WT/DS513/R  
 
31 October 2018  
(18-6808) Page: 1/82 
  Original: English  
 
  
MOROCCO – ANTI -DUMPI NG MEASURES ON CERTA IN HOT -ROLLED 
STEEL FROM TURKEY  
REPORT  OF THE PANEL  
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  TABLE OF CONTENTS  
1   INTRODUCTION  ................................ ................................ ................................ ....... 14 
1.1   Complaint by Turkey  ................................ ................................ ................................ . 14 
1.2   Panel establishment and composition  ................................ ................................ ..........  14 
1.3   Panel proceedings  ................................ ................................ ................................ ..... 14 
2   FACTUAL ASPECTS ................................ ................................ ................................ .... 15 
2.1   The measures at issue  ................................ ................................ ..............................  15 
3   PARTIES'  REQUEST S FOR FINDINGS AND R ECOMMENDATION  ................................ . 15 
4   ARGUMENTS OF THE  PARTIES  ................................ ................................ ..................  16 
5   ARGUMENTS OF THE  THIRD PARTIES  ................................ ................................ ....... 16 
6   INTERIM REVIEW  ................................ ................................ ................................ ..... 16 
7   FINDINGS  ................................ ................................ ................................ ................  16 
7.1   General principles  ................................ ................................ ................................ ..... 16 
7.1.1    Treaty interpretation  ................................ ................................ ..............................  16 
7.1.2    Standard of review ................................ ................................ ................................ . 16 
7.1.3    Burden of proof  ................................ ................................ ................................ ..... 17 
7.2   Terms of reference  ................................ ................................ ................................ ... 18 
7.2.1    Evaluation  ................................ ................................ ................................ ............  18 
7.2.1.1    Article  6.2 of the DSU: Claim  under footnote 9 to Article  3 of the 
Anti-Dumping  Agreement  ................................ ................................ ................................ .. 18 
7.2.1.2    Article  4.4 of the DSU: Claims under Articles  3.1 and 3.4 of the 
Anti-Dumping  Agreement  ................................ ................................ ................................ .. 21 
7.2.1.3    The "evolution" of certain claims in the panel request from the request for 
consultations  ................................ ................................ ................................ ...................  23 
7.2.1.3.1    Factual background  ................................ ................................ ..........................  23 
7.2.1.3.2    Claims under Articles  6.5 and 6.5.1 of the Anti -Dumping  Agreement  ......................  23 
7.2.1.3.3    Claim under Article  6.9 of the Ant i-Dumping  Agreement  concerning the 
break -even threshold  ................................ ................................ ................................ ....... 27 
7.2.1.4    Claim under Article  VI:6(a) of the GATT 1994  ................................ .........................  29 
7.2.2    Conclusion  ................................ ................................ ................................ ............  30 
7.3   Article  5.10 of the Anti -Dumping  Agreement : The MDCCE's  conclusion of the 
investigation beyond 18 months after initiation  ................................ ................................ .... 30 
7.3.1    Provision at issue  ................................ ................................ ................................ ... 30 
7.3.2    Evaluation  ................................ ................................ ................................ ............  30 
7.4   Article  6.8 of the Anti -Dumping  Agreement  and paragraphs 1, 3, 5, 6, and 7 of 
Annex  II: Facts available in respect of the investigated Turkish producers  ...............................  33 
7.4.1    Factual background  ................................ ................................ ................................  33 
7.4.2    Provision at issue  ................................ ................................ ................................ ... 34 
7.4.3    Evaluation  ................................ ................................ ................................ ............  34 
7.4.3.1    Claim under Article  6.8 of the Anti -Dumping  Agreement  ................................ ..........  34 
7.4.3.2    Claims under Annex II to the Anti -Dumping  Agreement  ................................ ...........  39 
7.4.4    Conclusion  ................................ ................................ ................................ ............  39 WT/DS513/ R 
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  7.5   Article  6.9 of the Anti -Dumping  Agreement : Disclosure of essential facts in respect 
of the alleged failure to report export transactions  ................................ ...............................  39 
7.5.1    Factual background  ................................ ................................ ................................  39 
7.5.2    Provision at issue  ................................ ................................ ................................ ... 40 
7.5.3    Evaluation  ................................ ................................ ................................ ............  40 
7.5.3.1    Claims that certain essential facts were not disclosed at all  ................................ ...... 40 
7.5.3.1.1    Essential facts in respect of the alleged failure to report additional, 
unidentified export sales  ................................ ................................ ................................ ... 40 
7.5.3.1.2    Essential facts in respect of the calculation of the facts available rate  .....................  42 
7.5.3.1.3    Essential facts used by the MDCCE in cross -checking the facts available rate  ...........  43 
7.5.3.2    Claim that certain essential facts were not disclosed in sufficient time to allow 
producers to defend their interests  ................................ ................................ .....................  44 
7.5.4    Conclusion  ................................ ................................ ................................ ............  45 
7.6   Articles  3.1 and 3.4 of the Anti -Dumping  Agreement : The MDCCE's  determ ination 
that the domestic industry was unestablished  ................................ ................................ ...... 46 
7.6.1    Provisions at issue  ................................ ................................ ................................ . 46 
7.6.2    Evaluation  ................................ ................................ ................................ ............  47 
7.6.2.1    Whether the MDCCE acted inconsistently with Article  3.1 in finding that the 
domestic industry was unestablished  ................................ ................................ ..................  48 
7.6.2.1.1    Whether the MDCCE did not properly assess the temporal criterion in its 
establishment analysis  ................................ ................................ ................................ ...... 49 
7.6.2.1.2    Whether the MDCCE did not properly assess the market share criterion in its 
establishment analysis  ................................ ................................ ................................ ...... 52 
7.6.2.1.2.1    Whether the MDCCE improperly disregarded Maghreb Steel's  total market 
share  ................................ ................................ ................................ ..............................  52 
7.6.2.1.2.2    Whether the MDCCE improperly rejected Maghreb Steel's  share in the 
merchant market  ................................ ................................ ................................ .............  54 
7.6.2.1.3    Whether the MDCCE in its establishment analysis did not properly conclude 
that Maghreb Steel had not met its break -even threshold  ................................ .....................  58 
7.6.2.1.4    Whether the MDCCE did not properly assess the production stability criterion 
in its establishment analysis  ................................ ................................ ..............................  59 
7.6.2.1.5    Whether the MDCCE did not properly assess the "new industry" criterion in its 
establishment analysis  ................................ ................................ ................................ ...... 61 
7.6.2.1.6    Conclusion  ................................ ................................ ................................ ...... 64 
7.6.2.2    Whether the MDCCE acted inconsistently with Articles  3.1 and 3.4 in failing to 
conduct the "correct" injury analysis  ................................ ................................ ..................  65 
7.7   Articles  3.1 and 3.4 of the Anti -Dumping  Agreement : The MDCCE's  determination 
that the establishment of the domestic industry was materially retarded  ................................ . 65 
7.7.1    Provisions at issue  ................................ ................................ ................................ . 66 
7.7.2    Evaluation  ................................ ................................ ................................ ............  66 
7.7.2.1    Whether the MDCCE evaluated all injury factors listed in Article  3.4 ..........................  66 
7.7.2.1.1    Return on investments, actual and potential negative effects on cash flow, and 
ability to raise capital or inves tments  ................................ ................................ .................  68 
7.7.2.1.2    Growth  ................................ ................................ ................................ ...........  71 
7.7.2.1.3    Wages  ................................ ................................ ................................ ............  72 
7.7.2.1.4    Factors affecting domestic prices  ................................ ................................ ........  72 WT/DS513/ R 
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  7.7.2.1.5    Conclusion  ................................ ................................ ................................ ...... 74 
7.7.2.2    Whether the MDCCE acted inconsistently with Articles  3.1 and 3.4 in excludin g, 
from its injury analysis, Maghreb Steel's  captive production  ................................ ..................  74 
7.7.2.3    Whether the MDCCE acted inconsistently with Articles  3.1 and 3.4 in relying on 
the McLellan report  ................................ ................................ ................................ ..........  78 
7.7.3    Overall Conclusion  ................................ ................................ ................................ . 80 
8   CONCLUSIONS AND RECOMMENDATION  ................................ ................................ .. 80 
 
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  LIST OF ANNEXES  
ANNEX  A 
WORKING DOCUMENTS OF  THE PANEL  
Contents  Page  
Annex A -1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures on Business Confidential Information  9 
Annex A -3 Interim Review  11 
ANNEX B  
ARGUMENTS OF THE PAR TIES 
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Turkey  20 
Annex  B-2 Integrated executive summary of the arguments of Morocco  42 
ANNEX  C 
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of the European Union  59 
Annex  C-2 Integrated executive summary of the arguments of Japan  61 
Annex  C-3 Integrated executive summary of the arguments of the United States  64 
 
 
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  CASES CITED IN THIS REPORT  
Short title  Full case title and citation  
Argentina – Import Measures  Appellate Body Reports, Argentina – Measures Affecting the Importation of 
Goods , WT/DS438/AB/R  / WT/DS444/AB/R  / WT/DS445/AB/R , adopted 
26 January 2015, DSR 2015:II, p. 579 
Argentina – Poultry 
Anti-Dumping Duties  Panel Report, Argentina – Definitive Anti -Dumping Duties on Poultry from 
Brazil , WT/DS241/R , adopted 19 May 2003, DSR 2003:V, p. 1727 
Australia – Apples  Appellate Body Report, Australia – Measures Affecting the Importation of 
Apples from New Zealand , WT/DS367/AB/R , adopted 17 December 2010, 
DSR 2010:V, p. 2175 
Australia – Tobacco Plain 
Packaging  Panel Reports, Australia – Certain Measures concerning Trademarks, 
Geographical Indications and other Plain Packaging Requirements 
applicable to Tobacco Products and Packaging , WT/DS435/R , Add.1 and 
Suppl.1 / WT/DS441/R , Add.1 and Suppl.1 / WT/DS458/R , Add.1 and 
Suppl.1 / WT/DS467/R , Add.1 and Suppl.1, circulated to WTO Membe rs 
28 June 2018 [appeal pending]  
Brazil – Aircraft  Appellate Body Report, Brazil – Export Financing Programme for Aircraft , 
WT/DS46/AB/R , adopted 20 August 1999, DSR 1999:III, p. 1161 
Brazil – Desicc ated Coconut  Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS22/AB/R , adopted 20 March 1997, DSR 1997:I, p. 167 
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 – Broiler Products 
(Article  21.5 – US) Panel Report, China  Anti-Dumping and Countervailing Duty Measures on 
Broiler Products from the United States – Recourse to Article  21.5 of the 
DSU by the United States , WT/DS427/RW  and Add.1, adopted 
28 February  2018 
China – Cellulose Pulp  Panel Report, China – Anti-Dumping Measures on I mports 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-Performance Stainless Steel Seamless Tubes ("HP -SSST") from the 
European Union , WT/D S454/AB/R  and Add.1 / WT/DS460/AB/R  and Add.1, 
adopted 28  October 2015, DSR 2015:IX, p. 4573 
China – Publications and 
Audiovisual Products  Panel Report, China – Measures Affecting Trading Rights and Distribution 
Services for Certain Publications and Audiovisual Entertainment Products , 
WT/DS363/R  and Corr.1, adopted 19 January 2010, as modified by 
Appellate  Body Report WT/DS363/AB/R, DSR 2010:II, p. 261 
China – Raw Materials  Appellate Body Reports, China – Measures Related to the Exportation of 
Various Raw Materials , WT/DS394/AB/R  / WT/DS395/AB/R  / 
WT/DS398/AB/R , adopted 22 February 2012, DSR 2012:VII, p. 3295 
China – X-Ray Equipment  Panel Report,  China – Definitive Anti -Dumping Duties on X -Ray Security 
Inspection Equipment from the European Union , WT/DS425/R  and Add.1, 
adopted 24 April 2013, DSR 2 013:III, p. 659 
EC – Bananas III  Appellate Body Report, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas , WT/DS27/AB/R , adopted 
25 September 1997, DSR 1997:II, p. 591 
EC – Bed Linen  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/DS1 41/AB/R, DSR 2001:VI, 
p. 2077 
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/D S141/AB/RW, DSR 2003:IV, p. 1269 WT/DS513/ R 
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  Short title  Full case title and citation  
EC – Countervailing Measures 
on DRAM Chips  Panel Report, European Communities – Countervailing Measures on 
Dynamic Random Access Memory Chips from Korea , WT/DS299/R , 
adopted 3  August  2005, DSR 2005:XVIII, p. 8671 
EC – Fasteners (China)  Appellate Body Report, European Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel 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/DS397/R  and Corr.1, 
adopted 28 July 2011, as modified by Appellate Body Report 
WT/DS397/AB/R, DSR 2011:VIII, p. 4289 
EC – Hormo nes Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R , WT/DS48/AB/R , adopted 13 February 1998, 
DSR 1998: I, p. 135 
EC – Salmon (Norway)  Panel Report, European Communities – Anti-Dumping Measure on Farmed 
Salmon from Norway , WT/DS337/R , adopted 15 January 2008, and Corr.1, 
DSR 2008:I, p. 3 
EC – Selec ted Customs 
Matters  Appellate Body Report, European Communities – Selected Customs 
Matters , WT/DS315/AB/R , adopted 11 December 2006, DSR 2006:IX, 
p. 3791 
EC – Tube or Pipe Fittings  Appellate Body Report, European Communities – 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 
Egypt – Steel Rebar  Panel Report, Egypt – Definitive Anti -Dumping Measures on Steel Rebar 
from Turkey , WT/DS211/R , adopted 1 October 2002, DSR 2002:VII, 
p. 2667 
EU – Biodiesel (Argentina)  Panel Report, European Union – Anti-Dumping Measures on Biodiesel from 
Argentina , WT/DS473/R  and Add.1, adopted 26 October 2016, as modified 
by Appellate Body Report WT/DS473/AB/R  
EU – Biodiesel (Indonesia)  Panel Report, European Union – Anti-Dumping Measures on Biodiesel from 
Indonesia , WT/DS480/R  and Add.1, adopted 28 February 2018  
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 
EU – PET (Pakistan)  Appellate Body Report, European Union – Countervailing Measures on 
Certain Polyethylene Terephthalate  from Pakistan , WT/DS486/AB/R  and 
Add.1, adopted 28 May 2018  
Guatemala – Cement I  Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R , adopted 25 November 
1998, DSR 1998:IX, p. 3767 
Guatemala – Cement II  Panel Report, Guatemala – Definitive Anti -Dumping Measures on Grey 
Portland Cement from Mexico , WT/DS156/R , adopted 17 November 2000, 
DSR 2000:XI, p. 5295 
India – Patents (US)  Appellate Body Report, India – Patent Protection for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R , adopted 16 January 1998, 
DSR 1998:I, p. 9 
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports 
of Certain Dairy Products , WT/DS98/AB/R , adopted 12 January 2000, 
DSR 2000:I, p. 3 
Mexico – Anti-Dumping 
Measures on Rice  Appellate Body Report, Mexico – Definitive Anti -Dumping Measures on Beef 
and Rice, Complaint with Respect to Rice , WT/DS295/AB/R , adopted 
20 December 2005, DSR 2005:XXII, p. 10853  
Mexico – Anti-Dumping 
Measures on Rice  Panel Report, Mexico – Definitive Anti -Dumping Measures on Beef and 
Rice, Complaint with Respect to Rice , WT/DS295/R , adopt ed 
20 December  2005, as modified by Appellate Body Report 
WT/DS295/AB/R, DSR 2005:XXIII, p. 11007  WT/DS513/ R 
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  Short title  Full case title and citation  
Mexico – Corn Syrup 
(Article  21.5 – US) Appellate Body Report, Mexico – Anti-Dumping Investigation of High 
Fructose Corn Syrup (HFCS) from the United States – Recourse to 
Article  21.5 of the DSU  by the United States , WT/DS132/AB/ RW, adopted 
21 November 2001, DSR 2001:XIII, p. 6675 
Mexico – Olive Oil  Panel Report, Mexico – Definitive Countervailing Measures on Olive Oil 
from the European Communities , WT/DS341/R , adopted 21 October 2008, 
DSR 2008:IX, p. 3179 
Russia – Commercial  Vehicles  Appellate Body Report,  Russia – Anti-Dumping Duties on Light Commercial 
Vehicles from Germany and Italy , WT/DS479/AB/R  and Add.1, adopted 
9 April 2018  
Thailand – H-Beams  Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes 
and Sections of Iron or Non -Alloy Steel and H -Beams from Poland , 
WT/DS122/AB/R , adopted 5 April 2001, DSR 2001:VII, p. 2701 
US – Anti-Dumping and 
Countervailing Duties (China)  Appellate Body Report, United States – Definitive Anti -Dumping and 
Countervailing Duties on Certain Products from China , WT/DS379/AB/R , 
adopted 25 March 2011, DSR 2011:V, p. 2869 
US – Anti-Dumping 
Methodologies (China)  Appellate Body Report, United States – Certain Methodologies and Their 
Application to Anti -Dumping Proceedings Involving China , WT/DS471/AB/R  
and Add.1, adopted 22 May 2017  
US – Carbon Steel  Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion -Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/AB/R  and Corr.1, adopted 19 December 2002, DSR 2002:IX, 
p. 3779 
US – Continued Zeroing  Appellate Body Report, United States – Continued Existence and 
Application of Zeroing Methodology , WT/DS350/AB/R , adopted 
19 February 2009, DSR  2009:III, p. 1291 
US – Corrosion -Resistant Steel 
Sunset Review  Appellate Body Report, United States – Sunset Review of Anti -Dumping 
Duties on Corrosion -Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/R , adopted 9 January 2004, DSR 2004:I, p. 3 
US – Cotton Yarn  Appellate Body Report, United States – Transitional Safeguard Measure on 
Combed Cotton Yarn from Pakistan , WT/DS192/AB/R , adopted 
5 November  2001, DSR 2001:XII, p. 6027 
US – Countervailing and 
Anti-Dumping Measures 
(China)  Appellate Body Report, United States – Countervailing and Anti -Dumping 
Measures on Certain Products from China , WT/DS449/AB/R  and Corr.1, 
adopted 22 July 2014, DSR 2014:VIII, p. 3027 
US – Countervailing Duty 
Investigation on DRAMS  Appellate Body Report, United States – Countervailing Duty Investigation 
on Dynamic Random Access Memory Semiconductors (DRAMS) from 
Korea , WT/DS296/AB/R , adopted 20 July 2005, DSR 2005:XVI, p. 8131 
US – Gasoline  Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R , adopted 20 May 1996, DSR 1996:I, 
p. 3 
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/DS177/AB/R , WT/DS178/AB/R , adopted 16 May 2001, DSR 2001:IX, 
p. 4051 
US – Oil Country Tubular 
Goods Sunset Rev iews Appellate Body Report, United States – Sunset Reviews of Anti -Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R , 
adopted 17 December 2004, DSR 2004:VII, p. 3257 
US – Poultry (China)  Panel Report, United States – Certain Measures Affecting Imports of 
Poultry from China , WT/DS392/R , adopted 25 October 2010, DSR 2010:V, 
p. 1909 
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 Report WT/DS429/AB/R, DSR 2015:III, p.  1341 WT/DS513/ R 
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US – Softwood Lumber V  Panel Report, United States – Final Dumping Determination on Softwood 
Lumber from Canada , WT/DS264/R , adopted 31 August 2004, as modified 
by Appellate Body Report WT/DS264/AB/R, DSR 20 04:V, p. 1937 
US – Softwood Lumber VI 
(Article  21.5 – Canada)  Appellate Body Report, United States – Investigation of the International 
Trade Commission in Softwood Lumber from Canada – Recourse to 
Article  21.5 of the DSU by Canada , WT/DS277/AB/RW , adopted 
9 May 2006, and Corr.1, DSR 2006:XI, p. 4865 
US – Stainless Steel (Korea)  Panel Report, United States – Anti-Dumping Measures on Stainless Steel 
Plate in Coils and Stainless Steel Sheet and Strip from Korea , 
WT/DS179/R , adopted 1 February 2001, DSR 2001:IV, p. 1295 
US – Steel Plate  Panel Report, United States – Anti-Dumping and Countervailing Measures 
on Steel Plate from India , WT/DS206/R  and Corr.1, adopted 29 July 2002, 
DSR 2002:VI, p. 2073 
US – Upland Cotton  Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R , adopted 21 March 2005, DSR 2005:I, p. 3 
US – Washing Machin es Appellate Body Report,  United States – Anti-Dumping and Countervailing 
Measures on Large Residential Washers from Korea , WT/DS464/AB/R  and 
Add.1, adopted 26 September 2016  
US – Washing Machines  Panel Report, United States – Anti-Dumping and Countervailing Measures 
on Large Residential Washers from Korea , WT/DS464/R  and Add.1, 
adopted 26  September 2016, as modified by Appellate Body Report 
WT/DS464/AB/R  
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 January 2001, DSR 2001:II, p. 717 
US – Wool Shir ts 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 
 
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  EXHIBITS REFERRED TO  IN THIS REPORT   
Exhibit  Short title  Description  
TUR-1 Notice of initiation   Ministère marocain de l'industrie, du commerce et des nouvelles 
technologies, Avis public n° 01/13, Relatif à l'ouverture d'une enquête 
antidumping sur les importations de tôles d'acier laminées à chaud 
originaires ou exportés des pays de l'Union Européenne et de la Turquie 
(22 janvier 2013)  
(Moroccan Ministry of Industry, Trade and New Technolo gies, Public 
Notice No. 01/13, concerning the initiation of an anti -dumping 
investigation on imports of hot -rolled steel sheet originating in or 
exported from countries of the  European Union and Turkey 
(22 January  2013) ) 
TUR-2 Initiation report  Ministère marocain de l'industrie, du commerce et des nouvelles 
technologies, Rapport d'ouverture d'une enquête antidumping sur les 
importations de tôles d'acier laminées à chaud originaires ou exportés 
des pays de l'Union Européenne et de la Turquie  
(Moroccan Minis try of Industry, Trade and New Technologies, Report on 
the initiation of an anti -dumping investigation on imports of hot -rolled 
steel sheet originating in or exported from countries of the European 
Union and Turkey ) 
TUR-5 Joint decision 
No. 2986-13 imposi ng 
provisional 
anti-dumping duties  Arrêté conjoint du ministre de l'industrie, du commerce, de 
l'investissement et de l'économie numérique et du ministre de 
l'économie et des finances n° 2986 -13 du 23 hija 1434 (29 octobre 
2013) soumettant à un droit antidumping provisoire les importations de 
tôles d'acier laminées à chaud originaires de l'Union européenne et de la 
Turquie, Bulletin Officiel, n° 6206 (21 novembre 2013)  
(Joint Order of the Minister of Industry, Trade, Investment and the 
Digital Economy and the Minister of the Economy and Finance 
No. 2986-13 of 23  Hijjah  1434 (29  October  2013) imposing a provisional 
anti-dumping duty on imports of hot -rolled steel sheet originating in the 
European Union and Turkey, Official Journal No. 6206 
(21 November  2013)) 
TUR-6 Preliminary 
determination  Ministère marocain de l'industrie, du commerce et des nouvelles 
technologies, Rapport préliminaire de l'enquête antidumping sur les 
importations de tôles d'acier laminées à chaud originaires de 
l'Union  Européenne et d e la Turquie, Détermination préliminaire de 
l'existence du dumping, du dommage et du lien de causalité  
(Moroccan Ministry of Industry, Trade and New Technologies, 
Preliminary report of the anti -dumping investigation on imports of 
hot-rolled steel sheet ori ginating in the European Union and Turkey, 
Preliminary determination of dumping, injury and causal link ) 
TUR-7 Public notice of the 
preliminary 
determination  Ministère marocain de l'industrie, du commerce et des nouvelles 
technologies, Avis public n° 12/13, Enquête antidumping sur les 
importations de tôles d'acier laminées à chaud originaires de 
l'Union  Européenne et de la Turquie, Détermination préliminaire de 
l'existence du dumping, du dommage et du lien de causalité 
(30 octobre  2013)  
(Moroccan Minis try of Industry, Trade and New Technologies, Public 
Notice No. 12/13, Anti -dumping investigation on imports of hot -rolled 
steel sheet originating in the European Union and Turkey, Preliminary 
determination on the existence of dumping, injury and causal link 
(30 October  2013) ) 
TUR-8 
(BCI)  Verification Report for 
Erdermir 
Group /Isdemir  Ministère marocain de l'industrie, du commerce et des nouvelles 
technologies, Mission de vérification dans le cadre de l'enquête anti -
dumping sur les importations de tôles d'acier laminées à chaud 
originaires de l'Union européenne et de la Turquie, Rapport de mission, 
Erdemir Group/Isdemir (22 avril 2014)   
(Moroccan Ministry of Industry, Trade and New Technologies, Verification 
mission as part of the anti -dumping investigati on on imports of 
hot-rolled steel sheet originating in the European Union and Turkey, 
Mission Report, Erdemir  Group/Isdemir (22  April 2014) ) WT/DS513/ R 
BCI de leted, as indicated [[***]]  
- 11 - 
 
  Exhibit  Short title  Description  
TUR-9 
(BCI)  Verification Report for 
Colakoglu  Ministère marocain de l'industrie, du commerce et des nouvelles 
technologies, Mission de vérification dans le cadre de l'enquête anti -
dumping sur les importations de tôles d'acier laminées à chaud 
originaires de l'Union européenne et de la Turquie, Rapport de mission, 
Çolakoğlu Metalurji (22 avril 2014)  
(Moroccan Minis try of Industry, Trade and New Technologies, Verification 
mission as part of the anti -dumping investigation on imports of 
hot-rolled steel sheet originating in the European Union and Turkey, 
Mission Report, Çolakoğlu  Metalurji (22  April 2014) ) 
TUR-10 Draft final 
determination  Ministère marocain de l'industrie, du commerce et des nouvelles 
technologies, Rapport final de l'enquête antidumping sur les 
importations de tôles d'acier laminées  à chaud originaires de 
l'Union  Européenne et de la Turquie, Détermina tion finale de l'existence 
du dumping, du dommage et du lien de causalité (21 juin 2014)  
(Moroccan Ministry of Industry, Trade and New Technologies, Final 
report of the anti -dumping investigation on imports of hot -rolled steel 
sheet originating in the European Union and Turkey, Final determination 
of dumping, injury and causal link ( 20 June 2014) ) 
TUR-11 Final determination  Ministère marocain de l'industrie, du commerce et des nouvelles 
technologies, Rapport final de l'enquête antidumping sur les 
impor tations de tôles d'acier laminées  à chaud originaires de 
l'Union  Européenne et de la Turquie, Détermination finale de l'existence 
du dumping, du dommage et du lien de causalité (12 août 2014)  
(Moroccan Ministry of Industry, Trade and New Technologies, Fina l 
report of the anti -dumping investigation on imports of hot -rolled steel 
sheet originating in the European Union and Turkey, Final determination 
of dumping, injury and causal link (12  August  2014) ) 
TUR-12 Public notice of the 
final determination  Ministère marocain de l'industrie, du commerce et des nouvelles 
technologies, Avis public n° 16/14 , Relatif à l'enquête antidumping sur 
les importations de tôles d'acier laminées à chaud originaires de 
l'Union  Européenne et de la Turquie, Détermination finale de l'existence 
du dumping, du dommage et du lien de causalité et clôture de l'enquête 
(12 août 2014)  
(Moroccan Ministry of Industry, Trade and New Technologies, Public 
Notice No. 16/14 concerning the anti -dumping investigation on imports 
of hot -rolled steel sheet originating in the European Union and Turkey, 
Final determination of dumping, injury and causal link, and termination 
of the investigation (12  August  2014) ) 
TUR-13 Joint Decision 
No. 3024-14 imposing 
definitive 
anti-dumping duties  Arrêté co njoint du ministre de l'industrie, du commerce, de 
l'investissement et de l'économie numérique et du ministre de 
l'économie et des finances n° 3024 -14 du 30 chaoual 1435 
(27 août 2014) portant application du droit antidumping définitif sur les 
importations  de tôles en acier laminées à chaud originaires de l'Union 
européenne et de la Turquie, Bulletin Officiel, n° 6296 (2 octobre 2014)  
(Joint Order of the Minister of Industry, Trade, Investment and the 
Digital Economy and the Minister of the Economy and Fin ance 
No. 3024-14 of 30  Shawwal 1435 (27  August  2014) imposing a 
definitive anti -dumping duty on imports of hot -rolled steel sheet 
originating in the European Union and Turkey, Official Journal No. 6296 
(2 October  2014) ) 
TUR-18  Letter dated 18 August 2014  from the MDCCE to the Government of 
Turkey  
TUR-19 
(BCI)  Erdemir  Group 's 
comments on the 
draft final 
determination  Erdemir Group 's comments on th e draft final determination 
(10 July 2014)  
TUR-20 
(BCI)  Colakoglu 's comments 
on the draft final 
determination  Colakoglu 's comments on the draft final determination (11 July 2014)  
TUR-25  Correspondence 
December 
2013-January 2014  Email correspondence from 31 December 2013 to 10 January 2014 
between the MDCCE and Erdemir Group  
TUR-26 
(BCI)  Addendum to 
questionnaire 
response  Excerpt from Erdemir Group 's addendum to questionnaire response 
(13 January 2014)  
TUR-28 
(BCI)  Letter of the CIB to 
the MDCCE  Letter dated 6 March 2014 from the Turkish Steel  Exporters ' Association  
to the MDCCE  WT/DS513/ R 
BCI deleted, as indicated [[***]]  
- 12 - 
 
  Exhibit  Short title  Description  
TUR-29 
(BCI)  Correspondence with 
customs and 
commercial 
documents  from 
Erdemir Group  Email dated 24 June 2014 from Erdemir Group to the MDCCE; and email 
response dated 7 July 2014 from the MDCCE to Erdemir Group with 
customs and commercial documents  
TUR-30 
(BCI)  Correspondence with 
customs and 
commercial 
documents  from 
Colakoglu  Email dated 24 June 2014 from Colakoglu to the MDCCE; and email 
response dated 7 July 2014 from the MDCCE to Colakoglu with customs 
and commercial documents  
TUR-48 Excerpt from 
USITC 's preliminary 
determination on 
Lime Oil from Peru  Excerpt from USITC, Lime Oil from Peru, Determination of the 
commission in investigation No. 303-ta-16 (preliminary) under the tariff 
act of 1930, together with the information obtained in the investigation 
(July 1985)  
TUR-51 Maghreb 
Steel's financial 
report 2012  Maghreb Steel, Mise à jour du dossier d'information relatif à 
l'exercice  2012 
(Maghreb Steel, Update to the informat ion file for the financial 
year 2012) 
TUR-57 
(BCI)  Turkey 's explanation 
on Morocco 's table of 
allegedly unreported 
transactions  Exhibit MAR -11 (BCI) with Turkey 's explanation of the alleged 
discrepancy  
TUR-58 
(BCI)  Movement certificates 
and commercial 
invoices  Movement certificates and commercial invoices for line items 2 -6, 9, 
11-17, 29-32, and 35 -40 of exhibit TUR -57 (BCI)  
TUR-69  International Accounting Standard 7, Statement of cash flows  
(24 March  2010)  
TUR-70  International Accounting Standard 1, Presentation of Financial 
Statements   
MAR-8  Excerpt from Maghreb Steel 's questionnaire response, section G  
MAR-11 
(BCI)   Table of non -declared transactions  
MAR-15  Excerpt from Maghreb Steel 's questionnaire response, section F  
  WT/DS513/ R 
BCI de leted, as indicated [[***]]  
- 13 - 
 
  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  
BCI Business Confidential Information  
C&F cost and freight  
CIB Turkish Steel Exporters ' Association  
Colakoglu  Çolakoğlu Metalurji and Çolakoğlu Dis Ticaret A.S  
DCE Ministère de l'lndustrie, du Commerce et des Nouvelles Technologies, 
Département du Commerce Extérieur  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
Erdemir Group  Ereğli Demir ve Çelik Fabrikaları T.A.Ş and İskenderun Demir ve Çelik A.Ş 
(İSDEMİR)  
GATT 1994  General  Agreement  on Tariffs and Trade 1994  
Hot-rolled steel products  hot-rolled steel  
MDCCE  Ministère délégué auprès du Ministre de l'Industrie, du Commerce, de 
l'Investissement et  de l'Économie  Numérique chargé du Commerce Extérieur  
SCM Agreement  Agreement on Subsidies and Countervailing Measures  
USITC  United States International Trade Commission  
Vienna Convention  Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 
1155 UNTS 331; 8 International Legal Materials 679  
WTO World Trade Organization  
 WT/DS513/ R 
BCI deleted, as indicated [[***]]  
- 14 - 
 
  1  INTRODUCTION  
1.1  Complaint by Turkey  
1.1.  On 3 October 2016 , Turkey  requested consultations with Morocco  pursuant to Article  4 of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and 
Article  17.3 of the  Agreement  on Implementation of Article  VI of the General  Agreement  on Tariffs 
and Trade 1994 (Anti -Dumping  Agreement ), Article  XXIII:1 of the General  Agreement  on Tariffs and 
Trade 1994 (GATT 1994 ), and Article  6 of the  Agreement  on Im port Licensing Procedures with 
respect to the measures and claims set out below.1 
1.2.  Consultations were held on 18 and 28 November 2016, but failed to resolve the dis pute. 
1.2  Panel establishment and composition  
1.3.  On 12 January 2017 , Turkey  requested the establishment of a panel pursuant to Articles  4.7 
and 6 of the DSU with standard terms of reference.2 At its meeting on 20 February 2017 , the Dispute 
Settlement Body (DSB) e stablished a panel pursuant to the request of Turkey , in accordance with 
Article  6 of the DSU.3 
1.4.  The Panel 's terms of reference are the following:  
To examine, in the light of the relevant provisions of the covered  Agreement s cited by 
the parties to the disp ute, the matter referred to the DSB by Turkey  in document 
WT/DS 513/2  and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those  Agreement s.4 
1.5.  On 8 May 2017 , Turkey  requested the Director -General to determine the composition of the 
panel, pursuant to Article  8.7 of the DSU . On 17 May 2017 , the Director -General accordingly 
composed the Panel as follows:  
Chairperson:  Ms Usha Dwarka -Canabady  
 
Members:   Mr Gustav Brink  
   Mr Renê Guilherme da Silva Medrado  
 
1.6.  China, Egypt, the European Union, India, Japan, Kazakhstan, the Republic of Korea, Oman , the 
Russian Federation, Singapore, the United Arab Emirates, and the United States  reserved their rights 
to participate in the Panel proceedings as third  parties.  
1.3  Panel proceedings  
1.7.  After consulting  the parties, the Panel : 
a. adopted its Working Procedures5 and timetable on 22 August 2017;  
b. revised the timetable on 4 December 201 7, on 15 May  2018, and on 4  July 2018 ; and  
c. adopted, on 22 August  2017, additional procedures for the protection of Business 
Confidential Information (BCI) .6 
1.8.  The Panel held a first substantive meeting with the parties on 29 and  30 November 2017 . A 
session with the third parties took place on 30 November 2017 . The Panel held a second subs tantive 
                                                
1 Request for consultations by Turkey , WT/DS513/1, G/ADP/D114/1, G/L/1152, G/LIC/D/51.  
2 Request for the establishment of a panel by Turkey, WT/DS513/2.  
3 DSB, Minutes of the meeting held on 20 February 2017 (5 April 2017),  WT/DSB/M/392.  
4 Constitution note of the Panel, WT/DS513/3.  
5 See the P anel's  Working Procedures in Annex A -1. 
6 See the Additional Working Procedures of the Panel concerning Business Confidential Information in 
Annex  A-2. WT/DS513/ R 
BCI de leted, as indicated [[***]]  
- 15 - 
 
  meeting with the parties on 11 and 12 April 2018 . On 1 June 2018 , the Panel issued the descriptive 
part of its Report to the parties. The Panel issued its Interim Report to the parties on 9 August 2018.  
The Panel issued its Final Report to the part ies on 4 October 2018.  
2  FACTUAL ASPECTS  
2.1  The measures at issue  
2.1.  This dispute concerns the definitive anti -dumping measures imposed by Morocco on imports of 
certain hot -rolled steel products  (hot-rolled steel)  from Turkey.  
2.2.  On 21 January 2013, the "Ministère de  l'lndustrie, du Commerce et des Nouvelles Technologies , 
Département du Commerce Extérieur" (DCE) initiated an investigation with respect to dumping of 
hot-rolled steel  from, among others, Turkey.7 
2.3.  Morocco imposed provisional anti -dumping duties on the imp orted products at issue8, following 
the preliminary affirmative determination by the "Ministère délégué auprès du Ministre de l'Industrie, 
du Commerce, de l'Investissement et de l' Économie  Numérique chargé du Commerce Extérieur" 
(MDCCE) of dumping, injury and causation , dated 29 October 2013 .9 
2.4.  On 12 August 2014, the MDCCE published the final affirmative determination of dumping, 
injury , and causation.10 The definitive measure came into force on 26 September 2014.11 
3  PARTIES ' REQUESTS FOR FINDING S AND RECOMMEND ATION  
3.1.  Turkey requests the Panel to find that12: 
a. the MDCCE acted inconsistently with Article  5.10 of the Anti -Dumping  Agreement , because 
the duration of the investigation at issue exceeded the maximum time limit envisaged in 
this provision;  
b. the MDCCE used fa cts available to determine dumping margins for Ereğli Demir ve Çelik 
Fabrikaları T.A.Ş and İskenderun Demir ve Çelik A.Ş (İSDEMİR)  (Erdemir Group ) and 
Çolakoğlu Metalurji and Çolakoğlu Dis Ticaret A.S (Colakoglu ) in a manner inconsistent 
with Article  6.8 a nd paragraphs 1, 3, 5, 6, and 7 of Annex II to the 
Anti-Dumping  Agreement ; 
c. the MDCCE acted inconsistently with Article  6.9 of the Anti -Dumping  Agreement  by failing 
to disclose all "essential facts" with respect to its decision to use facts available to 
determine dumping margins for Erdemir Group and Colakoglu in a timely manner;  
d. the MDCCE 's determination that the domestic industry (Maghreb Steel) was 
"unestablished" is inconsistent with Article  VI:6(a) of the GATT 1994 as well as footnote  9 
to Article  3 and Articles  3.1 and 3.4 of the Anti -Dumping  Agreement ; 
e. the MDCCE 's determination that the domestic industry (Maghreb Steel) suffered injury in 
the form of  material retardation is inconsistent with Articles  3.1 and 3.4 of the 
Anti-Dumping  Agreement ; and  
f. the MDCCE acted inconsistently with Articles  6.5, 6.5.1 , and 6.9 of the 
Anti-Dumping  Agreement  by failing to disclose information concerning the break -even 
threshold in its analysis of whether the domestic industry was "established".  
                                                
