the "informatio n" recast in a 
different manner or to see additional, "contextual" details that go beyond the "information" at 
issue.  
                                                
488 United  States ' second written submission, para. 57.  
489 United  States ' response to Panel question No. 6(b)(i), para. 23.  
490 United  States' responses to Panel question No. 6(b)(i), paras. 21 and 23, and No. 6(b)(ii), para. 25.  
491 United  States' response to Panel question No. 6(b)(i), para. 23.  
492 United  States' response to Panel question No. 6(b)(i), para. 21.  WT/DS427/RW  
 
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  7.319.   In the light of the foregoing, the United  States  has not established its claim under 
Articles  6.4 of the Anti -Dumping Agreement  and 12.3  of the SCM Agreement in respect of the 
additional "context" regarding the data in the non -confidential summaries and aggregate data.  
7.7.4.2.1.6   Information in respect of "sampling " 
7.320.   The United  States  claims that MOFCOM did not disclose the basis for selecting the Chin ese 
producers in the "sample" from which additional pricing data was sought, and the methodology for 
collecting  pricing data from them, contrary to the requirements of Articles 6.4 and 12.3.  
7.321.   The basis for selecting Chinese producers from whom additional pr icing data was sought 
and the methodology for collecting  pricing data both are aspects of MOFCOM's methodology in its 
investigation and consideration of price effects. Articles 6.4 and 12.3  do not, however, apply to the 
methodology used by or determination s of the investigating authority and do not require 
investigating authorities to provide opportunities for interested parties to "see" such methodologies 
or determinations.493  
7.322.   We find therefore that the United  States  has not established its claim under Arti cles 6.4 of 
the Anti -Dumping Agreement and 12.3  of the SCM Agreement in respect of the basis for selecting 
Chinese producers in the sample and the methodology for collecting  pricing data from them.  
7.7.4.2.2   Opportunities to prepare presentations  
7.323.   The United  States  argues that MOFCOM failed to provide US interested parties timely 
opportunities to prepare presentations, as required by the second obligation set forth in 
Articles  6.4 and 12.3.  
7.324.   Above, we found that China acted inconsistently with Articles 6.4 and 12.3 because 
MOFCOM failed to provide timely opportunities for the US interested parties to see the requests for 
information issued to the Chinese producers. As a consequence, MOFCOM also failed to provide 
timely opportunities for the US i nterested parties to prepare presentations on the basis of this 
information , that is, the information requests.  
7.325.   We therefore find that China also acted inconsistently with Articles 6.4 of the 
Anti-Dumping  Agreement and 12.3 of the SCM Agreement because it did not provide timely 
opportunities to prepare presentations.  
7.7.4.2.3   Issues related to the non -confidential treatment of information  
7.326.   The United  States  included a reference to Article 6.5 of the Anti -Dumping Agreement and 
Article 12.4 of the SCM Agreement in its panel request. In its first written submission, the 
United  States  invoked a breach of Article 6.5 of the Anti -Dumping Agreement and Article 12.4 of 
the SCM Agreement as an alternative claim to its principal claim under Article 6.1.2  of the 
Anti-Dumping Agr eement  and Article 12.1.2  of the SCM Agreement, which we ruled to fall outside 
of the Panel's terms of reference.494 We do not understand the United  States  to be advancing an 
independent claim of violation under Article 6.5 of the Anti -Dumping A greement and Article 12.4 of 
the SCM Agreement495; indeed, the United  States  has not demonstrated that MOFCOM acted 
inconsistently with the requirements set forth in those provisions.496 
7.327.   To the extent that Articles 6.4 and 12.3  refer, through the reference to non-confidential 
information as defined by paragraph 5 and 4 respectively,  to Article 6.5 of the 
Anti-Dumping  Agreement and Article 12.4 of the SCM Agreement, the United  States  argues that 
certain information was "withheld" or "omitted", although not "by n ature confidential" consistent 
with Article 6.5 of the Anti -Dumping Agreement and Article 12.4 of the SCM Agreement.497 
Whether or not this information was properly treated as confidential is not a question within the 
                                                
493 Panel Report, EU – Footwear (China) , paras. 7.618 and 7.631.  
494 United  States ' first written submission, fn 75.  
495 United  States ' response to Panel question No. 6(b)(ii), paras. 26 -27. 
496 United  States ' response to Panel question No. 6(b)(ii), paras. 26 -27. 
497 United  States ' response to Panel question No. 6(b)(i), paras. 21 and 23.  WT/DS427/RW  
 
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  scope of our jurisdiction in this procee ding. In any event, as discussed above, this information is 
not "information" that was "used" by MOFCOM.498 
7.7.5   Conclusion  
7.328.   In respect of the requests for information made  by MOFCOM to the Chinese producers, the 
United  States  has established that MOFCOM did not p rovide timely opportunities for the 
US interested parties to see this information and to prepare presentations on the basis of it. We 
therefore find that China acted inconsistently with the two obligations set forth in each of 
Articles  6.4 of the Anti -Dump ing Agreement and 12.3  of the SCM Agreement . 
7.8  Article 6.8  of the Anti -Dumping Agreement and paragraphs 3 and 5 of Annex II: 
facts available  
7.8.1   Introduction  
7.329.   In our original report, we found that MOFCOM had acted inconsistently with the second 
sentence of Article 2.2.1.1 of the Anti -Dumping Agreement in allocating costs for purposes of 
constructing normal value in respect of Tyson. In the reinvestigation, MOFCOM again constructed 
Tyson's normal value under Article 2.2 of the Anti -Dumping Ag reement;  MOFCOM r ejected Tyson's 
reported cost data (including its calculations) and used what it described as "facts available".  
7.330.   This claim concerns whether MOFCOM acted in accordance with Article 6.8 and 
paragraphs  3 and 5 of Annex II of the Anti -Dumping Agreement when i t rejected Tyson's reported 
cost data and used facts available. The cost data at issue relate to the "raw material" cost incurred 
in raising a broiler up to split -off ("meat cost") and the processing cost incurred after split -off 
("processing cost").  
7.8.2   Factu al background  
7.331.   In the original investigation : 
a. Tyson provided, through several submissions, data for meat and processing costs to 
MOFCOM.  
b. Tyson reported both sets of cost data by chicken "part", such as wing tips, leg quarters, 
etc. The processing costs were  not broken down by processing step.  
c. The data Tyson reported for meat costs included processing costs incurred before the 
final stage in the production process.  
7.332.   In the reinvestigation : 
a. MOFCOM requested Tyson to report meat and processing costs at the produ ct brand 
code level, rather than at the part level.499 MOFC OM required Tyson to provide these 
cost data for each of the more than 1,000 product brand codes ("models") it 
produced.500 MOFCOM also requested Tyson to report processing costs broken down by 
process ing step.501 
b. Tyson did not have actual cost data for meat and processing costs separated by model 
and processing step in its accounting records. Therefore, it generated the requested data 
according to the parameters set by MOFCOM, using the data available in  its accounting 
system (the "aggregate total costs" incur red and the "standard costs").502 The standard 
costs reflect Tyson's expectation as to costs incurred at each particular production step 
and were used to derive allocation percentages to distinguish me at and processing costs. 
                                                
498 See paras.  7.317 -7.319  above.  
499 United  States ' second written submission, para. 135. MOFCOM initially only requested data on 
processing costs. Tyson also provided data on meat costs and MOFCOM in the following also requested data on 
meat costs.  
500 United  States ' first written submission, para. 121 . 
501 United  States ' second written submission, para. 139.  
502 United  States ' first written submission, para s. 110-111; second written submission, para . 132.  WT/DS427/RW  
 
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  Tyson disaggregated the availabl e actual aggregate cost data using the alloc ation 
percentages derived from standard cost  to determine meat and processing costs at each 
production step. On this basis, Tyson reported data for meat an d processing costs for 
each production step.  
c. Tyson 's reported data changed in some aspects in the course of the reinvestigation and 
it differed in some aspects from the data that it had provided in the original 
investigation.  
d. In the course of several itera tions of questionnaires and supplemental questionnaires, 
MOFCOM requested Tyson to provide the "actual pure" meat and processing costs and to 
provide clarification regarding the meat and processing costs it had provided during the 
original investigation. I n response, Tyson provided data and explanations.  
e. In the redetermination, MOFCOM rejected Tyson's reported meat and processing cost 
data in its entirety. MOFCOM found that the reported data, generated by applying the 
methodology  developed by Tyson using th e data available in its accounting records, were 
not the meat and processing costs actually incurred : 
[Tyson] only submitted the meat cost and processing cost, calculated by 
ratio method (calculating the relevant proportion based on the data from 
the stand ard cost system), of each product model. The meat cost and 
processing cost of each model of the product concerned calculated by this 
method are not the actual pure meat cost and processing cost  of each 
model of the product concerned. … Therefore, the Inves tigating Authority 
decides not to accept using the ratio method  claimed by the Company to 
calculate the meat cost and processing cost of each model of the product 
concerned, nor to accept the meat cost and processing cost data of each 
model of the product concerned calculated by the ratio method .503 
7.8.3   Main a rguments of the parties  
7.8.3.1   United  States  
7.333.   MOFCOM violated Article 6.8 and paragraphs 3 and 5 of Annex II when it rejected the cost 
data reported by Tyson and used facts available. MOFCOM did not, contrary to the  requirements of 
paragraph 3 of Annex II, establish that the information provided by Tyson was either not 
verifiable, not appropriately submitted so that it could be used in the investigation without undue 
difficulties, or not supplied in a timely fashion.504 MOFCOM justified the rejection of Tyson's 
reported data without even considering, much less deciding , whether it could be used consistently 
with the criteria set out in paragraph 3 of Annex II, in particular in respect of the verifiability of the 
data. T he reasons MOFCOM gave for rejecting Tyson's data were also factually incorrect and did 
not speak to the verifiability of the data.505 In particular, MOFCOM:  
a. incorrectly considered that the cost data reported by Tyson in the reinvestigation did not 
tie to th e cost data reported in the original investigation.506 Tyson had explained to 
MOFCOM  that accounting for 20 product models for which data had not been provided 
during the original investigation resolved the data inconsistency;  
b. wrongly found that Tyson had pr ovided the reported costs for only "some" product 
models.507 Tyson had reported cost  data for all of the more than 1,000 product models, 
but had submitted detailed information for three representative models ; 
c. erroneously determined that Tyson had not provide d the actual meat and processing 
costs as requested508; 
                                                
503 Redetermination, (Exhibit CHN -1 (translated version)), p. 43. (emphas is added)  
504 United  States ' first written submission, paras. 114 -118. See also response to Panel question No. 42, 
paras. 79 -88. 
505 United  States ' first written submission, para. 119.  
506 United  States ' first written submission, para. 120; second written submis sion, para. 141.  
507 United  States ' first written submission, para.  121. 
508 United  States ' first written submission, para. 123; second written submission, paras. 132  and 142. WT/DS427/RW  
 
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  d. wrongly faulted Tyson for basing its reported cost data on only part of the POI.509 Tyson 
had calculated the allocation ratios using standard costs for the first half of 2009, rather 
than for the entire P OI, because only those costs were available in its records for the 
POI. Standard c osts for the second half of 2008 were no longer available as they had 
been purged from Tyson 's systems in the ordinary course of business after 118 weeks; 
and 
e. wrongly faulted  Tyson for failing to support the data it reported.510 
7.334.   In response to China's arguments, the United  States  maintains:  
a. China misconstrues the "best of its ability" standard in paragraph 5 of Annex II.511 
Moreover, Tyson did act to the best of its ability.512 Cost data according to MOFCOM's 
specifications were not available to Tyson. Tyson generated the requested cost data 
based on a reasonable methodology using the information available in its records. In this 
way, Tyson derived from the information in its records  cost data corresponding as closely 
as possible to the form requested.  
b. Inconsistencies in the cost data reported in the original investigation and in the 
reinvestigation were due to changes to the reporting methodology. In particular, costs 
were not repor ted by part in the reinvestigation but by model and processing step. Also, 
they we re reported as values specifically constructed for this purpose and they were 
subject to revisions/corrections made in accordance with MOFCOM's request.513 China 
cannot rely on  changes to information submitted in the original investigation to reject 
data rep orted during the reinvestigation.514 
c. Tyson did not misreport data in the original investigation. In the original investigation, 
Tyson reported its cost data as they were recorded in its cost accounting system in the 
ordinary course of business and explained that cost accounting system, all of which was 
also subject to verification, to MOFCOM.515 
7.8.3.2   China  
7.335.   Article 6.8 and paragraph 5 of Annex  II require an interested party to "ac t to the very best 
of its ability".516 An investigating authority does not need to "accept information that 'may not be 
ideal in all respects' unless  the party submitting that information has been acting 'to the best of its 
ability'".517 Even if an interested party acts to the very best of its ability, the investigating 
authority can nevertheless resort to facts available if the requested information is not provided.518 
MOFCOM was entitled to reject Tyson's reported meat and processing cost  data and resort to facts 
available because Tyson failed to act to the (very) best of its ability519: 
In respect of the original investigation : 
a. Tyson misreported cost data by including certain processing cost elements in the 
reported meat costs520 and by faili ng to report certain cost data at all (the cost data for 
20 product models521 and the cost data for "some product codes" of chicken feet522). 
                                                
509 United  States ' first written submission, para. 124; second written submission, para. 140.  
510 United  States ' first written submission, para. 125.  
511 United  States ' secon d written submission, para. 129; comments on China's responses to Panel 
question No. 36(a), para. 55, No. 36(b), para. 57, and No. 37(a), para. 60.  
512 United  States ' seco nd written submission, para s. 130, 132, 135, and 145.  
513 United  States ' second written submission, paras. 131, 143, and 144. 
514 United  States ' second written submission, para.  144. 
515 United  States ' second written submission, paras. 136 -138. 
516 China's second written submission, paras. 221, 223, and 224. (emphasis added)  
517 China's firs t written submission, para. 196 (emphasis original); see also secon d written submission, 
para. 223; and responses to Panel question No. 36(a), paras. 133 -134, and No. 36(b), paras. 135 -136. 
518 China's second written submission, paras. 229  and 235. 
519 China's first written submission, paras. 195, 209, and 240; second written submission, paras. 221 
and 250; and response to Panel question No. 36(b), paras. 137 and 141.  
520 China's fi rst written submission, paras. 205 -206; second written submission, para. 240.  
521 China's first written submission, paras. 206  and 233. 
522 China's first written submission, para. 228.  WT/DS427/RW  
 
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  b. Tyson did not disclose the alleged misreporting of that data during the original 
investigation.523 
c. Tyson provided incons istent data over the course of the original investigation.524 
In respect of the reinvestigation : 
a. Tyson never provided the "actual pure" meat and processing costs that MOFCOM had 
requested.525 Tyson could have provided the requested data; at least it did not ex plain, 
or explained too late, what its accounting records could provide.526 
b. Tyson failed to provide timely and sufficient explanation and cl arification in respect of 
the reported data.527 
c. Tyson did not report cost data on the basis of the full POI.528 Even assum ing that Tyson 
did not have data for the entire period, the reported meat cost data were distorted and 
Tyson did not address MOFCOM's conc erns raised in the disclosure.  
d. Tyson provided inconsistent data.529 
e. Tyson provided negative processing costs for "some i ndividual models".530 Tyson 
provided a satisfactory explanation to o late, in its response to the second supplemental 
questionnaire.531 
f. Regarding "some product codes" of chicken feet, Tyson failed to provide cost data at all 
or failed to provide sufficient expl anation in a timely manner.532 
7.8.4   Main a rguments of third parties  
7.336.   The European Union argues that t he instrument of facts available does not serve to punish 
non-cooperating interested parties but to overcome lacunae which arise from the absence of 
useable data.533 Even if a respondent cooperates to the best of its ability, this does not necessarily 
preclude the use of facts available to replace missing or defective necessary information. To the 
extent that information is not missing, for instance because the respon dent has provided partial 
information, it cannot be replaced.534 But the obligation to take into account non -ideal data applies 
only in case of a fully cooperating respondent acting to the best of its ability. And even in case of a 
fully cooperating responde nt, the data it submits must only be used insofar as it meets the criteria 
in paragraph 3 of Annex II. Where an investigating authority wants to disregard data as 
"unreliable" pursuant to paragraph 3, the burden of substantiating its unreliability falls on  the 
investigating authority.535 
                                                