7 Notice of initiation, (Exhibit TUR -1); Initiation report, (Exhibit TUR -2). 
8 Joint decision No. 2986-13 imposing provisional anti -dumping duties, (Exhibit TUR -5). 
9 Preliminary determination, ( Exhibit TUR -6); Public n otice of the preliminary determination, 
(Exhibit  TUR-7). 
10 Final determination, (Exhibit TUR -11); Public n otice of the final determination, (Exhibit TUR -12). 
11 Joint decision No. 3024-14 imposing definitive anti -dumping duties , (Exhibit TUR -13). 
12 Turkey 's first written submission, paras.  11.1-11.2. WT/DS513/ R 
BCI deleted, as indicated [[***]]  
- 16 - 
 
  3.2.  Turkey also requests the Panel to exercise its discretion under  Article  19.1 of the DSU and to 
suggest that Morocco bring its measures into conformity with its WTO obligations by immediately 
revoking the anti -dumping measure at issue.  
3.3.  Morocco  requests that the Panel reject all of Turkey 's claims in this dispute.  Morocco also 
requests that the Panel rule that certa in claims are outside the Panel 's terms of reference.  
4  ARGUMENTS OF THE PARTIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the Panel 
in accordance with paragraph 19 of the Working Procedures adopted by the Pan el (see Annexes B-1 
and B -2). 
5  ARGUMENTS OF THE THI RD PARTIES  
5.1.  The argument s of the European Union, Japan , and the United States  are reflected in their 
executive summaries, provided in accordance with paragraph 20 of the Working Procedures adopted 
by the Panel (see Annexes C-1, C-2, and C-3). China, Egypt, India , Kazakhstan, the Republic of 
Korea, Oman, the Russian Federation, Singapore , and the United Arab Emirates did not submit 
written or oral arguments to the Panel . 
6  INTERIM REVIEW  
6.1.  On 28 August 2018 , Turkey  and Morocco  each submitted written requests for the review of 
precise a spects of the Interim Report. Neither party requested an interim review meeting.  On 
12 September 2018, both parties submitted comments on each other's requests for review . The 
Panel's discussion and disposition of those requests are set out in Annex A -3. 
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  Agreement s "in accordance with customary rules of interpretation 
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.  Articles  31 and 32 of the Vienna Convention on the Law of Treaties codify 
in part these customary rules.13 
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 bef ore it, including an 
objective assessment of the facts of the case and the applicability of and conformity 
with the relevant covered  Agreement s. 
In addition, Article  17.6 of the Anti -Dumping  Agreement  sets out the special standard of review 
applicable to d isputes under the Anti -Dumping  Agreement : 
(i) in its assessment of the facts of the matter, the panel shall determine whether 
the authorities ' establishment of the facts was proper and whether their evaluation of 
those facts was unbiased and objective. If the establishment of the facts was proper 
and the evaluation was unbiased and objective, even though the panel might have 
reached a different conclusion, the evaluation shall not be overturned;  
                                                
13 Appellate Body Report, US – Gasoline , DSR 1996:I, p.  16. WT/DS513/ R 
BCI de leted, as indicated [[***]]  
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  (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  Agreement  admits of more than one permissible 
interpretation, the panel shall find the authorities ' measure t o 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 must apply with respect to b oth the factual and the legal aspects of 
the present dispute. This means that in reviewing the investigating authority 's determination in this 
dispute, we must:  
a. examine whether the authority has provided a reasoned14 and adequate15 explanation as 
to: 
i. how the  evidence on the record supported its factual findings16; and  
ii. how those factual findings support the overall determination17;  
b. not conduct a de novo review of the evidence or substitute our judgment for that of the 
investigating authority;  
c. limit our examina tion to the evidence that was before the investigating authority during 
the investigation18;  
d. take into account all such evidence submitted by the parties to the dispute19; 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".20 
7.1.3   Burden of proof  
7.3.  In WTO dispute settlement "the burden of proof rests upon the party, whether complaining or 
defending, who asserts the affirmative of a particular claim  or defence".21 Where a party "adduces 
evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts to the 
other party, who will fail unless it adduces sufficient evidence to rebut the presumption".22 A 
complaining party es tablishes a prima facie  case where, absent  effective refutation by the defending 
party, a panel has as a matter of law to rule in favour of the complaining party.23 
                                                
14 Appellate Body Report, US – Softwo od 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 ". 
15 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 ". 
16 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 inference s mad e and conclusions reached by it".  
17 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 the re cord evidence ". 
18 Anti-Dumping  Agreement , Article  17.5(ii) ; Appellate Body Report , US – Countervailing Duty 
Investigation on DRAMS , para.  187. 
19 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS , para. 187. 
20 Appellate Body Report, US – Softwood Lumber VI ( Article  21.5 – Canada) , para. 93. 
21 Appellate Body Report, US – Wool Shirts and Blouses , DSR 1997:I, p.  335. 
22 Appellate Body Report, US – Wool Shirts and Blouses , DSR 1997:I, p.  335. 
23 Appellate Body Report, EC – Hormones , paras.  98 and 104. WT/DS513/ R 
BCI deleted, as indicated [[***]]  
- 18 - 
 
  7.2  Terms of reference  
7.4.  Morocco argues that the following claims of Turkey fall outside the Panel 's terms of reference 
and requests the Panel not to rule on them:  
a. the claims under footnote 9 to Article  3 of the Anti -Dumping  Agreement , Articles  3.1 and 
3.4 of the Anti -Dumping  Agreement24, and Article  VI:6(a) of the GATT 1994  in respect of 
the MDCCE 's finding  that the domestic industry was not "established";  
b. the claims under Articles  3.1 and 3.4  of the Anti -Dumping  Agreement  in respect of the 
MDCCE 's finding  of "material retardation " of the establishment of the domestic industry ; 
c. the claims under Articles  6.5 and 6.5.1  of the Anti -Dumping  Agreement  in respect of the 
confidential treatment of the domestic industry 's (Maghreb Steel) break -even threshold ; 
and 
d. the claim under Article  6.9 of the Anti -Dumping  Agreement  in respect of the alleged failure 
to disclose the essential facts pertaining to the domestic industry 's (Maghreb Steel) 
break -even threshold . 
7.2.1   Evaluation  
7.2.1.1   Article  6.2 of the DSU: Claim  under footnote 9 to Article  3 of the 
Anti-Dumping  Agreement  
7.5.  In its first written submission, Turkey advance d a claim under footnote 9 to Article  3 concerning 
the MDCCE 's finding that the domestic industry was not "established". On its face, Turkey 's request 
for the establishment of a panel ( panel request ) does not , however,  refer to a claim under footnote  9. 
Paragraph 4(a) of the panel request states:  
The Investigating Authority acted inconsistently with Articles  3.1 and 3.4 of the 
Anti-Dumping  Agreement  and Article  VI:6(a) of the GATT 1994 by finding that the 
domestic industry was not "established", and by d etermining that the establishment of 
that industry was retarded [.]25 
7.6.  Morocco argues that Turkey 's footnote 9 claim falls outside the Panel 's terms of reference 
because Turkey did not provide a "brief summary of the legal basis" for this claim in the panel 
request, contrary to the requirements of Article  6.2 of the DSU.26 
7.7.  Turkey contends that its footnote 9 claim is within the Panel 's terms of reference.27 According 
to Turkey, although the panel request does not mention footnote 9 , it nevertheless provided the 
requisite "brief summary of the legal basis"  for the following reasons:  
a. Footnote 9 is a "definitional provision" and, as such, applies to all instances where the 
Anti-Dumping  Agreement  references the term "injury". Therefore, by citing Articles  3.1 
and 3.4  in the panel request, Turkey also referred to footnote 9.28 
b. In the panel request, Turkey used the language of footnote 9 when referring to the 
MDCCE 's determination that the domestic industry was not "established" and that the 
establishment of the domestic  industry was "retarded".29 It was thus clear that Turkey 
                                                
24 Morocco 's jurisdictional objection includes Turkey 's claims under Articles  3.2 and 3.5. Although the 
request for consultations listed such claims, Turkey limited its claims in the panel request to Articles  3.1 
and 3.4. We therefore do not furth er address Articles  3.2 and 3.5.  
25 Fn omitted.  
26 Morocco's  response  to Panel question No. 1.4(a), paras.  31-36; second written submission, 
paras.  38-46. 
27 Turkey 's second written submission, paras.  2.12-2.19. 
28 Turkey's  response to Panel question No.  1.4(a ), paras.  38 and 40 -41; second written submission, 
para. 2.15. 
29 Turkey's  response to Panel question No.  1.4(a), paras.  40-41 and 44 -45; second written submission, 
paras.  2.16-2.17. WT/DS513/ R 
BCI de leted, as indicated [[***]]  
- 19 - 
 
  was asserting a footnote 9 claim.30 In line with the Appellate Body 's findings in Thailand  – 
H-Beams , Turkey only needed to cite the language and refer to key factors of footnote 9 
in order to "provide a brief summary of the legal basis".31  
c. At any rate, the panel request mentions Article  VI:6(a) of the GATT 1994 and thereby also 
referred to "the general definition provided in [f]ootnote 9".32 
7.8.  Article  6.2 of the DSU provides, in relevant part:  
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a 
brief summary of the legal basis of the complaint sufficient to present the problem  
clearly.  
7.9.  The requirements to "identify the specific measure(s) " at issue and to "provide a brief summary 
of the legal basis of the complaint sufficient to present the problem clearly " are central to the 
establishment  of a panel 's jurisdiction. The measur e(s) and th e legal basis of the complaint  – i.e. the 
claim(s) – constitute the "matter referred to the DSB"33, which forms the basis of the panel 's terms 
of reference.34 In defining the scope of the dispute, the panel request establish es and deli mits the 
panel's jurisdiction , but it also fulfils a due process objective  to the benefit of the respondent and 
third parties . 
7.10.   With respect to the requirement that a panel request "provide a brief summary of the legal 
basis of the complaint sufficient to present the p roblem clearly", the panel request must  "[a]s a 
minimum requirement  … list the articles(s) of the covered  Agreement (s) claimed to have been 
violated".35 At the same time, deciding whether a claim is sufficiently set out in the panel request is 
not a mechanical task. Rather, a panel needs to  read the panel request in its entirety; it may, in 
certain cases, infer the statement of a claim from the totality o f a panel request, such that a 
complainant 's failure to list a specific provision would not necessarily deprive a panel of jurisdiction 
to address a claim under that provision.36 
7.11.   In all cases, h owever, the panel request must "plainly connect" the challenged  measure with 
the provisions of the covered  Agreement s claimed to have been violated  in order "to present the 
problem clearly" .37 This connection enables the respondent to know what case it has to answer, and 
to prepare its defence accordingly. Whether the panel request met the requirement s of Article  6.2 
must, also in every case,  be demonstrated "on [its] face".38 
7.12.   In this dispute, we need to resolve whether the statement of claims in the panel request under 
Articles  3.1, 3.4, and VI:6(a), in conjunction with  the narrative in paragraph 4(a), provide d a "brief 
summary of the legal basis " of the claim under footnote 9  sufficient to clearly present a "problem " 
concerning the alleged violation of footnote 9.  
7.13.   Footnote 9 is substantively connected wi th Articles  3.1 and 3.4 because footnote 9 defines 
the term "injury" used in those (and other) provisions. However, this does not mean that a statement 
of claims under Articles  3.1 and 3.4 necessarily implies a claim under footnote 9. Footnote 9 is 
attached to the heading  of Article  3, rather than to Article  3.1 or 3.4 specifically. Footnote 9 therefore 
                                                
30 Turkey's  response to Panel question No.  1.4(a), para.  41. 
31 Turkey's  response to Panel question No.  1.4(a), paras.  42-44 (referring to Appellate Body Report, 
Thailand – H-Beams , para.  90). 
32 Turkey's  response to Panel question No.  1.4(a), paras.  46 and 48.  
33 See Article  7.1 of the DSU.  
34 Appellate Body Reports, EC and certain member States – Large Civil Aircraft , para. 639 (referring to 
Appellate Body Reports, Guatemala – Cement I , paras.  72-73; US – Carbon Steel , para. 125; US – Continued 
Zeroing , para. 160; US – Zeroing (Japan) ( Article  21.5 – Japan) , para. 107; a nd Australia – Apples , 
para. 416); US – Countervailing and Anti -Dumping Measures (China) , para. 4.6. 
35 Appellate Body Report, US – Countervailing and Anti -Dumping Measures (China) , paras.  4.8 (referring 
to Appellate Body Reports, Korea – Dairy , paras.  123-124, in turn referring to Brazil – Desiccated Coconut , 
DSR 1997:I, p. 186; EC – Bananas III , paras.  145 and 147;  India – Patents (US) , paras.  89 and 92 -93; and 
US – Carbon Steel , para. 130), 4.17, and 4.31.  
36 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.33. 
37 Appellate Body Report, US – Oil Country Tubular Goods Sunset Review s, para.  162. 
38 Appellate Body Report, US – Carbon Steel , para. 127. WT/DS513/ R 
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  applies to all of the provisions of Article  3 – and, by its express terms, more generally to all instances 
where the term "injury" is used "[u]nder this  Agreement ". We do not consider that a statement of 
claim under any provision in the Anti -Dumping  Agreement  that includes the term "injury", by the 
mere use of this term, necessarily directs to, and includes, a claim under footnote 9. Nor do we 
consider that the text of Article 3.1 or 3.4 suggest s that claims under these provisions specifically 
imply a further claim under footnote 9.  
7.14.   Turkey  asserts that footnote 9 contains a substantive  obligation that Morocco violated . In the 
jurisdictional context, however, Turkey argues th at footnote 9 serves as a "definitional provision" in 
determining the meaning of "injury" and thus "is an integral part of the claims under Articles  3.1 
and 3.4".39 Turkey is correct in pointing out that the "determination of injury must be made in 
accordan ce with the definition of 'injury ' provided in Footnote 9".40 Yet, it does not follow from 
Turkey 's jurisdictional  arguments that an independent claim of violation of an obligation  in footnote  9 
was identifiable from the panel request when it referred to Articles 3.1 and 3.4. In Turkey 's own 
words, footnote 9 was only "part of the claims under Articles  3.1 and 3.4", not a separate and 
independent claim. However, Turkey has clearly and repeatedly claimed that the 
MDCCE 's determination that the industry was no t "established" was inconsistent with 
Morocco 's obligations set forth in footnote 9, among other provisions.41 It has also requested us to 
"find" that the MDCCE 's determination that the domestic industry was not "established" is 
inconsistent with footnote 9 .42 To pursue a substantive claim under footnote 9, Turkey had to include 
that claim in its panel request.  
7.15.   According to Turkey, the narrative language in paragraph 4(a) of the panel request provided 
sufficient  clarity with regard to the inclusion of a  footnote 9 claim.43 We, however, read this narrative, 
first and foremost , in the context of the provisions expressly cited in paragraph 4(a) of the panel 
request, namely Articles  3.1, 3.4, and Article  VI:6(a). Article  VI:6(a) contains the general obligatio n 
that "[n]o contracting party shall levy any anti -dumping … duty … unless it determines that the 
effect of dumping … is such … as to retard materially the establishment of a domestic industry". The 
narrative language in paragraph 4(a) therefore closely co nnects with Article  VI:6(a).  Turkey argues 
that, as in US – Anti-Dumping Methodologies (China)44, the narrative of its panel request 
"unequivocally  resembled that of the legal provision invoked" because it used words "found only in 
Footnote 9".45 However, th e language used in paragraph 4(a) also resembles the language used in 
Article  VI:6(a) and that paragraph of the panel request even mentions Article  VI:6(a). 
Turkey 's argument therefore fails.  
7.16.   In light of the panel request expressly citing Articles  3.1, 3.4 , and VI:6(a) , and using language 
that resembles the language in Article  VI:6(a) , we do not  consider that the panel request , on its 
face, "plainly connects" the challenged measure, which includes in the case at hand the 
determination that the domestic industry was not "established" , with the provision that was allegedly 
violated, in this case  footnote 9 . We are thus not persuaded that the panel request presented any 
problem regarding an alleged violation of footnote  9 with sufficient clarity.  
7.17.   Turkey als o relies on the report of the Appellate Body in Thailand – H-Beams . In that case, 
the Appellate Body found that the panel request at issue provided a "brief summary of the legal 
basis" for claims under specific paragraphs of Article  3. According to the App ellate Body, the panel 
request did so by mentioning  Article  3 in combination with its narrative citing the language of 
Article  3.1 and referring to volume and price effects and the impact on the domestic industry.  The 
dispute in Thailand – H-Beams  did not present the Appellate Body with the same legal issue currently 
before us. That case concerned the question whether a general reference to a treaty article, in that 
instance Article  3, was sufficient to "provide a brief summary of the legal basis" in respec t of claims 
of violation under more specific paragraphs of that article. Here, however, we mus t resolve a 
                                                
39 Turkey's  response to Panel question No.  1.4(a), paras.  38, 40, and 45.  
40 Turkey's  second written submission, para.  2.15. 
41 Turkey 's first written submission, paras.  1.2, 1.4, 8.1 -8.85, and 11.1; opening statement at the 
first meeting of the Panel, paras.  4.1-4.13; and response to Panel's  question No.  4.3(a), para.  92. 
42 Turkey's  first written submission, para.  11.1. 
43 Turkey's  response to Panel question No.  1.4(a), paras.  40-41 and 44 -45; second written submission, 
paras.  2.16-2.17. 
44 Turkey's  second written submission, para.  2.16 (quoting Appellate Body Report, US – Anti-Dumping 
Methodologies (China) , para.  5.169).  
45 Turkey's  second written submission, para.  2.17. (emphasis added)  WT/DS513/ R 
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  different question , that is,  whether the references to the specific paragraphs of Articles  3.1 and 3.4 
in the panel request were sufficient for purpos es of stating a claim under footnote  9. 
7.18.   On the basis of the above, we conclude  that in respect of the claim under footnote 9 
Turkey 's panel request did not " provide a brief summary of the legal basis of the complaint sufficient 
to present the problem clearly ", as required by Article  6.2 of the DSU.  Turkey 's footnote  9 claim 
therefore falls outside  our terms of reference.  
7.2.1.2   Article  4.4 of the DSU: Claims  under Articles  3.1 and 3.4  of the 
Anti-Dumping  Agreement  
7.19.   At paragraph 5 of the request for consultations, Turkey made the following claims, which 
include Articles  3.1 and 3.4:  
Injury/Causation Determination : The Moroccan authorities failed to provide a reasoned 
and adequate explanation of their finding of injury  and causation and therefore acted 
inconsistently with Articles  3.1, 3.2, 3.4, and 3.5 of the Anti -Dumping  Agreement .46 
7.20.   At paragraphs 4(a) and (b) of the panel request, Turkey then stated the following claims 
under Articles  3.1 and 3.4 concerning the MDCCE 's findings of "establishment", "material 
retardation", and the injury factors:  
The Investigating Authority acted inconsistently with Articles  3.1 and 3.4 of the 
Anti-Dumping  Agreement  and Article  VI:6(a) of the GATT 1994 by finding that the 
domestic industry was not "established", and by determining that the establishment of 
that industry was retarded [.]47 
The Investigating Authority acted inconsistently with Article  3.4 of the 
Anti-Dumping  Agreement  by failing to assess all the relevant injury factors  set out in 
that provision. Moreover, the Investigating Authority failed to conduct an appropriate 
examination of each of the factors it analysed, as well as an objective and unbiased 
assessment of all these factors collectively.  
7.21.   Morocco argues that the cl aims under Articles  3.1 and 3.4, as set out in paragraphs  4(a) and 
(b) of the panel request, fall outside the Panel 's terms of reference. A t paragraph 5 of the request 
for consultations , Turkey failed to provide an "indication of the legal basis" of the cl aims under 
Articles  3.1 and 3.4 in respect of the MDCCE 's findings concerning "establishment", " material 
retardation" , and the injury factors , contrary to the requirement  of Article  4.4 of the DSU.48 In this 
regard, Morocco contends that:  
a. Compared to the pa nel request, the request for consultations merely referred to 
Articles  3.1 and 3.4 , which  is insufficient for an "indication of the legal basis" of the claims 
at issue . The request for consultations  did not mention the issues of "establishment " and 
"materi al retardation " of the domestic industry .49 It also did not mention the 
MDCCE 's findings in relation to  the injury factors.50 
b. The reference in the request for consultations to a "failure to provide a reasoned and 
adequate explanation" is overly generic and, in any event, refers to the standard of review 
of the Panel, not to an obligation of the MDCCE.51  
7.22.   According to Morocco, without an "indication of the legal basis" in the request for 
consultations, the consultations did not cover the claims in the form ulti mately pursued . As a result, 
                                                
46 Emphasis  original.  
47 Fns omitted.  
48 Morocco's  second written submission, para.  17. 
49 Morocco's  response s to Panel question  No. 1.1, para.  2, and No. 1.2(a), para.  14; second written 
submission, paras.  17 and 19.  
50 Morocco's  response s to Panel question No. 1.1, para.  3, and No.  1.2(a), para.  15; second written 
submission, para.  21. 
51 Morocco's  responses to Panel question No.  1.1, para.  4, and N o. 1.2(a), paras.  13 and 16; 
second  written submission, paras.  13 and 22.  WT/DS513/ R 
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  they did not evolve from the request for consultations  because they expanded the scope of the 
dispute and  chang ed its essence.52 
7.23.   Turkey contends that its claims under Articles  3.1 and 3.4 are within the Panel 's terms of 
referenc e. The request for consultations satisfied the requirements of Article  4.4 of the DSU. 
Paragraph 5 of the request for consultations contains a section titled "Injury/Causation 
Determination" and mentions, inter alia , claims under Articles  3.1 and 3.4 . As the MDCCE 's injury 
determination took the form of "material retardation  of the establishment of the domestic industry ", 
the reference in the request for consultations to the injury determination logically relates to the 
finding of injury in th at form.53 The request for consultations thus indicated the legal basis for the 
claims which the panel request then elaborated upon at paragraphs 4(a) and (d).54 It also follows 
that the claims at issue in the panel request did not change the essence of the dispute.  
7.24.   We recall that Articles  4.4 and 6.2 of the DSU require different levels of specificity  for the 
identification of claims  in the request for con sultations and the panel reques t.55 While the 
complainant must only give an "indication of the legal basis" in the request for consultations, it must 
provide "a brief summary of the legal basis sufficient to present the problem clearly" in the panel 
request. Neither "precise and exact identity" between the claims in the request for consultations and 
the panel request i s required, nor should "too rigid a standard" of identity be imposed.56 In particular, 
"Article  4.4 of the DSU requires only that a request for consultations contain 'an indication of the 
legal basis for the complaint '. … [Which] is a lesser requirement tha n that of Article  6.2, and may 
well be satisfied in a particular case by listing the Articles  allegedly violated".57  
7.25.   Considering the above, we note that Turkey cited the provisions at issue,  Articles  3.1 and 3.4, 
at paragraph 5 of its request for consultat ions and expressly challenged the "injury determination".  
7.26.   Morocco argues that the request for consultations should also have mentioned that Turkey 
was taking issue with the MDCCE 's analysis of "establishment", " material retardation", and the injury 
factors . In its view, "[i]t was not for Morocco to guess what aspects [of] its injury determination 
Turkey sought to challenge ".58 Indeed, the request for consultations did not expressly refer to the 
MDCCE 's findings in respect of "establishment", "material retardation" , and the injury factors. 
Bearing in mind the requirements of Article  4.4 of the DSU, though, we consider that 
Turkey 's concern with these issues was sufficiently clear ly indicated by its  reference to the 
MDCCE 's "injury determination" . This " injury determination " was exclusively based on an injury 
finding in the form of "material retardation of the establishment of the domestic industry ". 
Necessarily , the request for consultations referred to the "injury determination" in that form. Further, 
the reference in the request for consultations to Article  3.4, which concerns the examination of the 
injury factors, made sufficiently clear that the request for consulta tions challenged the findings 
concerning  those  injury factors.  As a matter of law, the c omplainant  must explain succinctly  in the 
panel request, not in the request for consultations,  how or why the measure at issue is considered 
by the complainant to violate the WTO obligation in question.59 To require, as Morocco suggests, 
even greater precis ion in the request for consultations in respect of the claims under Articles  3.1 
and 3.4 would effectively substitute the legal standard of Article  4.4 with that of Article  6.2. 
7.27.   On the basis of the foregoing, paragraph 5 of the request for consultations ad equately 
indicated the legal basis of the claims under Articles  3.1 and 3.4. These legal bases in the request 
for consultations were also sufficiently broad to include the claims under Articles  3.1 and 3.4, as 
subsequently set out in the panel request. The reference in the request for consultations to an 
                                                
52 Morocco's  response to Panel question No. 1.2(a), paras.  12-17; second written submission, para.  23. 
53 Turkey's  response to Panel question No.  1.2(a), para.  11; second written submi ssion, para.  2.9. 
54 Turkey's  opening statement at the first meeting of the Panel, para.  4.27; response to Panel question 
No. 1.2(a), paras.  8-10. 
55 Panel Reports, US – Poultry (China) , para.  7.43; EC – Fasteners  (China) , para.  7.206; see also 
Appellate Body Report, Argentina – Import Measures , para.  5.9. 
56 Appellate Body Reports, Brazil – Aircraft , para. 132; US – Upland Cotton , para. 293; and Mexico – 
Anti-Dumping  Measures on Rice , paras.  137-138. This applies to the extent that the panel requ est does not 
expand the scope of the dispute, or change its essence.  
57 Panel Report, EC – Fasteners (China) , paras.  7.207 and 7.322; see also ibid. para.  7.206, and 
Panel  Report, US – Poultry (China) , para.  7.43. 
58 Morocco's  opening statement at the second  meeting of the Panel, para.  15. 
59 Appellate Body Reports, EC – Selected Customs Matters , para. 130; China – Raw Materials , 
para. 226; and US – Countervailing and Anti -Dumping Measures (China) , para. 4.26. WT/DS513/ R 
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  alleged failure "to provide a reasoned and adequate explanation" does not detract from the  
sufficiency of the "indication of the legal basis". The text of Articles  3.1 and 3.4 does not refer to an 
obligation to give a "reasoned and adequate explanation".  Yet, this phrase  does not conflict with the 
claims , or the obligations,  under Articles  3.1 and 3.4. Nor does the  language in the request for 
consultations exclude the claims under Articles  3.1 and 3 .4 in the form subsequently pursued in the 
panel request.  
7.28.   It follows from the above that in respect of the claims under Articles  3.1 and 3.4 the request 
for consultations gave the required "indication of the legal basis". We thus reject 
Morocco 's arguments  in this regard. As a result, we also do not accept Morocco 's argument that the 
claims under Articles  3.1 and 3.4, as set out in the panel request , could not have evolve d from the 
request for consultations . 
7.29.   Accordingly, Turkey 's claims under Articles  3.1 and 3.4 fall within our terms of reference.  
7.2.1.3   The "evolution" of certain claims in the panel request from the request for 
consultations  
7.2.1.3.1   Factual background  
7.30.   For purposes of finding injury in the form of "material retardation of the establishment of the 
domestic  industry ", the MDCCE determined that the domestic industry, composed of the sole 
Moroccan producer and petitioner Maghreb Steel, was not "established". In doing so, the MDCCE 
analysed Maghreb Steel 's break -even (or profitability ) threshold. The MDCCE trea ted this 
break -even threshold as confidential, and redacted it from in its determination.60 
7.2.1.3.2   Claims under Articles  6.5 and 6.5.1  of the Anti -Dumping  Agreement  
7.31.   In the request for consultations, Turkey did not make any claims under Articles  6.5 and  6.5.1 
concerning the MDCCE 's confidential treatment of the domestic industry 's break -even threshold. 
Turkey subsequently added claims under these provisions in paragraph 4(d) of the panel request , 
which states:  
The Investigating Authority acted inconsistently wi th Articles  6.5 and 6.5.1 of the 
Anti-Dumping  Agreement  by failing to require the applicant to submit a non -confidential 
summary of the "profitability threshold" used for its finding of material retardation of 
the establishment of the domestic industry, or  an explanation of why it could not be 
summarized.  
7.32.   According to Morocco, given that the request for consultations did not mention Articles  6.5 
and 6.5.1, nor the break -even threshold or its confidential treatment , the claims included in the 
panel request had not been the subject of consultations. Morocco asserts that the claims under 
Articles  6.5 and 6.5.1 set forth in the panel request therefore could not have evolved from any of 
the claims in the request for con sultations .61 
7.33.   Turkey argues that the claims under Articles  6.5 and 6.5.1 evolved from the Article  3.1 claim 
set forth at paragraph 5 of the request for consultations, cited at paragraph 7.19.  above. According 
to Turkey:  
a. The confidential treatment of the break -even threshold was inconsistent with Articles  6.5 
and 6.5.1, such that the MDCCE did not act in accordance with the basic principle of 
fundamental fairness and thereby did not conduct an "objective examination" within the 
meaning of Article  3.1.62 A close connection thus existed between, on the one hand, the 
                                                
60 Preliminary determination, (Exhibit TUR -6), para. 86, as confirmed in the Final determination, 
(Exhibit  TUR-11), paras.  97-100. 
61 Morocco 's first written submission, paras.  31 and 36; responses to Panel question No. 1.1, para. 6, 
and No. 1.2(b), paras.  18-19; and second written submission, paras.  28-37. 
62 Turkey's  response to Panel question No.  1.2(b), para.  16. WT/DS513/ R 
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  claims under Articles  6.5 and 6.5.1 and, on the other hand, the claim under Article  3.1, 
and the factual as pect of the injury determination that was subject to consultations.63 
b. Unduly redacting critical information on the break -even threshold meant that the MDCCE 
did not give a "reasoned and adequate explanation of its injury finding", such that the 
claims under Articles  6.5 and 6.5.1  naturally evolved from Turkey 's request for 
consultations, at paragraph 5.64 
c. In respect of the break -even threshold, Articles  3.1, 6.5, and 6.5.1 relate to the treatment 
of the same information, with Articles  6.5 and 6.5.1 being more specific in respect of the 
confidential treatment of a sub -set of information.65 
d. The request for consultations took issue with the "Injury Determination" , which included 
the determination of the break -even threshold.66 
e. The claims at issue na turally evolved from Turkey 's injury claims "as, during consultations, 
the (important) role of the break -even threshold in the MDCCE 's injury determination 
became clear".67 
7.34.   Morocco argues that, because Articles  6.5 and 6.5.1 were not referred to in the requ est for 
consultations, the subsequent claims under these provisions in the panel request could not have 
evolved from the request for consultations. In our view, h owever, simply because the provisions at 
issue are not expressly mentioned in the request for consultations does not necessarily mean that 
claims under those provisions could not have evolved from the request for consultations. T he 
provisions in the panel request need not be identical to those set out in the request for consultations. 
Claims under additional provisions may be included  in the panel request provided that the "legal 
basis" in the panel request evolved from the "legal basis" that formed the subject of consultations.68 
In order to evaluate such "new" claims under its jurisdiction, a  panel must examine whether the 
complainant, by adding these claims , expanded the scope or changed  the essence of the dispute in 
its panel request as compar ed to its consultations request .69  
7.35.   In order to resolve Morocco 's jurisdictional objection, we theref ore consider whether the 
claims under Articles  6.5 and 6.5.1 in the panel request evolved from the claim under Article  3.1 in 
the request for consultations, without expanding the scope of the dispute or changing its essence.  
In assessing whether a claim in  the panel request has evolved in such a manner , we examine all 
elements that form the basis of the complaint. In this regard, we consider  that "at the very least, 
some connection must exist between the claims set forth in the panel request and those ident ified 
in the request for consultations in terms of either the provisions cited, the obligation at issue or [the] 
issue in dispute, or the factual circumstances leading to the alleged violation".70 
7.36.   We first turn to a potential "connection" in terms of the pr ovisions  cited. The claims in 
Turkey 's panel request relate to Article  6. This article, titled "Evidence", sets out rules on evidence 
as well as procedural and due process rights of interested parties in anti -dumping investigations. In 
contrast, Article  3 is titled and concerned with the "Determination of Injury". The legal bases in the 
panel request and in the request for consultations thus concern entirely different provisions 
governing different aspects of anti -dumping investigations.  
7.37.   In respect of a "co nnection" in terms of the obligations at issue, Article  6.5 contains the 
requirement that any information which is by nature confidential or which is provided  on a 
                                                
63 Turkey's  response to Panel question No.  1.2(b), para.  16. 
64 Turkey's  opening statement at the second meeting of the Panel, para.  4.5. 
65 Turkey's  second written submission, paras.  2.23-2.24. 
66 Turkey's  second written submission, para.  2.21. 
67 Turkey's  response to Panel question No.  1.2(b), para.  17; see also opening statement at the 
first meeting of the Panel, para.  4.29. 
68 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 138. 
69 Appellate Body Report s, Mexico – Anti-Dumping Measures on Rice , para. 138; Argentina – Import 
Measures , para. 5.13. 
70 Panel Report, China – Broiler Products , para. 7.224 . The panels in EU – Biodiesel (Argentina) , 
paras.  7.48, 7.54, and 7.62; and China – Publications and Audiovisual Products , para.  7.122, relied on similar 
considerations. See also  Australia – Tobacco Plain Packaging , Preliminary ruling of the Panel , WT/DS458/18, 
para. 3.46 ( appeal of panel report pending ). WT/DS513/ R 
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  confidential basis shall be treated as confidential  upon good cause shown .71 According to 
Article  6.5.1, an investigating authority shall require interested parties providing confidential 
information to furnish non -confidential summaries thereof.72 Articles  6.5 and 6.5.1 thus relate to 
procedural  obligations concerning the treatment of confident ial information in anti -dumping 
investigations. In contrast, Article  3.1 concerns the obligation that a determination of injury shall be 
based on positive evidence and shall involve an objective examination of the volume and price effects 
of dumped imports  and their impact on the domestic industry. This provision establishes a 
substantive  obligation concerning the determination of injury. It follows that the obligations of the 
claims in the panel request and in the request for consultations are of different  nature and apply in 
respect of different actions of the investigating authority.  
7.38.   Turkey argues that the alleged violation of Articles  6.5 and 6.5.1 affects the "objective 
examination" under Article  3.1, thus resulting in a close connection between the cla ims. We disagree. 
The "objective examination" requirement of Article  3.1 concerns the investigative process. The term 
"examination" relates to the gathering and evaluation of evidence. This examination must be 
"objective" in that it is unbiased and "must c onform to the dictates of the basic principles of good 
faith and fundamental fairness".73 Treating information or evidence as confidential inconsistently 
with the requirements of Article  6.5 and 6.5.1 does not necessarily impinge on the gathering and 
evalua tion of that information or evidence. Regardless of an improper confidential treatment, an 
investigating authority may nevertheless examine that information or evidence in an unbiased 
manner. Therefore, an "objective examination" does not, without more, de pend on, nor is affected 
by, the treatment – whether proper or not – of information as confidential.  We are thus not convinced 
that Turkey has established , in this case, a "close connection"  between the obligations in Articles  6.5 
and 6.5.1 and the "object ive examination" obligation under Article  3.1. 
7.39.   Turkey also contends that the alleged improper treatment of the break -even threshold as 
confidential equates to the alleged failure "to provide a reasoned and adequate explanation of [the] 
finding of injury", challenged in the request for consultations. It queries: "how could the MDCCE 
have provided 'a reasoned and adequate expla nation ' for the 'establishment ' analysis if it unduly 
redacted critical information on the break -even threshold?"74  
7.40.   We consider that Turkey's position is in error for  several reasons. First, and fundamentally, 
the phrase  that Turkey relies upon in the requ est for consultations, referring to a failure to provide 
a "reasoned and adequate explanation" , is not , in itself , a legal basis from which the claims under 
Articles  6.5 and 6.5.1 could have evolved.  Second, t he full narrative of "adequate and reasoned 
explanation of [the] finding of  injury "75 makes clear that this phrase  relates to an aspect of the 
anti-dumping investigation that is removed from the claims under Articles  6.5 and 6.5.1. It  refers 
to the MDCCE 's explanation of the findings reached in the inju ry determination , be that in the 
preliminary or final determination . In contrast, the obligations under Articles  6.5 and 6.5.1 pertain 
to the treatment of confidential information by the MDCCE and the provision of a non -confidential 
summary of that informa tion by the interested parties in the investigation. They apply throughout 
the investigation, including  before  the investigating authority reaches its findings. Third, 
Turkey 's argument confuses the requirement for an investigating authority to give a "reason ed and 
adequate explanation " of its findings with the distinct issue of (proper) treatment  of information as 
confidential.  The requirement to give a reasoned and adequate explanation  pertains to the content 
of an explanation , and its adequacy and su fficiency , in respect of an investigating 
authority 's conclusions and determinations as set out in the  written report (and supporting 
documents).76 In reasonably and adequately explaining its conclusions and determinations, an 
investigating authority may need to rely on information that is confidential and that is therefore 
redacted in the public version of its written report.77 An improper  treatment of information as 
                                                