523 China's first writ ten submission, paras. 205 and 233; comments on United  States' response to Panel 
question No. 42, para. 70.  
524 China's first written submission, paras.  218-219. 
525 China's first writ ten submission, paras. 207 and 217; response to Panel question No. 36(b), 
para. 140. 
526 China's second written submission, pa ra. 246; responses to Panel question No. 36(b), para. 139, 
and No. 40, paras. 154 and 156; and comments on United  States' response to Panel question No. 42, 
paras.  66 and 71.  
527 China's first wri tten submission, paras. 234 -237; response to Panel question No . 36(b), para. 140.  
528 China's first written submission, para. 238.  
529 China's first written submission, paras. 218 -219 and 233. 
530 China's first written submission, para s. 224-227. 
531 China's first written submission, para . 227.  
532 China's first written submis sion, para. 228.  
533 European Union's third -party statement, para. 11.  
534 European Union's third -party statement, para. 12.  
535 European Union's third -party statement, para. 13.  WT/DS427/RW  
 
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  7.8.5   Evaluation  
7.8.5.1   The law  
7.337.   Article 6.8 of the Anti -Dumping Agreement provides:  
In cases in which any interested party refuses access to, or otherwise does not 
provide, necessary information within a reasonable period or significantly impedes the 
investigation, preliminary and final determinations, affirmative or negative, may be 
made  on the basis of the facts available. The provisions of Annex II shall be observed 
in the application of this paragraph .536 
7.338.   The first sentence of paragraph 3 of Annex II of the Anti -Dumping Agreement provides:  
All information which is verifiable, which is ap propriately submitted so that it can be 
used in the investigation without undue difficulties, which is supplied in a timely 
fashion, and, where applicable, which is supplied in a medium or computer language 
requested by the authorities, should be taken int o account when determinations are 
made.  
7.339.   Paragraph 5 of Annex II of the Anti -Dumping Agreement provides:  
Even though the information provided may not be ideal in all respects, this should not 
justify the authorities from disregarding it, provided the intere sted party has acted to 
the best of its ability.  
7.340.   The first sentence of Article 6.8 establishes a closed list of circumstances involving the 
unavailability of information in which an investigating authority is permitted to use facts available. 
The second se ntence of Article 6.8 sets out the relationship between Article 6.8 and Annex II. It 
mandates that Annex II must be "observed " in the application of "this paragraph".537 Paragraphs  3 
and 5 of Annex II address the situation in which an interested party has pr ovided necessary 
information, but the investigating authority may not be entirely satisfied.  
7.341.   Paragraph 3  provides that all submitted information that satisfies the criteria set out in 
that paragraph must be taken into account when determinations are made. The investigating 
authority must consider every element of information submitted in accordance with the criteria of 
paragraph  3.538 Where information meets the requirements of paragraph 3 such that an 
investigating authority must take it into account, the in vestigating authority may not conclude 
that, in respect of that information, necessary information has not been provided within the 
meaning of Article 6.8. The investigating authority is therefore not entitled to reject that 
information and use facts avail able instead.539 
7.342.   Paragraph 3 sets out the specific criteria that an investigating authority must apply  before 
rejecting information submitted to it and relying on facts available instead. To the extent the 
investigating authority is not satisfied with submit ted information, it must consider whether those 
elements of information satisfy the criteria of paragraph 3.540 
a. The information must be verifiable . Information is verifiable when the accuracy and 
reliability  of the information can be assessed by an objective  process of examination.541 
This process may be through on -the-spot ve rification, further requests for information or 
other means.542 
                                                
536 Emphasis added.  
537 Even though Annex II is largely phrased in hortatory language , it is settled that the provisions of 
Annex II are mandatory . (Panel Report, US – Steel Plate , para. 7.56 ). 
538 Panel Report, US – Steel Plate , para. 7.57.  
539 Appellate Body Report, US – Hot-Rolled Steel , para. 81; Panel Report, EC – Salmon  (Norway) , 
para. 7.355.  
540 Panel Report, US – Steel Plate , paras. 7.58, 7.61, and 7.62.  
541 Panel Report s, US – Steel Plate , para. 7.71 ; EC – Salmon  (Norway) , para. 7.357.  
542 Panel Report s, US – Steel Plate , para. 7.71; EC – Salmon  (Norway) , para s. 7.358 -7.360 . WT/DS427/RW  
 
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  b. The information must be " appropriately submitted  so that it can be used in the 
investigation without undue difficulties ". Ther e is no particular circumstance or situation 
in which this criterion will be satisfied; rather, the investigating authority must explain 
the basis for its conclusion that information, which meets the other criteria of 
paragraph  3, cannot be used in the inv estigation without undue difficulties.543 
c. The information must be supplied in a timely fashion, that is, submitted within a 
reasonable period of time.544 
7.343.   Because every element  of information that satisfies the criteria of paragraph 3 must be 
taken into account , an investigating authority is not entitled to reject all informati on submitted and 
apply facts available, when only individual elements of that information fail to satisfy the criteria of 
paragraph 3.545 An investigating authority must, at a minimum, expla in in what way the 
information that it is rejecting does not meet the requirements of paragraph 3.  
7.344.   Paragraph 5 , in turn, requires that an investigating authority may not disregard 
information that is less than ideal where the interested party submitting th e information has acted 
to the "best of its ability". In this sense, it is supplemental to paragraph 3 and not an exception to 
it; information that satisfies the requirements of paragraph 3, even if not perfect, may not be 
disregarded.546 The investigating a uthority must, in the first instance, use all the information 
provided by an interested party that acted to the "best of its ability", even if the information is less 
than perfect.547  
7.345.   Thus, paragraphs 3 and 5 require an investigating authority to take into account and not 
disregard the information submitted by an interested party that meets the conditions set out in 
those paragraphs.  
7.8.5.2   Analysis  
7.346.   As we understand it, the principal claim of the United  States  is that in using facts available  
in respect of a constructed cost of production for Tyson, MOFCOM acted inconsistently with 
Article  6.8 and paragraph  3 of Annex II.548  
7.347.   The United  States  argue s that MOFCOM did not demonstrate that Tyson's reported data did 
not meet the criteria of paragrap h 3, and in particular that the data were not verifiable.549 
MOFCOM:  
a. incorrectly considered that the cost data reported by Tyson in the reinvestigation did not 
tie to the cost data reported in the original investigation;  
b. wrongly found that Tyson had provided  the reported costs for only "some" product 
models;  
c. erroneously determined that Tyson had not provided actual meat and processing costs 
as requested;  
d. wrongly faulted Tyson for basing its reported cost data on only part of the POI; and  
e. wrongly faulted Tyso n for failing to support the data it reported.  
                                                
543 Panel R eport s, US – Steel Plate , para s. 7.72 and 7.74 (emphasis added); EC – Salmon  (Norway) , 
para. 7.364.  
544 Appellate Body Report, US – Hot-Rolled Steel , para. 84; Panel Report s, US – Steel Plate , para. 7.76; 
EC – Salmon  (Norway) , para. 7.369. The final criterio n of paragraph 3, that the information must be supplied 
in a medium or computer language requested by the authorities, is not of relevance in this proceeding.  
545 Panel Report, US – Steel Plate , para. 7.75; but see  ibid. paras. 7.59 -7.60. 
546 Panel Report, US – Steel Plate , para. 7.65 . 
547 Appellate Body Report, Mexico – Anti-Dumping  Measures on Rice , para. 288.  
548 United  States'  first written su bmission, paras. 114 -126. 
549 United  States' first written submission, paras. 115 -118. There is no disagreement between th e 
parties as to the legal standard that applies to establish that information is or is not "verifiable".  WT/DS427/RW  
 
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  With reference to the reinvestigation's questionnaires and questionnaire responses, the 
United  States  also argue s that MOFCOM "did not meaningfully engage with the data" Tyson did 
provide and did not take into account what Tyson could  provide.550 MOFCOM merely continued to 
insist that Tyson did not provide separate "pure" meat and processing costs; it did not take any 
steps to verify Tyson's reported data; it did not provide any, and  much less an adequate, 
explanation that would justify the rejection of the data.551 While the US argument has elements 
pertaining to both paragraphs 3 and 5 – what Tyson did and what it could  provide – we understand 
the core of the US argument to be that MOFCOM failed:  
a. to consider whether the information satisfied the criteria of paragraph 3; and  
b. to explain in what way the i nformation it rejected failed to satisfy the requirements of 
paragraph  3. 
7.348.   On its face, the redetermination supports the US argument. MOFCOM, we recall, rejected 
Tyson's reported data because, in its view, Tyson had failed to provide "actual pure" meat and 
processing cost data.552 But nowhere in the redetermination does MOFCOM explain in what way it 
"observed", as required by Article 6.8, the criteria set out in paragraph 3 of Annex II in rejecting 
Tyson's data. As our questions to the parties made clear, we identified elements in the 
redetermination that might relate to the cri teria of paragraph 3.553 Clearly, an investigating 
authority is not required to signpost its analysis and each of its findings by expressly linking them 
to specific obligations in the Anti -Dumping Agreement. In this instance, however, nothing in the 
redeterm ination demonstrates meaningful consideration by MOFCOM of the criteria in paragraph 3. 
Nor is there any link between those criteria and MOFCOM's ultimate decision to reject all of the 
reported data. Our view that MOFCOM failed to "observe" the criteria se t out in paragraph 3 is 
confirmed by China's arguments before us: throughout its submissions China linked MOFCOM's 
findings only to MOFCOM's alleged conclusion that Tyson had failed to act to the "best of its ability" 
in accordance with paragraph 5, not to Tyson's data failing any of the criteria in paragraph 3.  
7.349.   As we understand China's arguments,  based on its submissions  and including its answers 
to our questions, China's position rests on two lines of argument, a direct response in respect of 
paragraph 3 and an indirect response in respect of paragraph 5 of Annex II.  
7.8.5.2.1   China's response in respect of paragraph 3 of Annex II  
7.350.   China makes two arguments in respect of paragraph 3.  
7.351.   First, China asserts that:  
MOFCOM would have been open to any reasonable (and verifi able) method to ensure 
that processing costs would be linked to a product specific model at each processing 
steps. But instead of presenting such a method in the original investigation or in the 
reinvestigation, Tyson obscured the fact that the reported me at costs in fact contained 
a significant portion of processing costs incurred at prior production stages. Tyson 
thus failed to provide information "which is appropriately submitted so that it can be 
used in the investigation without undue difficulties" as required by Paragraph 3  …[.]554 
7.352.   This argument gives rise to at least two concerns:  
a. China does not refer to anything in the redetermination, or indeed anywhere else in the 
record of the investigation, indicating that MOFCOM found that Tyson failed to provide 
information "which is appropriately submitted so that it can be used in the investigation 
                                                
550 United  States ' response to Panel question No.  42, para . 79. 
551 United  States ' response to Panel question No.  42, paras. 79 -88. 
552 See fn 503 above.  
553 Redetermination, (Exhibit CHN -1 (translated version)), pp. 40 and 42.  
554 China's response to Panel question No. 39, para. 152 (emphasis added). At the substantive me eting 
of the Panel with the parties, China also asserted in respect of whether – and if so, where – in the 
redetermination MOFCOM applied and made findings in respect of  the criteria set out in paragraph 3 of 
Annex  II, that "MOFCOM had not received 'approp riately submitted' information on the distinction between 
meat and processing cost".  WT/DS427/RW  
 
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  without undue difficulties". We see nothing to suggest such a finding was either 
considered or made anywhere in the redetermination. China's argument thus appears to 
us to be an after the fact justification.  
b. Even if we were to accept that MOFCOM rejected the data Tyson reported because they 
were not "appropriately submitted so that [they] can be used … without undue 
difficulties", we note that MOFCOM appears to have re lied upon Tyson's cost data 
reported in the reinvestigation as the "best information available".555 Thus, MOFCOM in 
fact used the information submitted by Tyson's, albeit in a different way. By definition, 
where MOFCOM has, in fact, used Tyson's data as "bes t information available", it seems 
to us that we cannot conclude that that same data was not "appropriately submitted so 
that [they] can be used … without undue difficulties ".556 
7.353.   Second, in respect of the verifiability of Tyson's data, China argues:  
The United States  also incorrectly accuses MOFCOM of not taking meaningful steps to 
clarify and verify the data provided by Tyson in response to MOFCOM's requests 
during the re -investigation. But this ignores the many insufficient Tyson 
questionnaires responses th at shows MOFCOM took meaning action to clarify and 
verify.557 
China does not argue that MOFCOM made a finding that all of Tyson's data were not verifiable. It 
asserts, but does not demonstrate by reference to the redetermination or the record, that 
MOFCOM to ok any meaningful action to verify Tyson's data, such that it could reasonably have 
arrived at the conclusion that the data were not verifiable.  
7.354.   We recall our task in helping the parties resolve their dispute: to make findings as to 
whether a complaining party has presented a prima facie  case of inconsistency with the 
requirements of the WTO agreements, and whether in response, a responding party has effectively 
rebutted the prima facie  case of the complainant. While a panel may develop its own reasoning in 
arriving at its findings and recommendations in respect of those claims of the complainant that are 
properly before it, it is of course not for a panel to make the case for either par ty. We underline 
that this core consideration is relevant in respect not just of evidence before a panel, but also of a 
disputing party's arguments: stressing and advancing some arguments rather than others, 
whether as a matter of litigation strategy or fo r policy reasons, is an important sovereign right of a 
disputing party; it is not for a panel to second guess a party's judgment in this respect. In that 
sense, we must respect China's decision not to elaborate arguments under paragraph 3, but this 
also me ans that it has not successfully rebutted the prima facie  case put forward by the 
United  States  under this paragraph.  
7.8.5.2.2   China's response in respect of paragraph 5 of Annex II  
7.355.   China's principal response to the US claim appears to be that Tyson did not act to the 
"[very] best of its ability" and therefore MOFCOM was entitled to reject all of Tyson's data and use 
facts available. China's position is premised on the view, reiterated throughout this proceeding, 
that: 
[Paragraph 5] recognizes that although informat ion may not always be "ideal", the 
authority need not accept information that "may not be ideal in all respects" unless  
the party submitting that information has been acting "to the best of its ability".558 
"[R]esponding parties are required to act to the very best of their ability when 
responding to the investigating authority. Failure to do so entitles the investigating 
authority to resort to facts available … [.] "559 
                                                
555 Redetermination, (Exhibit CHN -1 (translated version)) , p. 44.  In the context of respondin g to the 
United  States' Article  2.2.1.1 claim, China was adamant about the fact that MOFCOM had used Tyson's own 
data. 
556 Emphasis added.  
557 China's comments on United  States' response to Panel question No. 42, para. 67. (fn omitted)  
558 China's firs t written submission, para. 196 (emphasis original); see also response to Panel question 
No. 36(a), paras. 133 -134. 
559 China's second written submission, para. 223.  (emphasis added)  WT/DS427/RW  
 