71 Article  6.5 also has a second sentence which is not relevant for present purposes.  
72 Article  6.5.1 also has additional sentences which are not relevant for present purposes.  
73 Appellate Body Report, US – Hot-Rolled Steel , para.  193. 
74 Turkey's  opening statement at the second mee ting of the Panel, para.  4.5. 
75 Emphasis added.  
76 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.255.  
77 Concerning the issue whether "the reasoning supporting the determination be 'formally or explicitly 
stated'  in document s in the record of the investigation to which interested parties (and/or their legal counsel) 
have access at least from the time of the final determination", the Appellate Body found that the requirements 
of Article  3.1 do " not imply that the determination  must be based only on reasoning or facts that were 
disclosed to, or discernible by, the parties to an anti -dumping investigation ". (Appellate Body Report, 
Thailand  – H-Beams , paras.  107 and 111 (emphasis original)). This situation differs from the issue w hether WT/DS513/ R 
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  confidential, and thus the redaction of this information in the explanations set out in the public 
version of the written report, does not in itself render the content of the explanations unreason ed 
or inadequate.  
7.41.   In any case, the failure to provide a "reasoned and adequate explanation" of the injury 
findings may be a basis to conclude that an in vestigating authority failed to comply with its 
substantive  obligations under Article  3. It does not, however, necessarily entail, or connect with, a 
violation of its procedural  obligation to accord proper confidential treatment under Articles  6.5 
and 6.5.1. 
7.42.   Turkey further argues that , in this instance, Articles  3.1, 6.5 , and 6.5.1 relate to the treatment 
of the same information , the break -even threshold,  such that the claims u nder Articles  6.5 and 6.5 .1 
evolved from the Article  3.1 claim. Turkey seems to suggest that the factual basis for the claims, 
the information at issue, is the same and that there is therefore a sufficient "connection" in terms of 
the underlying factual circumstances. Moreover, t he request for consultations took issue with the 
"injury  determination" which , as Turkey correctly points out, included  findings in respect  of the 
break -even threshold.  In our view, h owever, the factual basis of the Article  3.1 claim concerns the 
MDCCE 's analysis, including but not limited to the break -even threshold, undertaken in the 
substantive injury determination. In contrast, the factual basis of the claims under Articles  6.5 
and 6.5.1 relates to the MDCCE 's confidential treatment of the break -even threshold as a procedural 
step in the investigation ; it do es not concern the determination  of injury on the basis of the 
break -even threshold . The same evidence, here information in respect of the break -even threshold, 
may be relevant to the analyses of issues arising under distinct provisions. However, identical  
evidence does not in and of itself signify a sufficient connection between the factual circumstances 
that give rise to the alleged violations. We thus consider that the factual bases of the claims at issue 
are in fact different.  
7.43.   Turkey asserts that the claims at issue naturally evolved from Turkey 's injury claims "as, 
during consultations, the (important) role of the break -even threshold in the MDCCE 's injury 
determination became clear".78 A compla ining party may indeed come to know of additional 
informat ion during consultations – for example, it may  develop a better understanding of the 
operation of a challenged measure  – that could warrant revising the list  of treaty provisions with 
which the measure is alleged ly inconsistent.79 We limit our examination t o the text of the request 
for consultations without inquiring into the actual consultations that took place .80 Nevertheless, we 
observe that, in the facts of this case , Turkey would likely  have been aware of the break -even 
threshold 's significance and its c onfidential treatment by the MDCCE since the issuance of the 
preliminary determination on 30  October 2013 , in which the break -even threshold was redacted. 
This was long before consultations took place on 18 and 28 November 2016.  Turkey had no apparent 
reason not to include claims under Articles  6.5 and 6.5.1 in the request for consultations, if it took 
issue with the MDCCE 's confidential treatment of the break -even threshold.  
7.44.   In light of the above, the claims under Articles  6.5 and 6.5.1 in the panel request  are not 
sufficiently closely and clearly connected with the claim under Article  3.1 in the request for 
consultations.  Rather, these claims are distinct and unrelated in terms of the provisions, obligations , 
and factual circumstances at issue. Moreo ver, the additional claims under Articles  6.5 and 6.5.1 in 
fact modified the nature and substance of the dispute from one concerning the MDCCE 's compliance 
with the substantive disciplines on injury determination to one that also encompasses a challenge 
to the MDCCE 's procedural conduct.  
7.45.   As a consequence, Turkey in its panel request introduced new claims under Articles  6.5 
and 6.5.1 that expanded the scope of the dispute and changed its essence. Accordingly, these claims 
did not evolve  from the claim under Article  3.1 subject to consultations. The claims under Articles  6.5 
and 6.5.1 thus fall outside our terms of reference . 
                                                
reasoning or facts, not disclosed in the public report, even formed part of the contemporaneous investigation 
record. (Appellate Body Report, Russia – Commercial Vehicles , paras.  5.120 -5.145).  
78 Turkey's  response to Panel question No.  1.2(b), para.  17; see also opening statement at the 
first meeting of the Panel, para.  4.29. 
79 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 138. 
80 Appellate Body Report, US – Upland Cotton , para.  287. WT/DS513/ R 
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  7.2.1.3.3   Claim under Article  6.9 of the Anti -Dumping  Agreement  concerning the 
break -even threshold  
7.46.   At paragraph 4(c) of its panel request, Turkey  advanced a claim under Article  6.9 in respect 
of the alleged failure by the MDCCE to inform the Turkish interested parties of the essential facts 
concerning the break -even threshold used in finding that the domestic industry was not 
"established". Paragra ph 4(c) of the panel request reads:  
The Investigating Authority also acted inconsistently with Article  6.9 of the 
Anti-Dumping  Agreement  by failing properly to provide the "profitability threshold" used 
for its finding of material retardation of the establishment of the domestic industry, or 
alternatively a non -confidential summary of that information.  
7.47.   In the request for consultations, Tur key had not made this specific claim in relation to the 
break -even threshold. Paragraph 3 of the request for consultations provides:  
Disclosure of Essential Facts : The Moroccan authorities acted inconsistently with 
Article  6.9 of the Anti -Dumping  Agreement  by failing to disclose essential facts with 
respect to the decision to use facts available .81 
7.48.   Morocco argues that Turkey 's Article  6.9 claim concerning the break -even threshold in 
paragraph 4(c) of the panel request is outside the Panel 's terms of referenc e. It did not evolve from 
either the Article  6.9 claim in respect of facts available in paragraph 3, nor from the claims under 
Articles  3.1 and 3.4 in paragraph 4(a) of the request for consultations.82 According to Morocco, t he 
request for consultations con tains a claim under Article  6.9 that is limited to the disclosure of the 
essential facts pertaining to facts available. Also, the reference to Articles  3.1 and  3.4, or the failure 
to provide a "reasoned and adequate explanation"  in the request for consulta tions is overly generic  
and concerns obligations that are different from Article  6.9.83 
7.49.   Turkey argues that its Article  6.9 claim concerning the break -even threshold  evolved from the 
claim  in the request for consultations " that Morocco failed to provide a reasoned and adequate 
explanation of the injury determination ".84 
7.50.   The issue before us is whether Turkey 's Article  6.9 claim in respect of the break -even 
threshold evolved from a legal basis in the request for consultations, without expanding the scope 
of the dispute or changing its essence.  
7.51.   Turkey argues that "the claim under Article  6.9 is a natural evolution of … the claim [at 
paragraph 4(a)] in the consultations request that Morocco failed to provide a reasoned and adequate 
explanation of the injury deter mination".85 Turkey 's argument is problematic for the following 
reasons , which are in part similar to those already set out above at paragraph  7.40.   
7.52.   First, the ph rase referring to a failure to provide a "reasoned and adequate explanation" is 
not, in itself , a legal basis from which the Article  6.9 claim could have evolved.  Second , the obligation 
to inform all interested parties of the essential facts pursuant to Article  6.9 does not connect with 
the requirement  to provide a "reasoned and adequate explanation " of the investigating 
authority 's findings in its determinations . Article  6.9 concerns the MDCCE 's obligation to make 
available the essential facts , not any e xplanations of the findings, through a disclosure during the 
investigation "before  a final determination  is made ".86 In this context, Turkey also relies on the 
report s of the Appellate Body in China – HP-SSST (Japan) / China – HP-SSST (EU)  to argue that 
investigating authorities have an "overarching obligation" to provide a reasoned and adequate 
                                                
81 Emphasis original.  
82 See paragraph 7.5.  above.  
83 Morocco 's first written submission, paras.  31 and 35; responses to Panel question No.  1.1, para.  5, 
and No.  1.2(c), paras.  21-23; and second written submission, paras.  28-37. 
84 Turkey's  response to Panel question No.  1.2(c), para.  23; second written submission, para.  2.26; see 
also opening statements at the first meeting of the Panel, para.  4.29, and at the second meeting of the Panel, 
para. 4.6. 
85 Turkey's response to Panel question No.  1.2(c), para.  23. 
86 Emphasis added.  WT/DS513/ R 
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  explanation of their findings.87 Irrespective of whether such an "overarching obligation" exists, the 
Appellate Body in China – HP-SSST (Japan) / China – HP-SSST (EU)  referred to "the requirement 
that the investigating authority provide a 'reasoned and adequate ' explanation for its conclusions  … 
in its report on the determination" .88 Therefore, in any event, the Appellate Body was concerned 
with findings or conclusions  as set out in the "report on the determination" , not the disclosure of 
essential facts that are at issue here.89 Third,  paragraph 4(a) of  the request for consultations refers 
to the phrase of "reasoned and adequate explanation" in the context of  Turkey 's claims under 
Articles  3.1, 3.2, 3.4, and 3.5. None of these provisions, however, are related to the Article  6.9 
claim; and Turkey neither asserted, nor demonstrated that they are. They concern substantive 
obligations on the MDCCE in its injury and causatio n determination, not a procedural requirement  
that the MDCCE must observe in the investigative process , such as that under Article  6.9. 
7.53.   We therefore find that Turkey 's Article  6.9 claim concerning the break -even threshold could 
not, and did not evolve from  the reference in the request for consultation to the alleged failure to 
provide a "reasoned and adequate explanation" of the injury determination.  
7.54.   Further, although not elaborated by Turkey, we consider whether an "evolution" took place 
from the Article  6.9 claim that Turkey set forth at paragraph 3 of its request for consultations.90 At 
paragraph 3, Turkey claimed that the MDCCE violated Article  6.9 "by failing to disclose essential 
facts with respect to the decision to use facts available". Here, Turkey linked its Article  6.9 claim 
specifically to essential facts in respect of facts available. Paragraph 3, including its reference to 
facts available, must also be read in the context of paragraph 2 of the request for consultations that  
concerns the use of f acts available in the determination of dumping margins. In the request for 
consultations, Turkey thus narrowed the scope of its Article  6.9 claim to specific essential facts 
(concerning facts available) in respect of a specific aspect of the determination (the determination 
of the dumping margin).  It did not frame this claim more generally as relating to a wider set of 
essential facts, for example by tracking more closely the language of Article  6.9 ("essential facts 
under consideration which form the basis  for the decision whether to apply definitive measures" ). 
7.55.   Although concerning the same provision and obligation, the additional Article  6.9 claim in the 
panel request relates to  different essential facts (concerning the break -even threshold) in respect of 
a different aspect of the determination (the injury determination) . The Article  6.9 claims therefore 
concerned different factual bases. Nothing in the Article  6.9 claim in the request for consultations 
pointed to the factual basis of the subsequently added  Article  6.9 claim. If anything, the very specific 
formulation  of the Article  6.9 claim in the request for consultations may have led Morocco to assume 
in good faith that the essential facts concerning other aspects of the determination were not at issue. 
In contrast, Turkey formulated other claims in its request for consultations very broadly. For 
instance, the claims under Articles  3.1, 3.2, 3.4, and 3.5 only referred to the alleged failure to 
provide a "reasoned and adequate explanation" of the injury an d causation findings.  
7.56.   That said, we also consider that the "new" Article  6.9 claim modified the nature of the dispute. 
It went beyond the matter circumscribed in the request for consultations (essential facts in respect 
of facts available in the context of  the determination of the margin of dumping) and added the 
distinct issue of the essential facts concerning the break -even threshold in the context of the injury 
determination.  
7.57.   In light of the express limitation of Turkey 's Article  6.9 claim in the request  for consultations 
to facts available  in respect of the dumping margin determination , and absent a ny arguments 
advanced by Turkey , we therefore find that the Article  6.9 claim in respect of the break -even 
threshold cannot be based on paragraph 3 of the req uest for consultations, nor has evolve d from 
the legal basis in that paragraph , without expanding the scope of the dispute or changing its essence . 
                                                
87 Turkey's  second written submission, paras.  2.27-2.28 (referring to Appellate Body Reports, China – 
HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.255).  
88 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.255.  
89 Article  6.9 concerns the disclosure , before a final determination is made,  of the essential facts under 
consideration which form the basis for the decision whether to apply definitive measures . It is not concerned 
with informing interested parties of the ultimate findings or conclusions.  
90 It is well established that panels are authorized, and even required, to address and resolve 
jurisdictional issues, if necessary on their own motion (see, e.g . Appellate Body Report, Mexico – Corn Syrup 
(Article  21.5 – US), para.  36). WT/DS513/ R 
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  7.58.   In addition to the above, Turkey  repeats the argument  that it became aware of the 
circumstances underlying t he Article  6.9 claim  during consultations .91 For the same reason set out 
above92, we do not find Turkey 's assertion credible. Moreover, Turkey must have been aware of the 
alleged failure to disclose the break -even threshold in the disclosure since the disclosure was made 
on 20 June 2014.  
7.59.   In light of the foregoing, Turkey 's Article  6.9 claim concerning the alleged failure to inform all 
interested parties of the break -even threshold falls outside our terms of referenc e. 
7.2.1.4   Claim under Article  VI:6(a) of the GATT 1994  
7.60.   Morocco asserts that Turkey 's claim of inconsistency with Article  VI:6(a) of the GATT 1994 
concerning the MDCCE 's finding of "establishment" of the domestic industry falls outside the 
Panel 's terms of referen ce because the request for consultations did not give an "indication of the 
legal basis" in respect of this claim. It also contends that therefore this claim could not have evolved 
from the request for consultations.93 
7.61.   Turkey argues that its claim under Article VI:6(a) is within the Panel 's terms of reference. The 
references to Articles  3.1 and 3.4 in the request for consultations entail a reference to Article  VI:6(a) 
of the GATT 1994. The Article  VI:6(a) claim also did not expand the scope, or change the es sence, 
of Turkey 's injury claims.94 
7.62.   We do not, however, consider it necessary to resolve Morocco 's jurisdictional objection. We 
decline to make findings regarding Turkey 's Article  VI:6(a) claim for procedural reaso ns. 
Paragraph  6 of the Panel 's Working Procedures requires that:  
Before the first substantive meeting of the Panel with the parties, each party shall 
submit a  written submission in which it  presents the facts of the case and its arguments, 
in accordance with the timetable adopted by the Panel.95 
7.63.   It is pertinent to recall the procedural history in respect of Turkey 's claim under 
Article  VI:6(a):  
a. At paragraph 4(a), the panel request set out a claim under Article  VI:6(a) in respect of 
the MDCCE 's findings of "establishment" and "material retardation ". 
b. In its first written submission, Turkey did not mention any claim of inconsistency under 
Article  VI:6(a).  
c. Likewise , Turkey did not advance any claim under Article  VI:6(a) in its opening or closing 
statements of the first substantive meeting, or in i ts oral responses to the Panel during 
this meeting.  
d. Following the first substantive meeting, the Panel issued written questions to th e parties. 
In response, Turkey  for the first time alleged a violation of Article  VI:6(a)  in addition to its 
claims under footno te 9 and Article  3.1.96 
7.64.   In this instance, Turkey asserted its claim under Article  VI:6(a) only in response to our written 
questions. It articulated this claim only after the parties had provided us with written submissions, 
had attended a substantive meetin g and orally responded to the same questions which later 
prompted Turkey in its written reply to advance an Article  VI:6(a) claim. A statement of claim made 
so late in the proceedings does not comply with the due process requirement of paragraph 6 of our 
Working Procedures . Similarly,  the Appellate Body in EC – Fasteners (China)  found that "[w] e do 
not find  that assertions made so late in the proceedings, and only in response to questioning by the 
                                                
91 Turkey's  response to Panel question No.  1.2(c), para.  23. 
92 See above para.  7.43.   
93 Morocco's  second written submission, paras.  24-27. 
94 Turkey's  opening statement at the second meeting of the Panel, para.  4.4. 
95 Working Procedures of the Panel, adopted on 22 August 2017, Annex A -1. 
96 Turkey's  responses to Panel question No.  4.3(a), para.  92, and No.  4.3(b), para.  93. WT/DS513/ R 
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  Panel, c an comply with either Rule 4  of the Panel 's Working Procedures, or the requirements of due 
process of law ".97  
7.65.   For procedural grounds, we therefore decline to rule on Turkey 's Article  VI:6(a) claim, and  we 
will neither consider it further nor resolve it.  
7.2.2   Conclusion  
7.66.   For the reasons stated above, we conclude t hat the claims under Articles  3.1 and 3.4 in 
respect of the MDCCE 's findings of "establishment", "material retardation" , and the injury factors 
are within  our terms of reference. The following claims fall outside  our terms of reference:  
a. the claim under foo tnote 9 to Article  3 in respect of the MDCCE 's finding  of 
"establishment "; 
b. the claims under Articles  6.5 and 6.5.1  in respect of the confidential treatment of the 
domestic industry 's (Maghreb Steel) break -even threshold ; and  
c. the claim under Article  6.9 in respect of the alleged failure to disclose the domestic 
industry 's (Maghreb Steel) break -even threshold . 
7.67.   For procedural reasons, we decline to rule on the claim under Article  VI:6(a) of the GATT  1994 
in respect of the MDCCE 's finding  of "establishme nt". 
7.3  Article  5.10 of the Anti -Dumping  Agreement : The MDCCE 's conclusion of the 
investigation beyond 18 months  after initiation  
7.68.   The MDCCE concluded the underlying investigation in 18 months and 22 days after its 
initiation. Turkey claims that, in concluding  the investigation in more than 18 months, the MDCCE 
exceeded the maximum time  limit permissible for conclusion of investigations under Article  5.10 of 
the Anti -Dumping  Agreement , and therefore acted inconsistently with that provision.98  
7.3.1   Provision at issue  
7.69.   Article  5.10 provides:  
Investigations shall, except in special circumstances, be concluded within one year, and 
in no case more than 18 months, after their initiation.  
7.3.2   Evaluation  
7.70.   The MDCCE initiated the underlying investigation on 21 Janua ry 2013, and concluded it on 
12 August 2014, that is, 18 months and 22 days after initiation.99 Turkey claims that the MDCCE 
acted inconsistently with Article  5.10 of the Anti -Dumping  Agreement  because the MDCCE failed to 
conclude the underlying investigation within the  18-month maximum time limit  permissible under 
that provision, having exceeded that time limit  by 22 days.100 Morocco does not dispute that the 
                                                
97 Appellate Body Report, EC – Fasteners (China) , para.  574 (Rule 4  of the p anel's Working Procedures  
in that case is essentially equivalent to paragraph 6 of our Working Procedures ). Panels have also declined to 
rule on claims that were not advanced in accordance with the equivalent to paragraph 6 of the Panel's  Working 
Procedures. ( Panel Reports, EU – Biodiesel (Indonesia) , para. 7.141; US – Washing Machines , 
paras.  7.82-7.84).  
98 Turkey also claims that the MDCCE acted inconsistently with Article  5.10 of the 
Anti-Dumping  Agreement because it exceeded by 6 months and 22 days the 12 -month deadline set out under 
that provision for concluding the underlying investi gation, without identifying any special circumstances that 
justified that extension. (Turkey's  first written submission, paras.  5.19-5.20). We note, however, that 
Turkey's  panel request does not include that claim. Further, Turkey does not request us to ma ke a finding in 
regard to that claim. We will therefore not address that claim in these proceedings.  
99 Notice of initiation, (Exhibit TUR -1); Public notice of the final determination, (Exhibit TUR -12); and 
Letter dated 18 August 2014 from the MDCCE to the Government of Turkey , (Exhibit TUR -18). 
100 Turkey's  first written submission, paras.  5.10 and 5.19 -5.20; opening statement at the first meeting 
of the Panel , para.  2.1; and second written submission, para.  3.2. WT/DS513/ R 
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  MDCCE exceeded the 18 -month deadline for the conclusion of an anti -dumping investigation set out 
in Article  5.10, but contends that Article 5.10 should be interpreted flexibly and should not be 
understood as establishing a rigid 18 -month deadline .101  
7.71.   We must therefore evaluate whether, in concluding the underlying investigation 22 days after 
the maximum permissible time limit  of 18 months under Article  5.10, the MDCCE acted inconsistently 
with that provision.  
7.72.   We note that Article  5.10 states that investigations shall "in no case" be concluded in more 
than 18 months. The words "in no case" make it clear that an investig ating authority may not, in 
any case, conclude its investigation in more than 18 months, and therefore, allow for no exceptions 
in adherence to this time limit . Further, we note that our reading of Article  5.10 is consistent with 
that of the Appellate Body  and past panels. The Appellate Body has indicated that the time limit s for 
concluding investigations set out in Article  5.10 are "mandated" under the Anti -Dumping  Agreement , 
while a previous panel has found that these time limit s are " strict".102 In particu lar, one past panel 
considered that Article  11.11 of the  Agreement  on Subsidies and Countervailing Measures  
(SCM  Agreement ), which  carries an obligation regarding conclusion of subsidies investigations that 
is identical to the one pertaining to anti -dumping investigations in  Article  5.10 of the 
Anti-Dumping  Agreement , does not permit prolonging the 18-month time limit  under any 
circumstances.103  
7.73.   Morocco however, draws our attention to language used  in certain "other contexts" of the 
WTO Agreement s whic h is similar to that in Article  5.10 of the Anti -Dumping  Agreement .104 Morocco 
contends, in particular, that the language on deadlines for concluding appellate proceedings in 
Articles  17.5 of the DSU, and panel proceedings in Articles  12.8 and 12.9 of the DS U, is similar to 
that in Article  5.10, and yet the Appellate Body and panels have "interpreted" those DSU provisions 
so as to allow them to exceed those deadlines.105 Morocco argues that the same flexibility with which 
the time  frames for concluding Appellat e Body and panel proceedings have been interpreted, must 
apply to interpreting the time  frame under Article  5.10. Turkey contends, in response, that 
Articles  17.5, 12.8 , and 12.9 of the DSU carry obligations which are different from those in 
Article  5.10, and are therefore irrelevant for interpreting Article  5.10. Turkey, agreeing with the 
European Union 's views, argues that the DSU provisions in quest ion impose deadlines on the 
WTO bodies, rather than on individual WTO Members , with a view to contributing to the prompt 
resolution of disputes. Article  5.10, in contrast, imposes obligations on investigating authorities to 
protect the rights of other Members ' exporters.106 Morocco dismisses these differences as being 
"artificial", contending that WTO disputes to o are initiated to secure the rights of exporters, and like 
anti-dumping investigations, involve competing interests and are subject to similar due process 
considerations.107 
7.74.   We consider that the DSU provisions that Morocco cites cannot serve as context for 
interpreting Article  5.10 of the Anti -Dumping  Agreement . Morocco, notably, itself refers to these 
DSU provisions as appearing in "other contexts" of the WTO  Agreement s.108 In particular, we agree 
with Turkey and the European Union that the DSU provisions in question impose deadlines on the 
WTO bodies, rather than on individual WTO Members , with a view to contributing to the prompt 
resolution of disputes, whereas Article  5.10 imposes obligations on investigating authorities to 
protect the rights of other Members ' exporters. As Turkey argues, the conduct of the WTO dispute 
settlement proceedings, including the time  frame for concluding them, is subject to the supervision 
of the DSB .109 The conduct of national anti -dumping investigations, in contrast, is not. We  agree 
with Turkey that , in such a situation, it cannot be envisaged that  investigating authorities conducting 
anti-dumping investigations would be permitted to  "unilateral ly deprive exporters of their rights".110 
                                                
101 Morocco's  first written submission, para.  48. 
102 Appellate Body Report, US – Hot-Rolled Steel , para. 73; Panel Report, US – Softwood Lumber V , 
para. 7.333.  
103 Panel Report, Mexico – Olive Oil , paras.  7.121 and 7.123.  
104 Morocco's  first written submission, paras.  44-45. 
105 Morocco's  first written submiss ion, paras.  44-46. 
106 Turkey's  second written submission, para.  3.4 (referring to European Union's  third-party submission, 
para. 10). 
107 Morocco's  second written submission, para.  210. 
108 Morocco's  first written submission, paras.  44-45. 
109 Turkey's  second wri tten submission, para.  3.4. 
110 Turkey's  second written submission, para.  3.4. WT/DS513/ R 
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  Interpreting  the 18-month time limit  in Article  5.10 as a flexible  time limit , as Morocco considers the 
Panel should do, would mean that an investigating authority could, in principle, indefinitely delay an 
investiga tion, leaving exporters, whose commercial decisions depend on the outcome of the 
investigation, without any recourse in WTO law. We consider that such an interpretation is 
inconceivable under Article  5.10. The text of that provision  leaves no room for flex ibility in the strict 
obligation to adhere to the 18 -month time limit and , in so doing, preserves predictability for the 
interested parties in an investigation . We therefore reject Morocco 's argument for interpreting the 
time limit  under Article  5.10, in l ight of the DSU provisions, which operate in an altogether different 
context.  
7.75.   Moreover, although Morocco asks us to interpret Article  5.10 in light of the DSU provisions , it 
is, effectively, asking us to do so in view of WTO dispute settlement practice . Morocco refers not to 
any formal interpretation of these provisions by the Appellate Body or panels, but to cases where 
the Appellate Body and the panels have exceeded the time limit s set out in the relevant DSU 
provisions.111 In our view,  there is no case  for importing into the adherence of the time limit  under 
Article  5.10 flexibility from WTO dispute settlement practice, which as stated above , is subject to 
DSB supervision.  
7.76.   Morocco further argues that the delay in concluding the investigation beyond 18 months from 
its initiation resulted from the MDCCE 's decision to grant interested parties ' requests for additional 
time for their submissions or additional meetings as well as the MDCCE 's need to review additional 
information that t he respondents allegedly  submitted "very late" in the investigation.112 Turkey 
rejects  this argument, contending that the strict time limit s in Article  5.10 circumscribe any 
extension that the investigating authority may accord  to interested parties. In this regard, it cites 
the pa nel's finding in Mexico – Olive Oil  that there is "no basis  … to prolong an investigation beyond 
18 months for any reason, including requests from interested parties".113 Turkey further argues that 
the MDCCE 's alleged need for additional time to analyse information that the interested parties 
submitted in their comments to the draft final determination does not justify the delay in concluding 
the investigation, as the MDCCE itself allowed only a month before the end of the 18 -month deadline 
for its own re view of those comments.114  
7.77.   We note that the panel in Mexico – Olive Oil  clearly found that requests from interested parties 
during the investigation proceedings did not justify a delay beyond 18 months in concluding the 
investigation .115 We agree. In Mexico – Olive Oil , similar to the case at hand, the respondent had 
argued before the panel that the delay in concluding the investigation was justified by requests  for 
extension  from interested parties , and additional information that the investigating authority 
considered interested parties had submitted at allege dly "late" stages in the investigation.116 In our 
view, an investigating authority may consider such requests from interested parties as part of its 
due process obligations under Article  6 of the Anti -Dump ing Agreement ; however, as the Appellate 
Body has recognized, the investigating authority 's need to "'control the conduct ' of its inquiry and 
to 'carry out the multiple steps ' required to reach a timely completion " of the proceeding 
circumscribes its due p rocess obligations.117 The Appellate Body noted, in particular, that Article  5.10 
"requires" that investigations be completed in no more than 18 months, and that consonant with 
that requirement, Article  6.14 of the Anti -Dumping  Agreement  states  that none of the procedures 
set out under Article  6 is intended "to prevent the authorities of a Member from proceeding 
expeditiously" in reaching their determinations.118 Therefore, we consider that an investigating 
authority must  plan and conduct its investigation in such a way that it will  conclude the investigation 
within the time limit s set out in Article  5.10. In doing so, the investigating authority must, throughout 
the investigation, balance the interested parties ' due proce ss interests with the need to control and 
expedite the investigating process.119 More specifically, an investigating authority has the obligation, 
                                                
111 Morocco's  first written submission, fns 34 -35. 
112 Morocco 's opening statement at the first meeting of the Panel, para. 13. 
113 Turkey 's opening statement at the first meeting of th e Panel, para. 2.4 (quoting  Panel Report, 
Mexico  – Olive Oil , para. 7.121) . 
114 Turkey 's opening statement at the first meeting of the Panel, para. 2.5. 
115 Panel Report, Mexico – Olive Oil , para. 7.121.  
116 Panel Report, Mexico – Olive Oil , para. 7.119.  
117 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 282 (quoting Appellate Body 
Report, US – Oil Country Tubular Goods Sunset Reviews , para.  242, quoting in turn Appellate Body Report, 
US – Hot-Rolled Steel , para.  73, quoting in turn Pane l Report, US – Hot-Rolled Steel , para.  7.54).  
118 Appellate Body Report, EC – Fasteners (China) , para. 611. 
119 Appellate Body Report s, China – HP-SSST ( Japan ) / China – HP-SSST ( EU), para. 5.74. WT/DS513/ R 
BCI de leted, as indicated [[***]]  
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  as Turkey argues, to balance the granting of requests for additional time with the strict obligation 
to conclud e the investigation within the maximum time limit .120 Similarly, an investigating authority 
must plan the receipt of submissions from interested parties in such a way that while it has sufficient 
time to review the information submitted by the respondents, t hat period for review does not cause 
it to exceed the 18-month maximum time limit  for concluding the investigation.  
7.78.   Considering the text of Article  5.10, which, as past panels have confirmed, clearly allows for 
no exceptions in adherence to the 18-month time limit , as well as the Appellate Body 's recognition 
of the mandatory nature of obligations in that provision, we take the view that requests from 
interested parties in the underlying investigation did not justify a delay  in concluding the 
investigation beyond 18 months after initiation. We therefore find that the MDCCE acted 
inconsistently with Article  5.10 in exceeding that time limit .   
7.4  Article  6.8 of the Anti -Dumping  Agreement  and paragr aphs 1, 3, 5, 6, and 7 of 
Annex  II: Facts available in respect of  the investigated Turkish producers  
7.79.   Turkey 's claims under Article  6.8 of the Anti -Dumping  Agreement  and paragraphs 1, 3, 5, 6, 
and 7 of Annex II concern the MDCCE 's use of facts available in establishing the margins of dumping 
for the two investigated Turk ish producers, Erdemir Group and Colakoglu ( the producers ). 
7.4.1   Factual background  
7.80.   On 29 October 2013, the MDCCE imposed provisional anti -dumping duties on imports of 
hot-rolled steel from Turkey. It assigned a 0% provisional duty rate to subject imports from the 
two producers. In the preliminary determination, the MDCCE calculated their margins of dumping 
using their reported information, without resort to facts available.  
7.81.   In an email of 31 December 2013  sent to Erdemir Group , but not to Colakoglu , the MDCCE 
indicated that the producers had reported 18,800 ton nes of export sales to Morocco for the period 
of investigation, while Moroccan import statistics registered 29,000 ton nes of imports from Turkey 
for that period .121 In that email, the MDCCE identified five traders  not reported by the producers and 
asked Erdemir Group to provide clarification in respect of them and the origin of their exports. In 
response, Erdemir Group explained that it did not have any information in respect of these traders  
as they were no t customers of Erdemir Group for the subject product.122 
7.82.   At a public hearing on 4 February 2014, the Turkish Steel Exporters ' Association (CIB)  
addressed the issue of the discrepancy in export sales of approximately 10,000 ton nes. As reiterated 
in its letter  of 6 March 2014 to the MDCCE, the CIB confirmed that the two producers were the sole 
exporters to Morocco during the period of investigation and that Turkish exports to Morocco did not 
exceed 19,000 ton nes as reported by the producers.  
7.83.   The MDCCE did not p ursue th e matter of the disc repancy of approximately 10,000  tonnes 
further with either of the producers .123 In particular,  it did not investigate  the alleged discrepancy 
during its verification visits at the producers in March and April 2014.  
7.84.   In the draft fi nal determination124 issued on 20 June 2014 , the MDCCE , however,  referred to 
the discrepancy of "approximately 10,000 ton nes".125 It explained that a review of detailed evidence 
indicated that unreported export sales from Turkey had been made through third -party traders and 
that movement certificates (certificates of origin) established that these sales originated from the 
two producers. The producers had therefore failed to report the entirety of their export sales to 
                                                
120 Turkey's  second written submission, para.  3.6. 
121 Correspondence Dec ember  2013-January 2014, (Exhibit TUR -25). 
122 Addendum to questionnaire response, (Exhibit TUR -26 (BCI)), p.  5. 
123 In its final determination, the MDCCE refers to a visit to a "public institution", which Morocco 
identified as the Moroccan C ustoms, following the issuance of the preliminary determination. During this visit, 
the MDCCE obtained sales information concerning the allegedly missing 10,000 tonnes. (Final determination, 
(Exhibit TUR -11), paras. 21 and 56). The MDCCE indicated that it relied on this sales information, comprising 
customs and commercial documents, to consider that the allegedly missing export sales originated from the 
Turkish producers. (Final determination, (Exhibit TUR -11), para. 57).  
124 Through the draft final determina tion, the MDCCE purported to disclose  the essential facts to the  
producers.  
125 Draft final determination, (Exhibit TUR -10), para.  51. WT/DS513/ R 
BCI deleted, as indicated [[***]]  
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  Morocco. For this reason, the MDCCE rej ected all of the producers ' reported information and 
established the ir margins of dumping using the petition rate of 11%  as facts available .126 
7.85.   On 24 June 2014, the two producers asked the MDCCE to provide the underlying documents 
on which the MDCCE based its finding that the producers had failed to report the entirety of their 
export sales. On 7 July 2014, the MDCCE provided them with redacted co pies of movement 
certificates and commercial invoices .127 In the MDCCE 's view, these documents established that the 
allegedly missing export sales originated from the producers . The volume of the transactions for 
which the MDCCE provided these documents amou nted to [[ ***]] tonnes. The MDCCE did not 
provide any information in respect of any other allegedly unreported export sales, in particular in 
respect of the remainder of the approximately 10,000 ton nes. 
7.86.   Within the deadline for disclosure comments on 11 Jul y 2014 , the producers  submitted 
movement certificates, customs invoices and commercial invoices that, in their view, demonstrated 
that they had reported the [[ ***]] tonnes of allegedly unreported export sales in their original 
questionnaire responses .128 
7.87.   In the final determination, the MDCCE repeated the findings set out in the draft final 
determination. It also found that the information provided by the producers  as part of their disclosure 
comments did not allow it to clearly establish whether or not the re levant export sales had been 
reported by the producers. Faced with "doubt and uncertainty" on this issue, the MDCCE maintained 
its decision to use facts available.129 
7.4.2   Provision at issue  
7.88.   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 t he facts available. The provisions of Annex II shall be observed 
in the application of this paragraph.  
7.4.3   Evaluation  
7.89.   Turkey advances claims of inconsistency under Article  6.8 and paragraphs 1, 3, 5, 6, and 7 
of Annex II. We first address Turkey 's claim under Article  6.8, and then turn to Turkey 's remaining 
Annex II claims.  
7.4.3.1   Claim under Article  6.8 of the Anti -Dumping  Agreement  
7.90.   Article  6.8 allows for the use of facts available when an interested party refuses access to, or 
otherwise does not provide, necessary i nformation within a reasonable period , or significantly 
impedes the investigation . The present claim concerns an alleged failure by the two producers to 
provide certain necessary information in the form of export sales. The main issue in dispute is 
whether  or not the MDCCE properly established that the two producers had failed to provide any 
such information.  
7.91.   In order to resort to facts available as a result of a failure by the producers to report certain 
export sales, the MDCCE was required to determine af firmatively that these producers had in fact 
failed to report the relevant export sales. In the draft final determination, the MDCCE made such a 
determination.130 However, in light of the additional evidence provided by the producers, it did not 
maintain tha t determination  in the final determination. Rather, in the final determination, the MDCCE 
stated that the explanations and evidence provided by the producers did "not allow  [the MDCCE]  to 
                                                
126 Draft final determination, (Exhibit TUR -10), paras.  51-58. 
127 Correspondence with customs and commercial documents from Er demir Group , (Exhibit TUR -29 
(BCI)); Correspondence with customs and commercial documents  from Colakoglu , (Exhibit  TUR-30 (BCI)).  
128 Erdemir  Group's  comments on the draft final determination, (Exhibit TUR -19 (BCI)); 
Colakoglu 's comments on the draft final determination, (Exhibit TUR -20 (BCI)).  
129 Final determination, (Exhibit TUR -11), paras.  59-61. 
130 Draft final determination, (Exhibit TUR -10), para.  56. WT/DS513/ R 
BCI de leted, as indicated [[***]]  
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  clearly establish" whether or not the producers had reported the exp ort sales at issue . The MDCCE 
referred to "doubt and uncertainty" in this regard .131 The MDCCE thus did not affirmatively determine 
that the producers had in fact failed to report particular export sales. As Morocco stated,  "[t]he 
[MDCCE ] could not rule out  that the respondent companies had underreported their sales" and 
"therefore decided to maintain its conclusion to resort to facts available".132 Without an y affirmative 
determination that the producers had in fact failed to report the necessary information,  the MDCCE 
lacked a proper basis for recourse  to facts available.  
7.92.   In our view, the MDCCE 's inability to make an affirmative determination of under -reporting 
by the producers results from the MDCCE 's failure to engage meaningfully with the producers on 
this issue. In this regard, w e recall that the investigating authority and the interested party from 
whom information is requested must cooperate; such cooperation is a "two -way process involving 
joint effort".133 Failure by an interested party to cooperate only  gives rise to the consequences 
envisaged by Article  6.8 if the investigating authority itself acted in a reasonable, objective, and 
impartial manner.134 Thus, where an investigating authority has legitimate concerns regarding the 
information provided, it mu st take reasonable steps to investigate and clarify.135 This is reflected in 
the Anti -Dumping  Agreement  itself. For example, under paragraph 3 of Annex  II, an investigating 
authority must seek to determine whether this information is verifiable  before reject ing submitted 
information, be that through on -the-spot verification s, further requests for information or other 
means.136 Pursuant to paragraph  6 of Annex II , if the investigating authority rejects evidence or 
information, it should inform the supplying inte rested party forthwith, give an opportunity to provide 
further explanations and consider those explanations.  
7.93.   In this case, "in the preliminary phase of the investigation"137 the MDCCE identified a 
discrepancy of approximately  10,000 ton nes and, in December 2 013, sought additional information 
in respect of unreported third -party traders from Erdemir Group – but not from Colakoglu. Erdemir 
Group stated that it could not provide any additional information as these traders were not its 
customers . The MDCCE did no t pursue this matter further  with Erdemir Grou p. According to Morocco, 
in a public hearing on 4  February 2014, the CIB "clarified that no other Turkish producers had 
exported to Morocco during the period of investigation. From this statement, the [MDCCE ] 
understood that the missing sales could only originate from Erdemir Group and from Colakoglu".138 
Thus, since the public hearing on 4  February 2014, and well before verifications at the producers 
took place, the MDCCE "understood" that the discrepancy arose  from unreported export sales of the 
producers. The MDCCE conducted verifications at the producers between 31  March and 4  April 2014. 
Nothing in the verification reports indicates, and Morocco does not contend, that the MDCCE pursued 
the issue of the discr epancy during those verifications.139 Nor did the MDCCE engage in any other 
way with the producers on this issue.  Instead, in its  draft final determination o f 20 June 2014, the 
MDCCE inform ed the producers that it would apply facts available because  they had  failed to  report  
certain  export sales . The MDCCE issued its draft final determination without indicating to the 
producers which export sales it considered that they had failed to report. It was only after the 
producers asked for clarification in this rega rd that the MDCCE provided documentary evidence 
identifying  [[***]] ton nes of sales that the producers had allegedly failed to report . The producers 
responded with documentary evidence of their own to argue that such sales had in fact been 
reported.  
7.94.   Morocc o contends  that the MDCCE did not need to, and could not, address the issue of the 
discrepancy during verification at the producers.  It suggests that verifications are limited to verifying 
                                                
131 Final determination,  (Exhibit TUR -11), paras.  60-61. 
132 Morocco 's opening statement at the first meeting  of the Panel , para. 25. (emphasis added)  
133 Appellate Body Report, US – Hot-Rolled Steel , para.  104. 
134 Panel Report, Guatemala – Cement II , para.  8.251.  
135 We recall that "in conducting its investigation, an investigating authority 'must actively seek out 
pertinent information'  and may not remain 'passive in the face of possible shortcomings in the evidence 
submitted'". ( Appellate Body Report, EU – PET (Pakistan) , para.  5.130 (referring to Appellate Body Report, 
US – Washing Machines , para. 5.268 , quoting  in turn  Appellate Body Report, US – Wheat Gluten , paras.  53 
and 55, which refers to Appellate Body Reports, US ‒ Corrosion -Resistant Steel Sunset Review , para. 199; 
US – Anti-Dumping and Countervailing Duties (China) , para. 344; and Panel Report, China – Broiler Products , 
para. 7.261) ). 
136 Panel Reports, US – Steel Plate , para. 7.71;  EC – Salmon (Norway) , paras.  7.358 -7.360 . 
137 Morocco's  first written submission, paras.  82 and 96.  
138 Morocco 's opening statement at the first meeting  of the Panel , para. 21. (fn  omitted)  
139 Verification Report for Erdermir Group /Isdemir, (Exhibit TUR -8 (BCI)); Verification Report for 
Colakoglu , (Exhibit TUR -9 (BCI)).  WT/DS513/ R 
BCI deleted, as indicated [[***]]  
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  submitted information and do not extend to collect ing new informati on.140 Moreover, "[t]o require 
an investigating authority to examine the omission of information in verification would unreasonably 
expand the scope of verification to essentially proving any negative".141 We disagree.  According to 
paragraph 7 of Annex I of the Anti -Dumping  Agreement, the main purpose of verifications is also 
"to obtain further details".  This provision also envisages that there may be "further information which 
needs to be provided" during verification.  Verifications are therefore not limited  to verifying 
previously reported information.142 Moreover, the MDCCE itself considered the purpose of its 
verifications to encompass verifying the completeness of the reported export sales data 
("exhaustivité des données") which belies Morocco's argument.143 
7.95.   Further, in Morocco's view, in order to clarify the issue of the missing export sales, and to 
verify the information or documents submitted by the producers, the MDCCE would have needed to 
conduct verifications at the third -party traders through whom these  sales were made.  On at least  
11 occasions in these proceedings , Morocco asserts that  the MDCCE could not conduct such 
verifications because these third -party traders did not participate in the investigation . In doing so, 
Morocco does not even once refer t o the record of the investigation where the MDCCE set out this 
specific consideration.144 In fact, nowhere in its findings did the MDCCE consider that it could neither 
resolve the issue of the discrepancy, nor verify the information from the producers becaus e it could 
not conduct verifications at third -party traders.  Morocco's argument is thus an impermissible ex post  
explanation that we do not accept . Moreover, considering that the allegation concerns additional 
unreported sales of the producers, we agree wi th Turkey that:  
Whether some of the sales were indeed unreported could easily have been determined 
by checking the reported sales quantities and values against the companies' accounting 
documents. This is not an open -ended exercise. Instead, it is the firs t and most basic 
step in verifying an exporter's database.145 
In any case, without any basis to properly determine that the two producers had themselves failed 
to report any export sales, the MDCCE could not have reasonably applied facts available as a result 
of the MDCCE's inability to verify export sales informatio n at third-party traders.  
7.96.   Morocco argues that the movement certificates and commercial invoices  provided by the 
producers  in response to the draft final determination  were different from those relied upon by the 
MDCCE and thus, in the MDCCE 's view, did not  sufficiently establish that the allegedly missing export 
sales had been reported.146 In these proceedings, Morocco pointed to a certain  number of alleged 
differences between the set of documents of the producers, on the one hand, and that of the MDCCE, 
on the other hand.147 
7.97.   We do not exclude that  certain  differences  alluded to by Morocco might have called  into 
question the explanations and evidence provided by the producers.  However,  the MDCCE 's final 
determination  does not refer to any such differences .148 Nor is there any indication  in the final 
                                                
140 Morocco's response to Panel question No. 7.5, para. 18.  
141 Morocco's response to Panel question No. 7.5, para. 18.  
142 Morocco's position implies that at verification an investigating authority could simply seek to confirm 
the information that  an interested party had previously  furnished, even in case when the investigating 
authority has a concrete suspicion of under -reporting by that interested party. This, however, would strike us 
as incompatible with the fundamental task of an investigating authority to "investigate".  
143 According to Morocco, the "exhaustivité des données" referred only to the data set provided by the 
producers and did not concern whether the entirety of sales data had been reported. Morocco's argument is 
entirely implausible and contradicted by the MDCCE' s inquiry in this context, e.g.  into stocks and production . 
(Verification Report for Erdermir Group /Isdemir,  (Exhibit TUR -8 (BCI) ), p. 3 ; Verification Report for Colakoglu , 
(Exhibit  TUR-9 (BCI) ), p. 5 ). 
144 Morocco's first written submission, paras. 70, 85, 108, and 115; responses to Panel question 
No. 2.5(a), para. 61, No. 2.5(d), para. 66, No. 2.5(f)(iii), para. 78, No. 2.6(b), para. 82, and No. 7.5, para. 19; 
second written submission, para. 72; and opening statement at the second meeting  of the Panel , para. 43.  
145 Turkey's comments on Morocco's response to Panel qu estion No. 7.5, p . 9. 
146 Morocco's  responses to Panel question No.  2.3, paras.  47-48, No.  2.5(a), para.  59, No.  2.5(d), 
para. 67, and No.  7.3, para.  11; second written submission, paras.  68-69. 
147 Morocco's  responses to Panel question No.  2.3, paras.  47-48, No. 2.5(a), paras.  59-60, No. 2.5(c), 
para. 65, No.  2.5(d), para.  67, and No.  7.3, para.  11; second written submission, paras.  68-69; and opening 
statement at the second meeting of the Panel, para.  32. 
148 Absent any reasons given  by the MDCCE in its determi nation of why the producers'  explanations and 
evidence were insufficient, we may not, on our own, assess these explanations and evidence. Nor may we WT/DS513/ R 
BCI de leted, as indicated [[***]]  
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  determination  that these differences were in fact the reason that led  the MDCCE to reject the 
producers ' explanations and evidence.  Furthermore,  Turkey has explained that at least some of the 
differences alluded to by M orocco had already been identified and explained by one of the producers, 
Colakoglu, in its disclosure comments.149 In these circumstances, we do not accept 
Morocco 's argument that the relevant differences justified the MDCCE 's recourse to facts available.  
7.98.   The facts set out above demonstrate that the MDCCE had ample time to explore the issue of 
alleged under -reporting by the producers. Instead of doing so, the MDCCE issued a draft final 
determination applying facts available, and only began to engage meaningf ully with the producers 
as a result of their reaction to that draft final determination. The comments and documentary 
evidence submitted by the producers resulted in "doubt and uncertainty" on the part of the MDCCE. 
Whatever differences, as explained above , the MDCCE may have identified in respect of that 
documentary evidence, those differences were not such as to remove that "doubt and uncertainty".  
7.99.   In our view, there is even greater "doubt and uncertainty" regarding the producers ' alleged 
failure to report any additional, unidentified export sales that made up the remainder of the 
approximately 10,000 ton nes mentioned in the final determination. The final determination does not 
contain any reasoning or evaluation in respect of such additional, unident ified export sales. Nor did 
the MDCCE engage with the producers in respect of these sales after issuance of the draft final 
determination, despite the producers ' request to see the underlying documents for all allegedly 
unreported export sales identified b y the MDCCE. There was no engagement by the MDCCE with the 
parties in respect of such sales at all.  
7.100.   Morocco does not deny that the MDCCE did not provide any detailed information in respect 
of export sales other than the [[***]] ton nes. Morocco contends tha t the MDCCE could not disclose 
information in respect of the  remainder of the  allegedly unreported export sales, in particular the 
underlying customs and commercial documents on which the MDCCE relied. According to Morocco, 
these documents were confidentia l because they "indicated traders other than those declared in 
Erdemir Group 's and Colakoglu 's questionnaire responses".150 We do not find Morocco 's argument 
persuasive. As the MDCCE found at paragraph 57 of the final determination, the documents that the 
MDCCE disclosed to the producers in respect of the [[ ***]] ton nes also pertained to export sales 
made through unreported traders. This, however, did not prevent the MDCCE from disclosing a 
redacted version of the relevant documents to the producers. Further,  the determination does not 
reflect that the MDCCE could not provide the documents at issue for confidentiality reasons. It is 
entirely silent on these sales. Even when transmitting the underlying information in respect of the 
[[***]] ton nes on 7 July 2014 , the MDCCE remained silent on any additionally unreported  export 
sales, or any confidentiality issue that may have prevented it from disclosi ng information in respect 
of the se sales. We therefore reject Morocco 's assertion as an ex post  explanation.  
7.101.   Moroc co submitted Exhibit MAR -11 (BCI) to demonstrate that the MDCCE had properly 
established that the producers had failed to report not only the identified [[***]] ton nes of export 
sales, but also additional, unidentified export sales.151 Turkey argues that this exhibit relates to 
export sales that were properly reported by the producers and to other export sales that fall outside 
the scope of the investigation.152 We note that Exhibit MAR -11 (BCI) contains a table with 40 line 
items of imports from Turkey to M orocco with a total volume of [[***]] tonnes. It does not contain 
any reference to Erdemir Group and Colagoklu, or otherwise indicate the specific producers of the 
listed export sales. The exhibit thus does not demonstrate that the MDCCE found that the lis ted 
sales: (a) originated from Erdemir Group and Colagoklu ; (b) had not been reported by them ; or (c) 
served as the basis for the MDCCE 's recourse to facts available. Indeed, if this document had served 
as the basis for finding that the producers  had faile d to report certain export sales, we query why 
the total amount of sales in this document amounts t o [[***]] tonnes, whereas the 
MDCCE 's determination refers to a dis crepancy of only "approximately  10,000 ton nes". Morocco has 
                                                
determine, exclusively on the basis of our own appreciation of these explanations and evidence , whether the  
MDCCE's  conclusion to disregard the producers'  explanations and evidence was one that an objective and 
unbiased investigating authority could have reached.  
149 Colakoglu 's comments on the draft final determination,  (Exhibit TUR -20 (BCI)), p.  7; Turkey's 
first written submission, para.  6.76. 
150 Morocco's  response to Panel question No.  2.3(b)(ii), para.  55; second written submission, para.  60. 
151 Morocco's  response to Panel question No.  2.1, paras.  39-40; second written submission, para.  65. 
152 Turkey's  second wr itten submission, paras.  4.5-4.22;  Turkey's explanation on Morocco's table of 
allegedly unreported transactions , (Exhibit TUR -57 (BCI)); and Movement certificates and commercial invoices, 
(Exhibit  TUR-58 (BCI)).  WT/DS513/ R 
BCI deleted, as indicated [[***]]  
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  provided us no convincing resp onse in this regard.153 We therefore consider that Exhibit MAR -11 
(BCI) could not have constituted a proper basis for  the MDCCE 's recourse  to facts available . Further, 
in any event, according to Morocco, this exhibit constitutes an internal working document of the 
MDCCE. It was not disclosed to the producers during the investigation. The exhibit therefore does 
not detract from the fact that the MDCCE failed entirely to engage with the producers in respect of 
any addition al, unidentified sales that the produce rs allegedly failed to report .  
7.102.   Morocco also refers to the MDCCE 's finding that the CIB had informed the MDCCE that 
Erdemir Group and Colakoglu were the only producers with exports to Morocco during the period of 
investigation.154 According to Morocco, the MDCCE thus properly established that the entire 
discrepancy of approximately 10,000 ton nes, and not only the identified [[***]] ton nes, constituted 
unreported export sales originating from the producers. However, we share Turkey 's view that 
Morocco selectively quotes from the CIB 's statement.155 In the final determination, the MDCCE more 
fully reflected that statement according to which the CIB had confirmed that the Turkish exports to 
Morocco were not in excess of  the 19,000 ton nes reported by the producers.156 The information 
provided by the CIB thus contradicts, rather than supports, Morocco 's assertion that the export sales 
constituting the discrepancy of approximately  10,000  tonnes, in addition to the reported 18,800 
tonnes, perta ined to (unreported) export sales of the producers.  
7.103.   Finally, Turkey argues that the MDCCE could not, without more, reject and replace all the 
sales information that the producers had reported.157 We agree. In order to reject the entirety of the 
export sales data reported by the producers, the MDCCE was required to explain why the alleged 
failure to report certain sales  tainted, or render ed unusable, the sales data that had been  reported.158 
The MDCC E, however, failed to do so. In particular, the MDCCE  did not indicate how the alleged 
failure to report certain export sales  might have affected the inf ormation on the reported 
18,800  tonnes of export sales, and more broadly all of the reported information on domestic and 
export sales . Morocco argues that given the fact that the unreported sales constituted around 50% 
of the reported sales and 30% of the total sales, the MDCCE was entitled to reject  all of the reported 
information.159 Morocco 's explanation , however, is not reflected in the f inal determination as a 
consideration of the MDCCE to disregard  all information , and we reject it as an ex post  explanation. 
Morocco also relies on statements in the final determination to the effect that the pro ducers had 
failed to report all their sales, that this amounted to a failure to cooperate and that their explanations 
were insufficient.160 These statements, however, provide no basis to rebut Turkey 's claim that the 
MDCCE failed to establish that it was ent itled to reject all reported information.  
7.104.   For all of the above reasons, we conclude that the MDCCE 's recourse to facts available in 
respect of the producers ' alleged failure to report the entirety of their export sales is inconsistent 
with Article  6.8. 
                                                
153 We are not persuaded by Morocco 's assertion (Morocco 's oral response to the Panel 's question at the 
second meeting  of the Panel; response to Panel  question No. 7.2, para. 9) that the reference to "approx imately  
10,000 ton nes" served as an approximation for [[***]] tonnes, a figure that wou ld exceed the proxy by about 
20%. Moreover, the [[ ***]] tonnes are difficult to reconcile with the MDCCE 's finding that the import volume 
from Turkey  totalled 29,028 ton nes (Preliminary determination, (Exhibit TUR -6), table 4 ; this figure was not 
revised in the final determination), and not [[***]] tonnes (18,800 ton nes of the producers'  reported export 
sales + [[ ***]] tonnes). 
154 Morocco's  responses to Panel question Nos.  2.2(a) and (b), paras.  41-42, and No.  7.1, para.  4; 
second written submission, para. 65 (referring to Final determination, (Exhibit TUR -11), para. 54); and 
opening statement at the second meeting of the Panel, para.  38. 
155 Turkey 's second written submission, para. 4.23; comments on Morocco's  response to Panel  question  
No. 7.1, p.  4. 
156 Final determin ation, (Exhibit TUR -11), para.  54; Letter of the CIB to the MDCCE, 
(Exhibit  TUR-28 (BCI)).  
157 Turkey's  first written submission, paras.  6.107 -6.108 and 6.127; second written submission, 
paras.  4.50-4.51 and 4.66.  
158 Panel Report, US – Steel Pl ate, para. 7.75. 
159 Morocco's  response to Panel question No.  2.7, para.  90. 
160 Morocco 's opening statement at the second meeting  of the Panel , para. 53 (quoting Final 
determination, (Exhibit TUR -11), paras.  57-58 and 60).  WT/DS513/ R 
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  7.4.3.2   Claims under Annex II to the Anti -Dumping  Agreement  
7.105.   Turkey also advances claims of inconsistency under paragraphs 1, 3, 5, 6 , and 7  of 
Annex  II.161 The main issues raised by Turkey as part of these claims relate to the assertions that 
the producers fully cooperated and provided all of their export sales, that the MDCCE did not provide 
sufficient information in relation to the totality of the allegedly missing export sales, that it did not 
engag e with the explanations and evidence provided by the producers, that it did not sufficiently 
explain why it rejected the submitted information , and that it rejected more submitted information 
than it was entitled to.  
7.106.   Turkey 's claims under paragraphs 1, 3, 5, 6, and 7 of Annex II  thus concern essentially the 
same factual issues already addressed in the context of the Article  6.8 claim.  Therefore , we do  not 
need to also evaluate the additional claims under parag raphs 1, 3, 5, 6, and 7 of Annex  II in order 
to effectively resolve this dispute or provide guidance in the event this issue arises in 
implementation . 
7.4.4   Conclusion  
7.107.   Based on the above, we find that Morocco acted inconsistently with Article  6.8 in resorting 
to facts available to establish the margins of dum ping for the two Turkish producers. In this light, 
we do not consider it necessary to make additional findings as to whether the MDCCE, in resorting 
to facts available, also acted inconsistently with its obligations under paragraphs 1, 3, 5, 6 , and 7 of 
Annex II . 
7.5  Article  6.9 of the Anti -Dumping  Agreement : Disclosure of essential facts in respect of 
the alleged failure to report export transactions  
7.108.   Turkey claims that Morocco violated Article  6.9 of the Anti -Dumping  Agreement  by failing to 
inform the two investigated Turkish producers, Erdemir Group and Colakoglu, of the essential facts 
regarding the MDCCE 's recourse to facts available in respect of their alleged failure to report the 
entirety of their export sales. Turkey 's challenge under Article  6.9 is two -fold: ( a) certain essential 
facts regarding the MDCCE 's determination were not disclosed at all ; and ( b) other essential facts 
were not disclosed in sufficient time to allow the producers to defend their interests.  
7.5.1   Factual background  
7.109.   On 20 June 2014, the MDCCE issued its final draft determination , in which the MDCCE 
purported to inform all interested parties of the essential facts under consideration forming the basis 
for its decision to apply definitive duties. In the draft  final determination, and later in the final 
determination, the MDCCE referred to a discrepancy of "approx imately  10,000 tonnes" between the 
export sales reported by the two producers and the official Moroccan import statistics. It explained 
that a review of detailed evidence indicated that unreported export sales from Turkey had been 
made through third -party traders and that movement certificates (certificates of origin) established 
that these sales originated from the two producers. It found that the prod ucers had therefore failed 
to report the entirety of the export sales to Morocco. For this reason, the MDCCE rejected all of the 
reported information, resorted to facts available , and established the margins of dumping for the 
producers using the petition rate of 11%.162 
7.110.   With regard to the rate of 11%, the draft final determination refers to the report on the 
initiation of the investigation (initiation report). The initiation report mentions that in calculating this 
rate, the petitioner had adjusted initial cost and freight ( C&F)-based prices in respect of logistical 
costs, commission of intermediaries , and financing costs to arrive at ex -factory level export prices .163 
The initiation r eport indicates a specialized industry publication as one of the sources for the C&F 
prices. It does not provide more detailed  informatio n or data in respect of the C&F prices or the 
adjustments.  The initiation report mentions , however,  that the MDCCE veri fied the export prices 
                                                
161 Turkey's  first written submission, paras.  6.92-6.128; second written submission, paras.  4.42-4.68. 
162 Draft final determination, (Exhibit TUR -10), paras.  51-56 and 58.  
163 Initiation report, (Exhibit TUR -2), p.  5. WT/DS513/ R 
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  used in the petition on the basis of a comparison with  average price information that the MDCCE 
had derived using import values from import statistics.  
7.111.   Following the draft final determination, t he producers asked  the MDCCE to provide  the 
underlying documents on which the MDCCE had relied  in finding  that they had not reported certain 
of their export sales . On 7 July 2014, the MDCCE provided movement certificates and associated 
commercial invoices to the producers  in respect of [[ ***]] tonnes of export sales  that, according to 
the MDCCE, had not been reported by the exporters .164 The MDCCE did not provide any information 
in respect of any other export sales  that the exporters had allegedly failed to report . 
7.5.2   Provision  at issue  
7.112.   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.  
7.5.3   Evaluation  
7.5.3.1   Claim s that certain essential facts were not disclosed at all  
7.113.   Turkey claims that the MDCCE failed , contrary to the requirements of Article  6.9, to disclose : 
(a) the precise basis for its decision to resort to facts available ; and ( b) the facts that it used to 
replace the missing informa tion.165 In particular, the MDCCE failed to disclose  the following three 
sets of information that Turkey  considers to be "esse ntial facts":  
a. The essential facts on the basis of which the MDCCE determined that the producers had 
failed to report export sales other than the  [[***]] ton nes identified in the 
MDCCE 's communication of 7 July 2014 (referred to hereinafter as "additional, unidentified 
export sales").166 
b. The data used in arriving at the margin of dumping – based on facts available in the 
petition – of 11%, in particular the data for the underlying C&F prices and the 
adjustments.167 
c. The data and methodology used by the MDCCE in cross-checking the facts available 
pertaining to the margin of dumping in the petition.  
In the following, we will examine Turkey 's claims in respect of each set of information.  
7.5.3.1.1   Essential facts  in respect of the alleged failure to report additional, unident ified 
export sales  
7.114.   With regard to Turkey 's claim concerning the first set of information, we recall our findings 
under Article  6.8 that the MDCCE did not properly establish the producers ' failure to report the 
entirety of their export sales, including any additional, unidentified export sales.168 In the con text of 
this Article  6.9 claim , the issue is thus w hether the MDCCE disclosed the essential facts  pertaining 
to those additional, unidentified export sales.  
                                                
164 Correspondence with customs and commercial  documents from Erdemir Group , (Exhibit TUR -29 
(BCI) ); Correspondence with customs and commercial documents  from Colakoglu , (Exhibit  TUR-30 (BCI) ). 
165 Turkey 's first written submission, para. 7.17 (relying on the legal standard elaborated in Panel 
Report, China – Broiler Products , para. 7.317).  
166 Turkey 's first written submission, para.  7.15; responses to Panel question No. 3.1(a), paras.  55-58, 
and No. 3.2, para. 70; second written submission, para.  52; and opening statement at the second meeting of 
the Panel, para.  3.25. 
167 Turkey 's first written submission, para.  7.16; responses to Panel question No.  3.1(a), para.  63, 
No. 3.3(a), paras.  71, and No.  3.3(b), para.  72; and second written submission, para.  5.3. 
168 See paras.  7.90.  and 7.104.   above.  WT/DS513/ R 
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  7.115.   "Essential facts" refer to those facts that are s ignificant or salient in the process of reaching 
the decision whether or not to apply definitive measures.169 Whether a particular fact is in this 
manner "essential" " depends on the nature and scope of the particular substantive obligations, the 
content of t he particular findings  needed to satisfy the substantive obligations at issue, and the 
factual circumstances of each case,  including the arguments and evidence submitted by the 
interested parties ".170 In this regard, an investigating authority must disclose information that is 
sufficiently precise to enable an interested party "to comment on the completeness and correctness 
of the facts being considered by the investigating authority, provide additiona l information or correct 
perceived errors, and comment on or make arguments as to the proper interpretation of those 
facts".171 The panel in China – Broiler Products  also held that when applying Article  6.9 in the context 
of Article  6.8, the essential facts that an investigating authority is  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 r equested from an interested party; and (iii) the facts which it used to replace 
the missing information.172 
Both parties have relied on this legal standard in their submissions to us. We agree with this legal 
standard and apply it in the present case.  
7.116.   Turkey  argues that the MDCCE failed to disclose the "precise basis" for its finding that the 
producers had failed to report any additional, unidentified  export sales , and thus the basis for its 
decision to use facts available in respect of such sales.173 In order to disclose the "precise basis", 
Turkey considers that the MDCCE could have disclosed, for instance, the precise transactions at 
issue, the movement certificates and commercial invoices listing the allegedly unreported  sales, and 
the names of the traders t hat had allegedly executed those  sales.174 
7.117.   Morocco argues that Article  6.9 did not require the MDCCE to disclose the underlying customs 
and commercial documents for the additional, unidentified export sales . In accordance with 
Article  6.5, the MDCCE could no t disclose those  documents because they were confidential.175 
Nevertheless, the MDCCE disclosed the "precise basis for its decision to resort to facts available" in 
respect of additional, unidentified export sales in the draft final determination  and in the final 
determination .176 In particular, Morocco refers to parts in the draft final determination indicating  
that the MDCCE resorted to facts available because it had found a discrepancy in export sales of 
approx imately  10,000 ton nes originating from the Turkish producers, made through unreported 
traders.177 In Morocco 's view, the draft final determination only needed to provide a summary of the 
fact that the MDCCE had established the existence of unreported sales.  
7.118.   We disagree with Mor occo's arguments. First, Morocco 's reliance on the final determination  
is insufficient for a disclosure "before a final determination is made", as required by Article  6.9. We 
also reject Morocco 's assertion that the MDCCE disclosed the "precise basis"  for its recourse to facts 
available by informing the producers in the draft final determination  that they had failed to report 
"approx imately  10,000 ton nes" of export sales.  The MDCCE certainly had a large margin of discretion 
on how to inform the producers of  the relevant essential facts.178 In this instance, there might have 
been any number of ways to do so, be that through the disclosure of the underlying customs and 
commercial documents, through a summary of the relevant information, or others.  In the draft f inal 
                                                
169 Appellate Body Report s, China – GOES , para.  240; China – HP-SSST (Japan) / Ch ina – HP-SSST 
(EU), para.  5.130.  
170 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.130 (referring to 
Appellate Body Report, China – GOES , para.  241).  
171 Appellate Body Report, China – GOES , fn 390 (quoting Panel Report, EC – Salmon (Norway) , 
para. 7.805).  
172 Panel Report s, China – Broiler Products , para. 7.317; China – Broiler Products ( Article  21.5 – US), 
paras.  7.368 and 7.401.  
173 Turkey'  first written submission, paras.  7.2, 7.12, and 7.17.  
174 Turkey's  response to Panel question No.  3.1(a), para.  56; second written submission, para.  5.2. 
175 Morocco 's first written submission, para.  151; second written submission, paras.  106-109. 
176 Morocco 's first written submission, paras.  137-138 and 147; second written submission, paras.  95 
and 102 -105. 
177 Morocco's  first written submission, paras.  137 and 147; second written submission, paras.  95 
and 103 (quoting Draft final determination, (Exhibit TUR -10), paras.  51 and 55).  
178 Panel Report, China – Broiler Products ( Article  21.5 – US), para. 7.370.  WT/DS513/ R 
BCI deleted, as indicated [[***]]  
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  determination, the MDCCE however referred only in very broad and approximate terms to 
"approx imately  10,000 ton nes" of allegedly unreported export sales. Although the MDCCE 
subsequently provided more information concerning a subset of [[ ***]] ton nes, it did not provide 
any specific information in respect of  the additional, unidentified export sales . Without any precision 
at all on the factual underpinnings  of these additional, unidentified export sales, it is not apparent 
how the very general information in the draft final determination could have allowed the exporters 
to understand, and therefore comment on, the precise factual basis on which the MDCCE con cluded 
that they had failed to report additional , unidentified export sales.179 
7.119.   Morocco also argues that the MDCCE disclosed the names of the traders in the email to 
Erdemir Group on 31 December 2013.180 Morocco 's assertion that this communication constituted a 
disclosure for purposes of Article  6.9 raises a number of concerns. But in any event, nothing 
suggests, and the parties do not assert, that simply listing the names of the traders would have 
allowed the producers to precisely identify the allegedly unrep orted sales at issue.  
7.120.   Finally, Morocco also argues that the underlying customs and sales documents in respect of 
the additional, unidentified export sales that the producers allegedly failed to report were confidential 
and thus could not be disclosed.181 Morocco notes that Turkey does not challenge the treatment of 
this information as confidential under Article  6.5.182 Regardless of the MDCCE 's compliance with 
Article  6.5, which is not at issue here, we have already found in the context of Article  6.8 that 
Morocco's reliance on the alleged confidentiality of the underlying documents is not persuasive.183 
In particular, we recall that the MDCCE did disclose redacted versions of similar documents for the 
[[***]] ton nes. Moreover, as also explained in that context, M orocco 's assertion in respect of the 
confidentiality of the information is not reflected in the record of the investigation. It is thus an ex 
post rationalization that we do not consider further.  
7.121.   As a result of the a bove, Turkey has established its claim t hat the MDCCE failed to disclose 
the "precise basis for its decision to resort to facts available" in respect of any additional, unidentified 
export sales that the MDCCE considered the producers to have failed to report. We therefore uphold 
Turkey 's claim that Morocco acted inconsistently with Article  6.9. 
7.5.3.1.2   Essential facts in respect of the calculation of the facts available rate  
7.122.   The second part of Turkey 's claim concerns the MDCCE 's alleged failure to disclose the data 
used to determine the producers ' margi ns of dumping. These margins were based on the rate of 
11% identified in the petition, which the MDCCE relied on as facts available. Turkey claims in 
particular that the MDCCE failed to disclose the C&F prices and the adjustments applied by the 
petitioner for purposes of determining export prices at  the ex -factory level.  
7.123.   Morocco argues that information as to how the MDCCE calcula ted the facts available rate 
of 11% relates to "reasoning, calculation or methodology" , none of which constitute essential 
facts.184 According to Morocco, t he MDCCE also disclosed sufficient information about the sources of 
the data used in arriving  at the 11% rate in the initiation report and in the draft final 
                                                
179 It strikes us that Morocco asserted – in response to our questions concerning the reference in the 
draft final determination and the final determination to "approximately 10,000 tonnes" – that the MDCCE 
intended this reference as an approxima tion for a total of [[ ***]] tonnes of allegedly unreported  export sales.  
(Morocco 's oral response to the Panel 's question at the second meeting of the Panel ; response to Panel 
question  No. 7.2, para.  9). It is already difficult to imagine how, in the circumstances of this case, a mere 
reference to "approx imately  10,000 ton nes" could sufficiently disclose the "precise basis" for the sales making 
up those approx imately  10,000 ton nes. But we entirely fail to see how a reference to approx imately 
10,000  tonnes could adequately disclose the "precise basis" in respect of even [[***]] tonnes. In order to 
disclose the "precise basis", we would expect the MDCCE to disclose the exact total amount of the allegedly 
unreported export sales and to find a way of allowing the producers to understand precisely how that amount 
has been determined and  what individual export sales transactions are at issue.  
180 Morocco's  first written submission, paras.  146 and 149; second written  submission, paras.  110-111. 
181 Morocco's  first written submission, para.  151; second written submission, para.  106. 
182 Morocco's  second written submission, paras.  107-109. 
183 See para.  7.100.   above.  
184 Morocco's  first written submission, para.  152. WT/DS513/ R 
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  determination .185 Moreover, the sources of the data used for the petition ra te are public 
information.186 
7.124.   The "e ssential facts " to be disclosed under Article  6.9 include the underlying data for 
particular elements that ultimately comprise normal value and export price , and any adjustments.187 
In the context of recourse to facts availa ble, essential facts also include those "facts … used to 
replace the missing information".188 In this case, the petition rate was based on an export price 
calculation in which adjustments were applied to C&F prices to arrive at an ex -factory level. The C&F 
prices are important elements for the calculation of the export price. The adjustments made for 
netting back to ex -factory level represent "adjustments for differences which affect price 
comparability", and are required by Article  2.4 of the Anti -Dumping  Agreement . Moreover, both the 
C&F prices and the adjustments (including the underlying data for the adjustments) are " facts … 
used to replace the missing information". A s a result, we consider that  the C&F prices and the 
adjustments were "essential facts" th at the MDCCE had to disclose.  
7.125.   The draft final determination does not provide any information on the C&F prices or the 
adjustments applied to them. Morocco correctly points out that the initiation report, to which the 
draft final determination refers189, indicates the sources of the information for the C&F prices.190 The 
initiation report also indicates that adjustments were made in relation to logistical costs, commission 
of intermediaries , and financing costs. Further, Morocco refers to a table in the initiation report, 
listing ex -factory export prices, ex -factory normal values, amounts of dumping , and margins of 
dumping.191 However, none of this information in the initiation report conveys t he data for the C&F 
prices and for the adjustments used in order to arrive at the ex -factory export prices.192 Without this 
information on C&F prices and the adjustments, the producers could not ascertain the accuracy of 
the petition rate used by the MDCCE a s facts available, which they would need to do in order to 
defend their interests.  
7.126.   As a result, we find that the MDCCE acted inconsistently with Article  6.9 by failing to disclose 
the data for the C&F prices and for the adjustments used in establishing the  producers ' margins of 
dumping based on facts available.  
7.5.3.1.3   Essential facts used by the MDCCE in cross -checking the facts available rate  
7.127.   Concerning the third set of information , Turkey posits that Article  6.9 required the MDCCE 
to disclose how it cross -checke d the petition rate based on information from import statistics as well 
as the data it used for that purpose. In particular, Turkey argues that the MDCCE should have 
disclosed the specific import values against which it checked the petition 's export prices  as well as 
information in respect of the transactions and the time periods on which those import values were 
based.193 
                                                