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  "[A]n investigating authority may resort to facts available whenever  the responding 
party fails to act to the very best of its ability. "560 
"[A]n investigating authority is entitled to resort to facts available if a responding 
party does not act to the very best of its ability, or when the information provided is 
not of the best quality  … [.]"561 
As we understand it, therefore, China's argument posits paragraph 5 as a defence or an exception 
to paragraph 3: where an interested party does not act to the "very best of its ability" in providing 
information requested, an investigating authority is entit led to reject the submitted information 
and proceed to use fact available, even if the submitted information satisfies the criteria of 
paragraph 3.  
7.356.   Paragraph 5 provides that investigating authorities are " not justif[ied]  … from 
disregarding" information th at is not ideal in all respects, provided the interested party acted to 
the "best of its ability".562 We note that China repeatedly  adds the word "very" to this latter 
standard, with no justification proffered.563 China's proposed interpretation raises the lev el of effort 
required of an interested party submitting information and thus makes it more likely that 
information not ideal in all respects may be disregarded. It is elementary that a panel is enjoined 
from inserting words into the text of a provision; no r does anything in the context of paragraph 5 
require or even permit such an interpretation.  We decline China's in vitation to read into 
paragraph  5 an adverb that is not there.   
7.357.   Turning to the text of that provision, nothing in its structure or actual word ing suggests 
that paragraph 5 allows for the rejection of information that meets the criteria set forth in 
paragraph 3 but is not ideal in all respects.564 Rather, the provision establishes an obligation  for an 
investigating authority to use such information  provided the interested party submitting it acted to 
the best of its ability. As described above, paragraph 5 is properly understood as supplementing 
paragraph  3. Information that satisfies the requirements of paragraph 3, even if not "ideal in all 
respec ts", may not be disregarded provided the interested party has acted to the best of its ability. 
It would turn paragraph 5 on its head to read it as a defence or exception entitling an investigating 
authority to reject submitted information and resort to fa cts available "unless the party submitting 
that information has been acting 'to the best of its ability'". We therefore do not agree with China's 
understanding of paragraph 5.  
7.358.   The United  States  has, as we have found, established its claim based on paragrap h 3. It 
follows from our analysis of the relationship between paragraphs 3 and 5 that any argument solely 
in respect of paragraph 5, as China has made in this case, is not an effective rebuttal of the case 
of inconsistency with paragraph 3 substantiated by  the United  States . 
7.8.6   Conclusion  
7.359.   In the light of the above, we find that the United  States  has established that China acted 
inconsistently with Article 6.8 and paragraph 3 of Annex II of the Anti -Dumping Agreement in 
rejecting all of Tyson's submitted data in the reinvestigation and relying on facts available.  
7.9  Article 6.9  of the Anti -Dumping Ag reement : essential facts  
7.9.1   Introduction  
7.360.   In the original dispute, we found that China had acted inconsistently with Article 6.9 of the 
Anti-Dumping Agreement during the original investigation because MOFCOM did not inform 
                                                
560 China's seco nd written submission, para. 224 . (emphasis added)  
561 China's seco nd written submission, para. 233 (emphasis added); see also response to Panel question  
No. 36(b), paras. 135-137. 
562 Emphasis added.  
563 When asked by the Panel, China did not explain the interpretative steps that led to its proposition. 
(China's response to Panel question No. 36, paras. 135 -141).  
564 Paragraph 5 also neither requires an interes ted party to act to the "very" best of its ability, nor to 
provide information that is of "best quality".  WT/DS427/RW  
 
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  US interested parties, including Pilg rim's Pride and Keystone, of the essential facts underlying the 
determination that dumping existed.565 
7.361.   The US claim in this compliance proceeding concerns whether China acted inconsistently 
with Article  6.9 during the reinvestigation by failing to inform Pil grim's Pride and Keystone of the 
essential facts under consideration which form the basis for the decision whether to apply 
definitive measures.  
7.9.2   Main a rguments of the parties  
7.9.2.1   United  States  
7.362.   MOFCOM acted inconsistently with Article 6.9 by failing to disclose  the essential facts 
underlying the determination of the dumping margin in respect of Pilgrim's Pride and Keystone.566 
The specific facts alleged not to have been disclosed du ring the reinvestigation are:  
a. With respect to Pilgrim's Pride : The data and margin calculations from the original 
investigation . MOFCOM never revealed the data and calculations that led to its 
determination in the original investigation despite the Panel in the original dispute 
finding that the failure to disclose this information was in consistent with Article 6.9.567 
During the reinvestigation, MOFCOM did not reinvestigate Pilgrim's Pride but did 
allegedly correct an error in the original dumping margin calculation. All of the original 
data and margin calculations therefore also constitute d essential facts in the 
reinvestigation which MOFCOM had to disclose.568 Without knowing them and the nature 
of the alleged error, Pilgrim's Pride could not defend itself in the reinvestigation.569 
MOFCOM's disclosure, however, including an Excel file pro vided to Pilgrim's Pride on 
16 May 2014, only made available the new, "corrected" data and calculations.570 This 
disclosure also came too late for Pilgrim's Pride to defend its interests.  
b. With respect to Keystone : The data and margin calculations from the origin al 
investigation and the reinvestigation .571 Although Keystone did not cooperate during the 
reinvestigation, it was entitled to disclosure of the essential facts, including its 
confidential data and calculations. MOFCOM did not disclose this information eith er to 
Keystone or its legal agents, although Keystone had provided proof of authorization of its 
agents to receive MOFCOM's disclosure of Keystone's information.  
7.9.2.2   China  
7.363.   MOFCOM did not act inconsistently with Article 6.9 : 
a. With respect to Pilgrim's Pride : The  data and calculations from the original investigation 
did not constitute essential facts for purposes of the reinvestigation.572 Moreover, 
MOFCOM disclosed the essential facts of the redetermination to Pilgrim's Pride in an 
Excel file provided to Pilgrim's Pride on 16 May 2014.573 This document contained all the 
                                                
565 Panel Report, China – Broiler Products , paras. 7.100 and 7.106.  
566 In its panel request, the United  States also cited Article 12.8 of the SCM Agreeme nt. Although the 
first written submission at paragraph 4 included a reference to this provision, the United  States did not develop 
any arguments, nor adduced any evidence, in any of its submissions  in respect of an alleged violation of 
Article  12.8. Indeed , the focus of the entirety of the US arguments is on the alleged lack of disclosure of the 
data and calculations underlying the dumping  margins. We therefore do not further address Article 12.8.  
During this proceeding, the United  States did not, however, pursue a claim under this provision.  
567 United  States opening statement at the meeting of the Panel, para. 64.  
568 United  States' response to Panel question No. 23(b), para. 47.  
569 United  States' first written submission, paras. 73 and 77; second written submi ssion, para. 65; and 
response to Panel question No. 23(b), paras. 48 -49. 
570 United  States' first written submission, para. 76; second written submission, para. 71; and 
comments on China's response to Panel question No. 16(a), para. 30.  
571 United  States' seco nd written submission, paras. 78 and 84; response to Panel question No. 22, 
para. 40. 
572 China's second  written submission, para s. 94, 95, 100, 104, and 105.  
573 China's first written submission, para s. 103 and 109; second  written submission,  para. 106; and 
response to Panel question No. 16(a), paras. 27 -29. WT/DS427/RW  
 
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  data from the original investigation and the modified data.574 The changes that were 
made were explained in a narrative accompanying the document that contained the 
data.  
b. With respect to Keystone : MOFCO M could not disclose the data and calculations at issue. 
This information was confidential to Keystone. Keystone, however, did not respond to 
MOFCOM during the reinvestigation. In particular, it did not authorize an agent to 
represent Keystone in the reinv estigation and to receive MOFCOM's disclosure containing 
Keystone's confidential information. In these circumstances, MOFCOM only made a 
public disclosure containing non -confidential information. In any case, there is a 
difference in disclosure obligations  with respect to cooperating parties, on the one hand, 
and non -cooperating parties, on the other.575 In respect of a non -cooperating party, such 
as Keystone, the essential facts that must be disclosed are those set out by this Panel in 
its original report (t he basis for resort to facts available, the requested information, and 
the facts used to replace the missing information).576 MOFCOM made all of these 
essential facts in respect of Keystone publicly available.  
7.9.3   Evaluation  
7.9.3.1   The law  
7.364.   Article 6.9 of the Anti -Dumping Agreement provides:  
The authorities shall, before a final determination is made, inform all interested 
parties of the essential facts under consideration which form the basis for the decision 
whether to apply definitive measures. Such d isclosure should take place in sufficient 
time for the parties to defend their interests.  
The first sentence is the operative part of Article 6.9. It sets out t he following required elements:  
a. shall inform;  
b. all interested parties;  
c. before a final determinati on is made;  and 
d. of the essential facts.  
The second sentence of Article 6.9 is, on i ts face, a temporal exhortation. As context for the 
central obligation in Article 6.9577, it gives an indication both of why disclosure is to be made578 
and when  it must be made . 
7.9.3.1.1   Essential facts  
7.365.   Article 6.9 requires the disclosure of "the essential facts under consideration which form 
the basis for the decision whether to apply definitive measures". There are three cumulative 
elements defining what must be disclosed:  
a. essential fa cts; 
b. under consideration; and  
c. which form the basis for the decision whether to apply definitive measures.  
                                                
574 China's  first written submission, paras. 97, 103, and 109; responses to Panel question No. 15, 
para. 26, No. 16(a), para. 30, and No. 16(c), paras. 35 -36. 
575 China's response to Panel que stion No. 17, paras. 41 -43. 
576 China's first written submission,  paras. 112 and 121; second written submission, paras. 119 -120. 
577 Appellate Body Report, China – GOES , para. 240.  
578 Panel Report, EC – Salmon (Norway) , para. 7.805.  WT/DS427/RW  
 
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  7.366.   It is now settled that "essential facts under consideration " are "those facts on the record 
that may be taken into account  by an authority in reaching a decision  as to whether or not to 
apply definitive anti -dumping … duties".579 Moreover, the essential facts must form the basis for 
the decision whether to apply definitive measures . This decision relates to the imposition of 
anti-dumping duties. For facts to form the basis  of this decision, they must be significant in the 
process of reaching this decision , whether it is because they are salient for a decision to apply 
definitive measures or salient for a contrary outcome.580 The d ecision to impose duties or not is 
necessarily linked to the final determination. Facts are therefore significant, for example, when 
they are supportive of the final determination and are thus relied upon in making an affirmative 
decision to impose duties.581 Yet, facts may still be significant for the decision to impose duties if 
they are ultimately not used in and/or do not support the final determination.582 
7.367.   The Panel's findings on essential facts  in the original report are relevant in this proceeding. 
First, the Panel found that Article  6.9 required the disclosure of the following essential facts in 
respect of the dumping determination for the cooperating  and investigated exporters in the 
original investigation:  
a. the data underlying the determination that for m the basis for the calculation of the 
dumping margin, including any adjustments583; 
b. the comparisons of hom e market and export sales584; and  
c. the formulae applied for these comparisons.585 
In particular – and critical for this proceeding – the Panel found that "the calculations  themselves 
(including any files or spreadsheets created during the calculations)" that are made to determine 
the dumping margin are not essential facts that must be d isclosed.586 
 
7.368.   Second, the Panel addressed the Article 6.9 disclosure requirement in respect of 
"unknown" exporters to whom facts available  were applied in establishing a "residual" rate:  
Interpreting Article 6.9 in the light of Article 6.8, the "essential facts" that MOFCOM 
was expected to disclose include: (i) the precise basis for its decision to resort to facts 
available, such as the failure by an interested party to provide the information that 
was requested; (ii) the information which was requested fro m an interested party; 
and (iii) the facts which it used to replace the missing information. In our view, the 
above information is facts under consideration in MOFCOM's determination to apply 
facts available. Furthermore, this information formed the basis for MOFCOM's 
determination, on the basis of facts available … [.]587 
7.9.3.1.2   The obligation to "inform"  
7.369.   Among the different modes of engagement between the investigating authority and 
interested parties in respect of information contemplated i n Article 6 of the 
Anti-Dumping  Agreement and described above at paragraph s 7.226  and 7.227 , the requirement to 
"inform" is an "active" disclosure obligation.  
7.370.   Article 6.9 does not set out rules or any guidance on how all interested parties are to be 
informed of the essential facts. In these circumstances, the investigating authority has a large 
margin of discretion.  
                                                
579 Appellate Body Report, China – GOES , para. 240.  (emphasis added)  
580 Appellate Body Report, China – GOES , para.  240. 
581 Panel Reports , China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 7.246.  
582 Panel Reports , China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 7.246.  
583 Panel Rep ort, China – Broiler Products , paras. 7.90 -7.91. 
584 Panel Report, China – Broiler Products , para. 7.91.  
585 Panel Report, China – Broiler Products , para. 7.91.  
586 Panel Report, China – Broiler Products , para. 7.92. (emphasis added)  
587 Panel Report, China – Broiler Products , para.  7.317.  WT/DS427/RW  
 
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  7.371.   The requirement to inform is unqualified. It is in principle s ubject only to other obligations, 
such as Article 6.5 regarding the protection of confidential information, that run concurrently in 
respect of certain types of facts. As wel l, according to the second sentence in Article 6.9, the 
obligation to "inform" mus t be fulfilled in a timely fashion, so as to allow interested parties to 
defend their interests.588 
7.9.3.1.3   Conclusion  
7.372.   In the light of the foregoing, under Article 6.9:  
a. data that are the basis for the determination of the dumping margin must be disclosed, 
whereas there is no requirement to disclose the actual calculations themselves;  
b. disclosure must be made in respect of essential facts that are under consideration – that 
is, facts tha t are significant or salient for the decision whether to impose definitive 
measures; and  
c. an investigating authority has a margin of discretion in how to disclose essential facts, 
but this discretion is not absolute.  
7.9.3.2   Analysis  
7.9.3.2.1   Disclosure obligation in respec t of dumping margin calculations  
7.373.   The United  States  argues that MOFCOM shou ld have made available the dumping  margin  
calculations in respect of Pilgrim's Pride from the orig inal investigation and in respect of Keystone 
from the original investigation as wel l as the reinvestigation.  
7.374.   In this proceeding, the United  States  refers to "calculations". As the term itself implies, the 
United  States  appears to have in mind the "precise mathematical calculations" that MOFCOM 
"performed" or "conducted".589 In a number of instances the United  States  refers to "calculation 
methodology" – and even then the United  States  links knowledge of the "precise calculation 
methodology" to the disclosure of the "calculations" themselves.590 We therefore consider that the 
United  States  is asserting that MOFCOM should have disclosed the actual "calculations" unde rlying 
the dumping margin determination, not only the calculation methodology.  
7.375.   In support of its position, the United  States  argues that this Panel in the original dispute:  
a. "recogniz ed that Article 6.9 requires the complete  disclosure of margin calculations"591; 
b. "found that MOFCOM failed to make available the calculations it performed … including 
the calculation of the normal value and export price for the respondents"592; and  
c. "found that  MOFCOM's failure to disclose the original calculations denied Pilgrim's Pride 
the ability to ascertain the accuracy of the new rate by evaluating what has changed."593 
The United  States  relies upon paragraphs 7.91 and 7.100 of the Panel Report in the original 
dispute for these propositions.594 
                                                
588 Panel Reports, China – X-Ray Equipment , para. 7.400; Russia – Commercial Vehicles , para. 7.254 
(adoption/appeal pending).  
589 United  States' first written submission, paras. 68 and 75; opening statement at the meeting of the 
Panel, para. 62; and response to Panel question No. 23(b), para. 51.  
590 United  States' second written submission, para. 69 ("Pilgrim' s was entitled to know the adjustments 
and precise calculation methodology – and that required knowing what the orig inal cal culations and data 
were"); opening statement at the meeting of the Panel, para. 64; and r esponse to Panel question No. 23(a), 
para. 44. 
591 United  States' first written submission, para. 70; second written submission, para. 67. (emphasis 
original)  
592 United  States' first written submission, para. 68.  
593 United  States' second written submission, para. 68.  
594 United  States' first written submission, para. 70; second written submission, paras.  67-68. WT/DS427/RW  
 
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  7.376.   At paragraphs 7.91 and 7.100 of the Panel Report in the original dispute, we found that in 
the context of the determination of dumping, the underlying data and formulae  are essential facts 
that must be disclosed and that MOFCOM had failed to do so in respect of Pilgrim's Pride. Nowhere 
in these paragraphs did we mention calculations. Indeed, we specifically found that calculations 
"are not 'essential facts' that must be disclosed".595 
7.377.   The United  States  also argues that the requirement to disclose margin calculations was 
endorsed by the Appellate Body in  China – HP-SSST (Japan) / China – HP-SSST (EU) .596 The 
United  States  refers to the following pas sage:  
Thus, an investigating authority is expected, with respect to the determination of 
dumping, to disclose, inter alia , the home market and export sales being used, the 
adjustments made thereto, and the calculation methodology  applied by the 
investigati ng authority to determine the margin of dumping.597 
However, a margin calculation methodology  is different from margin calculations  themselves. In 
fact, the term "calculation methodology" was used in this passage by the Appellate Body in the 
context of the E uropean Union's argument that "the calculation methodology, such as the formulae  
used in calculations and the data applied in the formulae ", must be disclosed under Article 6.9.598 
This confirms our findings in the original report in relation to what must be  disclosed: data and 
formulae, but not the calculations.  
7.378.   We therefore find that the United  States  has not established its claim under Article  6.9 of 
the Anti -Dumping Agreement in respect of disclosure of margin calculations . 
7.9.3.2.2   Disclosure obligation in respec t of the "original" data of Pilgrim's Pride  
7.379.   The data at issue relate to the calculations underlying the dumping margin determination 
made in the original investigation (the "original" data). The United  States  claims that MOFCOM did 
not provide these origin al data to Pilgrim's Pride during the reinvestigation.  
7.380.   The general principles applicable to the allocation of the burden of proof in WTO dispute 
settlement require that a party claiming a violation of a provision of a WTO agreement must assert 
and prove it s claim.599 A complainant wi ll satisfy its burden when it establishes a prima facie  case, 
namely a case that, in the absence of effective refutation by the defending party, requires a panel, 
as a matter of law, to rule in favour of the complainant.600 It is ge nerally for each party ass erting a 
fact to provide evidence supporting the assertion.601 In this dispute, therefore, it is for the 
United  States  to establish that China did not provide the original data to Pilgrim's Pride and 
thereby acted inconsistently wit h Article 6.9.  
7.381.   We recognise that a claim of violation based on an alleged omission – here the lack of 
disclosure – raises evidentiary challenges.602 Difficulties exist for the complainan t to establish the 
absence of something, but also for a panel in making findings of fact in relati on to an absence or 
actions not done. A panel must therefore exercise a measure of discretion in respect of the 
evidence required to establish a claim based on an alleged omission. Regardless of these 
difficulties, at a minimum it  should be uncontroversial to say that mere allegation of an omission 
does not amount to proof.  
                                                
595 In discussing  the findings of the panel in China – X-Ray Equipm ent, we found that : 
To the extent that the panel in China – X-Ray Equipment's  reference to the "actual mathematical 
determination" was to the calculations  themselves (including any files or spreadsheets created 
during the calculations), we agree that these  are not "essential facts " that must be disclosed.  
(Panel Report, China – Broiler Products , para. 7.92 (emphasis added))  
596 United  States' first written submission, para. 71.  
597 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.131. (emphasis 
added)  
598 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.125. (emphasis 
added)  
599 Appellate Body Report, US – Wool Shirts and Blouses , p. 16.  
600 Appellate Body Report, EC – Hormones , para. 104.  
601 Appellate Bod y Report, US – Wool Shirts and Blouses , p. 14.  
602 See our earlier observations in this respect at para. 7.292  above.  WT/DS427/RW  
 
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  7.382.   It is instructive to consider the arguments and evidence presented to us in the course of 
this proceeding to illustrate the difficulties a panel faces when the allegation concerns the failure to 
disclose.  
7.383.   The United  States  claims that MOFCOM did not provide the original  data to Pilgrim's Pride 
during the reinvestigation.603 However, in none of  its submissions did the United  States  refer to 
any evidence that could support this factual assertion.604 The United  States  relies only on 
statements in the redetermination.605 But these simply confirm that MOFCOM identified and 
corrected a calculation error in the original determination and that  it made a disclosure. They do 
not give any indication as to what MOFCOM did or did not disclose.606 
7.384.   The United  States  acknowledges that MOFCOM disclosed "new" data – data related to the 
reinvestigation – to Pilgrim's Pride. Initially, the United  States  asserted this to have occurred on 
17 June 2014 in response to dis closure comments made by Pilgrim's Pride.607 After China referred 
to an alleged disclosure of the original data on 16 May 2014, the United  States  agreed that 
MOFCOM disclosed the new data on that d ate.608 
7.385.   China argues that MOFCOM had, in fact, disclosed the or iginal data to Pilgrim's Pride during 
the reinvestigation. Initially, it relied on an Excel file that MOFCOM allegedly provided to Pilgrim's 
Pride on 16 May 2014 (Exhibit CHN -8).609 Exhibit CHN -8 contains empty tables; there is no 
reference to the investigat ion, or the reinvestigation, or to the type of data at issue, and none to 
Pilgrim's Pride. The generic labelling of the rows and columns indicates that the tables pertain to 
data related to the c onstruction of normal value and the calculation of dumping margins. It is not 
apparent, however, that the data and calculations contained in these tables – redacted from the 
exhibit – are those from the original investigation and are those for Pilgrim's Pr ide. 
7.386.   China then submitted Exhibit CHN -45, which "provides a more detailed public version of 
the same underlying document" of which Exhibit CHN -8 was a public summary, and thus 
presumably a more detailed public version of the alleged disclosure  of the origi nal data on 
16 May 2014.610 While actual figures are redacted611, China descr ibes the content of 
Exhibit  CHN-45 to "consist[] of six separate tabs":  
The first tab "5% test" shows the test of whether the home sales are sufficient to 
constitute a viable home mar ket; 
The second tab "cost and expense for NV" lists the cost and expenses for constructed 
normal value for all different models of broiler products;  
The third tab "table 4 -2" lists the price and expense data for all of the sales 
transactions, providing dat a for all distinct sales transactions;  
                                                
603 United  States' second written submission, para . 65. 
604 For example, an objection in the course of the reinvestigation by an interested party to a failure to 
disclose.  
605 United  States' first written submission, para. 75; comments on China's response to Panel 
question  No. 16(b), para. 33.  
606 The United  States could also be understood to suggest that the redeterm ination itself did not provide  
sufficient disclosure which, in its view, serves as evidence that MOFCOM did not disclose the original data. 
(United  States' first written submission, para. 75: " MOFCO M's redetermination sheds no additional light on the 
data or calculation 'corrections'"). The issue between the parties is not, however, whether MOFCOM disclosed 
the original data through the redetermination but through a separate disclosure instrument.  
607 United  States' first written submission, para. 76.  
608 United  States' second written submission, para. 71. The redetermination refers to a disclosure on 
16 May 2014. (Redetermination, (Exhibit CHN -1 (translated version)), p. 7).  
609 China's first written submi ssion, para s. 103 and 109; second  written submission,  para. 106.  
610 China's response to Panel question No. 16(a), para. 28.  
611 China stated at the substantive meeting that the United  States had not submitted an authorizing 
letter from Pilgrim's Pride for the  compliance proceeding and therefore could not provide the underlying 
confidential data. The United  States observes that "[u]nder the Panel' s Working Procedures, China does not 
need an authorizing letter 'in respect of BCI for which a party already submitted an authorizing letter in the 
original Panel proceeding proceeding s', which Pilgrim's Pride did." (United  States comments on China's 
response to Panel question No. 16(a), para. 29 (referring to the Additio nal Working Procedures of the Panel 
Concerning Business Confidential Information , para. 3) (fn omitted)).  WT/DS427/RW  
 
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  The fourth tab "domestic sales ˃ cost" lists those all transactions that had sales prices 
above cost;  
The fifth tab "revised Table 3 -4" provides export sales to China, which is used as the 
basis to determine the CIF price and the ex factory price (the net price after 
adjustments); and  
The sixth tab "calculation of Dumping Margin" provides the calculation of the overall 
average margin of dumping.  
… 
[T]he first five tabs of the spreadsheet provided in Exhibit CHN -45 … w ere unchanged 
from the original investigation ; only tab six – the calculation of the dumping margin – 
changed in the re -investigation.612 
7.387.   China also submitted Exhibit CHN -46, which it describes as a narrative to Exhibit CHN -45 
that MOFCOM provided to Pilgrim 's Pride. Exhibit CHN -46 expressly refers to Pilgrim's Pride, but it 
is undated and the relationship to Exhibit CHN -45 is, on its face, not entirely clear. Exhibit CHN -46 
may, however, be understood to refer to Exhibit CHN -45 and to provide explanations in  respect of 
the data and the calculations in Exhibit CHN -45.613  
7.388.   The United  States  does not contest that Exhibits CHN -45 and CHN -46 were provided to 
Pilgrim's Pride as part of the disclosure on 16 May 2014.614 "[W]hile the United  States  is not in a 
position to comment on what underlying data might be in Exhibit CHN -45 were it not redacted, the 
United  States " challenges the cogency and reliability of Exhibit CHN -45 by noting that:  
a. "on its face it does not appear to be the unmodified spreadsheet from the original 
investigation; it appears to be the spreadsheet for the reinvestigation "615; 
b. "China has not explained how this table would allow Pilgrim's to reconstruct its original 
rate of 53.4 percent – and what has changed since "616; and  
c. "[in respect of Exhibits CHN -45 and CHN -46, China did not] identify[] the precise 
language or figures in those documents that constitute the changes between the margin 
calculated in the original investigatio n and in the reinvestigation".617 
China responds that although prepared for the reinvestigation618, this exhibit contains all the 
original data.  
                                                
612 China's responses to Panel question No. 16(a), para. 29, and No. 16(c), para. 39. (emphasis added)  
613 For example, Exhibit CHN -46 mentions "modified Form 3 -4" and "Form 4 -2" which appears to refer 
to what China described as the third ("table 4 -2") and fifth tab ("revised table 3 -4") in Exhibit CHN -45. 
614 In its general comments on China's response to the Panel's questions ( paras.  2-4), the United  States  
raised concerns regarding the late submission of exhibits in China's response to the Panel's questions, including 
Exhibits CHN -45 and CHN -46. The United  States  argued that these exhibits were submitted outside of the 
deadlines prescribed by the Panel's Wo rking Procedures. We have sympathy for the view that China could have 
initially provided evidence that did not raise the concerns that we identified in respect of Exhibit CHN -8. In 
response to our request to address these concerns, China submitted CHN -45 and CHN -46. These exhibits were 
therefore properly submitted in accordance with paragraph 8 of our Working Procedures as "evidence  
necessary for purposes of … answers to questions ". 
615 United  States' comments on China's response to Panel question No. 16(a), para. 30. (emphasis 
original)  
616 United  States' comments on China's response to Panel question No. 16(a), para. 30. (emphasis 
original)  
617 United  States' comments on China's response to Panel question No. 16(b), para. 34.  
618 The United  States argues that Exhi bit CHN -45 is, in China's own submission, a public summary of the 
original data and that a summary cannot satisfy the disclosure obligation of Article 6.9. 
(United  States'  comments on China's response to Panel question No. 16(c), para. 35). The US statemen t 
mischaracterizes Exhibit CHN -45. During the substantive meeting and in its response to Panel question 
No. 16(a), paras. 27 -28, China explained that Exhibit CHN -45 is a public summary of the underlying disclosure 
prepared for the purpose of this dispute.  WT/DS427/RW  
 
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  7.389.   The US claim here is that MOFCOM failed to disclose the essential facts, in this case, the 
original data. Article 6.9 is concerned with the disclosure of essential facts. It does not prescribe 
the format in which the disclosure should be made. The format of this disclosure, whether it is in a 
spreadsheet prepared for the reinvestigation containing the original data, o r it is a spreadsheet 
from the original investigation containing the original data, is not relevant for this claim. What is 
pertinent is the substance of the disclosure, not its format.  
7.390.   Further, the United  States  claims that Exhibit CHN -45 does not "allow Pilgrim's to 
reconstruct its original rate of 53.4 per cent" and to identify "what has changed since". It also 
argues that China did not point to where the changes are set out in Exhibits CHN -45 and CHN -46. 
Exhibit CHN -46 on its face appears to explain the  error in the equation for the dumping margin 
that MOFCOM corrected, which resulted in a change in the dumping margin.619 It describes the 
equation that was used in the original determination, how it was corrected, and the corrected 
equation that was used du ring the reinvestigation. The United  States  has not questioned the 
authenticity of Exhibit CHN -46, challenged its probative value or otherwise addressed its content. 
In particular, the United  States  did not demonstrate that the specific explanations in CHN -46 in 
respect of the changes to the dumping margin equation, in connection with the dumping margin 
calculation disclosed in "tab six" of Exhibit CHN -45, were insufficient to allow Pilgrim's Pride to 
understand the changes and to ascertain their accuracy.  
7.391.   The United  States  does not contest that an unredacted version of Exhibit CHN -45 as well 
as Exhibit CHN -46 were disclosed to Pilgrim's Pride on 16 May 2014. We find therefore that, as a 
matter of fact, Pilgrim's Pride was in possession of the unredacted  data set out in the first 
five "tabs" of Exhibit CHN -45 and the explanations in Exhibit CHN -46. Since China's first written 
submission, the parties made arguments and disagreed in respect of what MOFCOM disclosed to 
Pilgrim's Pride on 16 May 2014. This factua l issue was also amply discussed during the substantive 
meeting of the Panel with the parties. At no point did the United  States  offer any evidence to 
support its allegation that the original data had not been disclosed, nor did it provide any evidence 
as to what was, in its view, disclosed to Pilgrim's Pride on 16 May 2014. In response to China's 
evidence, the United  States  also declined the opportunity to comment on whether Exhibit CHN -45 
included the original data on the basis of extensive redactions for  confidentiality purposes. As 
noted, we are sympathetic to the challenges inherent in establishing a claim of lack of 
disclosure.620 However, it is ultimately the responsibility of the complainant to establish its case. In 
this proceeding, the allegation is not one of complete absence of disclosure: rather, the 
United  States  argues that MOFCOM disclosed the new, but not the original data. In such 
circumstances, the United  States  could have sought to establish the alleged omission by 
demonstrating what was pro vided and how that disclosure did not encompass what should, in its 
view, have also been disclosed. Moreover, it would have been open to the United  States  to refer to 
Pilgrim's Pride and verify the content of Exhibit CHN -45. The United  States  did not do so . 
7.392.   In the light of the above and based on the totality of the evidence before us and the 
arguments developed by the parties, we draw the following conclusions:  
a. Considering Exhibit CHN -45 in the light of Exhibit CHN -46 suggests that at least part of 
the data  in Exhibit CHN -45, namely the data in "table 4 -2" and "revised Table 3 -4", were 
original data.621 The evidence therefore does not support the US assertion that MOFCOM 
did not provide any original data at all. 
                                                