185 Morocco's  second written submission, paras.  113-118. 
186 Morocco's  second written submission, paras.  115 and 117.  
187 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.131; Panel 
Report, China – Broiler Products , para. 7.91. 
188 See fn  175 above.  
189 Draft f inal determination , (Exhibit  TUR-10), para.  58; Initiat ion report, (Exhibit TUR -2), pp.  4-5. 
Turkey does not take issue with the fact that the MDCCE cross -referenced the initiation report in making its 
disclosure for purposes of Article  6.9. (Turkey's  response to Panel question No.  3.1(a), paras.  61 and 65).  
190 Morocco 's second written submission, para. 115. 
191 Morocco 's second written submission, para.  116. 
192 With respect to the C&F prices, Morocco refers to the reference in the initiation report to a specialized 
publication, "Tribune de la Sidérurgie", as a rel evant and publicly available source  of information. 
Morocco's  reliance on the reference to this publication is not persuasive. We do not need to consider whether a 
disclosure under Article  6.9 of particular essential facts could be made by simply referring  to an external 
source, that is apparently not even part of the investigation record, where those essential facts can somehow 
be retrieved. In any event, the publication at issue was only one of two sources mentioned in the initiation 
report in respect of the C&F prices – the other being a mere reference to "intermediaries" – and only covered 
data for one of two months at issue (data for October 2012 was obtained from the publication, data for 
March  2012 from "intermediaries").  This means that any disclosur e whatsoever would have been incomplete, 
at best.  
193 Turkey 's respo nses to Panel question  No. 3.1(a), paras.  59 and 64, and No.  3.3(a), para.  71; 
second  written submission, para.  5.3. WT/DS513/ R 
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  7.128.   Morocco argues that the data that the MDCCE used in cross -checking the petition rate are 
public information.194 
7.129.   We recall that we declined, for procedural reasons,  to rule on Turkey 's claim under 
Article  VI:6(a) of the GATT 1994 .195 Turkey asserted its Article  VI:6(a)  claim only in response to our 
written questions, and thus contrary to paragraph 6 of the Panel 's Working Procedures that requires 
the parties to present the facts of the case and the  arguments  in the first written submission before 
the first substantive meeting.  
7.130.   The same consideration applies to Turkey 's Article  6.9 claim in respect of how the MDCCE 
cross-checked the petition rate, and the data used for that purpose. Turkey 's first written submission 
did not include a statement of this claim. Turkey asserted this claim for the first time in its responses 
to our written questions, and then in its secon d written submission.196 
7.131.   We therefore rely on paragraph 6 of our Working Procedures to decline ruling on this 
Article  6.9 claim concerning any "essential facts " used by the MDCCE in cross -checking the facts 
available rate.  
7.5.3.2   Claim that certain essential facts were not disclosed in sufficient time to allow 
producers to defend their interests   
7.132.   Turkey argues that the disclosure of the movement certificates and commercial invoices 
pertaining to the [[ ***]] ton nes of export sales, through communication on 7 July 201 4, did not 
take place in sufficient time for the producers to defend their interests, contrary to the requirements 
of Article  6.9.197 
7.133.   Turkey 's claim at issue here concerns the timing198 of the disclosure  which, according to the 
first sentence of Article  6.9, shall be "before the final determination", and, pursuant to the second 
sentence of Article  6.9, "should take place in sufficient time for the parties to defend their interests". 
Turkey makes three arguments in this respect. First, t he investigation ex ceeded the deadlines set 
out in Article  5.10. Second,  the MDCCE did not meaningfully assess the producers ' comments, such 
that the disclosure itself did not take place in sufficient time for the producers to defend their 
interests. Third, the pr oducers onl y had five  working days to respond after receiving the underlying 
documents identifying the [[ ***]] ton nes of export sales , which was much shorter than the 21 -day 
period provided for by domestic Moroccan law.  
7.134.   Morocco does not deny that Turkey 's claim relat es to "essential facts"199, but asserts that 
the relevant disclosure took place in sufficient time to allow exporters to defend their interests. The 
producers had 15 working days from the draft final determination  to comment. Even when counting 
from 7 July 2 014, they had five working days to respond and in fact provided comments  and 
additional documentation, without requesting an extension,  and thus defended their interests.200 
7.135.   We are not persuaded by Turkey 's arguments. Turkey 's first argument regarding the 
MDCCE's failure to comply with the time limits for conducting the investigation under Article  5.10 is 
unrelated to the issue whether the producers had sufficient time  to defend their interests in response 
to the disclosure. Nothing indicates that the MDCCE 's non-compliance with the deadlines for the 
investigation could have somehow impaired the producers ' ability to defend their interests in 
responding to the disclosure. Regarding the second argument, Turkey appears to suggest that the 
                                                
194 Morocco's  second written submission, paras.  115 and 117.  
195 See para.  7.65.  above.  
196 Turkey 's respo nses to Panel question  No. 3.1(a), paras.  59 and 64, and No.  3.3(a), para.  71; 
second  written submission, para.  5.3. 
197 Turkey's  first written submission, paras.  7.2 and 7.19; see also respo nse to Panel 
question  No. 3.1(b), paras.  67-69; and second written submission, paras.  5.6-5.7. 
198 Turkey's  responses to Panel question No.  3.1(b), para.  67, and No.  3.2, para.  70; second written 
submis sion, para.  5.5; and opening statement at the second meeting of the Panel, para.  3.24. 
199 The MDCCE relied on the customs and commercial documents at issue in order to establish that the 
producers had failed to report [[***]] ton nes of export sales. On this  basis, and absent any arguments by the 
parties to the contrary, we have no reason to doubt that these documents, or at least that information 
contained therein establishing – in the MDCCE's  view – the existence of unreported export sales, constituted 
essential facts within the meaning of Article  6.9. 
200 Morocco's  first written submission, para.  153; second written submission, paras.  119-122. WT/DS513/ R 
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  MDCCE 's failure to enga ge with the disclosure comments  demonstrates the "rush" with which the 
investigation was concluded.201 However, neither a failure to engage with the disclosure comments, 
nor a rush in the conclusion of the investigation establish es that the MDCCE had not dis closed the 
essential facts in sufficient time to allow the producers to defend their interests . Turkey 's 
third argument concerns the limited deadline of five  working days  to respond to the underlying 
customs and commercial documents , short of the 21 -day period available under  Moroccan law  to 
comment on the disclosure of essential facts . We cannot, however, determine in the abstract, based 
on a specific minimum number of days for giving comments, whether interested parties were 
afforded sufficient oppo rtunity to defend their interests.202 This will depend on the circumstances of 
a given case.  
7.136.   In this instance,  we consider  that Turkey has not established  on the basis of the  specific 
circumstances of this case  that the disclosure did not take place in suffi cient time for the producers 
to defend their interests . Turkey does not explain how the deadline of  five working days – counting 
from 7 July 2014 when the MDCCE provided the underlying documents for the  [[***]] ton nes of 
allegedly missing export sales – limited the opportunity of the two producers to defend their interests 
in time to prepare and submit comments  on the essential facts disclosed by the MDCCE . Simply 
because the underlying documents were made available with only five working days to comment 
does not demonstrate that the producers could not comment on, challenge, or provide additional 
information in respect of the essential facts, such that they were unable to defend their interests.203 
In its claims under Article  6.8 and Annex II, Turkey asserts  that the Turkish producers proffered 
explanations and evidence in their disclosure comments establishing that the allegedly missing 
export sales had been reported.  Notwithstanding the short deadline, it thus rather appears that the 
producers were a ble to d efend their interests, but that  based on their comments,  the MDCCE did not 
come to the conclusions that the Turkish producers and Turkey would have liked it to reach . 
7.137.   As a result of the above, we find that Turkey has not established its claim under Article  6.9 
in respect of the alleged failure to disclose the essential facts pertaining to the [[ ***]] ton nes of 
export sales in sufficient time for the Turkish producers to defend their interests.  
7.5.4   Conclusion  
7.138.   In light of the above, in respect of Turkey 's claims under Article  6.9 we find that:  
a. Turkey has established its claim that the MDCCE acted inconsistently with Article  6.9 by 
failing to inform all interested parties of any essential facts in respect of the additional, 
unidentified export sales that the  MDCCE considered the producers to have failed to report.  
b. Turkey has established its claim that the MDCCE acted inconsistently with Article  6.9 by 
failing to inform all interested parties of the data for the C&F prices and for the adjustments 
used in arriv ing at the producers ' margins of dumping using facts available.  
c. Turkey has not established its claim that the MDCCE acted inconsistently with Article  6.9 
by failing to inform all interested parties of the movement certificates and commercial 
invoices in re spect of the [[ ***]] ton nes of allegedly unreported export sales in sufficient 
time for the producers to defend their interests.  
7.139.   Based on paragraph 6 of our Working Procedures, we decline ruling on Turkey 's Article  6.9 
claim concerning any "essential facts " used by the MDCCE in cross -checking the facts available rate.  
                                                
201 Turkey's  response to Panel question No.  3.1(b), para.  69. 
202 In this regard, the minimum period for comments on the disclosure established by municipal law has 
also no bearing on a Member's  compliance with Article  6.9. 
203 Appellate Body Reports, China – GOES , fn 390;  China – HP-SSST (Japan) / China – HP-SSST (EU) , 
fn 316. WT/DS513/ R 
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  7.6  Articles  3.1 and 3.4 of the Anti -Dumping  Agreement : The MDCCE 's determination that 
the domestic industry was unestablished  
7.140.   In the underlying investigation, the MDCCE found that the domestic industry, which it defined 
as comprising of the sole domestic producer, Maghreb Steel204, had suffered injury in the form of 
"material retardation of the establishment of the domestic industry".205 In arriving at this 
determination, the MDCCE followed a two -step analysis: it first examined, applying five criteria, 
whether the domestic industry was established. Having found that the domestic industry was 
unestablished, it proceeded to examine whether the establishment of that industry had been 
materially retarde d.206 
7.141.   In determining whether  the domestic industry was established, the MDCCE applied the 
following five criteria: ( a) how long the domestic industry had been producing the domestic like 
product; ( b) the market share of the domestic like product; ( c) whether  the domestic 
industry 's production had been stable; ( d) whether the domestic industry had reached 
profitability/break -even point; and ( e) whether the domestic industry constituted a "new" 
industry.207 The MDCCE noted, in its final determination, that it had  reached its finding that the 
domestic industry was unestablished based on a separate and collective consideration of its 
conclusions on these criteria.208 
7.142.   Turkey claims that the MDCCE 's determination that the domestic industry was unestablished 
is inconsist ent with Article  3.1 and footnote 9 to Article  3 of the Anti -Dumping  Agreement , and 
Article  VI:6(a) of the GATT 1994, because that determination was not based on positive evidence 
and objective examination. In particular, Turkey contends that the MDCCE 's findings in relation to 
each of the five criteria that it relied on for determining whether the domestic industry was 
established were flawed . 
7.143.   Turkey further claims that consequent to incorrectly determining that the domestic industry 
was unestablished, the MDCCE erroneously conducted an injury analysis in the form of "material 
retardation of the establishment of the domestic industry ", instead o f material injury to an 
established domestic industry, and therefore acted inconsistently with Articles  3.1 and 3.4 of the 
Anti-Dumping  Agreement . 
7.6.1   Provisions at issue  
7.144.   Article  3.1 of the Anti -Dumping  Agreement  provides as follows:  
A determination of injury for purposes of Article  VI of GATT  1994 shall be based on 
positive evidence and involve an objective examination of both  (a) the volume of the 
dumped imports and the effect of the dumped imports on prices in the domestic market 
for like products, and  (b) the consequent impact of these imports on domestic producers 
of such products.  
7.145.   Article  3.4 of the Anti -Dumping  Agreement  provides as follows:  
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 industry, including actual and potential decline in sales, 
profits, output, market share, productivity, return on investments, or utilization of 
capacity; factors affecting d omestic prices; the magnitude of the margin of dumping; 
actual and potential negative effects on cash flow, inventories, employment, wages, 
growth, ability to raise capital or investments. This list is not exhaustive, nor can one 
or several of these factor s necessarily give decisive guidance.  
                                                
204 Final determination, (Exhibit TUR -11), para. 30; Preliminary determination, (Exhibit TUR -6), 
paras.  22 and 53.  
205 The parties in this case do not dispute whether  the domestic producer, Maghreb Steel , constituted a 
domestic industry.  
206 Final determination, (Exhibit TUR -11), paras.  80 and 111 . 
207 Final determination, (Exhibit TUR -11), paras.  83 and 111.  
208 Final determination, (Exhibit TUR -11), para. 111. WT/DS513/ R 
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  7.6.2   Evaluation  
7.146.   Turkey challenges the MDCCE 's determination that the domestic industry was unestablished 
under Article  3.1 and footnote 9 to Article  3 of the Anti -Dumping  Agreement , and Article  VI:6(a) of 
the GATT 1994. How ever, we recall as falling outside our terms of reference, Turkey 's claim that 
the MDCCE 's determination that the domestic industry was unestablishe d is inconsistent with 
footnote  9 to Article  3 of the Anti -Dumping  Agreement . We also recall that for proced ural reasons, 
we decline to rule on Turkey 's claim under Article  VI:6(a) of the GATT 1994 in respect of the 
MDCCE 's finding of "establishment".209 In light of those jurisdictional and procedural grounds, we 
will evaluate Turkey 's claim under Article  3.1 alone.  
7.147.   That " Article  3.1 is an overarching provision that sets forth a Member 's fundamental, 
substantive obligation with respect to the injury determination ", is well  settled.210 Article  3.1 requires 
that the injury determination be based on positive ev idence and involve an objective examination of 
both: (a) the volume of dumped imports and the effect of the dumped imports on prices in the 
domestic market for like products ; and ( b) the consequent impact of these imports on domestic 
producers of such prod ucts.211 Article  3.1 thus requires , inter alia , that an investigating authority 
base, on objective examination and positive evidence, its inquiry into the impact of dumped imports 
on domestic producers.  It follows that Article  3.1 requires that an investigat ing authority also base, 
on objective examination and positive evidence, any of its findings that form part of  that inquiry into 
the impact of dumped imports on domestic producers.  
7.148.   In the underlying investigation, the MDCCE 's finding that the domestic ind ustry was 
unestablished, and that the establishment of the domestic industry was materially retarded, formed 
part of  the MDCCE 's inquiry into the impact of dumped imports on domestic producers. In particular, 
the MDCCE proceeded to examine whether the dome stic industry had suffered injury in  the form of 
material retardation of its establishment, rather than material injury, only upon finding that the 
domestic industry was unestablished.212 Given that the MDCCE, in examining the impact of dumped 
imports on dom estic producers, relied on its finding that the domestic industry was unestablished, 
we consider that Article  3.1 required the MDCCE to base that finding on positive evidence and 
objective examination.213 In the event that the record of the underlying invest igation shows that the 
MDCCE did not base that finding on positive evidence and objective examination, we will then 
conclude that the MDCCE acted inconsistently with Article  3.1. 
7.149.   This approach finds support in the findings of other panels and the Appellate  Body. I n 
Argentina – Poultry  Anti-Dumping Duties , the panel examined inconsistency with Article  3.1 
independently of other provisions of Article  3.214 Similarly, the Appellate Body and several prior 
panels found violations  of Article  3.1, in a first step of their evaluation, independent of any 
assessment of consistency with other provisions of Article  3. Having found a violation of Article  3.1, 
they subsequently proceeded to find consequential violation s of certain other provisions of 
Article  3.215 Further, in EC – Countervailing Measures on DRAM Chips , the panel refrained from taking 
the view that Article  15.1 of the SCM Agreement , which is the equivalent of  Article  3.1 of the 
                                                
209 See para.  7.67.  above.  
210 Appellate Body Report, US – Hot-Rolled Steel , para. 192 (referring to Appellate Body Report, 
Thailand – H-Beams , para. 106). 
211 Article  3.1, read in light of footnote 9 to Article  3, imposes obligations on an investigating authority 
with respect to its "injury determination", which extend to cases where the injury determined takes the form of 
material retardation of the establishm ent of a domestic industry.  
212 Final determination, (Exhibit TUR -11), paras.  69 and 195; Preliminary determination, 
(Exhibit  TUR-6), para. 92. 
213 The parties disagree over whether the Anti -Dumping  Agreement requires an investigating authority 
to determine th at the domestic industry is unestablished  in the context of making a determination that the 
establishment of that industry is materially retarded. (Turkey's  response to Panel question No.  4.2, 
paras.  86-87; Morocco's  response to Panel question No.  4.2, par a. 94). However, in this dispute , we do not 
need to address that question because i n the underlying investigation the M DCCE did determine that the 
domestic industry was unestablished as part of its analysis of the material retardation of the establishment of 
the domestic industry. The relevant question, as set out in paragraph 7.148.   above, is therefore whether 
the MDCCE's  determination that the dom estic industry was unestablished was based  on positive evidence and 
objective examination.  
214 Panel Report, Argentina – Poultry Anti-Dumping Duties , paras.  7.283 -7.285.  
215 Appellate Body Report, US – Hot-Rolled Steel , paras.  211-214; Panel Report s, EU – Biodiesel 
(Argentina) , paras.  7.413, 7.415 , and 7.431 ; Mexico – Anti-Dumping Measures on Rice , paras.  7.65 
and 7.86-7.87. WT/DS513/ R 
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  Anti-Dumping  Agreement , does not impose any independent obligations in its own right. It 
considered that "if an investigating authority lacks positive evidence and has not examined the 
evidence before it objectively, then the investigating authority would have acted inconsistent ly with 
Article  15.1, regardless of any conclusions that might be reached about the other – more specific – 
obligations under Article  15."216 
7.150.   We have also considered carefully the report of the panel in China – Cellulose Pulp  concerning 
this issue. The panel , in that case, took the view that the "basic principles" in Article  3.1 that a 
determination of injury be based on positive evidence and objective examination do not establish 
independent obligations, which can be judged separately from the substantive re quirements set out 
in the remainder of Article  3 of the Anti -Dumping  Agreement .217 We note, however, that these 
observations of the panel were obiter , and did not form a basis of  its findings. Further, the  panel 
qualified those observations by stating that a  claim of inconsistency with Article  3.1 may not 
"normally" be made independently of other provisions of Article  3.218 We consider that through the 
use of the word "normally", the panel indicated that in certain cases, claims could be made under 
Article  3.1 independently of other provisions of Article  3. Indeed, the panel recognized that "a 
general claim of bias on the part of the investigating authority would fall squarely under 
Article  3.1".219 The panel further suggested that whether an investigating 
authori ty's decision -making process was biased can be determined only by scrutinizing the specific 
decisions that the authority took in the context of its injury analysis.220 In the underlying 
investigation, the MDCCE 's finding that the domestic industry was unestablished formed part of the 
MDCCE 's injury analysis. In evaluating the consistency of that finding with  Article  3.1, we would  thus 
review, as the panel in China – Cellulose Pulp  suggested, a specific decision  that the MDCCE  took in 
the context of its injury analysis.  
7.151.   We therefore agree with Turkey that Article  3.1 can be violated independently when an 
erroneous act or omission, such as an erroneous finding that the domestic industry in question is 
unestablished, taints the overall injury analysis.221 We thus evaluate in this dispute Turkey 's claim 
in question under Article  3.1 independently of any other provision in Article  3. 
7.6.2.1   Whether the MDCCE acted inconsistently with Article  3.1 in finding that the 
domestic industry was unestablished  
7.152.   We note that the  MDCCE recognized that an analysis of "material retardation of the 
establishment of the domestic industry" applies not only to cases where the domestic industry had 
not yet started producing  the like product  in question , but also to cases where the domestic industry 
had not yet reached "une présence  stable " (a stable presence ) on the market.222 In the underlying 
investigation, the domestic industry, Maghreb Steel, had already started producing  the like product 
(hot-rolled steel ) during the injury period.223 The MDCCE 's inquiry into whether Maghreb Steel was 
an established industry therefore entailed examining whether Maghreb Steel had achieved a stable 
presence on the market . We note that Turkey does not challenge the use of the standard of stability 
of presence for purposes of examining whether an "already producing" industry is established. In 
particular, Turkey does not challenge the MDCCE 's application of  that s tandar d of establishment to 
determine whether Maghreb Steel , which had already  started production, was established. Turkey 
recognizes the possibility of "exceptional circumstances" in which an industry, which has already 
started producing, is not yet established.224 Turkey asserts that such a determination must however, 
                                                
216 Panel Report, EC – Countervailing Measures on DRAM Chips , fn 218. 
217 Panel Report, China – Cellulose Pulp , para.  7.13. 
218 Panel Report , China – Cellulose Pulp , para.  7.15. 
219 Panel Report, China – Cellulose Pulp , fn 47. 
220 The panel observed  that whether the decision -making process of the investigating authority was 
unbiased can "only be determined on the basis of a careful scrutiny of the decisions made by the investigating 
authority in reaching a conclusion on the question of whether dumped imports caused injury, as set out in the 
relevant determination and other documents". (Panel Report, China – Cellulose Pulp , para.  7.17).  
221 Turkey's  second written submission, paras.  6.13-6.14. 
222 Final determination, (Exhibit TUR -11), para.  76. 
223 The injury period in the underlying  investigation ran from January 2009 until December 2012. ( Final 
determination, (Exhibit TUR -11), para.  11). Maghreb Steel began production of hot -rolled steel in 2010.  
224 Turkey submits that the breadth of the term "establishment of the industry" , read in conjunction with 
"création d'une branche de la production nationale" and "creación de esta rama de producción" in the French 
and Spanish versions, respectively,  is closer to "bringing into existence" of an industry rather than making the 
industry "firm or stable". (Turkey's  first written submission, para.  8.26). At the same time, Turkey accepts the WT/DS513/ R 
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  be grounded in positive evidence and  involve an objective examination, as required under Article  3.1 
of the Anti -Dumping  Agreement .225  
7.153.   The issue we must resolve therefore is whether the MDCCE, consistent ly with Article  3.1, 
evaluated, objectively and on the basis of positive evidence, the five criteria  enumerated  in 
paragraph 7.141.   that it used in finding that the domestic industry was unestablished.  
7.154.   We recall that "positive evidence" refers to the facts underpinning and justifying the injury 
determination. It relates t o quality of the evidence that authorities may rely upon in making a 
determination. The word "positive", in particular, means that the evidence must be of an affirmative, 
objective , and verifiable character , and it must be credible.226 The term "objective ex amination" 
relates to the conduct of the investigation generally . It requires an injury investigation to conform 
to the dictates  of the basic principles of good faith and fundamental fairness, and that the domestic 
industry, and the effects of dumped impor ts, be investigated in an unbiased manner, without 
favouring the interests of any interested party.227 Further, the "positive evidence" to be examined 
by the investigating authority must pertain to the particular substantive elements relevant to the 
determin ation made, and the "objective examination" must relate to the consideration and 
evaluation of that evidence in the investigation at issue.228  
7.155.   Similar to the Appellate Body 's views,  our view is  that Article  3.1 does not prescribe a 
particular methodology that an investigating authority must follow in assessing whether a domestic 
industry is established.229 While an investigating authority enjoys a certain degree of discretion in 
adopting a methodology to guide its analysis, it may, within the bounds of that discretion, have to 
rely on reasonable assumptions or draw inferences.  The exercise of this discretion must nonetheless 
comply with the requirements of Article  3.1. Accordingly, when an investigating 
authority 's determination rests upon assumptions, these assumptions should be derived as 
reasonable inferences from a credible basis of facts, and should be sufficiently explained so that 
their objectivity and credibility can be verified. An investigating authority that uses a methodology 
premised on unsubstant iated assumptions does not conduct an examination based on positive 
evidence. An assumption is not properly substantiated when the investigating authority does not 
explain why it would be appropriate to use it in the analysis.230 
7.156.   We will apply these consider ations in evaluating whether the MDCCE 's finding that the 
domestic industry was unestablished was based on positive evidence and objective examination. In 
our evaluation, we will examine the MDCCE 's assessment of each of the five criteria that formed the 
basis of its finding that the domestic industry was unestablished.  
7.6.2.1.1   Whether the MDCCE did not properly assess the temporal criterion in its 
establishment analysis  
7.157.   In determining whether Maghreb Steel was established, the MDCCE took into consideration 
how l ong the domestic industry had been prod ucing the domestic like product, hot -rolled steel.  The 
MDCCE considered , in particular, the time that had lapsed between when Maghreb Steel began 
producing and marketing that product , and when it filed its petition co ntaining evidence of injury 
with the MDCCE.231 In its final determination, the MDCCE noted that Maghreb Steel had provided 
data t hat did not go back more than 30  months for hot -rolled steel sheets232, and only 8 months for 
                                                
possibility of exceptional circumstances in which an "already producing industry" is not yet established. 
(Turkey's  first written submission, para.  8.28). 
225 Turkey's first written submission, para.  8.28. 
226 Appellate Body Report, US – Hot-Rolled Steel , para. 192. 
227 Appellate Body Report, US – Hot-Rolled Steel , para. 193. 
228 Panel Report, China – Cellulose Pulp , para.  7.16. 
229 Appellate Body Report, Russia – Commercia l Vehicles , para. 5.52. 
230 Appellate Body Report, Russia – Commercial Vehicles , para. 5.52 (referring to Appellate Body Report, 
Mexico – Anti-Dumping Measures on Rice , paras.  204-205).  
231 In its preliminary determination, the MDCCE  found that Maghreb Steel had been producing hot -rolled 
steel sheets  for 28 months before filing its petition, and thick sheets for eight months before the underlying 
investigation was initiated. (Preliminary determination, (Exhibit TUR -6), paras.  73-74). 
232 The MDCCE noted in its final determination that its findings on injury to the domestic industry 
pertained to the entire range of products mentioned in the application by the domestic producer. The MDCCE 
stated, however, that it made a distinction between  the various product segments (i.e. hot -rolled steel sheets 
and thick sheets) when this proved useful for a better understanding of the data. ( Final determination, WT/DS513/ R 
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  thick sheets , and considered  that time frame  as not long enough to permit an assessment of material 
injury .233 In this regard,  the MDCCE reasoned that,  based on international practice, a material  injury 
analysis requires a review of historical data for at least three years .234 However, in appl ying the 
temporal criterion to determine whether Maghreb Steel was established, the MDCCE also considered 
that the application of the temporal criterion should be analysed on a case -by-case-basis and take 
into account the nature of the industry in question . In this regard, the MDCCE noted that in the case 
at hand, the starting up of production and the marketing of  a product such as  hot-rolled steel sheets 
requires a lead time of more than two years, in view of the difficulty of mastering a heavy industry 
such as hot -rolling, as well as high -entry costs and the scale of the investment . It further stated that 
the marketing of steel products involves particular time frames owing to the difficulties inherent in 
the commercial negotiations, long delivery lead tim es, and transportation, among others .235 The 
MDCCE thus reached its finding that Maghreb Steel had not been producing and selling hot -rolled 
steel for a period sufficient for it to be considered an established industry.  
7.158.   In order to assess whether the MDCCE 's finding that Maghreb Steel had not been producing 
and selling hot -rolled steel for a period adequate for it to be considered an established industry was  
based on positive evidence and objective examination, we must evaluate the MDCCE 's reasoning, 
set out  in the preceding paragraph , for that finding.   
7.159.    We will  therefore first assess  whether the MDCCE  properly concluded that a material injury 
analysis requires  a review of historical data for at least three years . In its final determination, the 
MDCCE stated  that this conclusion  was not arbitrary,  but was b ased on international practice .236 At 
the outset, we consider that an unbiased and objective investigating authority would not have 
concluded that international practice did require  that a determination of ma terial injury be based on 
three years of data. Given the absence of any requirement in the WTO covered  Agreement s that a 
material injury analysis be based on  a review of data for at least three  years, international practice 
could not have set out that requ irement and bound the MDCCE in that regard. We therefore consider 
that the MDCCE did not objectively conclude that a material injury analysis requires  a review of 
historical data for at least three years.   
7.160.   Turkey argues  that the MDCCE 's conclusion  that a material injury analysis requires a review 
of historical data for at least three years  runs contrary to the Recommendation concerning the 
Periods of Data Collection for Anti -Dumping Investigations (hereinafter "the Recommendation") 
adopted by the Committee on Anti -Dumping Practices.237 Turkey contends that although the 
Recommendation lays down a general rule that the period of investigation of injury should  be at 
least three years, it recognizes the possibility that a shorter period may be chosen if data is av ailable 
for a shorter period. Morocco contends, in response, that the Recommendation  did not legally bind 
WTO Members, and therefore did not preclude the MDCCE from concluding that given historical data 
for a period of less than three years, it could not a ssess material injury in the underlying 
investigation.238 Turkey submits that it refers to the Recommendation, not to ask the Panel to apply 
it as binding law, but as evidence of the recognition by a WTO body, composed of all WTO Members, 
that injury periods  may effectively be shorter than three years.239  
7.161.   We note that the record of the investigation does not indicate that the MDCCE took the 
Recommendation into consideration in determining whether it had data covering a period that was 
sufficiently long for it to assess material injury. Nor did the Anti -Dumping  Agreement  or the 
covered  Agreement s require  the MDCCE to take the Recommendation into consideration because, 
as Morocco argues, it does not legally bind WTO Members .240 Past panel s have  recognized that the 
                                                
(Exhibit  TUR-11), paras.  122-123). There is no dispute among the parties regarding  the cover age of the 
product under consideration, which in this case is hot-rolled steel. In our analysis , we refer to the specific 
sub-products, i.e.  hot-rolled  steel sheets and thick sheets, rather than the product under consideration, i.e. 
hot-rolled steel, only where the MDCCE specifically refers to those specific sub -products in its determination.  
233 Final determination, (Exhibit TUR -11), paras.  84-85. 
234 Final determination, (Exhibit TUR -11), para. 87. 
235 Final determination, (Exhibit TUR -11), para. 91. 
236 Final de termination, (Exhibit TUR -11), para. 87. 
237 Turkey's  first written submission, para.  8.41 (referring to Recommendation Concerning the Periods of 
Data Collection for Anti -Dumping Investigations , G/ADP/6 (5 May 2000 ), para.  1). 
238 Morocco's  first written submi ssion, para.  180 (referring to Appellate Body Report, Mexico – 
Anti-Dumping Measures on Rice , para. 169).  
239 Turkey's  opening statement at the first meeting of the Panel , para.  4.2. 
240 Panel Report, Mexico – Anti-Dumping Measures on Rice , para. 7.62. WT/DS513/ R 
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  Recommendation is "a non -binding guide to the common understanding of Members on appropriate 
implementation of the AD  Agreement ".241 Given that even as a "guide", the Recommendation is 
non-binding, we do not consider it necessary for purposes of resolving th e issue at hand, to assess 
whether the MDCCE 's consideration  that a material injury analysis requires a review of historical 
data for at least three years , did run contrary to the Recommendation . We therefore reject 
Turkey 's argument in this regard.  
7.162.   We wil l next evaluate whether the MDCCE 's conclusion that the starting up of production and 
the marketing of hot -rolled steel shee ts requires a lead time of more than two years  was based on 
positive evidence. Turkey argues that the MDCCE did not substantiate that conclusion  with any 
evidence on the record .242 Morocco contends, in response, that certain statements in the report of 
the initiation of the investigation, addressing Maghreb Steel 's investment and certa in difficulties that 
the company faced in its first year of producing hot -rolled steel, do substantiate that 
consideration.243 Morocco asserts that the MDCCE stated that:  
In 2010, the company Maghreb Steel  undertook a major investment to build a 
hot-rolling complex comprising two hot -rolling mills for the production of coil and thick 
sheet, with capacities of one  million tonnes and 500,000 tonnes, respectively, and an 
electric steel plant with a capacity of one  million tonnes.244 
7.163.   In the same report, the MDCCE stated that: 
The analysis of the injury indi cators, above, shows that Maghreb Steel  is encountering 
numerous difficulties during the start -up years of its hot -rolling activity.245 
7.164.   We note  that the first statement addresses Maghreb Steel 's investment towards the 
production of hot -rolled steel . The second statement addresses difficulties Maghreb Steel faced in 
its first year after having started production of hot -rolled steel . Neither statement , however, 
substantiate s the MDCCE 's consideration that the starting  up of the production and marketing of a 
product such as hot -rolled steel sheet requires, in particular , a period of time  of more than two  years .  
7.165.   Further, the same report  in which these two statements appear states that  Maghreb 
Steel's achievements in ter ms of production and sales during the years 2011 and 2012 
(1st semester) stood  well below  the objectives of its investment project  foreseen in the 
company's  Business Plan.246 This statement, notably, appears in the part of the report discussing 
injury caused by dumped imports. This statement, and its appearance in the context of a discussion 
of injury caused by dumped imports under the section entitled " Conclusion sur les élém ents du 
dommage" , indicates that Maghreb Steel was forecasted to perform better than it actually did.247 
                                                
241 Panel Report, US – Hot-Rolled Steel , fn 152. 
242 Turkey's  first written submission, paras.  8.43-8.45. 
243 Morocco's  first written submission, para.  183. 
244 The MDCCE 's original statement in French is as follows:  
En 2010, la société MAGHREB STEEL a entamé un in vestissement considérable par l 'édification 
d'un complexe de laminage à chaud comprenant deux laminoirs à chaud de bobines et de tôles 
fortes, de capacités respectives d 'un million de tonnes et 500  000 tonnes, et d 'une aciérie 
électrique d 'une capacité d 'un million de tonnes.   
(Initiation report , (Exhibit TUR -2), p. 5). 
245 The MDCCE 's original statement in French is as follows:  
L'analyse des indicateurs de dommage, ci -dessus, montre que MAGHEB [sic] STEEL  rencontre 
beaucoup de difficultés au cours des premières années de démarrage de son activité de laminage 
à chaud.   
(Initiation report , (Exhibit TUR -2), p. 11). 
246 The statement  in question set out  in the report on the initiation of the investigation  is as follows:  
Les réalisations de MAGHREB STEEL en termes de production e t de ventes au cours des 
années  2011 et 2012 (1er semestre) sont très en deçà des objectifs prévus dans le business plan 
de son projet d 'investissement.  
(Initiation report , (Exhibit TUR -2), p. 11). 
247 The concluding paragraph in the section entitled " Conclusion sur les éléments du dommage" in the  
report on the initiation of the investigation states that:  
Ainsi, vu que les réalisations de MAGHREB STEEL sont largement en deçà des prévisions fixées 
dans le plan d 'affaires ayant justifié son investissement, le DCE considère qu 'il y a effectivement 
un retard dans le démarrage d 'une branche de production nationale de tôles en acier laminées à WT/DS513/ R 
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  The "difficulties" faced by Maghreb Steel that the report of initiation of the investigation refers to, 
under the section entitled " Conclusion sur les él éments du dommage", therefore did not necessarily 
reflect the norm in the hot -rolled steel industry , which  belies Morocco 's reliance on that reference, 
as reflecting difficulties that companies generally faced in their first year after having started 
produ ction of hot -rolled steel . Therefore, we consider that the MDCCE 's conclusion that the starting 
up of production and the marketing of hot -rolled steel shee ts requir es a lead time of more than 
two years  was not based on positive evidence.  
7.166.   Based on the foreg oing, we consider that the MDCCE did not properly find that Maghreb 
Steel had produced hot -rolled steel for a period inadequate to  consider it an established industry .  
7.6.2.1.2   Whether the MDCCE did not properly assess the market share criterion in its 
establishment analysis  
7.167.   In determining whether Maghreb Steel was established as an industry, the MDCCE declined 
to consider Maghreb Steel 's share in total domestic consumption of the domestic like product  that 
the company had secured through its sales to th e merchant market , as well as certain transfers to 
its captive market. The MDCCE did so after initially setting out "market share" as a relevant indicator 
of establishment.  The MDCCE did not take into consideration Maghreb Steel 's total market share 
becaus e it considered that the merchant market was the only market where imports could compete 
with the domestic like product.248 The MDCCE further rejected considering Maghreb Steel 's share 
even in the merchant market on the basis that the company had secured tha t share through 
loss-making sales, and therefore that market share could not be taken as indicating the 
company 's stability.249 For these reasons, the MDCCE decided not to rely on Maghreb Steel 's market 
share in determining whether the domestic industry was established.250 Turkey asserts that Maghreb 
Steel had secured 70% of the total market, and 40% of the merchant market, for the domestic like 
product in 2012 . Morocco does not contest these figures.251 
7.168.   According to Turkey , the MDCCE offered no meaningf ul explanation for disregarding Maghreb 
Steel's total market share in assessing whether the domestic industry was established. Turkey 
argues  that whether Maghreb Steel dedicated part of its production to captive consumption was 
irrelevant to the issue of whet her it was established.252 Morocco responds  that the MDCCE did explain 
that the merchant market was the only market where domestic produ cts could compete with imports  
and therefore the MDCCE  considered it appropriate to focus on the merchant market for pur poses 
of determining whether the domestic industry was established .253  
7.169.   We will  first evaluate whether the MDCCE improperly  disregarded  Maghreb Steel 's total 
market share in determining whether the company was established  because that total market share 
includ ed Maghreb Steel 's captive production .  
7.6.2.1.2.1   Whether the MDCCE improperly disregarded Maghreb Steel 's total market  
share  
7.170.   At the outset, we note that the MDCCE had undertaken to consider the market share of the 
"domestic industry" for purposes of assessing whether the "domestic industry" was established. The 
MDCCE sought to make this assessment  within the broader context of i ts "determination of injury " 
under Article  3, and particularly in order to ascertain whether the domestic industry had suffered 
injury in the form of  "material retardation of  the establishment of the domestic industry ".254 The 
                                                
chaud et que par conséquent, MAGHREB STEEL a subi un d ommage au sens de l 'Article  3 de 
l'Accord Antidumping.   
(Initiation report , (Exhibit TUR -2), p. 11). 
248 Final determination, (Exhibit TUR -11), para. 94. 
249 Final determination, (Exhibit TUR -11), para. 95. 
250 Final determination, (Exhibit TUR -11), para. 96. 
251 Turkey's  first written submission, para.  8.50; Morocco's  first written submission, paras.  185-189. We 
note that Turkey also asserts that Maghreb Steel had secured a share of ove r 37% in the merchant market 
in 2011. (Turkey's  second written submission, par a. 6.36; response to Panel question No.  8.8, para.  14). 
Morocco rejects Turkey's  assertion in this regard, and submits that Maghreb Steel's  share in the merchant 
market in 2011 stood at 24% instead. ( Morocco's  comments on Turkey's  response to Panel's  quest ion No.  8.8). 
252 Turkey's  first written submission, paras.  8.51-8.52. 
253 Morocco's  first written submission, para.  186. 
254 Final determination, (Exhibit TUR -11), paras.  68 and 111 . WT/DS513/ R 
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  term "domestic industry"  within  the context of an injury determination under Article  3, however, has 
to be understood as meaning the domestic industry in totality, and does not distinguish between the 
captive market and the merchant market. The Appellate Body has made it clear, in this regard, that 
captive production may not be excluded from either the definition of the domestic industry or from 
the injury analysis.255 In US – Hot-Rolled Steel , the Appellate Body explained that it follows clearly 
from the definition of injury in footnote 9  to Article  3 of the Anti -Dumping  Agreement  that the focus 
of the injury determination is the state of the "domestic industry", which , read in light of Article  4.1 
of the Anti -Dumping  Agreement , is the domestic industry in totality .256 The Appellate Body fur ther 
noted that while nothing in the Anti -Dumping  Agreement  prevents investigating authorities from 
examining a domestic industry by part, sector or segment, Article  3.1 requires that such sectoral 
examination be conducted in an "objective" manner. This requirement means that in cases where 
investigating authorities examin e one part of a domestic industry, they should, in principle, examine 
in like manner all of the other parts that make up the industry, as well as examine the industry as 
a whole . Alterna tively, the investigating authorities should provide a satisfactory explanation as to 
why it is not necessary to examine directly or specifically the other parts of th e domestic industry.257 
The Appellate Body reasoned that different parts of the domestic in dustry may exhibit different 
economic performance within a particular period. To examine only the parts of an industry which 
are performing poorly may result in highlighting the negative data in the poorly performing part 
without drawing attention to the p ositive data in other parts of the industry.258  
7.171.   We agree with the Appellate Body 's reasoning, and consider that it also applies in the 
particular context of the MDCCE 's establishment analysis. A determination of "material retardation 
of the establishment of  the domestic industry" under Article  3.1 would not be based on an "objective 
examination", if an investigating authority found, as part of that determination, that the domestic 
industry in question was unestablished , having examined only a part and not th e totality of that 
domestic industry. In examining only one part of the domestic industry, the authority may well have 
examined the part with less operational stability without also examining a part that was more 
operationally stable, leading the authority  to conclude that the industry is unestablished . Examining 
the industry in totality,  however , may have led the authority to reach a different conclusion regarding 
the state of establishment of the industry.259 We therefore consider that an objective and unbi ased 
authority , in assessing the domestic industry 's market share for purposes of determining whether 
that industry is established, would take into consideration the market share for both the captive and 
merchant market segments, or alternatively, would gi ve a satisfactory explanation for why it could 
not do so. In the underlying investigation, the MDCCE failed to do either.  
7.172.   As noted in paragraph 7.167.   , the MDCCE declined  to consider Maghreb Steel 's total market  
share in assessing whether the domestic industry was established because it considered that the 
merchant market was the only market where imports could compete with the domestic like 
product.260 In a separate part of its final determination, the MDCCE expla ined that having examined 
the data from the domestic industry, it considered that captive sales of hot -rolled steel did not 
compete with imports for two reasons: First, captive production is transferred within Maghreb Steel 
without any price being paid. Ac cording to the MDCCE, t he absence of pricing in internal transactions 
indicated that captive sales were not marketed under the same conditions as on the merchant 
market. Second, the cold-rolled steel downstream unit of Maghreb Steel  has practically stopped  
purchasing hot-rolled steel sheet from independent suppliers since Maghreb Steel can itself produce 
hot-rolled steel sheet.261 Morocco argues that t hese reasons formed the basis for the 
MDCCE 's conclusion that Maghreb Steel 's captive transfers of hot -rolled  steel did not compete with 
imports, and led the MDCCE to disregard the company 's total market share.262  
7.173.   In our view, even if the MDCCE was correct that captive transfers of hot -rolled steel  did not 
compete with imports , an unbiased an d objective authority would not, for that reason  alone , 
disregard the domestic industry 's captive transfers  in assessing whether the domestic industry was 
established . Recalling the MDCCE 's standard of stability of presence for purposes of examining 
                                                