619 Redacted Version of Disclosure Narrative Provided to Pilgrim 's Pride , (Exhibit CHN -46), pp. 6 -7. 
620 The United  States  relies on our findings in the preliminary ruling in the context of Articles 6.1 and 6.4 
of the Anti -Dumping Agreement. In that context, w e found that a complainant may not be expected to 
pin-point with any precision in a panel request information it does not have and might not even know about. 
The situation under this Article 6.9 claim is not, however, "analogous". (United  States' comments on China's 
response to Panel question No. 16(b), para. 33). Contrary to the US assertion, the evidence suggests that 
Pilgrim's Pride had ascertained, and even commented on, the error and correction at issue here, see 
para. 7.392  below.  
621 Redacted Version of Disclosure Narrative Provided to Pilgrim 's Pride , (Exhibit CHN -46), p. 2. See also 
Redacted Version of MOFCOM Response to Pilgrim 's Pride Comments on Initial Disclosure  (17 June 2014), 
(Exhibit CHN -47), p. 2 ("The data used in the disclosure of re -investigation was from the data submitted by 
your company. For example, the export price was based on the Table 3 -4 submitted by you after the 
verification.")  WT/DS427/RW  
 
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  b. The parties agree that MOFCOM made a disclosure to Pilgrim's Pride on 16 May 2014 and 
that Pilgrim's Pride provided comments. According to the uncontradicted evidence on the 
record, Pilgrim's Pride appears to have based its comments on original and new data and 
to have addressed in substance the change in the dumping margin equation as identified 
in Exhibit CHN -46.622 The only documents that the Panel received from the parties to 
consider as the alleged "disclosure" in question were, apa rt from Exhibit CHN -8, 
Exhibits  CHN-45 and CHN -46. In the absence of a ny evidence and arguments to the 
contrary, it appears that Pilgrim's Pride made its disclosure comments, including its 
comments on the correction of the calculation error, on the basis of the (unredacted) 
information conveyed through Exhibits CHN -45 and CH N-46. The evidence therefore 
does not support the US allegation that Pilgrim's Pride did not have the data from the 
original investigation and could not defend its interests because it did not know the 
alleged error that MOFCOM corrected in the reinvestiga tion. 
7.393.   On balance, we find that the United  States  has not established its claim in respect of the 
allegation that MOFCOM did not provide the original data to Pilgrim's Pride.623 
7.394.   Finally, we understand the US position to be that the disclosure on 16 May 2014 o ccurred 
too late for Pilgrim's Pride to defend its interests.624 Beyond mere assertion, the United  States  
does not explain how the disclosure on 16 May 2014 was not made in sufficient time for Pilgrim's 
Pride to defend its interests. The United  States  makes no arguments as to what would have been 
"early enough" or what would have been "adequate time" for Pilgrim's Pride to defend itself.625 The 
fact that the disclosure occurred "at the tail end of the reinvestigation" does not in itself mean that 
Pilgrim's Prid e did not have sufficient time to defend itself.626 In fact, we recall that Pilgrim's Pride 
commented on the disclosure, including on the calculation error and the corrections.627 We 
therefore have no basis to conclude that the disclosure on 16 May 2014 did no t take place in 
sufficient time for Pilgrim's Pride to defend its interest.  
7.395.   As a consequence, we find that the United  States  has not established that China acted 
inconsistently with Article 6.9 of the Anti -Dumping Agreement because MOFCOM did not disclose 
the original data to Pilgrim's Pride.  
7.9.3.2.3   Disclosure obligation in respect of the data of Keystone  
7.396.   The United  States  claims that MOFCOM did not disclose the data from the original 
investigation  underlying the original dumping determination and the data from th e reinvestigation  
underlying the dumping redetermination (the "original" data and the "new" data, respectively) to 
Keystone during the reinvestigation, in violation of Article 6.9.628  
                                                
622 Comme nts of  Pilgrim 's Pride  on Disclosure of the Final Ruling of the Reinvestigation (28 May 2014), 
(Exhibit USA -27 (BCI)) ; Redacted Version of MOFCOM Response to Pilgrim 's Pride Comments on Initial 
Disclosure  (17 June 2014), (Exhibit CHN -47). 
623 This finding is  entirely contingent on the facts of this case. In particular, we do not mean to suggest 
that a complainant has to demonstrate, by reference to the investigation's record, that an interested party 
requested to see the information at issue during the invest igation, or made a procedural objection in this 
respect, in order to establish a case of lack of disclosure.  
624 United  States ' second written submission, para s. 70, 71, and 73.  
625 United  States ' second written submission,  para. 73.  
626 United  States ' second written submission, para. 70. 
627 See above fn 622. 
628 The United  States  at no point explained how or why the "original" data were essential facts that 
forme d the basis for the decision to impose anti -dumping duties in the reinvestigation. Unlike the situation of 
Pilgrim's Pride, where the United  States  argues that the "original " data were necessary for Pilgrim's Pride to 
understand the corrected calculations and thus to defend its interests in the reinvestigation, for Keystone, the 
United  States  has not pointed to any link between the "original " data and the  determination in the  
reinvestigation.  Rather, we understand the United  States to challenge the alleged lack of implementation of the 
DSB's recommendations and rulings in respect of the "original" data: " The Panel in the original dispute 
previously found that China acted inconsistently with it s WTO obligations by failing to disclose this information 
from the original investigation.  … Despite this finding from the Panel, MOFCOM has once again failed to disclose 
this information to Keystone, in contravention of Article 6.9. " (United  States' respo nse to Panel 
question  No. 22, paras. 41 -42). WT/DS427/RW  
 
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  7.397.   The following facts are not in dispute between the parties:  
a. During the o riginal investigation, Keystone was fully cooperating and provided data to 
MOFCOM, which MOFCOM used in making its determination of dumping. During the 
reinvestigation, MOFCOM sought to reinvestigate Keystone.  
b. MOFCOM issued a questionnaire to Keystone but  Keystone did not respond and did not 
cooperate throughout the reinvestigation.629  
c. MOFCOM, as a result, used facts available  in respect of two items of information in 
establishing a dumping margin for Keystone.630  
d. In respect of other matters, MOFCOM used the  information submitted by Keystone 
during the original investigation.  
e. During the reinvestigation, MOFCOM did not disclose any Keystone -confidential 
information, including the data at issue, directly to Keystone or to any agent allegedly 
representing Keyst one.  
f. MOFCOM disclosed non -confidential information in respect of Keystone through a public 
disclosure.631 
7.398.   As well, there is no disagreement between the parties that Article 6.9 applies to 
non-cooperating exporters, and thus, in the context of the reinvestigation, to Keystone.632 This is 
consistent with our findings in the original report applying the disclosure requirement to the 
essential facts in respect of the "residual" rate for "unknown" exporters established using facts 
available.633 
7.399.   China argues , however, that the facts that are "essential", and that therefore must be 
disclosed, differ as between cooperating interested parties, on the one hand, and non -cooperating 
interested parties, such as Keystone, on the other.634 In respect of the latter, MOFC OM only 
needed to disclose the following essential facts: (a) the basis for resort to facts available; (b) the 
requested information; and (c) the facts used to replace the missing information.635 MOFCOM 
disclosed all these essential facts through a number of  publicly available documents.636 
7.400.   We see no basis in the text or context of Article 6.9 for distinguishing between cooperating 
and non -cooperating interested parties for purposes of the disclosure requirement.637 Article 6.9 
refers to "all interested parties" without making any distinctions among them. The facts that are 
"essential" may vary from interested party to interested party, but it is not the characterization of 
the particular interested party as cooperating or not that determines whether facts are "es sential", 
but the relevance of those facts to the determinations to be made by the investigating authority. 
China refers to the use of the words "whenever practicable" in Article 6.4 and the disciplines on 
use of facts available under Article 6.8 to argue that Article 6.9 has different obligations in respect 
of cooperating and non -cooperating parties.638 Article 6.9 does not contain the words "whenever 
practicable", nor does it refer to either Article 6.4 or 6.8. So the relevance of the words "whenever 
                                                
629 United  States ' second written submission, fn 93.  
630 These two items of information were "[t]he quantity and cost of free products listed in 'other 
products'" and "processing costs". (China's response to Panel q uestion No. 18, para. 45).  
631 Disclosure of Essential Facts upon Which the Re -determination in DS 427 of Dumping and Subsi dy on 
Broiler Products was Made  (29 May 2014 ), (Exhibit CHN -33 (translated version)); Redacted Version of 
Disclosure Narrative Provided  to Keystone  (29 May 2014), (Exhibit CHN -48). 
632 The parties do however disagree as to which essential facts an investigating authority must disclose 
to a non -cooperating interested party, see below para. 7.399 . 
633 Panel Report, China – Broiler Products , paras. 7.314 -7.323.  
634 China's second written submission, para. 119; response to Panel question No. 17, paras. 41 -43. 
635 China's first written submission,  paras. 112 an d 121; second written submission, paras. 119 -120. 
636 China's first written submission, paras. 118 -120; second written submission, paras. 120 -122. 
637 But see China's response to Panel question No. 17, paras. 42 -43. 
638 China's response to Panel question No. 17,  para. 43.  WT/DS427/RW  
 
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  practi cable", found only in Article 6.4, and the disciplines on facts available specifically addressed 
in Article 6.8 to a Member's obligations under Article 6.9 is  not self -evident .639 
7.401.   Regarding the distinction between cooperating and non -cooperating interested p arties, 
China also relies on our findings in the original report concerning the disclosure of essential facts 
pertaining to the "residual" dumping margin for "unknown" exporters based on facts available.640 
We do not share China's understanding of our findin gs. We did not limit the universe of facts to be 
disclosed when using facts available to the matters China refers to above at paragraph 7.399 . We 
specifically foun d that Article 6.9 required disclosure of the facts that are " used to replace the 
missing information".641 These are clearly any facts that are significant  in reaching the decision to 
impose duties and, therefore, constitute essential facts. Thus, we clarifi ed the notion of essential 
facts in the case of use of facts available by also requiring the disclosure of the reasons for resort 
to facts available and the information that was requested from the interested party. In any event, 
our findings concerned the particular "essential facts" that the investigating authority arrived at 
through the use of facts available; they did not concern the disclosure of other essential facts to a 
non-cooperating interested party that are not based on or themselves facts availa ble. In this 
instance, MOFCOM used facts available only to replace two particular items of information. For the 
rest, it used Keystone's information already on the record from the original investigation. Our 
findings in the original dispute could therefore  only be relevant to the two specific items of 
information in respect of which MOFCOM used facts available in the reinvestigation, not to the rest 
of Keystone's essential facts.  
7.402.   China argues that it disclosed the essential facts through a public disclosure  of 
non-confidential information of Keystone.642 In this context, China, however, refers to the 
disclosure of information that is not the subject matter of the US claim. The US claim is not about 
the disclosure of non -confidential data through publicly avail able documents . Rather, it relates to 
Keystone's confidential  data that the United  States  argues MOFCOM was required to make 
available to Keystone. In respect of the confidential information, China acknowledges that 
MOFCOM would have disclosed these confid ential data to Keystone or its legal agents as essential 
facts had Keystone responded or provided a power of attorney authorizing its legal agents. 
According to China:  
a. MOFCOM was required to maintain confidentiality of the da ta at issue;  
b. Keystone did not respond to MOFCOM's questionnaire;  
c. Keystone did not have an authorized legal agent; and  
d. MOFCOM was legally precluded from making the required disclosure.  
7.403.   The United  States  does not argue that MOFCOM was under a positive obligation to actively 
seek out Keys tone and inform it of the data at issue. Rather, the US challenge concentrates on the 
fact that MOFCOM did not disclose the information to Keystone's putative legal agents on the basis 
that it could not confirm that they were authorized to receive confiden tial data on behalf of 
Keystone.  
7.404.   The issue for us in this dispute therefore concerns MOFCOM's obligation to " inform " 
Keystone of the essential facts in the circumstances of this case. Below, we set out the sequence 
of events as we understand it:  
                                                
639 In any event, nothing in the phrase "whenever practicable" as used in Article 6.4 with respect to the 
obligation for investigating authorities to provide opportunities to all interested parties to see information 
suggests such that it is inten ded to distinguish between cooperating and non -cooperating interested parties 
even in the context of Article 6.4 itself. Similarly, we fail to see, and China has not explained, how the fact that 
Article 6.8 establishes the conditions for use of facts available supports distinguishing between cooperating and 
non-cooperating interested parties in the context of Article 6.9 . We recognize that paragraph 7 of Annex II of 
the Anti -Dumping Agreement does refer to an interested party that "does not cooperate" in the context of the 
use of facts available, but nothing in that provision has any bearing on the obligation to disclose essential facts 
pursuant to Article 6.9.  
640 Panel Report, China – Broiler Products , para.  7.317; see above, para. 7.368 . 
641 Panel Report, China – Broiler Products , para.  7.317. (emphasis added)  
642 China's second written submission, para. 122; responses to Panel question No. 18, para. 46, and 
No. 19(c)(ii), para. 57.  WT/DS427/RW  
 
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  a. On 7 January 2014, MOFCOM issued an anti -dumping questionnaire to Keystone in the 
reinvestigation.643 Keystone did not respond.  
b. On 16 May 2014, MOFCOM sent a letter to the US Embassy in Beijing stating:  
As Keystone Foods LLC has failed to submit its questionnai re response for 
the reinvestigation and also failed to participate in other dumping and 
subsidy reinvestigation procedures , the investigating authority is unable 
to disclose it the basic facts supporting the determination regarding the 
reinvestigation. Acc ording to the way of contact reported by the company 
in the original questionnaire response, we have sent a letter about this to 
the company. In order to ensure the company's  right of comments on the 
disclosure, we request you to assist in no tifying the co mpany to contact 
with the investigating authority as soon as possible.644 
c. On 20  May 2014, the US Embassy forwarded a "memorandum" from the US law firm 
Steptoe & Johnson LLP (Steptoe) that had represented Keystone in the original 
investigation purporting to g ive authorization for MOFCOM to serve any disclosure to 
Thomas J. Trendl at Steptoe or Scott Lindsay at the US Embassy in Beijing : 
With explicit authorization and approval from Keystone Foods, by this 
memorandum, Keystone Foods notifies MOFCOM that it may serve any 
and all disclosure documents in this matter on Thomas J. Trendl, Partner 
in Steptoe & Johnson's Washington, D.C. office or Scott Lindsay, 
Enforcement & Compliance, US Embassy. Their respective full contact 
information is provided below. Please co ntact Thomas J. Trendl should 
you have any questions.645 
d. On 22  May 2014, MOFCOM responded to the memorandum by letter to the US Embassy , 
stating that:  
[T]he memorandum did not include Keystone Foods ' power of attorney 
authorizing the law firm to represent th e company in responding the re -
investigation; nor did the memorandum include Keystone Foods ' power of 
attorney authorizing the lawyers of the law firm to serve as the legal 
counsels of the company or authorizing Mr. Scott Lindsay to receive any 
disclosure documents on behalf of the company.  
To protect the business confidential information of the company, 
according to the relevant provision of the Anti-dumping Regulations of the 
                                                
643 According to China, MOFCOM sent the reinvestigation questionnaire to the Chinese law firm 
Jincheng  Tongda & Neal (JT&N) that had represented Keystone during the original investigation. (China's 
response to Panel question No. 19(a), paras . 47-48 (referring to Redetermination, (Exhibit CHN -1 (translated 
version)), pp.  5 and 7)). China asserts that JT&N transmitted the questionnaire to Keystone, confirmed to 
MOFCOM that Keystone had received it and told MOFCOM that Keystone would not respond  to it. (Responses to 
Panel question No. 19(b), para. 50, and No. 19(c)(ii), para. 55; see also the acknowledgement of receipt of 
Keystone's questionnaire signed by JT&N at  Registration of Receipt of initial questionnaire by three law firms, 
(Exhibit CHN -50)). At the same time, China asserts that "JT&N confirmed that it no longer represented 
Keystone in the re -investigation". (Response to Panel question No. 19(b), para. 50; see also Email from 
Mr Fu Xin of JT&N dated 6 June 2017 to Mr Yu Jinbao on issues co ncerning the reinvestigation,  
(Exhibit  CHN-57), apparently for purposes of this Panel proceeding, stating that JT&N was not authorized to act 
for Keystone during the reinvestigation). The United  States, in turn, presented an alleged authorization by 
Keysto ne of Mr Fu at JT&N to receive disclosure documents from MOFCOM during the reinvestigation. 
(Memorandum from Keystone dated 21 May 2014 on service of Keystone -specific disclosure documents, 
(Exhibit USA -35); see below China's procedural objection and our a ssessment of this exhibit's probative value 
at paras.  7.410 -7.413 ). Be that as it may, however, the United  States' acknowledges that "[i]n the 
reinvestigation, MOFCOM sent a questionnaire to Keystone … but Keystone declined to cooperate." 
(United  States ' second written submission, fn 93).  
644 Letter from MOFCOM dated 16 May 2014 on disclosure of the redetermination, (Exhibit USA -5 
(translated version)) , p. 2; Redetermination, (Exhibit CHN -1 (translated version)), p. 7.  
645 Memorandum from Keystone dated 20 May 2 014 on s ervice of Keystone -specific disclosure 
documents , (Exhibits CHN -10/USA -29 (translated version)) . See also Redetermination, (Exhibit CHN -1 
(translated version)), p. 7.  WT/DS427/RW  
 
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  People's Republic of China , without the company's explicit authorization, 
the In vestigating Authority is unable to provide the disclosure relating to 
the company to any third party. Given the tight schedule of the 
investigation, we ask that Keystone Foods be noted the requirement on 
comment period.646 
e. In a "memorandum" dated 21  May 2014, signed by Crystal Graham, vice president 
finance of Keystone, and, according to the United  States , faxed to MOFCOM o n 
29 May 2014, Keystone:  
[N]otifies and authorizes MOFCOM that it may serve any and all 
disclosure docu ments in this matter to Steptoe & Johnson, LLP and 
Jincheng Tongda & Neal ("JT&N"). Their respective full contact 
information is provided below.647 
The contact information is given in respect of Eric C. Emerson at Steptoe's Beijing office 
and Fu Xin at JT&N.  
f. On 29 May 2014, MOFCOM made a public disclosure in respect of Keystone's 
non-confidential information.648 
7.405.   At issue between the parties is whether MOFCOM violated Article 6.9 because it failed to 
disclose the confidential data in question to any agent allegedly representing Keystone, and in 
particular Steptoe. According to China, MOFCOM did not receive the additional documentation it 
was seeking as proof of appointment of agent and for that reason alone MOFCOM was not in a 
position to disclose Keystone' s confidential data to an unauthorized third party.649 The 
United  States  argues that Keystone had provided proof of authorization to MOFCOM so that it 
should have disclosed the data at issue to Steptoe.  
7.406.   MOFCOM's request for proof of appointment as agent was made, according to China, 
pursuant to an existing set of regulations. The United  States  does not question the fact of the legal 
requirement. It does not argue that such a legal requirement in itself leads to a biased or 
unobjective outcome and it does not allege that in this instance MOFCOM applied the regulations in 
a biased manner or unobjectively. Rather, it appears to argue that in objectively abiding by an 
otherwise unobjectionable legal requirement and not disclosing Ke ystone's information to a 
third party, MOFCOM acted inconsistently with Article 6.9.  
7.407.   The issue for us to resolve therefore is whether Keystone provided proof of authorization of 
its purported agent, in particular its legal counsel, to MOFCOM.  
7.408.   The United  States  relies on the "memorandum" of 20  May 2014. On at least three 
occasions in this proceeding, it characterized this document as a "power of attorney"; it also 
referred to it as an "authorization".650 There is no evidence before us as to what constitutes a 
"power of attorney" or an "autho rization" in US or Chinese law. But it is not necessary for us to 
                                                
646 Letter from MOFCOM dated 22 May 2014  to US  Embassy  on authorisation on the rein vestigation 
disclosure of Keystone, ( Exhibit CHN -11 (translated version))  (emphasis original); see also Letter from 
MOFCOM dated 22 May 2014 to the US Embassy on the Keystone -specific disclosure  authorisation,  
(Exhibit  USA-30 (translated version)), relatin g to the same document . 
647 Memorandum from Keystone dated 21 May 2014 on service of Keystone -specific disclosure 
documents, (Exhibit USA -35); see below China's procedural objection and our assessment of this exhibit's 
probative value at paras. 7.410 -7.413 . 
648 Disclosure of Essential Facts upon Which the Re -determin ation in DS 427 of Dumping and Subsi dy on 
Broiler Products was Made  (29 May 2014 ), (Exhibit CHN -33 (translated version)); Redacted Version of 
Disclosure Narrative Provided to Keystone  (29 May 2014), (Exhibit CHN -48). 
649 We do not agree with the United  State s' view that "China' s argument that the purported lack of 
authorization somehow prevented disclosure … is simply a post hoc  excuse ." (Letter from the United  States 
dated  26 June 2017 to the Chairperson commenting on China's letter of 12 June 2017 to the Ch airperson , 
para. 3). The United  States' own Exhibits USA -9, p. 7 and USA -30 demonstrate that the lack of authorization 
was indeed MOFCOM's concern at the time, as acknowledged by the United  States in its second written 
submission, para. 87.  
650 United  States ' second written submission, para. 87; opening statement at the meeting of the Panel, 
para. 67; and response to Panel question No. 20, para. 38.  WT/DS427/RW  
 
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  resolve that question. The "memorandum" of 20 May 2014 is a letter signed by Thomas J. Trendl 
at Steptoe stating that MOFCOM may serve Keystone's disclosure to him or Scott Lindsay at the 
US Embassy . There is a reference in the "memorandum" to an "authorization" by Keystone, but it 
is not accompanied or followed by Keystone's authorization of Mr Trendl and/or Mr Lindsay. As a 
matter of fact, we find that mere assertion by legal counsel of age ncy is not proof of an agency 
relationship.651 As a matter of law, we find that MOFCOM did not act unreasonably in not accepting 
as proof of an agency relationship a mere assertion by the alleged agent itself.  
7.409.   In its letter of 22 May 2014 to the US Embassy , MOFCOM communicated its concern about 
lack of authorization to disclose Keystone's confidential information, indicated that in these 
circumstances it could not disclose the confidential information and urged Keystone to respond. 
We have no reason to believ e that this letter did not reach Keystone652, nor does the United  States  
argue that it did not. Rather, the United  States  acknowledges that, "to [its] knowledge, Keystone 
did not respond to MOFCOM's letter".653 
7.410.   The United  States  also relies on a "memorandum" f rom Keystone, dated 21  May 2014 and 
allegedly faxed to MOFCOM on 29 May 2014, authorizing Eric C. Emerson at Steptoe's Beijing 
office and Fu Xin at JT&N to receive Keystone's disclosure. The United  States  submitted this 
"memorandum" as Exhibit USA -35 in it s comments on China's responses to the Panel's written 
questions.654 Relying on this exhibit, the United  States  asserts that it "has reason to believe that 
the statements proffered by China [in respect of the lack of proof of authorization of Keystone's 
purported representatives] are not completely accurate".655 China object s to the submission of 
Exhibit USA -35 arguing that under the Panel's Working Procedures all evidence should have been 
submitted by the substantive meeting of the Panel with the parties and t hat the United  States  did 
not demonstrate any "good cause" for a late submission.656  
7.411.   We recall the arguments of the United  States  about the late submission of evidence by 
China and in particular that "China's provision of exhibits at this late stage raise c oncerns relating 
to procedural fairness".657 The Panel's Working Procedures in this proceeding provide that : 
Each party shall submit all factual evidence to the Panel no later than during the 
substantive meeting, except with respect to evidence necessary for  purposes of 
rebuttal, answers to questions or comments on answers provided by the other party. 
Exceptions to this procedure shall be granted upon a showing of good cause.658 
7.412.   In this instance, the position of China with respect to the issue of the (lack of) 
authorization of Keystone's purported agents has been clear since 2014 and, in the context of this 
dispute, at least since the first written submission of China. Moreover, we put a specific question 
on this very subject to the United  States  both orally at the substantive meeting and subsequently 
in writing. The United  States  has had three years and multiple opportunities to clarify this specific 
point. It is therefore not entirely clear to us why the United  States  would be seeking to "confirm[] 
China's acco unt" only at a late stage of the proceedings and, allegedly, only in respect of China's 
responses  to our questions.659 The United  States  even acknowledge s that it submitted the exhibit 
                                                
651 The United  States emphasizes the request in the "memorandum" to "contact 'Thomas J. Trendl 
should you [MOFCOM ] have any questions'". (Response to Panel question No. 21, para. 39; Letter from the 
United  States dated  26 June 2017 to the Chairperson commenting on China's letter of 12 June 2017 to the 
Chairperson , fn 4). But neither this request, nor MOFCOM's alleged  failure to contact Mr Trendl, detract from 
our conclusion that mere assertion by legal counsel of agency is not proof of an agency relationship . 
652 The exchange of communications from 16 and 20 May 2014 supports the conclusion that Keystone 
also received t he letter of 22 May 2014.  
653 United  States' response to Panel question No. 21, para. 39.  
654 In an e -mail of 25 May 2017 to the Chairperson of the Panel, the United  States clarified that the 
United  States relies on Exhibit USA -35 to support the assertions made at paragraph 38 of its comments on 
China's response to Panel question No. 19.  
655 United  States ' comments on China's response to  Panel question No. 19 , para. 38. 
656 Letter from China dated 12 June 2017 to the Chairperson of the Panel, pp. 1 -3. 
657 United  States ' general comments on China's response to  Panel question s, paras. 1 -4. 
658 Working Procedures of the Panel (adopted on 9 November 2016), para. 8.  
659 United  States ' comments on China's response to  Panel question No. 19 , para. 38; Letter from the 
United  States dated  26 June 2017 to the Chairperson commenting on China's letter of 12  June 2017 to the 
Chairperson , paras. 6 -7. WT/DS427/RW  
 
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  to us in order to address an assertion that China made in its second written submission .660 We see 
no reason why the United  States  should be considered to have had, and the United  States  neither 
asserted nor demonstrated that it had, "good cause" to adduce evidence in its comments on 
China's responses to the Panel's written q uestions in order to rebut an assertion China had already 
made, by the United  States ' own admission, in the second written submission.  
7.413.   Be that as it may, it is not necessary for us to make a finding on whether we may or 
should accept the exhibit, because w e do not in any event find it persuasive. As the United  States  
itself observes in respect of China's arguments relating to MOFCOM's online index661, there are no 
time-stamps or other records indicating when the "memorandum" was in fact faxed (or otherwise 
sent) to MOFCOM662 – and here, we are not dealing with an internal receipt but an alleged 
communication between an interested party and the investigating authority.  The exhibit does not 
mention a number to which it could have been faxed or sent. The United  States argues that it has 
not found a record of MOFCOM's response663; but there is also no record of follow -up by the 
US Counsel or indeed by the US Government asserting to MOFCOM that the condition for 
disclosure had been met. In fact, and in contrast to the " memorandum" of 20 May 2014, the 
record of the reinvestigation does not mention the "memorandum" of 21 May 2014 allegedly faxed 
to MOFCOM on 29 May 2014.664 We also note that the evidence  demonstrates that on 16 and 
22 May 2014, MOFCOM took repeated action to  contact Keystone in respect of the disclosure. In its 
letter of 22  May 2014, it specifically responded to the "memorandum" of 20 May 2014 and 
addressed the lack of authorization of Keystone's purported agent. Against this background, 
MOFCOM 's silence , after reaching out to Keystone on this very issue twice, in respect of  an 
authorization allegedly provided to it on 29 May 2014  and the absence of follow up by Keystone, 
its counsel or the US  Embassy is telling, as is the fact that MOFCOM listed  the "memorand um" of 
20 May 2014 in its records but  left out any reference to the "memorandum" of 21 May 2014. For 
these reasons, we are not persuaded that Exhibit USA -35 establish es that Keystone did, in fact, 
provide MOFCOM with proof of authorization of its agents.  
7.414.   In the light of the above, we find as a matter of fact that:  
a. MOFCOM disclosed non -confidential information in respect of Keystone;  
b. MOFCOM did not disclose confidential information in respect of Keystone; and  
c. when approached by certain persons purporting to  be agents of Keystone for the 
purposes of disclosure, MOFCOM sought proof of authorization of agency.  
7.415.   In our view, it was not unreasonable for MOFCOM to consider that the memorandum of 
20 May 2014 by Steptoe did not amount to such authorization. We furthe r find that the 
United  States  has not established that Keystone provided such proof of authorization to MOFCOM 
at another time in another document.  
7.416.   In these circumstances, we find that MOFCOM did not act in a biased or unobjective 
manner in finding that th e purported agents of Keystone were not authorized to receive disclosure 
of Keystone's confidential data at issue. Accordingly, we conclude that the United  States  has not 
demonstrated that MOFCOM's admitted failure to inform Keystone of the essential facts  at issue 
was inconsistent with Article 6.9  of the Anti -Dumping Agreement . 
7.9.4   Conclusion  
7.417.   We find that the United  States  has not established that China acted inconsistently with 
Article  6.9 of the Anti -Dumping Agreement in respect of the failure to disclose da ta and 
                                                
660 At paragraph 2 of its letter of 26 June 2017 to the Chairperson commenting on China's letter of 
12 June 2017 to the Chairperson, the United  States argues that "[t]he exhibit rebuts a specific assertion made 
by China – that MOFCOM lacked an authorization signed by Keystone Foods" and in footnote 2 to this 
statement it refers to " e.g., China, Second Written S ubmission , para. 114 (' No other evidence was submitted 
that Keystone in fact actually authorized Steptoe & J ohnson to act on its behalf, and neither Keystone nor the 
firm took any additional steps nor filed any additio nal information or explanation.' )" (emphasis added)  
661 United  States ' comments on China's response to  Panel question No. 11 , para. 24.  
662 China disp utes that MOFC OM had received the alleged fax.  (Letter from China dated 12 June 2017 to 
the Chairperson of the Panel, p. 2).  
663 United  States ' comments on China's response to  Panel question No. 19 , para. 39.  
664 Redetermination, (Exhibit CHN -1 (translated version)), p. 7.  WT/DS427/RW  
 