255 Appellate Body Report, US – Cotton  Yarn, para. 102. 
256 Appellate Body Report,  US – Hot-Rolled Steel , para. 190. 
257 Appellate Body Report, US – Hot-Rolled Steel , para. 204. 
258 Appellate Body Report, US – Hot-Rolled Steel , para. 204. 
259 We recall here that the MDCCE had sought to apply a standard of stability of presence for purposes 
of examining whether Maghreb Steel was established.  
260 Final determination, (Exhibit TUR -11), para. 94. 
261 Final determination, (Exhibit TUR -11), para. 138. 
262 Morocco's  response to Panel question No.  4.12, para.  108. WT/DS513/ R 
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  whether Maghreb Steel was established, we consider that a domestic industry may be established, 
in the sense of having stable operations, even if it engages primarily in captive transfers. Indeed, 
the McLellan report, upon which the MDCCE had relied in its  findings in the investigation, had 
concluded that almost half of Maghreb Steel 's production, which was directed to the captive  market, 
had access to "un marché  garanti " (a guaranteed market) and would therefore hold " bonnes 
perspectives commerciales"  (good commercial prospects) for the domestic indu stry.263 In our view, 
an unbiased and objective  investigating authority, in analysing the market share of the domestic 
industry for purposes of determining the stability of its operations, would not disregard a gu aranteed 
market which accounted for half of that industry 's production. This was because, as the McLellan 
report itself recognized, the fact that the captive market was guaranteed held good commercial 
prospects for the domestic industry, which in turn, poi nted to the overall viability – and therefore 
stability  – of the domestic industry.  
7.174.   Furthermore, even if we were to accept the MDCCE 's reasoning that it is the domestic 
industry 's presence in  the merchant market which determines whether that industry is  established , 
in our view, a domestic industry may be willing to divert "captive sales" to the "merchant market" if  
it is more profitable for it to do so. Maghreb Steel had secured 70% of the total market in Morocco 
for hot -rolled steel towards the end of the  injury period. Even if a certain percentage of that share 
was dedicated to the captive market, an unbiased and objective authority would have questioned 
whether Maghreb Steel had the option to, if it wished, divert some or all of its captive pro duction to  
the merchant market. Particularly in the context of assessing whether Maghreb Steel was an 
established industry, it was relevant for the MDCCE to have considered that it may well be easier for 
a company currently making "captive sales" of a product to ent er the merchant market than i t would 
be for a company with no production  of that product . The MDCCE, however, did not do so.  
7.175.   Therefore, we consider that the MDCCE did not act objectively in concluding that it could n ot 
consider Maghreb Steel 's total market  share of hot -rolled steel in its establishment analysis because 
that share consisted of captive transfers of hot -rolled steel.  
7.176.   We recall  further that the MDCCE, in assessing whether the domestic industry was 
established, rejected considering even Maghreb  Steel's market share in respect of its merchant 
market sales, on the basis that those sales were made at a loss. We will next evaluate the 
MDCCE 's basis for not considering Maghreb Steel 's merchant market share in assessing whether the 
domestic industry w as established.  
7.6.2.1.2.2   Whether the MDCCE improperly rejected Maghreb Steel 's share in the 
merchant market  
7.177.   Turkey argues that the MDCCE 's conclusion that Maghreb Steel 's share in the merchant 
market did not indicate  stabil ity because Maghreb Steel made its sales to that market at a loss , was 
flawed. In particular, Turkey contends that the MDCCE did not substantiate with positive evidence 
on the record  its assertion that those sales were made at a loss.264 Further, in  dismissing Maghreb 
Steel's merchant market share in its analysis of establishment, the MDCCE extrapolated its finding 
that sales in 2012 were made at a loss to apply to the full injury period.265 Morocco responds that 
because the MDCCE noted that sales were made at a loss in the context of add ressing the year 2012 
does not mean that the MDCCE 's finding regarding sales at a loss was made solely for 2012. In this 
regard, Morocco refers to certain statements in the final determination, where the MDCCE addressed 
the sales made at a loss without ref erence to a specific year.266   
7.178.   We note that the MDCCE, in referring in its final determination to Maghreb 
Steel's loss-making sales as a basis for not considering Maghreb Steel 's merchant market share, did 
not expressly refer to any evidence to substantiate  its conclusion that those sales were made at a 
loss.267 The MDCCE also did not specify which year(s) in the injury period the company had incurred 
those losses. Turkey asserts that in certain parts of its final determination the MDCCE stated that 
                                                
263 Preliminary determination, (Exhibit TUR -6), para.  120. 
264 Turkey 's opening statement at the first meeting of the Panel , para.  4.4. 
265 Turkey's  second written submission, para.  6.40. 
266 Morocco's  opening statement at the second meeting of the Panel, para.  83 (referring to Final 
determin ation, (Exhib it TUR -11), paras.  95 and 180 ). 
267 Final d etermination, (Exhibit TUR -11), para. 95. WT/DS513/ R 
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  sales at a  loss occurred only in 2012.268 In particular, Turkey refers to the MDCCE 's statement below, 
in the context of the MDCCE 's analysis of the volume of dumped imports:  
Over the period 2010 -2012, even if the share of imports declined by 13%, it still always 
remained above non -negligible levels, and still held more than half of the merchant 
market in 2012 (57.34%). It shou ld also be recalled that Maghreb Steel 's market share 
in 2012 was only obtained thanks to below -cost sales.269 
7.179.   We note that the above statement i ndicates that although the MDCCE assessed the trend in 
the share of imports over the entire period 2010 -2012, in noting that Maghreb Steel had secured 
market share only due to sales at losses, the MDCCE referred only to 2012.  
7.180.   Turkey further asserts that  in analyzing Maghreb Steel 's sales volumes  in its final 
determination,  the MDCCE stated : 
It should be pointed out that almost all the sales in 2012 were made at a loss (99%).270 
7.181.   We note that the above  statement indicates that the MDCCE, once again, referred only to 
losses in 2012 and not in the remaining period of investigation. Turkey argues that the above 
statements indicate that the MDCCE extrapolated its finding that sales in 2012 were made at a lo ss 
to apply to th e full injury period .271  
7.182.   We consider that while these statements do not conclusively indicate that the MDCCE, as 
Turkey argues, extrapolated its finding that sales in 2012 were made at a loss to apply to the full 
injury period, they do rais e a doubt as to whether the MDCCE found that Maghreb Steel incurred 
losses only in 2012 or also in the rest of the injury period. We note, in particular, that there is no 
determination by the MDCCE that sales to the merchant market were made at a loss in 2 010 
and 2011.  
7.183.   In this regard , Morocco posits that the fact that the sales were made at a loss is 
demonstrated by Maghreb Steel 's failure to  reach its break -even threshold.272 In particular, Morocco 
points to the MDCCE 's statement that Maghreb Steel 's production in 2012 represented barely 63% 
of its break -even point, which left the company far from a level where it would not realize a loss.273 
Morocco further asserts that the MDCCE had explained in its determinations that Maghreb Steel had 
"never" met its  break -even threshold, and points to Maghreb Steel 's questionnaire response as 
support for this conclusion.  Morocco submits that as the record evidence demonstrated that Maghreb 
Steel had never met its break -even threshold, the MDCCE properly concluded tha t its sales were 
made at a loss.274  
7.184.   We agree with Turkey , however, that nothing in the MDCCE 's record demonstrates that 
Maghreb Steel 's failure to meet its break -even threshold meant that the company 's sales incurred  
losses.275 The MDCCE did not explain, either in its determination or elsewhere in the record of the 
underlying investigation, how it had arrived at Maghreb Steel 's break -even threshold:  in particular,  
it remains unclear what price the MDCCE assigned to transfers of hot -rolled steel  to the capt ive 
market in Morocco. Without that information, we have no basis to conclude that Maghreb 
                                                
268 Turkey's  second written submission, para.  6.38. 
269 The MDCCE 's original statement in French is as follows:  
Sur la période 2010 -2012, même si la part des importations a baissé de 13%, elle s'est toujours 
maintenue à des niveaux non -négligeables, dépassant encore la moitié du marché libre en 2012 
(57,34%). Aussi, il convient de rappeler que la part de marché obtenue par MAGHREB STEEL 
en 2012 n'a été possible que grâce à de s ventes à perte.  
(Final determination, (Exhibit TUR -11), para. 136).  
270 The MDCCE 's original statement in French is as follows: " [i]l est à préciser que la quasi -totalité des 
ventes de 2012 été faite à perte (99%) ". (Final determination, (Exhibit TUR -11), para. 176).  
271 Turkey 's second written submission, para. 6.40. 
272 Morocco 's first written submission, para. 187; second written submissio n, para.  148. 
273 Morocco's  second written submission, para.  148 (referring to Preliminary determination, 
(Exhibit  TUR-6), para. 87); first written submission, para.  187. 
274 Morocco's  response to Panel question No.  4.17, para.  119 (referring to Preliminary determination, 
(Exhibit TUR -6), paras.  86-87 and Final determination, (Exhibit TUR -11), para. 100).  
275 Turkey's  second written submission, paras.  6.43-6.44. WT/DS513/ R 
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  Steel's failure to meet the break -even threshold meant that the company had incurred a loss in any 
year of the injury period, including 2012.  
7.185.   The MDCCE understood a  company to meet its break -even threshold  when its total revenue 
equals its total costs.276 However, in Maghreb Steel 's case, at least part of the company 's production 
of hot -rolled steel could  not have brought revenue because the MDCCE had found that it was  
transferred to the captive market free of charge.277 That being the case, the question arises whether, 
in determining whether Maghreb Steel 's total costs were equal to its total revenue, the MDCCE 
compared the company 's total costs, which included the cost of producing the domestic like product 
that the company transferred to its captive market and that which it sold to the merchant market, 
with revenue only from the sales to the merchant market, as those were the only revenue -making 
sales. In such  compariso n, the cost side of the equation would be incongruent with the revenue side 
because the cost of production pertains to the cost of Maghreb Steel 's total production but the 
revenue pertains to only part of its production . As Turkey argues, such comparison w ould yield 
unreasonable results.278 Morocco contends, however, that the break -even threshold did consider the 
revenues from Maghreb Steel 's total production.279 Morocco asserts , in particular, that Maghreb 
Steel's questionnaire response states clearly that in determining whether the company had met its 
break -even threshold, the company took into account "les ventes intersites"  (transfers to the captive 
market ). Morocco further asserts that the MDCCE had relied upon Maghreb Steel 's questionnaire 
response in determining that the company had not met its break -even threshold.280 
7.186.    We note , at the outset, that the contents of Maghreb Steel 's questionnaire response do not 
amount to a determination by the MDCCE. Nor does the MDCCE 's determination clearly show that 
the MDCCE relied on that questionnaire response in determining that Maghreb Steel had not met its 
break -even threshold. The MDCCE in its determination simply refers to "[d]onnées collectées auprès 
de Maghreb Steel" (data from Maghreb Steel ) as a source for in formation on the 
company 's break -even threshold, without specifically referring to the company 's questionnaire 
response.281 We consider  however that , even if we were to accept Morocco 's assertion  that Maghreb 
Steel's questionnaire response serves as evidence  that the MDCCE did, in calculating total revenue, 
include transfers to the captive market in terms of volume  of production transferred, the record does 
not indicate the price which the MDCCE assigned to those transfers in order to arrive at the revenue. 
This is particularly puzzling considering the MDCCE 's statement in its determination that those 
transfers to the captive market were made without a price.282 In our view, the price assigned to the 
transfers was critical in determining revenue earned because r evenue is a function of price. The total 
revenue would be lower, higher or equal to the total cost, depending on the price assigned to the 
transfers, therefore having a direct bearing on whether the MDCCE would consider Maghreb Steel to 
have met its break -even threshold.  
7.187.   Morocco asserts that a "hypothetical price" was assigned to the transfers to the captive 
market, which was equivalent to the market price.283 We consider, however, that nothing in the 
MDCCE 's determination or record shows that the MDCCE, or e ven Maghreb Steel, had assigned such 
a "hypothetical price" to those transfers in arriving at the total revenue for the domestic like product. 
In response to the Panel 's question asking Morocco to identify record evidence showing that the 
MDCCE had assigne d a "hypothetical price" to captive transfers, Morocco points to the "[p]rix de 
vente unitaire" (unit price),  set out in certain tables pertaining to "Détail du calcul du seuil de 
rentabilité et point mort"284 in Maghre b Steel 's questionnaire response. Morocco submits that these 
tables indicate the "[p]rix de vente unitaire" ( unit price)  without differentiating between the captive 
or merchant markets. Morocco further asserts that below the tables, Maghreb Steel explains that 
                                                
276 Preliminary determination, (Exhibit TUR -6), para. 83. 
277 Final d etermin ation, (Exhibit TUR -11), paras.  110 and 138. Further, Morocco has not presented any 
evidence to show that any revenue was attribu ted to these transfers in Maghreb Steel's books. Indeed, 
Morocco confirms that Maghreb Steel 's hot-rolled steel production branch did not charge for the transfer of 
hot-rolled steel t o the cold -rolled steel branch.  (Morocco's response to Panel question No.  9.8, para. 70).  
278 Turkey's  opening statement at the first meeting of the Panel , para.  4.5. 
279 Morocco's  second written submission, paras.  153-154. 
280 Morocco's  second written submission, para.  155. 
281 Preliminary determination, (Exhibit TUR -6), para. 86 and table 2.  
282 Final determin ation, (Exhibit TUR -11), para.  138. 
283 Morocco's  second written submission, para.  157. 
284 "Details of the calculation of the pr ofitability threshold and break -even point" . WT/DS513/ R 
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  "[t]he break -even threshold in 2012 amounts to around [] tons against real sales (including internal 
sales) of [] tons", and that internal transfers were thus included in this calculation.285  
7.188.   We consider however, that nothing in the term "[p]rix de vente unitair e" (unit price), or in 
the explanation following the table indicating that the "ventes réelles" (real sales) included "les 
ventes intersites" (internal sales), establishes either that Maghreb steel had assigned a "hypothetical 
price" to captive transfers,  or that that hypothetical price was equivalent to the market price.  We 
cannot assume , in the absence of a finding  by the MDCCE , that the "[p]rix de vente unitaire" (unit 
price) was applicable also to Maghreb Steel 's captive transfers, particularly in light  of the 
MDCCE 's finding that these transfers were made without a price. In light of that finding, if such a 
hypothetical price had been applied to the captive transfers, the application of that price should have 
been clear from the MDCCE 's determination . Given Morocco 's failure to identify in the 
MDCCE 's determination  any express and clear reference to the price assigned to captive transfers, 
we reject Morocco 's argument in this  regard as ex post rationalization, and conclude that the record 
evidence does not show that the MDCCE 's conclusion that Maghreb Steel had not met its break -even 
threshold was based on positive evidence. Because there was inadequate evidence on the record to 
support the MDCCE 's conclusion that Maghreb Steel had failed to meet its bre ak-even threshold, 
that unfounded conclusion could not have served as a proper basis for finding that the company had 
sold to the merchant market at a loss .  
7.189.   Further, even if there was evidence on the MDCCE 's record that Maghreb Steel had sold to 
the merch ant market at a loss, that fact in itself would not have justified disregarding the domestic 
industry 's market share in assessing whether the industry was est ablished. Turkey asserts that 
a 40% merchant market share is indicative of establishment, as the f act that Maghreb Steel 
succeeded in securing 40% of merchant  sales with respect to a product that used to be totally 
imported prior to 2009, is because the company had well -established selling and distribution 
channels in the market place.286  
7.190.   In considering  the issue of establishment in the context of the stability of an 
industry 's presence , an objective and impartial investigating authority would be expected to consider 
whether an industry 's ability to capture as much as 40% of the merchant market , even thr ough 
selling at a loss, nevertheless indicates that the presence  of that industry is sufficiently stabilized. 
In our view, once a certain share of the market is secured, the fact that sales are made at a loss 
does not necessarily preclude a determination t hat the presence  of an industry is sufficiently 
stabilized for that industry to be established (in which case the sales at a loss would be considered 
in the context of an assessment of material injury). On the one  hand, sales at a loss may not be 
sustainab le, and therefore indicative of a lack of stability. On the other hand, the fact that an industry 
accounts for as much as 40% of the merchant market might suggest stability in the sense of 
established selling operations, market presence , and client base. T hese latter considerations may be 
particularly relevant given the MDCCE 's finding that the marketing of steel products involves 
particular time frames owing to the difficulties inherent in the commercial negotiations, long delivery 
lead times, and transpor tation, among others .287 These are but some of the issues that an objective 
examination by the MDCCE might have addressed.   
7.191.   For the foregoing reasons, we consider that the MDCCE did not act objectively in dismissing  
Maghreb Steel 's merchant market shar e based on the reasoning that the company 's sales were 
allegedly made at a loss . We con sider that the MDCCE improperly dismissed Maghreb Steel 's total 
market share in assessing whether the domestic industry was established. Further, we conclude that 
the MD CCE improperly disregarded Maghreb Steel 's merchant market share.  
                                                
285 The original statement of the MDCCE is as follows: "[l]e point mort en tonnes en 2012 s'élève à 
environ [] T contre des ventes réelles (y compris les ventes intersites) de [] T". (Morocco 's response to Panel 
question No. 9.11, paras.  77-78 (quoting Excerpt  from Maghreb Steel 's questionnaire response, section G , 
(Exhibit MAR -8), p.  9)). 
286 Turkey's  first written submission, para.  8.52. 
287 Final determination, (Exhibit TUR -11), para. 91. WT/DS513/ R 
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  7.6.2.1.3   Whether the MDCCE in its establishment analysis did not properly conclude that 
Maghreb Steel had not met its break -even threshold  
7.192.   For the reasons discussed in paragraphs 7.183.   -7.188.   above we consider that the 
MDCCE 's determination does not show that its conclusion that Maghreb Steel had not met its 
break -even threshold was based on positive evidence.  
7.193.   Further , we note that contrary to Morocco 's assertion that Maghreb Steel had "never" met 
its break -even threshold288, Turkey argues that  the MDCCE 's determination does not demonstrate 
that the MDCCE had assessed whether the company had failed to meet its break -even threshold 
throughout  the injury period . Turkey contends that the MDCCE improperly based its finding that 
Maghreb  Steel had not met the break -even threshold on a comparison between only the level of 
production in 2012 and the break -even threshold.289 In its preliminary determination, the MDCCE 
specified that Maghreb Steel 's production in 2012  amounted to barely 63% of its break -even point 
under normal market conditions.290 The MDCCE noted further that, based on that information, it 
must be concluded that Maghreb Steel had not yet reached its break -even point.291 Turkey argues 
that the se statements of the MDCCE  show that the  MDCCE took into account only the data pertaining 
to 2012 to assess whether Maghreb Steel 's production had reached the break -even threshold.292 We 
consider that these statements of the MDCCE do not conclusively show that the  MDCCE had assessed 
whether Maghreb Steel had failed to meet its break -even threshold in each year of the injury period.  
7.194.   Morocco points  to the MDCCE 's statement in its final determination that Maghreb Steel  "is 
far from having reached its break -even point"293, as evidence of a general finding by the authority 
that Maghreb Steel had not reached its  break -even threshold.294 That statement , however, does not 
specify the particular years in which Maghreb Steel failed to reach its break -even threshold and , 
therefore, also does not conclusively  show that the MDCCE had assessed whether Maghreb Steel  
had failed to meet its break -even threshold in each year of the injury period. Further, we recall that 
Morocco submits that the MDCCE 's finding that Maghreb Steel had never met the break -even 
threshol d was based on Maghreb Steel 's questionnaire response. Maghreb Steel 's questionnaire 
response, however, does not provide a break -even threshold for the years 2010 and 2011.295 This 
indicates that the MDCCE could not have assessed whether Maghreb Steel had failed to meet its 
break -even threshold for the years 2010 and 2011, and objectively concluded, solely on the basis 
of the data provided for 2012, that Maghreb Steel had faile d to meet its break -even threshold 
throughout  the injury period.  
7.195.   We further  recall that Morocco has confirmed in these proceedings that the break -even 
threshold was calculat ed only for 2012.296 In light of that fact, we fail to comprehend how the MDCCE 
could have assessed whether Maghreb Steel had failed to meet its break -even threshold throughout 
the injury period.  
7.196.   In this regard, w e understand Morocco to contend that comparing Maghreb 
Steel's break -even threshold , set out in table 2 of the MDCCE 's prelimi nary determination , with the 
                                                
288 Morocco's  response to Panel question No.  4.17, para.  119 (referring to P reliminary determination, 
(Exhibit TUR -6), paras.  86-87; and Final determination, (Exhibit TUR -11), para. 100).  
289 Turkey's  first written submission, para.  8.61 (referring to Preliminary determination, (Exhibit TUR -6), 
para. 87); second written submission, paras.  6.61-6.65. 
290 Preliminary determination, (Exhibit TUR -6), para. 87. 
291 Preliminary determination, (Exhibit TUR -6), para. 88. 
292 Turkey's  second written submission, para.  6.62. 
293 The MDCCE 's original statement in French is as follows: " [M]aghreb Steel est encore loin d 'avoir 
atteint son seuil de rentabilité, chose que les exportateurs n 'ont pas  démenti ." (Final determination, 
(Exhibit  TUR-11), para. 100).  
294 Morocco's  response to Panel question No.  8.9(a), para.  49 (referring to Final determination, 
(Exhibit TUR-11), para.  100).  
295 We note that Morocco has confirmed, in response to our questions,  that Maghreb 
Steel's questionnaire response provides the break -even threshold only for 2012.  (Morocco's  response to Panel 
question No.  8.9(b), para.  50 (referring to Excerpt from Maghreb Steel 's questionnaire response, section G , 
(Exhibit MAR -8), p. 8)). Maghreb Steel 's questionnaire response sets out a "0" (zero) with respect to the 
break -even thr eshold for 2010 and 2011. Morocco submits that the "0" refers to the fact that Maghreb Steel 
calculated only one break -even threshold, and did not calculate separate thresholds for 2010 and 2011.  
(Morocco 's response to Panel question No.  8.9(c), para.  51). 
296 Morocco's  responses to Panel question No.  8.9(b), para.  50 (referring to Excerpt from Maghreb 
Steel's questionnaire response, section G , (Exhibit MAR -8), p. 8); and No. 8.9(c), para. 51. WT/DS513/ R 
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  indexed actual production volumes in 2010 and 2011, set out in table 7 of the MDCCE 's preliminary 
determination, shows that Maghreb Steel failed to meet the break -even threshold in 2010 
and 2011.297 Turkey argues in response that  table 2, based on Morocco 's own submission, is based 
on Maghreb Steel 's questionnaire response, which provides the break -even threshold only for 2012. 
Therefore table 2 does not support Morocco 's arguments that the MDCCE assessed the break -even 
threshold for the whole injury period. Further, table 7 provides data on production volume only, 
while the break -even threshold was derived from a comparison of the totality of revenues against 
the totality of costs. Turkey contends that it remains un clear from table 7 how it is possible to derive 
the break -even threshold from information on production volumes only.298  
7.197.   Morocco 's arguments fail to persuade us . Morocco 's position is based on conclusions drawn 
from piecing together distinct elements of the  MDCCE 's preliminary determination, without any 
indication that such exercise was actually undertaken by the MDCCE. Further, even if such analysis 
was undertaken by the MDCCE, it would not provide a proper assessment of Maghreb 
Steel's break -even threshold  for 2010 and 2011. As noted, Morocco has confirmed that the 
break -even threshold was calculat ed only for 2012.299 Morocco has failed to demonstrate how the 
actual production volumes in 2010 and 2011 respectively can be compared with the break -even 
threshold  calculated for 2012, a different year, to show that Maghreb Steel failed to break  even, and 
suffered losses, in 2010 and 2011. Considering that the MDCCE understood a company to meet its 
break -even threshold  when its total revenue equals its total costs300, and given that costs and selling 
prices may vary across different years, Morocco has not presented us with any basis in the 
MDCCE 's determination  to conclude that the break -even threshold calculated for 2012 served as an 
appropriate benchmark against whic h to assess whether Maghreb Steel  broke even in 2010 
and 2011. Absent such demonstration and in order to meaningfully assess whether or not a company 
had broken even in a particular year,  an unbiased and objective authority would not compare a 
company 's actual  volumes sold in that year  to the break -even threshold for another year , where that 
break -even threshold is calculated on the basis of  cost and selling price data for that other year.  
7.198.   As Morocco did not  identify on the record evidence based on  which the MDCCE found  that 
Maghreb Steel had not met its break -even threshold  throughout the injury period, we consider that 
the MDCCE improperly made that finding.  
7.6.2.1.4   Whether the MDCCE did not properly assess the production stability criterion in 
its establishment  analysis  
7.199.   In the underlying investigation, the MDCCE assessed Maghreb Steel 's monthly production 
data for the domestic like product over the period 2010 -2012, to find that the company 's production 
had fluctuated significantly month -on-month, reaching as m uch as 60% of production from one 
month to the next, and had completely stopped in February 2012 .301 The MDCCE concluded that 
sharp and significant variations in Maghreb Steel 's monthly production over the injury period 
indicated that the company 's production had no t stabilized. The MDCCE reached  this conclusion even 
though Maghreb Steel 's production h ad increased from 2010 to 2012.302   
                                                
297 Morocco submits that Maghreb Steel 's failure to meet its break -even threshold in all three years of 
the injury period, including 2010 and 2011, is evident from tables 2 and 7 read together with paragraph 87 of 
the MDCCE 's preliminary determination. Table 2 sets out Maghreb Steel 's break -even threshold, in terms of 
volume of production. Table 7 provides Maghreb Steel 's actual production levels for 2010, 2011 , and 2012. 
Paragraph 87 sets out, in relevant part, the MDCCE 's finding that Maghreb Steel 's production in 2012 
represented barely 63% of its break -even point. Morocco argues that as the production in 2010 was 
significantly lower than in 2012, table 7 read together with paragraph 87 shows that the profitability threshold 
was not met in 2010. Although production in 2011 was higher than in 201 0, reading  table 7 together with 
paragraph 87 shows that the difference in production volumes between 2011 and 2012 was not sufficient to 
overcome the 63% shortfall between actual production and the profitability threshold identified in 
paragraph  87. (Morocco's  response to Panel question No.  8.9(a), para.  48). 
298 Turkey's  comments on Morocco's  response to Panel question No.  8.9(a).  
299 Morocco's  response to Panel question No.  8.9(b), para.  50 (referring to Excerpt from Maghreb 
Steel's questionnaire response, section G , (Exhibit MAR -8), p. 8), and No. 8.9(c), para. 51. 
300 Preliminary determination, (Exhibit TUR -6), para. 83. 
301 Final determination, (Exhibit TUR -11), para. 103. 
302 Final determination, (Exhibit TUR -11), paras.  102-104; Preliminary determination, (Exhibit TUR -6), 
paras.  90-91. Turkey asserts that the monthly average production in 2010, 2011 , and 2012 was well above the 
starting point . (Turkey's response to Panel question No. 4.18, para. 140). Morocco does not contest this 
assertion.  WT/DS513/ R 
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  7.200.   Turkey argues that some monthly fluctuation in the production of hot -rolled steel is 
expecte d, considering the natur e of that product and the variations of demand  for it, as is confirmed  
by the variations in the volumes of hot -rolled steel imports over the injury period.303 Turkey further 
asserts that Maghreb Steel 's production of hot -rolled steel fluctuated within a  "reasonable range" 
during the months within the period June 2010 -2012 because these fluctuations, when viewed on 
the basis of average monthly production, were  in line with global and domestic demand and prices.304 
Turkey also observes that, even in difficult eco nomic times affecting the global steel industry, 
Maghreb Steel was able to increase its domestic sales by 9.3% to the detriment of imports.305 
7.201.    Morocco contends in response that neither footnote 9, assuming it requires a determination 
of establishment, nor Article 3.4 of the Anti -Dumping  Agreement , required the MDCCE to inquire 
into factors such as demand and other market conditions in the context of assessing whether the 
domestic industry was established. This was because these "other factors" were non -attribution 
factors, which an investigating authority must evaluate while analysing the causation of injury under 
Article  3.5 of the Anti -Dumping  Agreement , and Turkey has not brought a claim under that 
provision.306 Morocco also argues that the Anti -Dumping  Agreement  does not require a 
determination of non -establishment to include an assessment of trends in the volume of imports 
(other than the analysis of the volume of dumped imports contemplated in Article  3.2).307 
7.202.   We recall that in the underlying investigat ion the MDCCE had examined Maghreb 
Steel's stability of production as one of the criteria for determining whether the domestic industry 
was established. We accept that the question of stability of production has an important bearing on 
the broader question  of whether or not the operations of an industry are sufficiently stabilized to 
consider that industry as being established. That said, the stability of production must be viewed in 
light of the industry at issue and the prevailing market conditions308, for even a well -established 
industry of long standing will not be able to maintain stable production when the prevailing market 
conditions, or the cyclical nature of an industry, do not allow it. In this regard, we note that Morocco 
does not respond to Turkey 's specific argument that the variations in monthly average production 
were in line with the variations in Morocco 's demand for hot -rolled steel over the 2010 -2012 period , 
and that imports over that period experienced similar variability.  Nor does  Morocco r espond to 
Turkey 's specific argument that any fluctuations in production should also be viewed in light of 
Maghreb Steel 's ability to increase its domestic sales by 9.3% over the same period. An objec tive 
and impartial investigatin g authority would weigh a ny instability suggested by production 
fluctuations against variability in the prevailing market conditions, as evidenced on the record, and 
against the broader operational stability suggested by the increase in sales.  
7.203.   Rather than addressing the substance of Turkey 's arguments, Morocco contends that "if the 
issue is whether the trend in imports is a reason why  domestic production did not stabilize", this 
would be precisely the kind of non -attribution analysis contemplated in Article  3.5. Morocco asserts 
that the MDCCE did assess the trends of the import volumes and their effect on Maghreb 
Steel's production levels in its causation analysis, and refers to certain statements pertaining to the 
trend in volume of dumped imports that the MDCCE made in that contex t.309  
7.204.   The issue here however is not whether the MDCCE examined whether the trend in imports 
was a reason why domestic production did not stabilize. The issue, instead, is whether the MDCCE 
assessed the trend in import volumes of hot -rolled steel to ascertai n whether imports underwent 
fluctuations  similar to those experienced in respect of Maghreb Steel 's production, so as to analyse 
the perceived lack of stability in Maghreb Steel 's production in its proper context.  In our view, i mport 
fluctuations , as evidenced on the record, would be an important element to assess whether the 
industry 's production fluctuations were a reflection of the market conditions. We therefore  reject 
Morocco 's argument in this regard.  
                                                
303 Turkey 's opening statement  at the first meeting of the Panel , para.  4.9. 
304 Turkey's  second written submission, para.  6.73; response to Panel question No.  4.18(b), 
paras.  144-147 (referring to Preliminary determination, (Exhibit TUR -6), p. 103 and table 5; and Maghreb 
Steel's financ ial report 2012 , (Exhibit TUR -51), pp. 47, 56, and 60).  
305 Turkey 's second written submission, para. 6.73;  response to  Panel question No.  4.18(b), para.  149. 
306 Morocco's  response to Panel question No.  4.16(c), paras.  115-117. 
307 Morocco's  response to Panel q uestion No.  8.3, para.  26. 
308 In respect of captive production, it may also be necessary to consider any variability in light of 
variability in upstream operations.  
309 Morocco's  response to Panel question No.  8.3, paras.  28-31. WT/DS513/ R 
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  7.205.   We note further that Turkey asserts that at least one interested party had argued before the 
MDCCE, during the investigation, that the monthly fluctuation in Maghreb Steel 's production of 
hot-rolled steel simply reflected the evolution of demand, among certain other constraints (prices of 
raw mat erials, maintenance of facilities et al).310 Morocco contends in response that the MDCCE did 
address that argument by stating in the context of its causation analysis that it had not found any 
correlation between the evolution of domestic demand and injury s uffered by Maghreb Steel.311 
7.206.   We consider that at issue here is whether the MDCCE assessed the relationship between, 
among others, domestic demand  and, specifically, the fluctuations in Maghreb Steel 's production of 
hot-rolled steel , rather than between domes tic demand  and injury to Maghreb Steel .312 We therefore 
reject Morocco 's argument that suggests that, in assessing the correlation between the evolution of 
domestic demand and injury suffered by Maghreb Steel, the MDCCE also analysed the relationship 
between  domestic demand and fluctuations in Maghreb Steel 's hot-rolled steel production. Nothing 
in the record indicates that the MDCCE undertook the latter analysis.  
7.207.   We therefore  consider that the MDCCE  did not properly  conclude  that Maghreb 
Steel's production w as unstable .   
7.6.2.1.5   Whether the MDCCE did not properly assess the  "new industry"  criterion in its 
establishment analysis313  
7.208.   In assessing whether Maghreb Steel was a "new" and therefore unestablished industry, the 
MDCCE noted that international practice distinguishes between cases where an industry expands its 
activities by introducing a new product line alongside old ones, and those where the industry 
concerned invests in the creation of a new industry.314 In this regard, the MDCCE referred, among 
                                                