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  calculations from the original investigation and/or the reinvestigation underlying the dumping 
margins for Pilgrim's Pride and Keystone.  
7.10  Article 9.4(i)  of the Anti -Dumping Agreement : maximum amount of anti -dumping 
duty for imports from exporters not  individually examined  
7.418.   The United  States  alleges that MOFCOM acte d inconsistently with  Article 9.4(i) of the 
Anti-Dumping Agreement because, in the redetermination, it set the "residual" rate665 for unknown 
exporters or producers666 in excess of the weighted a verage margin of dumping established with 
respect to exporters individually examined under Article 6.10  of the Anti -Dumping Agreement . 
7.10.1   Findings of the Panel in the original report  
7.419.   In the original report, we made findings regarding the use of facts availabl e under 
Article  6.8 and Annex II of the Anti -Dumping Agreement in establishing the "residual" rate.667 In 
the original investigation, MOFCOM had used facts available to establish a "residual" rate of 
105.4% for US exporters that had not registered with MOFCO M in response to the Notice of 
Initiation and, as a consequence, were considered unknown, and also did not file a questionnaire 
response.668  
7.420.   We found that MOFCOM's Notice of Initiation and registration requirement were sufficient 
to inform foreign exporters  of the information required of them and of the possible use of facts 
available if they did not supply that information to MOFCOM within a reasonable time.669 We thus 
considered that MOFCOM had fulfilled the conditions set forth in paragraph 1 of Annex II, a llowing 
it to resort to facts available in establishing an anti -dumping duty rate for exporters that did not 
register with MOFCOM and provide requested information.670  
7.421.   Nevertheless, we found that MOFCOM acted inconsistently with Article 6.8 and Annex II of 
the Anti -Dumping Agreement in the manner in which it used facts available in determining that 
rate.671 We found that the determination failed to sufficiently explain which facts on the record 
MOFCOM used to calculate the "residual" rate.  
7.10.2   MOFCOM' s findings in  the redetermination  
7.422.   On 25 December 2013, MOFCOM issued a Notice of Initiation in respect of the 
reinvestigation.672 Unlike in the original investigation, this Notice of Initiation did not set forth a 
requirement for interested parties to register or specify  information that would be required.  
7.423.   In the redetermination, MOFCOM established anti -dumping duty rates for three groups of 
exporters:  
                                                
665 In both its original investigation and the reinvestigation, in addition to determining individual rates 
for certain exporters individually examined, MOFCOM established a separate "all others" rate in accordance 
with Article  9.4 of the Anti -Dumping Agreement  which it applied to exporters that had registered following the 
Notice of Initiation in the original investigation, and a second "all others" rate, based on facts available, which 
applied to  any foreign exporter or producer that had not registered in the original investigation. While 
MOFCOM, and the parties in this dispute, refer to this second rate as an "all others" rate, in order to avoid the 
confusion which may arise from referring to two  different anti -dumping duty rates established on different 
bases and applied to different categories of foreign exporters or producers, we will, as some other panels have, 
refer to this second "all others" rate as a "residual" rate . We note that the Anti -Dumping Agreement  does not 
refer to either an "all others" rate or a "residual" rate, and thus these terms have no legal significance. We use 
them in this report in order to more clearly distinguish the rate applicable to exporters or producers that are 
not individually examined pursuant to Article  6.10 of the Anti -Dumping Agreement and for whom a separate 
anti-dumping duty rate is established under Article 9.4 ("all others" rate) from the rate that is at issue here 
("residual" rate).  
666 References to "expor ters" shall be understood to include foreign producers in this context.  
667 Panel Report, China – Broiler Products , paras. 7.298 -7.313.  
668 Panel Report, China – Broiler Products , paras. 7.276 and 7.278.  
669 Panel Report, China – Broiler Products , para. 7.306.  
670 Panel Report, China – Broiler Products , para. 7.307.  
671 Panel Report, China – Broiler Products , paras.  7.308 -7.313.  
672 Announcement No. 88 , (Exhibit USA -1 (translated version)) . WT/DS427/RW  
 
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  a. individual  dumping  margins for each examined exporter673; 
b. a single  dumping margin for other exporters which had registered but were not 
individually examined in the original investigation, based on the weighted  average of the 
margins of the examined exporters674; and  
c. a single "residual" anti-dumping rate for all othe r US exporters.675 
7.424.   This latter "residual" rate applied to unknown exporters that "did not register for 
participating in the [original] investigation".676 In the reinvestigation, MOFCOM did not seek out or 
ask these exporters to cooperate, and as noted, there was no provision f or registration with 
MOFCOM in the context of th e reinvestigation. In the redetermination, MOFCOM indicated that:  
Regarding all other U.S. companies who did not respond to, nor did they submit [ sic] 
the questionnaire responses, in accordance with Article 2 1 of the 
Anti-Dumping  Regulation , the Investigating Authority decides to use the facts 
available and the best information available to determine their normal value and 
export price.677 
MOFCOM explained that it had decided "to use the evidence and materials o f Pilgrim's Pride 
Corporation to determine the normal value, export price, price adjustment items and CIF prices for 
all other U.S. companies."678 MOFCOM established the  "residual" rate based on the rate 
determined for Pilgrim's Pride, 73.8%, the highest rat e found for any of the  examined exporters.  
7.10.3   Main arguments of the parties  
7.10.3.1   United  States  
7.425.   Article 9.4(i) imposes a ceiling on the " residual " rate based on facts available in certain 
circumstances. This does not mean that Article 9.4 imposes a general  cap on rates determined on 
the basis of Article 6.8; and it does not mean that Article  9.4 applies to unknown exporters that do 
not come forward when an investigating authority requires registration to identify and select 
exporters for the limited investi gation.679 Rather, on the facts of this case , the "residual " rate  in 
the redetermination was in excess of the ceiling established by Article  9.4(i).680  
7.426.   In the original investigation, MOFCOM required foreign exporters to register in order to 
identify all compa nies from among which MOFCOM could select for limited examination. But in the 
reinvestigation MOFCOM did not provide for a similar process of registration.681 MOFCOM had 
already limited the investigation during the original investigation to certain exporters  and did not 
reopen the selection of the exporters for examination during the reinvestigation. Unlike in the 
original investigation, MOFCOM did not invite any exporters to register and cooperate.682 In these 
                                                
673 Redetermination, (Exhibit CHN -1 (translated version)) , appendix II, p. 89.  
674 Redetermination, (Exhibit CHN -1 (translated version)) , p. 56 and appendix II, pp. 89 -90. 
675 Redetermination, (Exhibit CHN -1 (translated version)) , p. 56 and appendix II, p. 90.  
676 Redetermination, (Exhibit CHN -1 (translated version)) , p. 57.  
677 Redeterminatio n, (Exhibit CHN -1 (translated version)) , p. 56. As in the original investigation (Panel 
Report, China – Broiler Products , para. 7.274) the examined companies in the reinvestigation were Keystone, 
Tyson and Pilgrim's Pride, although the latter was not reinv estigated during the reinvestigation. Questionnaires 
were only sent to Keystone and Tyson. (Redetermination, (Exhibit CHN -1 (translated version)) , p. 5). 
Consequently, and as in the original dispute, the use of facts available for the "all others" rate did  not attach to 
an alleged failure of "all other" US companies to submit questionnaire responses, but to the failure to register 
for the investigation.  
678 Redetermination, (Exhibit CHN -1 (translated version)), p. 57.  
679 United  States' second written submissio n, para. 125: "[T] he exporters subject to MOFCOM 's 
["residual"] rate were n ot asked to cooperate in MOFCOM' s reinvestigation, and to apply the highest 
antidumping duty rate to them is inconsistent with Article 9.4 ", and fn 171: " The key point, consistent w ith the 
text of Article 9.4, is that [sic] applies to producers not subject to the examination period.  The United  States   
agrees the situation would be different if a particular party was solicited information but declined 
to do so ." (emphasis added)  
680 United  States ' first written submission, para. 104. 
681 United  States' response to the oral questions of the Panel at the meeting.  
682 United  States' second written submission, para. 125; see also response to the Panel question No. 44, 
para. 92.  WT/DS427/RW  
 
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  circumstances, MOFCOM applied the 73.8% facts avai lable rate to exporters who did not have any 
opportunity to cooperate in the reinvestigation. In this instance, where "sampling" has already 
been done, all exporters that are not subject to the examination and that were not required to 
register, fall under  the protection of Article 9.4(i) with respect to the ceiling.  
7.427.   China's position that this provision does not apply to non -cooperative exporters or 
producers is inconsistent with the plain text of Article  9.4.683 The Panel should not follow the 
reasoning deve loped in EC – Salmon (Norway) and invoked by China. The findings made in EC – 
Salmon (Norway) create an "artificial distinction between exporters or producers that register with 
an investigating authority and who are not examined – and exporter [ sic] or pr oducers that are 
not simply examined".684 Moreover, as the Appellate Body in US – Hot Rolled Steel stated, 
Article  9.4 applies to exporters or producers who were not asked to cooperate in the investigation.  
7.10.3.2   China  
7.428.   In line with the panel's findings in EC – Salmon (Norway) , Article  9.4 only governs the 
maximum amount of anti -dumping duties that may be imposed on and collected from unexamined 
but cooperating  exporters; it does not apply to non -cooperating exporters.685 The " residual " rate 
challenged by the United  States only applies to exporters that did not register and identify 
themselves for the purpose of the investigation; it does not apply to companies that cooperated 
but were not selected for the limited examination, for which a separate margin was determined in 
accordance with Article  9.4. Exporters that did not register and identify themselves for the purpose 
of the investigation are no different from non -cooperating exporters to which Article  9.4 does not 
apply.686 Article 9.4(i) is therefore also inapplicable to the rate at issue here.  
7.429.   As part of its implementation obligation, MOFCOM was not required to, and in fact did not, 
offer the "unknown" exporters a second opportunity to cooperate during the reinvestigation.687 In 
order to bring China into compliance with its  WTO obligations, MOFCOM did not have to redo the 
entire investigation; in particular MOFCOM did not need to ask the unknown producers again to 
register.688 
7.10.4   Evaluation  
7.430.   In the original report we confirmed that a "residual" rate for unknown exporters can be 
based on facts available, and the use of facts available in such a case is, in turn, subject to the 
disciplines of Article  6.8 and Annex II. In this compliance dispute, we are presented with a 
different but related question. The issue before us now is whethe r, in the particular circumstances 
of this case, the ceiling provided for in Article 9.4(i) applies to the "residual" rate established in the 
reinvestigation for exporters considered "unknown" because they had not registered in the original 
investigation.  
7.10.4.1   The l aw 
7.431.    Article 9.4 of the Anti -Dumping Agreement provides:  
When the authorities have limited their examination in accordance with the second 
sentence of paragraph 10 of Article 6, any anti -dumping duty applied to imports from 
exporters or producers not i ncluded in the examination shall not exceed:  
(i) the weighted average margin of dumping established with respect to 
the selected exporters or producers or … [.]  
                                                
683 United  States ' second  written submission, para s. 123 and 125.  
684 United  States ' second written submission, fn 171 . 
685 China's first written submission, para s. 243 and 250  (referring to Panel Report,  EC – Salmon 
(Norway) , paras.  7.431 -7.433 ). 
686 China's fir st written submission, para. 248.  
687 China's second written submission, para. 220; opening statement at the meeting of the Panel, 
para. 40. 
688 China's response to the oral questions of the Panel at the meeting.  WT/DS427/RW  
 
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  7.432.   Article 9.4 regulates the maximum amount of anti -dumping duty that may be imposed or 
collected in respect of imports from exporters that were not individually examined pursuant to 
Article 6.10.689 Where, in accordance with Article 6.10, an investigating authority limits its 
examination to a selected group of exporters, the investigating authority may determine an 
anti-dumping duty rate to be applied to those exporters who were not included in the group 
selected for individual examination group, subject to the conditions set forth in Article 9.4, 
including the ceiling on the duty rate.690 However, Article  9.4 does not specifically address the duty 
rate that may be applied to exporters not known to the investigating authority and which therefore 
are not available to be selected for individual examination.  
7.10.4.2   Analysis  
7.433.   As we understand it , the US claim is premi sed on the assertions that:  
a. the distinction between known and unknown exporters that MOFCOM properly made in 
the original investigation did not carry over into the reinvestigation; and  
b. the factual predicate for determining unknown exporters in the original  investigation, i.e. 
that they had not registered, did not hold in the reinvestigation, and therefore the 
duty-rate cap in Article 9.4(i) applied to all unexamined exporters, including those that 
were "unknown" to MOFCOM.  
7.434.   As we understand it, the United  States does not argue that China was required to 
undertake an entirely new investigation as part of its implementation obligation. In fact, neither 
the Anti -Dumping Agreement nor the SCM Agreement, nor any other relevant WTO agreement, 
provide s any guidance regarding how adopted recommendations and rulings of the DSB following 
findings of inconsistency with the Anti -Dumping and/or SCM Agreements are to be implemented. 
Implementation of DSB recommendations and rulings is left, in the first instance691, to the 
discretion of the Member in question. Some, such as the United  States , the European Union, and 
China it self, have specific legal instruments setting out procedure s to be followed for 
implementation following findings of inconsistency w ith the Anti -Dumping an d/or 
SCM Agreements.692 China's rules allow MOFCOM to conduct a reinvestigation for implementation 
purposes, which MOFCOM did in this case . China's rules do not require, and MOFCOM in this 
instance did not ask for, re -registration by the exporters.  
7.435.   Our spec ific findings under Article 6.8 in the original dispute frame China's obligation to 
bring itself into conformity in respect of the "residual" rate established on facts available. In the 
present context, the key points from our findings are:  
a. in the original  investigation, the Notice of Initiation required exporters to register and to 
provide certain information;  
b. MOFCOM was entitled to distinguish between known and unknown exporters – those that 
did not register – in establishing anti -dumping duty rates for t hese two groups; and  
                                                
689 Article 6.10 provides:  
The authorities shall, as  a rule, determine an individual margin of dumping for each known 
exporter or producer  concerned of the product under investigation. In cases where the number of 
exporters, producers, importers or types of products involved is so large as to make such a 
determination impracticable, the authorities may limit their examination either to a reasonable 
number of interested parties or products by using samples which are statistically valid on the 
basis of information available to the authorities at the time of th e selection, or to the largest 
percentage of the volume of the exports from the country in question which can reasonably be 
investigated.  
690 Appellate Body Report, US – Hot-Rolled Steel , para. 115.  
691 The second sentence of Article 19.1 of the DSU allows for a panel or the Appellate Body to suggest 
ways in which a Member could implement its recommendations. Article 21.3 of the DSU provides for a Member 
to "inform the DSB of its intentions in respect of  implementation of the recommendations and rulings of the 
DSB". It has been recognized in jurisprudence that Article 21.3 of the DSU gives the authority to decide the 
means of implementation, in the first instance, to the Member found to be in violation. ( Panel Reports, US – 
Shrimp II (Viet Nam) , para. 8.6; EC – Fasteners (China) , para. 8.8; and US – Hot-Rolled Steel , para. 8.11).  
692 See the reference to the "Interim Rules for Implementing the World Trade Organization Rulings on 
Trade Remedy Disputes" in Announcement No. 88 , (Exhibit USA -1 (translated version)).  WT/DS427/RW  
 
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  c. in the circumstances of the original investigation, MOFCOM could apply a "residual" 
anti-dumping duty based on facts available in respect of exporters that did not register 
and thus did not provide requested information – the "unknown"  exporters.  
7.436.   China's obligation to bring its measure into conformity with the Anti -Dumping Agreement, 
and thus comply with the recommendations and rulings of the DSB, existed in respect of the 
aspects of the measure found to be WTO inconsistent.693 China limi ted the reinvestigation to those 
matters it considered necess ary to bring MOFCOM's  original determination into conformity with the 
Anti-Dumping Agreement. With regard to the duty rate at issue here, this involved ensuring that 
the manne r in which MOFCOM selected the facts available on the basis of which it established the 
duty rate to be applied to "unknown" exporters was consistent with Article 6.8 and Annex II of the 
Anti-Dumping Agreement. The United  States  does not argue that anythin g in the 
Anti-Dumping  Agreement, or any other relevant agreement, required China to relaunch the 
investigation as if it were a whole new investigation or, specifically on the facts of this case, to 
repeat the original, or provide for a new, registration me chanism to give "unknown" exporters a 
second chance to provide information.  
7.437.   That China issued a new Notice of Initiation with respect to the reinvestigation does not 
necessarily mean that in the reinvestigation, MOFCOM was required  to re-open or undertake  a new 
process for establishing which exporters would be examined individually. In fact, in the 
reinvestigation MOFCOM did not change its approach with respect to the US exporters to be 
individually examined, the exporters that had registered but were not examined, and the 
"unknown" foreign exporters or producers as determined in the original determination. For the 
purpose specifically of applying the ceiling in Article  9.4, the absence of a registration requirement 
in the reinvestigation does not reopen th e question of which exporters may be treated as known 
but unexamined, and which may be treated as unknown. MOFCOM had originally limited the 
examination to three selected exporters and continued to do so in the reinvestigation. As far as we 
are aware, no p reviously "unknown" exporter sought to participate or provide information in the 
reinvestigation. In these circumstances, we see no basis to conclude that MOFCOM was somehow 
precluded in the reinvestigation from establishing a duty rate based on facts avai lable for all other 
"unknown" exporters without regard to the limit ation set forth in Article 9.4(i ).694 
7.10.5   Conclusion  
7.438.   In the light of the above, we find that the United  States  has not established th at MOFCOM 
failed to comply with Article 9.4(i)  of the Anti -Dumping Agreement  in the reinvestigation by 
determining a "residual" duty rate based on facts available t o be applied to "unknown" exporters.   
7.11  Article s 12.2 and 12.2.2  of the Anti -Dumping Agreement and Articles 22.3 and 22.5  
of the SCM Agreement : public notice  
7.11.1   Introduction  
7.439.   The United  States  alleges that MOFCOM failed to address  in the redetermination key 
causation arguments raised by US respondents in the reinvestigation. This is inconsistent with 
Articles 12.2 and 12.2.2 of the Anti -Dumping Agreement and  Articles 22.3 and 22.5 of the 
SCM Agreement695, which require investigating authorities to issue public notices of their final 
determinations that include "all relevant information on matters of fact and law" material to their 
determinations, including the reasons for the investigating authority's acceptance or rejection of 
relevant arguments or claims made by interested parties.  
7.11.2   Main a rguments of the parties  
7.11.2.1   United  States  
7.440.   US respondents raised the following arguments that were material to MOFCOM's 
determina tion of causation under Articles 3.5 and 15.5:  
                                                
693 See, e.g. Award of the Arbitrator, Argentina – Hides and Leather (Article 21.3(c)) , paras. 40 -41. 
694 We note in this context that the United  States has not made any claim under Article 6.8 or Annex I I 
of the Anti -Dumping Agreement with respect to the "residual" rate established.  
695 We will refer to these as Articles 12.2, 12.2.2, 22.3, and 22.5.  WT/DS427/RW  
 
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  a. there could be no link between subject imports and material injury because subject 
import volume increased entirely at the expense of non -subject imports and did not take 
any market share from the domestic industry696; and  
b. subject imports could not have had an adverse impact on the domestic industry because 
over 40% of subject imports consisted of chicken feet, which Chinese producers were 
incapable of supplying in adequate qua ntities.697  
7.441.   MOFCOM rejected these arguments without providing a sufficiently detailed or sound 
explanation of its reasoning in the public notices of the final determinations. MOFCOM thus failed 
to address  in the redetermination key causation arguments raise d by US respondents in the 
reinvestigation inconsistently with Articles 12.2, 12.2.2, 22.3, and 22.5.  
7.11.2.2   China  
7.442.   MOFCOM sufficiently addressed both issues in the redetermination. In respect of the 
market share argument, the Panel in its original report did not find a violation, and MOFCOM has 
not done anything differently in the redetermination. In respect of the chicken feet argument, 
MOFCOM cross -referenced its rejection of the argument in the preliminary determination, in 
accordance with the findings of the P anel in the original dispute.  
7.11.3   The l aw 
7.443.   Articles 12.2 and 12.2.2 of the Anti -Dumping Agreement provide:  
12.2 Public notice shall be given of any preliminary or final determination, whether 
affirmative or  negative, of any decision to accept an undertaking pur suant to Article 8, 
of the termination of such  an undertaking, and of the termination of a definitive 
anti-dumping duty. Each such notice sha ll set forth, or otherwise make available 
through a separate report, in sufficient detail the findings and conclusions reached on 
all issues of fact and law considered material by the investigating authorities. All such 
notices and reports shall be forwarded to the Member or Members the products of 
which are subject to such determination or undertaking and to o ther interested parties 
known to have an interest therein.  
12.2.2 A public notice of conclusion or suspension of an investigation in the case of an 
affirmative determination providing for the imposition of a definitive duty or the 
acceptance of a price und ertaking shall contain, or otherwise make available through a 
separate report, all relevant information on the matters of fact and law and reasons 
which have led to the imposition of final measures or the acceptance of a price 
undertaking, due regard being  paid to the requirement for the protection of 
confidential information. In particular, the notice or report shall contain the 
information described in subparagraph 2.1, as well as the reasons for the acceptance 
or rejection of relevant arguments or claims  made by the exporters and importers, 
and the basis for any decision made under subparagraph 10.2 of Article 6.  
7.444.   Articles 22.3 and 22.5 of the SCM Agreement  similarly provide:  
22.3 Public notice shall be given of any preliminary or final determination, whet her 
affirmative or negative, of any decision to accept an undertaking pursuant to 
Article  18, of the termination of such an undertaking, and of the termination of a 
definitive countervailing duty. Each such notice shall set forth, or otherwise make 
availab le through a separate report, in sufficient detail the findings and conclusions 
reached on all issues of fact and law considered material by the investigating 
authorities. All such notices and reports shall be forwarded to the Member or Members 
the product s of which are subject to such determination or undertakin g and to other 
interested parties known to have an interest therein.  
                                                
696 United  States ' first written submission, para s. 212 -213. 
697 United  States ' first written submission, para s. 214-216. WT/DS427/RW  
 
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  22.5 A public notice of conclusion or suspension of an investigation in the case of an 
affirmative determination providing for th e imposition of a definitive duty or the 
acceptance of an undertaking shall contain, or otherwise make available through a 
separate report, all relev ant information on the matters of fact and law and reasons 
which have led to the imposition of final measur es or the acceptance of an 
undertaking, due regard being paid to the requirement for the protection of 
confidential information. In particular, the notice or report shall contain the 
information described in paragraph 4, as well as the reasons for the acce ptance or 
rejection of relevant arguments or claims made by interested Members and by the 
exporters and importers.  
7.445.   Articles 12.2 and 22.3 require tha t a public notice be given of any preliminary or final 
determination and that each such notice set forth, o r otherwise make available through a separate 
report, in sufficient detail the findings and conclusions reached on all issues of fact and law 
considered material by the investigating authority . The term "issue of fact and law considered 
material" includes "an issue that has arisen in the course of the investigation that must necessarily 
be resolved in order for the investigating authorities to be able to reach their determination"698; 
what may constitute such an issue is determined by the framework of the sub stantive provisions of 
the agreement concerned.699 
7.446.   Articles 12.2.2 and 22.5 require that the public notice contain all relevant information on 
the matters of fact and law and reasons that have led to the imposition of final measures. The 
notice must allow an  understanding of the factual basis that led to the imposi tion of final measures 
and give a reasoned account of the factual support for an authority's decision.700 Under these 
provisions, parties whose interests are affected by the imposition of final measur es are entitled to 
know, as a matter of fairness and due process, the facts, law and reasons that have led to the 
imposition of such duties, and seeks to guarantee that interested parties are able to pursue judicial 
review of a final determination as provi ded for in the agreements.701 An investigating authority is 
required to include in the public notice sufficient detail concerning the authority's findings and 
conclusions to allow interested parties to assess the conformity of those findings and conclusions 
with domestic law and the WTO Agreement.702 
7.11.4   Analysis and con clusion  
7.447.   We recall our observation in the original report to the effect that a number of other panels 
have exercised judicial economy in relation to claims under Articles 12.2 or 12.2.2 of the 
Anti-Dumping Agreement in circumstances where a substantive inconsistency with another 
provision of the Anti -Dumping Agreement had been found.703 In the original report we refrained 
from making substantive findings in respect of Articles 3.5 and 15.5, but proceede d to make 
findings under Articles 12.2, 12.2.2, 22.3, and 22.5 given their relevance "for the purposes of 
implementation".  
7.448.   We have found that the redetermination's causation analysi s is inconsistent with 
Articles  3.5 and 15.5. In this light, we consider i t is not necessary to make additional findings as to 
whether a substantively flawed  determination was adequately set out in the public notice of that 
determination in accordance with Articles 12.2  and 12.2.2  of the Anti -Dumping Agreement , and 
Articles 22.3 and 22 .5 of the SCM Agreement . 
                                                
698 Panel Report, China – Broiler Products , para. 7.327.  
699 Panel Report, China – Broiler Products , para. 7.327 (referring to Appellate Body Report, China – 
GOES , para. 257).  
700 Panel Report, China – Broiler Products , para. 7.328 (referring to Appellate Body Report, China – 
GOES , para. 256).  
701 Panel Report, China – Broiler Products , para. 7.328 (referring to Appellate Body Report, China – 
GOES , para. 258).  
702 Panel Report, China – Broiler Products , para. 7.328 (referring to Panel Report, China – X-Ray 
Equipment , para. 7.459).  
703 Panel Report, China – Broiler Products , para. 7.325 (referring to Panel Reports, EC – Bed Linen , 
para. 6.259; and EC – Fasteners (China) , para. 7.548 ). WT/DS427/RW  
 
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  7.12  Consequential claims  
7.449.   The United  States  claims that China acted inconsistently wit h Article 1 of the 
Anti-Dumping  Agreement, Article 10 of the SCM Agreement , and Article VI of the GATT 1994, as a 
consequence of the alleged vi olations of the Anti -Dumping Agreement and the SCM Agreement.704 
7.450.   China argues that the United  States  has not presented a prima facie  case and therefore 
has not established its claims of consequential violations unde r Article 1 of the 
Anti-Dumping  Agreement, Article 10 of the SCM Agreement , and Article VI of the GATT 1994.705 
7.451.   As is clear from the panel request , the US claims unde r Article 1 of the 
Anti-Dumping  Agreement, Article 10 of the SCM Agreement , and Article VI of the GATT 1994 are 
consequential. That is,  any findings of violation would necessarily depend on  and follow  our 
conclusions on violations with respect to the substantive claims brought by the United  States  
under other provisions of the Anti -Dumping Agreement and the SCM Agreement. It is particular  to 
the nature of a consequential claim that a prima facie  case is effectively made out where a  
complaining party establishes a  violation of a substantive provision and demonstrates that the 
consequential claim is predicated  on the substantive provision . China does not dispute the 
predicate relationship; for its part,  the United  States  assert ed claims of consequential violations of 
Article 1 of the Anti -Dumping Agreement, Article 10 of the SCM Agreement , and Article VI of the 
GATT 1994  on the basis of its substantive claims.706 
7.452.   China expressed concern because the United  States  did not set out arguments in support 
of its consequential claims in its first written submission.707 China did not demonstrate  that it 
suffered any prejudice or that the panel process was  impeded in any way as a result. We recall 
that in an Article 21.5 proceeding, both first and rebuttal submissions are submitted before the 
panel meets with the parties. Given the nature of consequential claims, as described above, while 
it would have been  preferable for the United  States  to include its arguments in support of those 
claims in its first written submission708, in the circumstances of this dispute we see no reason not 
to consider and resolve these claims.  
7.453.   In the light of the foregoing, we conclu de that, as a consequence of the inconsistencies 
with the Anti -Dumping Agreement and the SCM Agreement we have found, China acted 
inconsistently with Article  1 of the Anti -Dumping Agreement, Article 10 of the SCM Agreement , and 
Article VI of the GATT 1994.  
8  CONCLUSIONS AND RECO MMENDATION  
8.1.  For the reasons set out in this r eport, we conclude that the US claim s under Articles  6.1.2 
and 6.2 of the Anti -Dumping Agreement and Article 12.1.2 of the SCM Agreemen t are not within 
our terms of reference.709 
8.2.  For the reasons set forth in this report, we conclude that the United  States  has demonstrated 
that China  acted inconsistently  with: 
a. the second sentence of Article 2.2.1.1 of the Anti -Dumping Agreement;  
b. Articles 3.1 and 3.2 of the Anti -Dumping Agreement and  Articles 15.1 and 15.2 of the 
SCM Agreement;  
c. Articles 3.1 and 3.4 of the Anti -Dumping Agreement and Articles 15.1 and 15.4 of the 
SCM Agreement;  
                                                
704 United  States' second written submission, para. 224.  
705 China's first written submission, para. 411; second written submission, paras. 365-367. 
706 United  States' panel request, paras. 11, 12, and 13;  second written submission, para. 224.  
707 China's first written submission, para. 411; second written submission, para. 365.  
708 Paragraph 6 of the Panel's Working Procedures specifies that, before the substantive meeting of the 
Panel with the parties, each party "shall submit to the Panel a first written submission, and subsequently a 
written rebuttal, in which it presents the fact s of the case and its arguments, and counter -arguments, 
respectively". The Panel retains the right to modify its working procedures.  
709 See the Panel's preliminary ruling, Annex E-1. WT/DS427/RW  
 
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  d. Articles 3.1 and 3.5 of the Anti -Dumping Agreement and Articles 15.1 and 15.5 of the 
SCM Agreement;  
e. Article 6. 1 of the Anti -Dumping Agreement and Article 12.1 of the SCM Agreement;  
f. Article 6.4 of the Anti -Dumping Agreement and Article 12.3 of the SCM Agreement;  
g. Article 6.8 and paragraph 3 of Annex II of the Anti -Dumping Agreement;  and 
h. Article 1 of the Anti -Dumping  Agreement, Article 10 o f the SCM Agreement and Article  VI 
of the GATT 1994.  
8.3.  For the reasons set forth in this report, we conclude that the United  States  has not 
demonstrated that China  acted inconsistently with:  
a. Article 6.9 of the Anti -Dumping Agreement; and 
b. Article 9.4(i) of the Anti -Dumping Agreement.  
8.4.  We do not consider it necessary to address the US  claim under Art icles 12.2 and  12.2.2  of 
the Anti -Dumping Agreement and Articles 22.3 and 22.5  of the SCM Agreement . 
8.5.  Pursuant to Article 3.8 of the DSU, in cases where there is an infringement of the obligations 
assumed under a covered agreement, the action is considered prima facie  to constitute a case of 
nullification or impairment of benefits under that agreement. Acc ordingly, to the extent MOFCOM 
has acted inconsistently with certain provisions of the Anti -Dumping  and SCM Agreements, we 
conclude that China has nullified or impaired benefits accruing to the United  States  under these 
agreements.  
8.6.  Above, we concluded that  China acted inconsistently with certain provisions of the 
Anti-Dumping and SCM Agreements. Accordingly, China's measures taken to comply with the 
DSB's recommendations and rulings in the original dispute, at issue in this proceeding, are 
inconsistent with  the relevant covered agreements. China therefore failed to comply with the 
recommendations and rulings of the DSB to bring its measures into conformity with its obligations 
under the Anti -Dumping and SCM Agreements. To the extent that China failed to comp ly with the 
recommendations and rulings of the DSB, those recommendations and rulings remain operative.  
 
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