310 Turkey's  response to Panel q uestion No.  4.18(c), para.  150 (quoting Maghreb Steel 's financial 
report  2012, (Exhibit TUR -51), p.  53). 
311 Morocco's  response to Panel question No.  4.16(b), paras.  113-114. 
312 In a similar vein, the Appellate Body noted,  in the context of the price effects analysis under 
Article  3.2 of the Anti -Dumping  Agreement, that an investigating authority  may not disregard evidence 
regarding elements that call into question the "explanatory force " of dumped imports for significant price 
suppression . The Appellate Body stated:  
The inquiry into whether dumped imports have "explanatory force" for significant suppression of 
domestic prices under Article  3.2 of the Anti -Dumping  Agreement is distinct from the injury 
causation and non -attribution analysis u nder Article  3.5 of the Anti -Dumping  Agreement. While the 
assessments under both Article  3.2 and 3.5 are interlinked elements of the single, overall injury 
analysis, the inquiry into each provision has a distinct focus. The analysis under Article  3.2 focus es 
on the relationship between dumped imports and domestic prices . In contrast, the analysis under 
Article  3.5 focuses on the causal relationship between dumped imports and injury to the domestic 
industry.  
… 
The examination under Article  3.5, by definitio n, covers a distinct and broader scope than the 
scope of the elements considered in relation to price suppression under Article  3.2.  
(Appellate Body Report, Russia – Commercial Vehicles , paras.  5.53-5.54 (referring to Appellate Body Reports, 
China – GOES , paras.  136, 147 , and 152; and China – HP-SSST (Japan) / China – HP-SSST  (EU), para. 5.141 ) 
(emphasis original ; fns omitted )). 
313 In response to the Panel's  question, the parties commented on the relevance of the Ad Note to 
Article  XVIII of the GATT 1994 in interpreting the term "establishment" in Article  VI:6(a) of the GATT 1994 and 
footnote 9 to the Anti -Dumping  Agreement. Turkey argues that the Ad Note  to Article  XVIII has limited 
relevance for p urposes of the present dispute as Article  XVIII is available exclusively to developing country 
Members. (Turkey's  response to Panel question No.  8.10, paras.  16-17). Morocco does not dispute that 
Article  XVIII is only available to developing country Members, but argues that it is capable of providing 
contextual interpretive guidance.  (Morocco's  comments on Turkey's  response to Panel question No.  8.10, 
para. 18). We see no basis for interpreting the term "establishment" under Article  VI:6(a) of the GATT 1994 
and footnote 9 to the Anti-Dumping  Agreement  in terms of the clarification in the Ad Note  to Article  XVIII of 
the GATT 1994 pertaining to "the establishment of particular industries".  That clarification was developed, and 
would apply , in the specific context of  "the establishme nt of particular industries", with a view to securing 
economic development in certain limited types of  economies . In contrast, Article  VI:6(a) and footnote 9 to the 
Anti-Dumping  Agreement , and any requirements therein regarding the determination of injury in the form of 
material r etardation of the establishment of the domestic industry, apply equally to all Members.  
314 The MDCCE 's original statement in French is as follows:  
En examinant le critère d 'une nouvelle industrie dans la présente affaire, le MDCCE rappelle qu 'afin 
de déterminer si une industrie est établie, les autorités internationales  distinguent deux cas de 
figure : le cas où une industrie historique élargit ses activités à travers l 'instauration d 'une nouvelle WT/DS513/ R 
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  others, to the United States International Trade Commission 's (USITC) decision in Lime Oil from 
Peru. In that case, the USITC found tha t unlike a new entrant, the petitioner (domestic industry) 
had been in the business of selling lime oil for years and could utilize existing customer contacts and 
distribution infrastructure in introducing distilled lime oil. The USITC found that rather th an 
establishing an industry, the petitioner was introducing a new product line which has established a 
stable presence in the market .315 The question of whether a new industry is being created, or merely 
a new product line introduced, is relevant , for the in troduction of a new product line presupposes 
that the industry introducing that line is already established.  
7.209.   The MDCCE dismissed an interested party 's argument that Maghreb Steel had, in beginning 
to produce hot -rolled steel sheet, simply added a new produ ct line to an already established domestic 
industry. The MDCCE dismissed that argument based on the reasoning that the absence of  
production of a like product in the domestic market indicated the existence of a "new industry".316 
In other words, as there wer e no competitors producing products like hot -rolled steel sheet in 
Morocco, the beginning of production of hot -rolled steel sheet by Maghreb Steel constituted the 
creation of a new industry.  The MDCCE  further stated that the same conclusion could be reache d on 
the basis of factors, such as the physical separation of the production centres, the scale of 
investment made , or the different client networks and distribution channels.317 The MDCCE cited to 
an academic paper as support for this conclusion .318 The MDCCE  did not elaborate further on its 
conclusions . 
7.210.   We recall  that in concluding that Maghreb Steel should be regarded as a "new" industry 
because there was no pre -existing production of a like product, the MDCCE was assessing whether 
Maghreb Steel 's hot-rolled  unit was a "new" industry for purposes of determining whether Maghreb 
Steel's hot-rolled unit was established . Morocco argues that in concluding that Maghreb Steel was a 
new industry, the MDCCE relied not only on the absence of competitors in the market, but also 
considered the physical separation of production facilities of hot -rolled and cold -rolled steel, the size 
of investment undertaken by Maghreb Steel, and the different networks of  clients and distribution 
channels.319 Turkey contends in response that  the MDCCE  failed to provide, in light of evidence on 
the record, any reasoned or adequate explanation of these three factors.320 We must therefore 
examine the basis of the MDCCE 's conclusions in regard to each of these factors.  
7.211.   We note, at the outset, that  we do not pronounce ourselves on these factors or whether they 
are either prescriptive or definitive for determining whether the domestic industry is unestablished. 
We accept that a relevant factor may be whether the domestic industry is the only producer  of the  
like product  in question  in the market. At the same time, we  note that whilst there could be only 
one producer of that product in the market, where that product constitutes merely a new "product 
line" of an existing industry and benefits from the e xisting production, marketing and other 
operations, such shared operations may play an important role in determining whether a distinct 
new industry has been established. If an existing industry chooses to introduce a new product unlike 
any other  product c urrently being produced, the introduction of that new product will not necessarily 
result in the creation of a new industry. It may still be perceived as the introduction of a new product 
line into the existing industry, depending on the degree to which th e overall infrastructure (including 
the productive, commercial, research , and administrative assets) of the existing industry is 
implicated.  The greater the degree of overlap in the use of overall infrastructure, the less likely the 
perception that the int roduction of the new product marks the establishment of a new industry. The 
fact that a domestic industry is defined by Article  4.1 of the Anti -Dumping  Agreement  by reference 
to like product , and that there are no pre -existing producers of that like produc t in the domestic 
market, does not preclude the possibility of that domes tic industry utilizing existing infrastructure, 
                                                
ligne de production qui s 'ajoute aux  anciennes, et le cas où l 'industrie en question investit dans la 
création d 'une nouvelle branche.  
(Final determination, (Exhibit TUR -11), para. 105 ( fn omitted) ). 
315 Excerpt from USITC's preliminary determination on Lime Oil from Peru , (Exhibit TUR -48), fn  19. 
316 Final determination, (Exhibit TUR -11), paras.  106-107. 
317 Final determination, (Exhibit TUR -11), paras.  108-109. 
318 Final determination, (Exhibit TUR -11), fn 51 (referring to Dong Woo S, "Material retardation standard 
in the US antidumping law", Law a nd Policy in international business , Harvard Law School (1992)).  
319 Morocco's  second written submission, para.  166. 
320 Turkey's  first written submission, paras.  8.77 and 8.80.  WT/DS513/ R 
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  such as customer contacts and distribution channels, in its introduction of that like product in the 
domestic market .321  
7.212.   Recalling Moroc co's argument322 that the MDCCE  did not rely solely on the absence of 
pre-existing production of hot -rolled steel in Morocco in finding that Maghreb Steel was a new 
industry , but did consider certain additional factors in making that finding, we now turn to evaluate 
the MDCCE 's consideration of those factors.  
7.213.   Morocco  argues  that in concluding that M aghreb Steel was a new industry,  the MDCCE also 
considered the physical separation of Maghreb Steel 's production facilities for hot-rolled and 
cold-rolled steel . Morocco further asserts323 that the MDCCE 's finding as regards the physical 
separation of production facilities found support in the report on the initiation of the investigation, 
which provided that:  
In 2010, the company MAGHREB STEEL undertook a major inve stment to build a 
hot-rolling complex comprising two hot -rolling mills for the production of coil and thick 
sheet, with capacities of one  million tonnes and 500,000 tonnes, respectively, and an 
electric steel plant with a capacity of one  million tonnes.324 
7.214.   In our view, this statement could be construed to indicate that Maghreb Steel had 
constructed a separate facility for producing hot -rolled steel. However, whilst a separate production 
facility may play an important role in determining whether a new industry  has been established, we 
note at the same time that a company may well establish a production facility, separate from its 
other production facilities, even for the produc tion of a new product line. The  MDCCE did not provide 
any reasoning as to why the cre ation of a separate production facility would necessarily indicate that 
the hot -rolled steel unit was a new industry rather than a new product line.   
7.215.   Morocco identifies the same statement in the report on the initiation of the investigation, 
referred to in paragraph  7.213.    above , as support for the MDCCE 's finding as regards  the size of 
investment .325 Morocco also submits326 that the statement below sh ows that the MDCCE took into 
consideration that the production of hot -rolled steel required two major investments:  
[P]rior to making two such large investments, one of DH1.6 billion to develop hot -rolled 
coil operations, and the other of DH1.2 billion for the development of hot -rolled thick 
sheet operations, the company made sure of the viability of the activity through the 
                                                
321 We note that the Panel had posed a question to the parties regarding whether the concept of "new 
industry" should consider the definition of domestic industry, provided in Article  4.1 of the 
Anti-Dumping  Agreement, which, in turn, is linked to the concept  of like product. In its response, Morocco 
notes that Article  4.1 defines "domestic industry" as "the domestic producers as a whole of the like products or 
to those of them whose collective output of the products constitutes a major proportion of the total  domestic 
production of those products". Morocco further submits that the terms "domestic industry" and "such industry" 
in footnote 9 to Article  3 of the Anti -Dumping  Agreement must be understood to refer to the domestic industry 
as defined by the investig ating authority pursuant to Article  4.1. Morocco argues that if Turkey disagrees with 
the manner in which the MDCCE defined the domestic industry in the underlying investigation, it should have 
raised a claim under Article  4 of the Anti -Dumping  Agreement. Morocco further asserts that since Turkey has 
not raised that claim, it is not open for the Panel to "second -guess" the MDCCE's  definition of the domestic 
industry in the underlying investigation. (Morocco's  response to Panel question No.  4.24, para.  125).    
322 Morocco's  second written submission, para.  166. 
323 Morocco's  response to Panel question No.  4.20, para.  123 (referring to Initiation report , 
(Exhibit  TUR-2), p. 5). 
324 The MDCCE 's original statement in French is as follows:  
En 2010, la société MAGHREB STEEL a entamé un investissement considérable par l 'édification 
d'un complexe de laminage à chaud comprenant deux laminoirs à chaud de bobines et de tôles 
fortes, de capacités respectives d 'un million de tonnes et 500  000 tonnes, et d 'une aciérie 
électriqu e d'une capacité d 'un million de tonnes.   
(Initiation report , (Exhibit TUR -2), p. 5). 
325 Morocco's  response to Panel question No.  4.21, para.  123 (referring to Initiation report , 
(Exhibit  TUR-2), p. 5). 
326 Morocco's  first written submission, para.  207 (referring to Preliminary determination, 
(Exhibit  TUR-6), para. 121).  WT/DS513/ R 
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  creation of this plan, based on objective and generally accepted economic 
parameters.327 
7.216.   We consider that the statements in question do refer to Maghreb Steel 's investments 
towards its production of hot -rolled steel. We agree with Turkey, however, that investments are 
required even where a company adds a new product line, and a company 's investment to produce a 
different product line shoul d not automatically lead to the conclusion that the company is creating 
"a new industry".328 The MDCCE did not provide any reasoning as to why the investments in question 
indicated that the hot -rolled steel unit was necessarily a new industry rather than a n ew product 
line. 
7.217.   In support of the MDCCE 's conclusion regarding the  different client networks and distribution 
channels, Morocco points to Maghreb Steel 's questionnaire response.329 The MDCCE 's determination 
does not show that it relied on Maghreb Steel 's questionnaire response in determining that Maghreb 
Steel's hot-rolled steel sheet  unit used client networks and distribution channels which were different 
from Maghreb Steel 's pre-existing client networks and distribution channels. We note that, in any 
event , contrary to Morocco 's assertion, the relevant exhibit in Maghreb Steel 's questionnaire 
response  does not show any differences that might exist in the client network and distribution 
channels of Maghreb Steel 's hot-rolled and existing cold -rolled steel pr oduction. For the foregoing 
reasons, we consider that the MDCCE 's conclusion that the different client networks and distribution 
channels indicated that Maghreb Steel was a new industry, was unsupported by evidence on the 
record.  
7.218.   Although the record does i ndicate the level of investment that Maghreb Steel made towards 
production of hot -rolled steel, the MDCCE has not explained why that investment was at a scale that 
should necessarily signify that the investment in question was towards a "new industry", and  not 
towards a new product line. Further, the MDCCE failed to provide an analysis of why the factors that 
it considered in its analysis of the new industry criterion, indicated that Maghreb Steel was a new 
industry.330 We recall that it is not for the Panel to conduct a de novo  review based on the factual 
elements available on the investigation record, but rather to assess whether the investigating 
authority objectively examined the issues and gave a reasoned and adequate explanation for its 
findings. We conc lude that the MDCCE, in light of the evidence on the record, did not give a reasoned 
and adequate explanation for its finding that Maghreb Steel was a new industry . 
7.6.2.1.6   Conclusion  
7.219.   In light of the flaws in the MDCCE 's reasoning and findings in respect of the criteria that 
formed part of its five -tiered test, we conclude that the MDCCE did not assess, based on positive 
evidence and an objective examination , whether the domestic industry was established. While these 
flaws considered individually may not be deter minative, taken together they indicate that the MDCCE 
did not properly examine the question of the domestic industry 's establishment. We therefore find 
that the MDCCE acted inconsistently with Article  3.1 of the Anti -Dumping  Agreement  in determining 
that t he domestic industry was unestablished.  
                                                
327 The MDCCE's  original statement in French is as follows:  
Préalablement à la réalisation de deux investissements aussi importants, l 'un de 1,6 milliard de DH 
en vue du développement de l 'activité du laminoir à chaud de bobines (LAC) et l 'autre, de 
1,2 milliard de DH pour le développement de l 'activité du laminoir à chaud de tôles fortes (TF), 
l'entreprise s 'est assurée de la viabilité de l 'activité au moyen de l 'élaboration dudit plan, fondé sur 
des paramètres économiques objectifs et communément acceptés.   
(Preliminary determination, (Exhibit TUR -6), para. 121).  
328 Turkey 's opening statement at the first meeting of the Pan el, para.  4.10. 
329 Morocco's response to Panel question No.  4.23, para. 124 (referring to Excerpt from Maghreb 
Steel's questionnaire response, section F , (Exhibit MAR -15)). 
330 We recall the Appellate Body 's observation that "when an investigating authority 's determination 
rests upon assumptions, these assumptions should be derived as reasonable inferences from a credible basis of 
facts, and should be sufficiently explained so that their objectivity and credibili ty can be verified". 
(Appellate  Body Report, Russia – Commercial Vehi cles, para. 5.95).  WT/DS513/ R 
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  7.6.2.2   Whether the MDCCE acted inconsistently with Articles  3.1 and 3.4 in failing to 
conduct the "correct" injury analysis  
7.220.   Upon finding that the domestic industry was unestablished, the MDCCE proceeded to 
examine whether t he establishment of that industry was materially retarded. Towards this end, the 
MDCCE undertook to compare Maghreb Steel 's actual performance levels against the 
company 's projected performance levels across certain economic indicators over the injury peri od. 
These projections were set out in Maghreb Steel 's 2008 Business Plan .331  
7.221.   Turkey argues that the MDCCE, having erroneously determined that the  domestic industry 
was unestablished , failed to  conduct the correct injury analysis in comparing the industry 's actual 
performance with its projected performance levels , and therefore acted inconsistent ly with 
Articles  3.1 and 3.4  of the Anti -Dumping  Agreement .332 Morocco contends, in response, that the 
MDCCE properly found that the domestic industry was unestablished  in accordance with footnote 9 
to Article  3 and Article  3.1 of the Anti -Dumping  Agreement , and therefore the MDCCE was correct 
in conducting its injury analysis in the form of "material retardation of the establishment of the 
domestic industry " (material r etardation ). Morocco further states that Turkey 's claim is completely 
consequential to its claims under footnote 9 and Article  3.1.333   
7.222.   We note that the MDCCE stated that it saw fit to categorize Maghreb Steel as an 
"unestablished industry" and accordingly,  to conduct its injury analysis in the form of material 
retardation.334 The MDCCE 's reasoning that it had to conduct a material retardation analysis was 
therefore premised on its finding that Maghreb Steel was unestablished. We recall , however,  our 
conclusio n that the MDCCE 's finding that Maghreb Steel was unestablished was flawed . We 
accordingly  find that the MDCCE improperly proceeded  to conduct its injury analysis in the form of 
material retardation,  and thus acted inconsistently with Articles  3.1 and 3.4 of the 
Anti-Dumping  Agreement . 
7.7  Articles  3.1 and 3.4 of the Anti -Dumping  Agreement : The MDCCE 's determination that 
the establishment of the domestic industry was materially retarded  
7.223.   In examining whether the establishment of the domestic industry , consistin g of Maghreb 
Steel, had been materially retarded, the MDCCE compare d that industry 's actual performance 
against the industry 's projected performance across nine economic indicators over the injury 
period.335 The MDCCE obtained the industry 's projected perfor mance levels from Maghreb 
Steel's 2008 Business Plan, which was based on a pre -feasibility report (the McLellan report) 
prepared for Maghreb Steel by McLellan and Partners Ltd., an independent consulting firm. Turkey 
claims that the MDCCE acted inconsisten tly with Articles  3.1 and 3.4 of the Anti -Dumping  Agreement  
because, in analysing whether the establishment of the domestic industry had been materially 
retarded:  
a. the MDCCE failed to examine 6 of the 15 injury factors listed in Article  3.4; 
b. the MDCCE excluded, without providing a satisfactory explanation, data pertaining to 
Maghreb Steel 's captive production  of hot -rolled steel ; and  
c. the MDCCE relied on the McLellan  report for the domestic industry 's projected performance 
levels, despite having found ce rtain "miscalculations"  in that report.  
                                                
331 Final determination, (Exhibit TUR -11), paras.  148-150; Preliminary determination, (Exhibit -TUR-6), 
para. 133. 
332 Turkey's  first written submission, para.  8.82. 
333 Morocco's  first written submission, paras.  210-211. 
334 Final determination,  (Exhibit TUR -11), para.  69; Preliminary determination, (Exhibit TUR -6), 
para. 92. 
335 The injury period in the underlying investigation ran from January 2009 until December 2012. In its 
final determination, the MDCCE noted however, that given that injury ca nnot be attributed prior to  the 
beginning of the marketing of the domestic like product, it considered it preferable to select definitively the 
period 2010 -2012 as the injury period. ( Final determination, (Exhibit TUR -11), paras.  11 and 121 ). WT/DS513/ R 
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  7.7.1   Provisions at issue  
7.224.   Article  3.1 of the Anti -Dumping  Agreement  provides as follows:  
A determination of injury for purposes of Article  VI of GATT  1994 shall be based on 
positive evidence and involve an objective examination of both  (a) the volume of the 
dumped imports and the effect of the dumped imports on prices in the domestic market 
for like products, and  (b) the consequent impact of these imports on domestic producers 
of such products.  
7.225.   Article  3.4 of the Anti -Dumping  Agreement  provides as follows:  
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 industry, 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. This list is not exhaustive, nor can one 
or several of these factors necessarily give decisive guidance.  
7.7.2   Evaluation  
7.226.   In its final determination, the MDCCE noted that Article 3 of the Anti -Dumping  Agreement  
does not set out specific criteria for the analysis of material retardation  of the establishment of the 
domestic industry  (material retardation) .336 The MDCCE  further noted its view that the full 
transposition of "l'exame n de dommage classique" (the classic injury analysis ) to material 
retardation cases was not appropriate. According to the MDCCE, international practice  considers that  
some of the factors listed in Article  3.1 of the Anti -Dumping  Agreement , namely, the incr ease in the 
volume of dumped imports and the consequent impact of these imports on domestic producers, are 
not properly adapted to all material retardation cases.337 The MDCCE noted that the investigating 
authority of another WTO Member, when assessing material retardation, examines certain "relevant" 
economic factors.338 Based on the MDCCE 's statement in this regard, we note that these factors 
include only some, but no t all, of the injury factors listed in Article  3.4 of the 
Anti-Dumping  Agreement .   
7.227.   The MDCCE proceeded to analyse the impact of dumped imports on the domestic industry 
by comparing the actual performance of the industry against projected performance level s in respect 
of nine economic indicators:  production; production capacity and production utilization; sales; 
market share; productivity; employment; inventory; profitability; and importance of the margin of 
dumping. The projections pertaining to these econ omic indicators were set out in Maghreb 
Steel's 2008 Business Plan.   
7.228.   We will first assess whether the MDCCE failed to evaluate, consistently with the requirements 
of Article  3.4, 6 out of the 15 injury factors listed in that provision. We will then examin e whether 
the MDCCE acted inconsistently with Articles  3.1 and 3.4 in excluding from its injury analysis, data 
pertaining to the captive market. Finally, we will evaluate whether the MDCCE acted inconsistently 
with Articles  3.1 and 3.4 in relying on the Mc Lellan report.  
7.7.2.1   Whether the MDCCE evaluated all injury factors listed in Article  3.4 
7.229.   In its determination, the MDCCE made no express reference to 6 of the 15 injury factors 
listed in Article  3.4: return on investments, actual and potential negative effects  on cash flow, wages, 
growth, factors affecting domestic prices, and ability to raise capital or investmen ts. The 
parties  disagree over whether the MDCCE evaluated the six injury fa ctors at issue. Turkey 
contends  that the MDCCE failed to assess the six fac tors and therefore acted inconsistently with 
                                                
336 Final deter mination, (Exhibit TUR -11), para.  112. 
337 Final determination, (Exhibit TUR -11), paras.  113-114; Preliminary determination, (Exhibit TUR -6), 
para. 126. 
338 Preliminary determination, (Exhibit TUR -6), para.  131. WT/DS513/ R 
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  Articles  3.1 and  3.4.339 Morocco asserts in response that the MDCCE did evaluate the six factors, 
implicitly, by way of analysing certain other factors.340  
7.230.   The issue we must resolve therefore is whether the MDCCE, in the underlying investigation, 
failed to evaluate each of the six injury factors at issue, and therefore acted inconsistently with 
Articles  3.1 and 3.4 of the Anti -Dumping  Agreement . 
7.231.   Turkey argues that Article  3.4 requires that an investig ating authority  evaluate the 15  injury 
factors listed in Article  3.4 in every case  regardless of the form of injury at issue, and invokes 
previous panel and Appellate Body findings in support.341 Although Morocco argues that the MDCCE 
did evaluate all 15 injury factors lis ted in Article  3.4, it also contends that, as the MDCCE had noted, 
the relevance of the factors listed in Article  3.4 will vary between an analysis of material injury and 
that of material retardation. Morocco asserts that requiring an investigating authori ty to address the 
Article  3.4 factors "with the same rigor" in a material retardation analysis, as in a material injury 
analysis, would blur the distinction between the two concepts and would ignore the practical 
limitations confronting an investigating au thority in its material retardation analysis.342  
7.232.   We note that Article  3.4 states that " [t]he examination of the impact of the dumped imports 
… shall include  an evaluation of all relevant economic factors and indices having a bearing on the 
state of the industry" including the 15 listed factors. The words "shall include" mean that Article  3.4 
requires an investigating authority to evaluate all rel evant factors, including the 15  listed factors, 
when examining the impact of dumped imports. Our view in this regard is consistent with that of 
the Appellate Body and several panels that it is mandatory for an investigating authority to evaluate 
each of the 15 injury factors listed in Article  3.4.343 These fac tors are "deemed to be relevant in 
every investigation" and "must always be evaluated by the investigating authorities".344  
7.233.   Further, we consider that the obligation in Article  3.4 to evaluate each of the listed 15  injury 
factors applies as much to an invest igation of injury in the form of material retardation as it does to 
that of material injury or threat of material injury. This is so for the following reason:  Article  3.1, 
read in light of footnote 9 of the Anti -Dumping  Agreement , requires that a determina tion of material 
retardation be based on positive evidence and objective examination of inter alia  "the consequent 
impact of [dumped] imports on domestic producers". As explained above, the examination of the 
impact of dumped imports on domestic industry, in turn, must, in accordance with the terms of 
Article  3.4, include  an evaluation of all relevant factors including the 15 injury factors  listed in that 
provision.345 It follows that a determination of material retardation must be based on an examination 
of the impact of dumped imports on domestic producers, and that examination must include  an 
evaluation of the 15 injury factors  listed in Article  3.4. Our approach is consistent with the finding 
by the panel in Egypt – Steel Rebar  that "the Article  3.4 factor s must be examined in every  
investigation, no matter which particular manifestation or form of injury is at issue in a given 
investigation".346 Nothing in the text of Article  3 supports Morocco 's argument that an investigating 
                                                
339 Turkey's  first written submission, para.  9.16. 
340 Morocco's  first written submission, paras.  228-237; second written submission, paras.  176-187. 
341 Turkey's  first written submission, para.  9.15 (referring to Panel Report, Egypt – Steel Rebar , 
para. 7.93); second written submission, para.  7.4 (referring to Appellate Body Reports, China – HP-SSST 
(Japan) / China – HP-SSST (EU) , para. 5.203; US – Hot-Rolled Steel , para.  194; and Thailand – H-Beams , 
para. 128).  
342 Morocco's  first written submission, para.  238. 
343 Appellate Body Reports, Thailand – H-Beams , para. 125; China – HP-SSST (Japan) / China – 
HP-SSST (EU) , para. 5.203; Panel Reports, China – X-Ray Equipment , para. 7.179; EC – Bed Linen 
(Article  21.5 – India) , para. 6.160; EC – Bed Linen , para. 6.154; and Guatemala – Cement II , para.  8.283.  
344 Appellate Body Report, US – Hot-Rolled Steel , para.  194. 
345 The Appellate Body in US – Hot-Rolled Steel stated that:  
[A]n important aspect of the "objective examination" r equired by Article  3.1 is further elaborated 
in Article  3.4 as an obligation to "examin[e] the impact of the dumped imports on the domestic 
industry" through "an evaluation of all relevant economic factors and indices having a bearing on 
the state of the i ndustry."  
(Appellate Body Report, US – Hot-Rolled Steel , para. 194).  
Further, the panel in China – Cellulose Pulp  explained that "Article  3.4 sets out a series of 'relevant 
economic factors and indices having a bearing on the state of the industry', which  must be evaluated by the 
investigating authority in all cases when examining the consequential impact of dumped imports on that 
industry, as required by Article  3.1". (Panel Report, China – Cellulose Pulp , para. 7.20).  
346 Panel Report, Egypt – Steel Rebar , para. 7.93 (emphasis original); see also Appellate Body Report, 
US – Hot-Rolled Steel , para. 194. WT/DS513/ R 
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  authority is not required to ad dress the Article  3.4 factors "with the same rigor" in a material 
retardation analysis as in a material injury analysis.  
7.234.   As a starting point in examining whether the MDCCE did evaluate the six injury factors in 
question, we take into consideration Turkey 's assertion that the MDCCE did not consider that a "full 
transposition" of a material injury analysis to material retardation cases would be appropriate.347 We 
recall that the MDCCE considered  that reliable information on the volume of dumped imports and 
the consequent impact of these imports on domestic producers, factors set out in Article  3.1, is only 
available in cases where the domestic industry has maintained production over a significant period 
of time and has managed to stabilize its production opera tions. As noted in paragraph  7.233.   , an 
examination of the impact of dumped imports on domestic producers under Article  3.1 is carried out 
through, inter alia , an evaluation of the 15 injury factors listed in Article  3.4. The MDCCE 's statement  
that reliable information on factors listed in Article  3.1 was available only where the domestic 
industry stabilizes its production and maintains it for a long period sugges ts therefore that the 
MDCCE effectively considered that reliable information on the injury factors listed in Article  3.4 was 
also available only in those cases, as distinct from the underlying investigation where it had found 
that the domestic industry did  not meet those criteria.  The MDCCE 's statement in this regard is not 
determinative of the issue of whether the MDCCE evaluated all 15 factors listed in Article  3.4. That 
statement , read together with the absence of any express reference  to 6 of the 15 inj ury factors in 
the MDCCE 's determination , does suggest , however, that the MDCCE sought to lay down, in its final 
determination, a justification for not evaluati ng all injury factors listed in Article  3.4. Further, we 
note that Morocco confirms that the MDC CE considered that "the relevance of the factors listed in 
Article  3.4 will vary between an ordinary injury analysis and an analysis of material retardation".348 
Morocco further submits that the MDCCE noted that the investi gating authority of another 
WTO Member had considered only certain of the 15 injury factors listed in Article  3.4 in their material 
retardation analysis.349 As Morocco itself points out, "the MDCCE referred to international practice in 
determining that all the factors mentioned in Article  3 may not be appropriate in the injury test for 
material retardation".350   
7.235.   We consider that in  referring  to the MDCCE 's statement that a priori  suggested that not all 
factors listed in Article  3.4 were relevant , and that reliable information in respect of tho se factors 
was unavailable in an analysis of material retardation, Turkey  makes a prima facie  case that 
the MDCCE did not  evaluate the six injury factors at issue  listed in Article  3.4, and therefore 
the MDCCE acted inconsistently with that provision . We w ill now consider whether Morocco has 
rebutted this prima facie  case.351  
7.7.2.1.1   Return on investments, actual and potential negative effects on cash flow , and 
ability to raise capital or investments  
7.236.   The MDCCE made no explicit reference to "return on investments", " actual and potential 
negative effects on cash flow" , and "ability to raise capital or investments" in its analysis of the 
impact of dumped imports on the domestic industry, as set out in its final and preliminary  
determinations. Morocco argues that in disc ussing, in its determinations, Maghreb 
Steel's break -even threshold, the MDCCE "necessarily" also evaluates the domestic industry 's return 
on investments, actual and potential negative effects on cash flow, and ability to raise capital or 
investments.352 Morocco contends in particular that failure to meet the break -even threshold means 
that sales are made at a loss, which in turn, "necessarily" means negative cash flow and negative 
return on investments. Further, negative cash flow and return on investment "n ecessarily" mean 
difficulty in raising capital or investment.353 Turkey argues in response that the MDCCE addressed 
the break -even threshold in its analysis of whether the industry was "established" and not in its 
analysis of "the impact of dumped imports on  the domestic industry" as required under Article  3.4. 
                                                
347 Turkey's  first written submission, paras.  9.11-9.12. 
348 Morocco's  first written submission, para.  238. 
349 Morocco's  first written submission, para.  214. 
350 Morocco's  first written submission, para.  214. 
351 We bear in mind the observations of a past panel that in the context of an anti -dumping investigation 
"a Member is placed in a difficult position in rebutting a prima facie  case that an evaluation [under Ar ticle 3.4 
of the Anti -Dumping  Agreement] has not taken place if it is unable to direct the attention of a panel to some 
contemporaneous written record of that process". (Panel Report, Egypt – Steel Rebar , para. 7.49 (emphasis 
original)).  
352 Morocco's  first written submission, para.  229. 
353 Morocco's  first written submission, paras.  230-233. WT/DS513/ R 
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  Turkey argues that Morocco therefore fails to explain how the MDCCE actually assessed cash flow, 
return on investments , and ability to raise capital, and asserts that the MDCCE never undertook 
those evaluation s.354 Turkey contends that Morocco assumes that Maghreb Steel 's failure to meet 
the break -even threshold necessarily amounted to the company 's negative performance in respect 
of those injury factors. Turkey contends that this is an ex post  rationalization, as the MDCCE, itself, 
did not make any such "evaluation".355 
7.237.   We note that , as Morocco asserts, the Appellate Body has clarified that Article  3.4 does not 
regulate the manner  in which an investigating authority sets out the results of the "e valuation" of 
each factor in its published documents. Therefore, an investigating authority is not required in every 
anti-dumping investigation to make a separate record of the evaluation of each of the injury factors 
listed in Article  3.4.356 The Appellate Body further stated that whether a panel conducting an 
assessment of an anti -dumping measure is able to find in the record sufficient and credible evidence 
to satisfy itself that a factor has been evaluated, even though a separate record of the evaluation of 
that factor has not been made, will depend on the particular facts of each case.357 As regards the 
nature of "evaluation" of injury factors that Article  3.4 requires an investigating authority to 
undertake, the Appellate Body clarified that only because t he analysis of a factor is implicit in the 
analyses of other factors  does not necessarily lead to the conclusion that such a factor was not 
evaluated.358   
7.238.   In view of the Appellate Body 's findings discussed in the preceding paragraph, we consider 
that even i f an investigating authority did not make a separate record of the evaluation of a particular 
factor, and had implicitly evaluated that factor through its evaluation of other factors, the record 
would need to show that the authority did in fact implicitly evaluate that factor. At issue here 
therefore is whether the record of the underlying investigation shows that the MDCCE, in addressing 
the domestic industry 's break -even threshold, implicitly evaluated that industry 's cash flow, return 
on investment , and ability to raise capital or investments.  
7.239.   We note, at the outset, that Morocco 's argument that Maghreb Steel 's failure to meet the 
break -even threshold " necessarily " meant that the industry 's cash flow, return on investment , and 
ability to raise capital ex perienced negative performance is premised on the assumption that failure 
to meet the break -even threshold means that sales are made at a loss. However, the 
MDCCE 's discussion of Maghreb Steel 's failure to meet its break -even threshold did not conclusively  
show that Maghreb Steel had sold at a loss during the injury period.359 Therefore, the basic premise 
of Morocco 's argument is flawed.  
7.240.   Further,  even if the MDCCE 's discussion of Maghreb Steel 's failure to meet the break -even 
threshold did show that Maghreb Steel had sold at a loss, Morocco fails to persuade us that losses 
suffered by a company necessarily mean that the company will also experience negative cash flow 
and return on investment.360 
7.241.   Morocco argues that sales made at a loss "necessarily" mean  negative cash flow over the 
same period because the company in question is spending more paying for its costs than it is 
receiving in sales revenues.361 Turkey contends in response that cash flow and profits are two 
different concepts. Turkey points out tha t the concept of cash flow pertains to "the ability of the 
entity to generate cash and cash equivalents and the needs of the entity to utilise those cash 
flows".362 Profit or loss, in contrast, is defined as "the total of income less expenses, excluding the 
components of other comprehensive income".363 Turkey asserts that a company incurring loss during 
                                                
354 Turkey's  second written submission, paras.  7.6-7.7. 
355 Turkey's  second written submission, para.  7.7. 
356 Morocco's  second written submission, para.  178 (referring to Appel late Body Report, EC – Tube or 
Pipe Fittings , para. 161).  
357 Appellate Body Report, EC – Tube or Pipe Fittings , para. 161. 
358 Appellate Body Report, EC – Tube or Pipe Fittings , para. 160. 
359 See para.  7.184.    above.  
360 In any event, the MDCCE's  determination does not show that it analysed the trends in any losses 
suffered by the domestic industry throughout the injury period.  
361 Morocco's  first written submission, para.  230. 
362 Turkey's  response to Panel question No.  9.1, para.  38 (referring to International Accounting 
Standard 7 , Statement of cash flows  (24 March 2010) , (Exhibit TUR -69), p. 1). 
363 Turkey 's response to Panel question No.  9.1, para. 38 (referring to International Accounting 
Standard 1,  Presentation of Financial Statements , (Exhibit TUR -70), p. 2). WT/DS513/ R 
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  a particular year could, for instance, generate positive cash flow over the same year by way of 
incoming cash from its sales of goods produced in a previous yea r.364 Morocco does not contest the 
plausibility of this example per se , but questions its relevance for this case, noting that Turkey has 
not identified record evidence showing that Maghreb Steel would have generated positive cash flow 
through the sale of ho t-rolled steel produced in previous years.365 Further, Morocco posits that it 
would be "highly unlikely" that a start -up, like Maghreb Steel, the domestic industry in the underlying 
investigation, would have a positive cash flow despite incurring losses.366 Turkey does not disagree 
that it would be "highly unlikely" for a start -up to have a positive cash flow despite incurring 
losses.367  
7.242.   In our view, Morocco 's proposition that sales made at a loss "necessarily" mean  negative 
cash flow  implies that it is impossible for a company to register a positive  cash flow  while it is 
incurring losses. However, in response to the Panel 's questioning, Morocco submits that it would be 
"highly unlikely" that a start -up, such as Maghreb Steel, would ha ve a positive cash flow despite 
incurring losses. In advancing that argument, Morocco itself acknowledges that it is not impossible 
that a start -up has a positive cash flow despite incurring losses, thus implying that sales made at a 
loss do not "necessari ly" mean  negative cash flow . Given that Morocco itself suggests that sales at 
a loss by a start -up do not "necessarily" mean negative cash flow, Morocco 's defence fails . We 
therefore consider that Morocco has not shown how the MDCCE actually evaluated Magh reb 
Steel's cash flow during the injury period. Further, we consider that any reasoning that Morocco 
presents before us in these proceedings, explaining why Maghreb Steel could not have generated 
positive cash flow because it had incurr ed losses, would nee d to have been part of the 
MDCCE 's determination because that reasoning is specific to the particular facts of the underlying 
investigation.  Since Morocco 's reasoning is not part of the MDCCE 's determination, we reject  it as 
ex post  rationalization.  
7.243.   As regards Morocco 's argument that  sales made at a loss " necessarily " mean  a negative 
return on investment, Turkey contends that it is possible that a company can have a positive return 
on investment despite suffering losses. According to Turkey, this is beca use a company, despite its 
losses, may earn income from other sources such as property and stocks, which, although unrelated 
to the ordinary business activity of the company, would have a bearing on the return on investment 
made in the company.368 We note th at Morocco states, in response to the Panel 's questions in these 
proceedings, that it would be "very difficult" to have a positive return on investment despite suffering 
losses during the same period, especially for a start -up company like Maghreb Steel. M orocco 
acknowledges that it is possible that a company could have receivables from previous years that are 
paid during the year at issue and that these exceed the costs for current production. Morocco 
contends that this scenario would however be "highly un likely" in the context of a start -up 
company.369 Turkey contends in response that in stating that "[i]t would be very difficult", Morocco 
appears to accept that  it is not impossible "to have a positive r eturn  on investment despite suffering 
losses during the  same period".370 We agree. We understand Morocco to accept  that it is "very 
difficult" and "highly unlikely",  but not impossible "to have a positive return  on investment  despite 
suffering losses during the same period", and by implication, that sales made a t a loss do not 
"necessarily " mean a negative return on investment. Given that Morocco itself suggests that sales 
at a loss do not "necessarily" mean negative return on investment, Morocco 's defence fails . We 
therefore consider that Morocco has not shown h ow the MDCCE actually evaluated Maghreb 
Steel's return on investment during the injury period. Further, we consider that any reasoning 
explaining why Maghreb Steel, in the particular facts of this case, could not have a positive return 
on investment becaus e it had  incurr ed losses would need to have been part of the 
MDCCE 's determination. Since Morocco 's reasoning is not part of the  MDCCE 's determination, we 
dismiss it as ex post  rationalization.   
7.244.   Morocco further argues that negative cash flow and return on investment , which is 
"necessarily" implicit in the MDCCE 's discussion of Maghreb Steel's failure to meet the break -even 
threshold, mean difficulty i n raising capital or investment. H owever, since we have found that 
Morocco has failed to advance arguments p ersuading us that the  MDCCE 's discussion of Maghreb 
                                                
364 Turkey 's response to Panel question No.  9.1, para.  39. 
365 Morocco's  comments on Turkey's  response to Panel question No.  9.1, para.  30. 
366 Morocco's  response to Panel question No.  9.1, para.  54. 
367 Turkey's  comments on Morocco's  response to Panel question No.  9.1. 
368 Turkey's  response to Panel question No.  9.2(b), para.  45. 
369 Morocco's  response to Panel question No.  9.2(b), para.  56. 
370 Turkey' s comments on Morocco's  response to Panel question No.  9.2(b).  WT/DS513/ R 
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  Steel's failure to meet the break -even threshold "necessarily " mean s that the industry was 
experiencing negative cash flow and negative return on investment,  we decline to rule on whether 
its analysis of the break -even threshold would "necessarily" have indicated negative performance 
on the ability to raise capital or investments . 
7.245.   We consider that t he MDCCE 's determination does not show , and Morocco has failed to 
explain,  that the MDCCE evaluat ed actual an d potential negative effects on cash flow, return on 
investment , and ability to raise capital or investments . We therefore conclude that Morocco has 
failed to rebut the prima facie  case made by Turkey that the MDCCE did not evaluate "return on 
investments" , "actual and potential negative effects on cash flow", and "ability to raise capital or 
investments", and therefore acted inconsistently with Articles  3.1 and 3.4.   
7.7.2.1.2   Growth  
7.246.   The MDCCE made no explicit reference to "growth" in its injury analysis, as set ou t in its 
final and preliminary determinations. Morocco asserts that the MDCCE addressed in its final 
determination trends in certain of the factors listed in Article  3.4 – production, capacity utilization, 
market share, sales volume, employment, productivi ty, stocks, and profitability – and found that 
Maghreb Steel had not reached its reasonably anticipated levels with regard to any of them in the 
injury period. Relying on the Appellate Body 's findings in EC – Tube or Pipe Fittings , Morocco argues 
that, in doing so, the MDCCE also evaluated the growth factor.371 Morocco also notes that in 
Egypt  – Steel Rebar , the panel found that the investigating authority in question had addressed 
growth by addressing sales volume and market share.372 Turkey recognizes that an investigating 
authority 's analysis of growth may flow, to some extent, from its analysis of sales and market share, 
but the analysis of sales and market share, alone, does not offer a conclusion on growth.373 Turkey 
posits that equ ating growth with sales and market share effectively reads "growth" out of Article  3.4 
as an independent injury factor. In certain cases where the analysis of growth may be consequential, 
the investigating authority must state so expressly in its published  determination.374  
7.247.   We must therefore assess whether, in addressing trends in certain of the factors listed in 
Article  3.4 in its injury analysis, the MDCCE also evaluated the growth factor.  
7.248.   Morocco asserts that the Appellate Body  found in EC – Tube or Pipe  Fittings  that growth can 
be reflected in the performance of certain other injury factors listed in Article  3.4, and therefore the 
analysis of these other factors would satisfy the requirement to evaluate growth.375 We disagree 
with Morocco 's characterizatio n of the Appellate Body 's findings in EC – Tube or Pipe Fittings . We 
understand the Appellate Body in that case to reason that while the evaluation of the growth factor 
necessarily entails an analysis of certain other factors listed in Article  3.4, an eval uation of those 
factors " could ", but does not necessarily, amount to the evaluation of the growth factor.376 Whether 
or not an evaluation of certain factors listed in Article  3.4 may also be considered to amount to an 
evaluation of the growth factor, will de pend on the particular facts of each case and on whether the 
record of the investigation in question contains " sufficient and credible evidence " to demonstrate 
that the growth factor has been evaluated.377 In view of the particular facts of the case before i t, 
the Appellate Body in EC – Tube or Pipe Fittings  found it reasonable for the panel to have concluded 
that the European Commission had addressed and evaluated growth.  
7.249.   The facts of this dispute make it clear that the MDCCE did not explicitly evaluate gro wth. 
The question is whether the MDCCE did so implicitly. In order to resolve this matter, we will examine, 
as did the Appellate Body, whether  the record of the underlying investigation contains " sufficient 
and credible evidence " to show that the MDCCE eva luated growth, even though the MDCCE did not 
make a separate record of the evaluation of that factor.  
                                                
371 Morocco's  response to Panel question No.  9.5(a), paras.  58-60 (referring to Appellate Body Report, 
EC – Tube or Pipe Fittings , para.  165).  
372 Morocco's  response to Panel question No.  9.5(a), p ara. 58 (referring to Panel Report, Egypt – Steel 
Rebar , para.  7.37).  
373 Turkey's  response to Panel question Nos.  9.5(a) and (b), para.  53. 
374 Turkey's  second written submission, para.  7.11. 
375 Morocco's  response to Panel question No.  9.5(a), para.  58 (referr ing to Appellate Body Report, EC – 
Tube or Pipe Fittings , para.  165).  
376 Appellate Body Report, EC – Tube or Pipe Fittings , para.  162. 
377 Appellate Body Report, EC – Tube or Pipe Fittings , para.  161. WT/DS513/ R 
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  7.250.   The evidence on record in this dispute, as distinct from that in EC – Tube or Pipe Fittings  
and Egypt – Steel Rebar , indicates that the MDCCE made a state ment in its determination, as noted 
in paragraph  7.234.   , suggesting that reliable information on the impact of dumped imports on 
domestic producers, and therefore on the injury factors set out in  Article  3.4, is not available in 
material retardati on cases. We recall that in referring to that statement, Turkey sets out a 
prima  facie case that the MDCCE did not evaluate, among others, the growth factor. Morocco points 
to nothing on the record that rebuts that prima facie  case. Morocco asserts that in  evaluating certain 
of the factors listed in Article  3.4 – production, capacity utilization, market share, sales volume, 
employment, productivity, stocks, and profitability – the MDCCE also evaluated growth.378 However, 
consistent with the views of the Appel late Body in EC – Tube or Pipe Fittings , we consider that an 
evaluation of these other factors listed in Article  3.4 that Morocco points to could , but do es not 
necessarily, amount to the evaluation of the growth factor. Therefore, we consider that 
Morocco 's assertion in this regard is insufficient to rebut the prima  facie case made by Turkey  that 
the MDCCE did not evaluate "growth" and therefore acted inconsistently with Articles  3.1 and 3.4.   
7.7.2.1.3   Wages  
7.251.   The MDCCE made no explicit reference to "wages" in its in jury analysis. In its final 
determination, the MDCCE stated, in the context of evaluating employment in the domestic industry, 
that in 2012 Maghreb Steel announced the laying off of more than 3 00 workers, which took place 
in 2013.379  
7.252.   Morocco argues that the  MDCCE 's reference to Maghreb Steel 's announcement in 2012 
regarding a loss of more than 300 jobs sufficed as an evaluation of "wages" under Article  3.4, 
because such a "massive layoff" would certainly exert downward pressure on wages.380 Turkey 
contends  that Article  3.4 lists "employment" and "wages" separately, and a decline in employment 
does not necessarily mean a reduction in wages.381 
7.253.   We agree with Turkey that a decline in employment does not necessarily mean a fall in 
wages. As Turkey argues, governm ent-set minimum wages or agreed minimum wages with labour 
unions may prevent companies from lowering wages even in dire economic conditions.382 Further, 
we consider that, in any event, the MDCCE 's determination did no t explain how a loss of jobs in  2013, 
that is after the injury period, had an impact on the wages during  the injury period. In response to 
the Panel 's question in this regard, Morocco contends that the announcement in 2012 of a loss of 
jobs in 2013 would already have exerted a downward pressure o n wages in 2012, or at the very 
least, have had a "chilling effect" on them.383 We note however, that the MDCCE itself did not make 
that analysis in its determinations, in the absence of which, we reject Morocco 's argument as an ex 
post rationalization. Moro cco also contends, referring to the MDCCE 's preliminary determination, 
that Maghreb Steel had "announced layoff of 400 employees in 2012".384 However, in its preliminary 
determination, the MDCCE refers only to Maghreb Steel 's consideration that at least 400 people at 
the company 's existing level of production  would be seriously threatened with redundancy , and does 
not refer to any particular announcement of a "layoff" by Maghreb Steel.385 We therefore do not 
accept Morocco 's assertion in this regard.  
7.254.   Therefore , we conclude that Morocco has failed to rebut the prima facie  case made by Turkey 
that the MDCCE di d not evaluate "wages ", and therefore acted inconsistently with Articles  3.1 
and 3.4.  
7.7.2.1.4   Factors affecting domestic prices  
7.255.   The MDCCE made no explicit referenc e to "factors affecting domestic prices" in its injury 
analysis. Under the section of its final determination addressing the impact of dumped imports on 
                                                
378 Morocco's  response to Panel question No.  9.5(a), paras.  59-60. 
379 Final determination, (Exhibit TUR -11), para.  183. 
380 Morocco's  first written submission, para.  234. 
381 Turkey's  opening statement at the first meeting of the Panel, para.  4.16. 
382 Turkey's  opening statement at the first meeting of the Panel, para.  4.16. 
383 Morocco's  response to Panel question No.  5.8, para.  152; second written submission, para.  184. 
384 Morocco's  second written submission, para.  184 (referring to Preliminary determina tion, 
(Exhibit  TUR-6), para.  150).  
385 Preliminary determination, (Exhibit TUR -6), para.  150. WT/DS513/ R 
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  prices of the domestic like product, the MDCCE , however, found that the dumped imports of 
hot-rolled st eel had a non -negligible impact on the undercutting of the domestic industry 's selling 
prices.386 In its causation analysis as set out in the final determination, the MDCCE addressed certain 
comments from interested parties regarding an alleged increase in p rices of raw materials, and 
stated that an increase in raw material prices had affected the entire global steel industry, and that 
the effect of that increase on Maghreb Steel would not have been much less significant in the absence 
of dumped imports.387  
7.256.   Turkey argues that the MDCCE did not evaluate "factors affecting domestic prices" and 
therefore acted inconsistently with Articles  3.1 and 3.4.388 Morocco responds that the MDCCE did 
evaluate factors affecting domestic prices, in finding that the dumped imports of hot -rolled steel had 
a non -negligible impact on the undercutting of the domestic industry 's selling prices, and by 
assessing an alleged i ncrease in the price of raw materials in its causation analysis.389 Turkey 
contends that the statements that Morocco refers to appear in different parts of the challenged 
determinations and in different contexts, which pertain to the MDCCE 's inquiry under Articles 3.2 
and 3.5, and are unrelated to the analytical inquiry required under Article  3.4.390  
7.257.   Morocco argues in response that the precise location of the analysis is not determinative of 
the issue of whether a certain factor has been analysed. Morocco cont ends that the Appellate Body 
has clarified that Article  3.4 does not regulate the manner in which the results of the analysis of 
each injury factor are to be set out in the published documents391, and in general, Article  3 does not 
provide a prescribed forma t or template that an investigating authority must adhere to in making 
its injury determination.392 Turkey acknowledges that in certain cases an investigating authority may 
analyse evidence relevant to one or more Article  3.4 factors under another provision of Article  3. 
However, in such case the authority may refer to the factual analysis set out in another section in 
order to avoid repetition, but the authority is not absolved of the obligation to evaluate each of the 
relevant factors under Article  3.4. Tur key takes the view that in such case, the authority must still 
ensure that the relevant factor is explicitly mentioned in the analysis of the injury factors, even if 
there is a reference to the factual discussion in another part of the report.393  
7.258.   We must th erefore examine whether the MDCCE evaluated factors affecting domestic prices 
by way of the following statements:  
a. the MDCCE 's statement that dumped imports had a non -negligible impact on the 
undercutting of the domestic industry 's selling prices394; and 
b. the MDCCE 's statement addressing an alleged increase in the price of raw materials.395 
7.259.   We recall that Article  3 does not provide a prescribed template or format that an 
investigating authority must adhere to in making its determination of injury, provided that its 
determination comports with the disciplines that apply under the discrete paragraphs of Article  3.396 
Therefore , we agree with Morocco that what is material for our assessment is not the location of the 
statements at issue in the MDCCE 's determinations, but whether those statements show that the 
MDCCE did evaluate factors affecting domestic prices, as required under Article  3.4.  
7.260.   We turn first to examine the MDCCE 's statement that dumped imports had a non -negligible 
impact on the undercutting of the domes tic industry 's selling prices. We note that this statement 
shows that the MDCCE assessed the effect of dumped imports on domestic prices, which in our view, 
                                                
386 Final determination, (Exhibit TUR -11), para.  145. 
387 Final determination, (Exhibit TUR -11), paras.  221-225. 
388 Turkey's  first written submission, para.  9.10. 
389 Morocco's first written submission, para.  235 (referring to Final determination, (Exhibit TUR -11), 
paras.  145 and 221 -225). 
390 Turkey's  opening statement at the first meeting of the Panel, para.  4.17. 
391 Morocco's  response to Panel question No.  5.7, para.  149 (r eferring to Appellate Body Report, 
EC – Tube or Pipe Fittings , para. 161).   
392 Morocco's  response to Panel question No.  5.7, para.  149 (referring to Appellate Body Reports, 
China  – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.141).   
393 Turkey's  second w ritten submission, para.  7.5. 
394 Final determination, (Exhibit TUR -11), para.  145. 
395 Final determination, (Exhibit TUR -11), para.  225. 
396 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.141.  WT/DS513/ R 
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  does amount to an evaluation of at least one factor affecting domestic prices.397 In addition, the 
MDCCE had also considered the effect of an alleged increase in raw material prices which is also a 
factor affecting domestic prices.398 Turkey 's argument that the MDCCE failed to evaluate factors 
affecting domestic prices suggests, on the contrary, that the MDCCE failed to evaluate any factors 
affecting domestic prices. Therefore, we consider that Turkey 's argument that the MDCCE failed to 
evaluate  factors affecting domestic prices rests on a factually incorrect premise. We further note 
that Morocco argues that Turkey has not identified which other factors affecting prices the MDCCE 
should have analysed.399 In response to that argument, Turkey contend s that Article  3.4 requires 
that an investigating authority always evaluate all relevant factors in every investigation and "if the 
authority is not aware of other relevant factors affecting prices, it must say so explicitly in its 
published report".400 We disagree with Turkey. We consider, consistent with the observations of the 
panel in EU – Footwear (China) , that nothing in Article  3.4 provides any guidance as to the scope of 
"factors affecting domestic prices" , nor how or based on what information, an inv estigating authority 
must proceed to evaluate this injury factor.401 In light of the lack of specific obligations in that regard 
in Article  3.4, we consider that the manner in which an investigating authority decides to evaluate 
factors affecting domestic pr ices falls within the bounds of the authority 's discretion. We thus do not 
read in Article  3.4, as does Turkey, an obligation for an investigating authority to make an express 
statement in its determination to the effect that the authority is "not aware of  other relevant factors 
affecting prices".  
7.261.   For the foregoing reasons, we reject Turkey 's claim that the MDCCE did not evaluate "factors 
affecting domestic prices", and therefore do not find that the MDCCE acted inconsistently with 
Articles  3.1 and 3.4 in that regard.  
7.7.2.1.5   Conclusion  
7.262.   Based on the foregoing, we conclude that the MDCCE acted inconsistently with Articles  3.1 
and 3.4 of the Anti -Dumping  Agreement  in failing to evaluate 5 of the 15 injury factors listed in 
Article  3.4, in particular, return on invest ments, actual and potential negative effects on cash flow, 
wages,  growth,  and ability to raise capital or investments. We do not find that the MDCCE acted 
inconsistently with Articles  3.1 and 3.4  by failing to evaluate factors affecting domestic prices.  
7.7.2.2   Whether the MDCCE acted inconsistently with Articles  3.1 and 3.4 in excluding, 
from its injury analysis, Maghreb Steel 's captive production  
7.263.   Turkey claims that the MDCCE acted inconsistently with Articles  3.1 and 3.4 because, in 
analysing the injury factors  listed in Article  3.4, the MDCCE excluded, without providing a 
satisfactory explanation, data pertaining to the captive market and considered data pertaining to 
only the merchant market.402  
7.264.   Morocco argues that the MDCCE had "focused" on the merchant market  in its injury analysis, 
and asserts that the MDCCE did explain, reasonably and adequately, why it had focused on that 
market.403 Morocco contends further that even though the MDCCE focused on the merchant market 
in its injury analysis, it did not entirely i gnore the captive market, as Maghreb Steel 's captive sales 
                                                
397 We note that the panel in EU – Footwear (China)  took a similar view in finding that the investigating 
authority "did address at least one factor affecting domestic prices, when it concluded that dumped imports 
undercut the prices of the domestic like product, and that the domestic indus try's sales prices were 
depressed". (Panel Report, EU – Footwear (China) , para.  7.445). Further, we note that the Appellate Body 
found that the results of the inquiries, pursuant to Articles  3.2 and 3.5 of the Anti -Dumping  Agreement, are 
also relevant to t he impact analysis required under Article  3.4, given that this provision requires the evaluation 
of all relevant economic factors and indices having a bearing on the state of the industry, including factors 
affecting domestic prices. (Appellate Body Report s, China – HP-SSST (Japan) / China – HP-SSST (EU) , 
para. 5.209).  
398 Turkey has not challenged, and therefore the Panel has not considered, whether the MDCCE 
objectively examined the effect of dumped imports or the alleged increase in raw material prices on domestic 
prices.  
399 Morocco's  response to Panel question No.  5.7, para.  151. 
400 Turkey's  second written submission, para.  7.12. 
401 Panel Report, EU – Footwear (China) , para.  7.445.  
402 Turkey's  first written submission, paras.  9.28-9.29; opening statement at th e first meeting of the 
Panel, para.  4.19. 
403 Morocco's  first written submission, paras.  242-243; opening statement at the first meeting of the 
Panel, para.  69. WT/DS513/ R 
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  were factored into the company 's break -even threshold.404 In its second written submission, Morocco 
posits that the MDCCE "expressed misapprehension" about considering the captive market in the 
injury analysis.405 It further contends that because the MDCCE had taken into consideration the 
captive market in analysing the break -even threshold, it "necessarily" also took into consideration 
the captive market in analysing the domestic industry 's return on i nvestment, actual and potential 
negative effects on cash flow, and the ability to raise capital or investments. Further, Morocco 
contends that the MDCCE did not distinguish between the captive and merchant markets in analysing 
the domestic industry 's emplo yment, and therefore also did not make that distinction in analysing 
wages. Finally, Morocco asserts that the MDCCE also took the captive market into consideration in 
evaluating the domestic industry 's production.406  
7.265.   Turkey rejects Morocco 's arguments, and pointing to the MDCCE 's final determination, 
asserts that the MDCCE did state that the exclusion of the captive market from the assessment of 
the injury factors was perfectly justified.407 Further, Turkey asserts that Morocco did confirm that 
the MDCCE "cons idered [that] it was not necessary to examine directly or specifically the captive 
market in its retardation analysis" .408 
7.266.   We note that the MDCCE 's determinations do not demonstrate whether or not the MDCCE 
excluded the captive market in analysing each of th e nine factors  listed in Article  3.4 that it expressly 
referred to in its injury analysis. In particular, the MDCCE does not clearly state in its determinations 
whether it had excluded the captive market in analysing these  factor s. In its final determinati on, in 
the section addressing  volume of dumped imports, the MDCCE stated that it considered that the 
exclusion of captive sales  was completely justified insofar as the domestic market is characterized 
by a clear separation between the captive market and th e merchant market, and because Maghreb 
Steel's captive sales do not compete directly with imports.409 However, the MDCCE appears to have 
made that statement specifically in the context of analysing changes in volume of imports in relation 
to domestic product ion and consumption, and not in the context of its injury analysis as a whole. 
Further, in analysing the domestic industry 's production, the MDCCE noted that part of "this" 
production is destined for internal consumption within Maghreb Steel, suggesting th at the MDCCE 
took Maghreb Steel 's captive production into consideration in that particular analysis.410 Therefore, 
while the MDCCE 's determinations do not conclusively show that the MDCCE excluded the captive 
market in analysing every factor that it evaluate d as part of its injury analysis, they do show that 
the MDCCE excluded the captive market in analysing changes in volume of imports in relation to 
domestic production and consumption.  
7.267.   Further, even Morocco does not argue that the MDCCE took the captive ma rket into 
consideration in analysing all the injury factors that the MDCCE assessed. As evident from 
Morocco 's assertions set out in paragraph 7.264.   , the MDCCE took the captive market into account 
only in some but not all injury factors  listed in Article  3.4. Further, in response to the Panel 's question 
regarding the MDCCE 's evaluation of  the domestic industry 's profitability, Morocco confirmed that in 
analysing the profitability factor, the MDCCE did not take the captive market into account.411 We 
therefore consider that regardless of whether the MDCCE excluded the captive market in analysi ng 
all injury factors, based on the record and Morocco 's submissions412, it follows that the MDCCE 
excluded the captive market in analysing at least some of them. We will therefore evaluat e 
Turkey 's claim on the basis that our assessment pertains to the MDCC E's analysis of those injury 
factors in respect of which the MDCCE did exclude the captive market.   
7.268.   Turkey argues, invoking the Appellate Body 's findings in US – Hot-Rolled Steel , that, by 
excluding the captive market from the scope of the industry, the MD CCE conducted a "selective 
                                                
404 Morocco's  first written submission, paras.  244-245; opening statement at the first meeting of t he 
Panel, para.  70. 
405 Morocco's  second written submission, para.  189. 
406 Morocco's  second written submission, para.  193 (referring to Preliminary determination, 
(Exhibit  TUR-6), para.  135); response to Panel question No.  5.3(a), para.  133. 
407 Turkey's  openin g statement at the first meeting of the Panel, para.  4.19 (referring to Final 
determination, (Exhibit TUR -11), para.  137). 
408 Turkey's  second written submission, para.  7.14 (quoting Morocco's  opening statement at the first 
meeting of the Panel, para.  69). 
409 Final determination, (Exhibit TUR -11), para.  137. 
410 Preliminary determination, (Exhibit TUR -6), para.  135. 
411 Morocco's  response to Panel question No.  5.4, para.  135. 
412 Morocco's  response to Panel question No.  5.3(a), para.  133; second written submission, para. 193. WT/DS513/ R 
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  examination of one part of a domestic industry" and therefore acted inconsistently with Articles  3.1 
and 3.4 of the Anti -Dumping  Agreement .413 Turkey contends, based on the Appellate 
Body's reasoning, that while the MDCCE was not p recluded from splitting its analysis of the state of 
the industry into the merchant and captive markets, it was required to provide an even -handed 
explanation of each of these market segments. Turkey further contends that the MDCCE failed to 
satisfactorily  explain why it was not necessary to examine the part of the domestic industry 
concerning the captive market.414  
7.269.   Based on Turkey 's argument, the main issue before us is whether the MDCCE acted 
inconsistently with Articles  3.1 and 3.4 of the Anti -Dumping  Agreement  in disregarding, in its 
analysis of certain injury factors, data pertaining to the captive market.  
7.270.   We note that the facts and issue before the Appellate Body in US – Hot-Rolled Steel  are 
similar to the facts and issue before the Panel in this d ispute. In that case, the USITC did not analyse 
data pertaining to the domestic industry 's captive market in its injury investigation.415 Similar to the 
facts in this dispute, the domestic like product that domestic producers internally transferred to the 
captive market was used by an integrated producer to manufacture a downstream product, and did 
not generally enter the merchant market. Domestic producers whose production was captive, 
therefore did not compete directly with imports.416 The issue before the Ap pellate Body, inter alia , 
was whether the USITC, in failing to analyse the domestic industry 's captive market in its injury 
investigation, acted inconsistently with Articles  3.1 and 3.4 of the Anti -Dumping  Agreement .  
7.271.   We recall that the Appellate Body foun d that in the absence of a satisfactory explanation, 
Article  3.1 of the Anti -Dumping  Agreement  does not entitle investigating authorities to conduct a 
selective examination of one part of the domestic industry.417 At the outset, the Appellate Body 
noted that  it follows clearly from the definition of injury in footnote 9 to Article  3 of the 
Anti-Dumping  Agreement  that the focus of the injury determination is the state of the "domestic 
industry", which read in light of Article  4.1 of the Anti -Dumping  Agreement , is the domestic industry 
in totality . An investigating authority, in its investigation, may therefore not focus on simply one 
part, sector or segment of the domestic industry.418  
7.272.   The Appellate Body reasoned that the standard of objectivity in Article  3.1 called upon an 
investigating authority to examine all parts of the domestic industry to ensure that the authority 
would not focus only on parts that were performing poorly as distinct from those that were 
performing well, or vice versa . An investigating aut hority, by focusing only on poorly performing 
parts to the exclusion of parts performing well, would raise the likelihood, as a result of the 
fact-finding or evaluation process, of determining that the domestic industry is injured.419  
7.273.   We consider the Appell ate Body 's reasoning applicable to the facts of this dispute. The 
MDCCE, in focusing in its injury analysis on data pertaining exclusively to the merchant market, 
selectively examined the performance of only one part of the domestic industry, that is, the part 
that was supplying to the merchant market. In doing so, it excluded evaluating Maghreb 
Steel's performance in  the captive market, a part of the domestic industry which was shielded from 
competition with imports, and which the MDCCE cited the McLellan report as finding, had secured a 
guaranteed market.420 In particular, as noted earlier in paragraph  7.173.    above , the McLellan 
report, upon which the MDCCE had relied in the underlying investigation, itself concluded that almost 
half of Maghreb Steel 's production, which was directed to the captive marke t, had access to a 
guaranteed market, and would therefore hold "bonnes perspectives commerciales"  (good 
commercial prospects) for the domestic industry.421 In our view, an unbiased and objective 
investigating authority, in analysing the state of the domestic  industry, would not disregard a 
guaranteed market which held "good commercial prospects" for the domestic 
industry 's performance, and which accounted for half of that industry 's production, and would 
                                                
413 Turkey's  first written submission, para.  9.18 (referring to Appellate Body Report, US – Hot-Rolled 
Steel, para. 214).  
414 Turkey's  first written submission, para.  9.24. 
415 Appellate Body Report, US – Hot-Rolled Steel , para. 212. 
416 Appellate Body Report, US – Hot-Rolled Steel , para. 181. 
417 Appellate Body Report, US – Hot-Rolled Steel , para. 214. 
418 Appellate Body Report, US – Hot-Rolled Steel , paras.  189-190. 
419 Appellate Body Report, US – Hot-Rolled Steel , paras.  196 and 204.  
420 Preliminary determina tion, (Exhibit TUR -6), para.  120. 
421 Preliminary determination, (Exhibit TUR -6), para.  120. WT/DS513/ R 
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  therefore have taken that captive market into considera tion in its analysis. We agree with Turkey 
that in the underlying investigation this consideration is particularly pertinent, given that the 
McLellan report, a study on which the MDCCE had relied in its injury analysis, itself recognized the 
significance o f the captive market in the overall viability of the domestic industry.422  
7.274.   In failing to evaluate each of the two parts that made up the hot -rolled steel domestic 
industry in Morocco, the MDCCE failed to even -handedly evaluate the domestic industry as a who le, 
and therefore failed to meet the requirement of objectivity set out in Article  3.1 of the 
Anti-Dumping  Agreement . Further, we consider that the requirement of objectivity in Article  3.1 
applies to the MDCCE 's evaluation of each injury factor that forme d part of its injury analysis, and 
therefore required the MDCCE to evaluate data pertaining to the captive market in its evaluation of 
each of those injury factors. This is because the overarching obligation in Article  3.1 that an 
investigating authority c onduct its investigation based on objective examination extends to the injury 
analysis as a whole, and therefore to the authority 's evaluation of all rather than only certain injury 
factors that form part of its analysis.  
7.275.   Morocco argues that the Appellate Body in US – Hot-Rolled Steel  stated that it is permissible 
for an investigating authority not to examine all of the other parts that make up the industry if it 
provides an explanation as to why it is not necessary to examine, directly or specifically, the  other 
parts of the domestic industry. It contends further that the MDCCE did explain why it focused on the 
merchant market in its injury analysis, and therefore in focusing on that market in its analysis, it did 
not act inconsistently with Articles  3.1 an d 3.4.423 
7.276.   We note that the MDCCE explained that it considered that the exclusion of captive sales was 
completely justified insofar as the domestic market is characterized by a clear separation between 
the captive market and the merchant market, and because M aghreb Steel 's captive sales do not 
compete directly with imports.424 However, as Turkey points out, the Appellate Body in 
US – Hot-Rolled Steel  considered that it may  be "highly pertinent for investigating authorities to 
evaluate the relevance of the fact t hat a significant proportion of the domestic production of the like 
product is shielded from direct competition with imports, and that the part of the domestic industry 
that is most likely to be affected by the imports is limited to the merchant market".425 Therefore, 
this explanation, which the MDCCE set out as a justification for not evaluating  the domestic 
industry 's performance in the captive market, is for the Appellate Body a "highly pertinent" ground 
for evaluating  the domestic industry 's performance in the captive market. We agree with the 
Appellate Body 's reasoning that the absence of competition with imports constitutes a ground for 
evaluating, rather than disregarding, the performance of a particular domestic industry  in the captive 
market, and app ly it in the present case .   
7.277.   In the case at hand, the domestic like product destined for the captive market which was 
"shielded from direct competition with imports" amounted to about 50% of the domestic 
production.426 That a significant part  the domestic pr oduction of the like product was shielded from 
direct competition with imports would, in our view, have led an objective and unbiased authority to 
inquire into whether that part of the domestic production was performing positively. An unbiased 
and objectiv e investigating authority would thus have understood the absence of competition with 
imports as a ground for, and not against , examining the captive market in analysing the state of the 
industry. We therefore consider that the MDCCE 's explanation that Magh reb Steel 's captive sales do 
not compete directly with imports did not serve as a satisfactory explanation based on which the 
MDCCE could exclude the captive market  from its injury analysis.  
7.278.   Based on the foregoing, we conclude that the MDCCE acted inconsis tently with Articles  3.1 
and 3.4 of the Anti -Dumping  Agreement  in disregarding  the captive market in its injury analysis.  
                                                
422 Turkey's  first written submission, para.  9.27. 
423 Morocco's  first written submission, paras.  241-243. 
424 Final determination, (Exhibit TUR -11), para.  137. 
425 Appellate Body Report, US – Hot-Rolled Steel , para. 198. 
426 Final determination, (Exhibit TUR -11), para.  158. WT/DS513/ R 
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  7.7.2.3   Whether the MDCCE acted inconsistently with Articles  3.1 and 3.4 in relying on 
the McLellan report  
7.279.   As noted in paragraph 7.227.   , in its injury analysis, the MDCCE compared projected 
performance levels for the domestic industry against the actual performance of the industry across 
nine injury fa ctors. These projections were set out in Maghreb Steel 's 2008 Business Plan (Business 
Plan), which was based on a pre -feasibility report (the McLellan report).427 The MDCCE considered 
both the McLellan report and the Business Plan in its analysis.428 The MDCCE  enumerated, however, 
certain projections in Maghreb Steel 's Business Plan that it noted had proved inaccurate pertaining 
specifically to domestic demand, sales of downstream products , and the price of slab, a raw material 
used in manufacturing hot -rolled steel. In its final determination, the MDCCE noted the need to 
assess these inaccurate projections in light of actual developments, and proceeded to explain why 
it considered that the inaccuracies were not significant.429 After undertaking that assessment, t he 
MDCCE stated its decision to rely on the projections in the Business Plan and the McLellan report as 
valid benchmarks against which to compare the domestic industry 's actual performance.430 In its 
final determination, the MDCCE found that the domestic ind ustry had suffered injury in the form of 
material retardation because, among others, the domestic industry 's actual performance fell short 
of its projected performance.431  
7.280.   Turkey contends that the " miscalculations " in the McLellan report identified by the M DCCE 
had an impact on the MDCCE 's injury analysis, as the projections in that report formed the 
benchmark against which the MDCCE compared the domestic industry 's actual performance in order 
to assess injury.432 Turkey argues that since the MDCCE failed to p roperly assess the relevance and 
consequences of these miscalculations, the MDCCE 's reliance on the McLellan report was incorrect, 
and therefore its overall analysis which was based on that study, is inconsistent with Articles  3.1 
and 3.4 of the Anti -Dumpi ng Agreement .433 Morocco contends in response that the MDCCE found 
that some of the projections in the Business Plan were imprecise rather than incorrect, and in any 
event, the MDCCE did not simply accept the projections but assessed them in light of actual 
developments. Morocco argues that therefore the MDCCE was correct in relying on the Business Plan 
and McLellan report, and did not act inconsistently with Articles  3.1 and 3.4.434 
7.281.   We must evaluate whether the MDCCE, in relying on the Business Plan (which was  based on 
the McLellan report), despite having found certain inaccuracies in it, made an injury determination 
which was inconsistent with Articles  3.1 and 3.4 of the Anti -Dumping  Agreement . In particular, we 
must examine whether an unbiased and objective i nvestigating authority would have relied on the 
Business Plan despite having found the inaccuracies that the MDCCE found in that document.  
7.282.   The first inaccuracy in the Business Plan that the MDCCE addressed pertains to the projected 
increase in domestic con sumption of hot -rolled steel. The MDCCE found that the Business Plan 
forecast a n increase in domestic consumption of hot -rolled steel of 10% per year which was not 
reached. It noted , however, that domestic consumption of hot -rolled steel did indeed increas e by 
6.3% between 2010 and 2012, in contrast to the trend in Europe. It further stated that the total rise 
in domestic consumption of hot -rolled steel sheet had, nevertheless, reached 10% between 2010 
and 2012.435  
7.283.   Turkey asserts that the projected domestic demand was about 40% higher than the actual 
figure.436 In our view, a projection on domestic consumption of a product would, in the normal 
course, affect projections of sales , investment decisions, inventories, among others, of the industry 
manufacturing tha t product.  An unbiased and objective investigating authority would therefore have 
considered that an overestimation of the projected domestic consumption of hot -rolled steel would, 
in all likelihood, lead to an overestimation in the projections of certain factors  relevant to the injury 
analysis. Morocco contends, however, that the MDCCE analysed what had actually happened in the 
                                                
427 Preliminary determination, (Exhibit TUR -6), para.  118. 
428 Final determination, (Exhibit TUR -11), para.  150. 
429 Final determination, (Exhibit TUR -11), paras.  159-162. 
430 Final determination, (Exhibit TUR -11), para.  163. 
431 Final determination, (Exhibit TUR -11), para.  195. 
432 Turkey's  first written submission, para.  9.32. 
433 Turkey's  first written submission, para.  9.38. 
434 Morocco's  first written submissi on, para.  248. 
435 Final determination, (Exhibit TUR -11), para.  160. 
436 Turkey's  first written submission, para.  9.33. WT/DS513/ R 
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  market, in particular that the domestic consumption of hot -rolled steel had still grown by 6.3% . In 
light of that analysis, the MDCCE considered that the inaccuracy at issue, which was only a "slight" 
overestimation of demand, did not affect the overall projection. It therefore decided that the use of 
these inaccurate projections was appropriate.437 We consider however that the i naccuracy at issue 
would have led an unbiased and objective investigating authority to question, and further 
investigate, the impact of the inaccuracy on the actual and projected performance of the hot -rolled 
steel industry in respect of the relevant injur y factors before dismissing that inaccuracy as 
insignificant. The MDCCE however, did not do so. We therefore consider that the MDCCE did not act 
objectively in dismissing the inaccuracy in the forecasted domestic consumption of hot -rolled steel 
in the Busi ness Plan.  
7.284.   The second inaccuracy that the MDCCE addressed pertains to projections for the sales of the 
downstream product, cold -rolled steel. In particular, the MDCCE found that sales of the downstream 
product did not increase by 10% as the Business Plan had forecast. The MDCCE 's determination 
indicates that the sales of the downstream product, on the contrary, actually decreased.438 Turkey 
asserts that information on sales of downstream products is critical for a producer of intermediate 
goods because an in crease in sales of the downstream products will mean an increase in sales of 
the intermediate goods. Turkey argues that therefore the "miscalculation" in the sales of downstream 
products in the Business Plan will have had effects on the projections of the hot-rolled steel 
industry 's production, sales, market share, return on investment, and cash flow, among others.439  
7.285.   We agree with Turkey that an increase in sales of a downstream product, here cold -rolled 
steel, is likely to mean an increase in sales of the intermediate good, here hot -rolled steel, which is 
used in the manufacture of that downstream product . This is because an increase in sales of 
cold-rolled steel would imply an increase in demand for the intermediate good, hot -rolled steel. In 
the underlyin g investigation, the MDCCE found that the sales of cold -rolled steel did not increase as 
forecasted, but actually declined. Morocco contends that the MDCCE did note that the decrease in 
the level of sales of cold -rolled steel however did not lead to slow -down in internal consumption of 
hot-rolled steel, which remained "very solid" throughout the period.440 We understand the 
MDCCE 's statement that Morocco points to as indicating that the internal consumption of hot -rolled 
steel remained strong despite the decr ease in sales of cold -rolled steel. However, that statement 
does not indicate that the MDCCE found that the internal consumption of hot -rolled steel remained 
"unaffected" by the decrease in sales of cold -rolled steel. In particular, the MDCCE 's statement d oes 
not indicate whether the internal consumption of hot -rolled products remained at the same  level as 
it would have if the sales of cold -rolled steel had risen to the projected level.  Therefore , the 
MDCCE 's statement in question does not suffice as an analysis of the impact of the inaccuracy at 
issue on the actual and projected performance of the hot -rolled industry, which we consider an 
unbiased and objective investigating authority would have undertaken, before deciding to rely on 
the Business Plan.  
7.286.   The third inaccuracy that the MDCCE identified in the Business Plan pertained to the price of 
slab, a raw material used to manufacture hot -rolled steel. The MDCCE noted that the Business Plan 
had forecast the price of slab to stand at about US D 440/tonne, whereas the price of slab actually 
reached US D 550/tonne during the period under investigation. Turkey asserts that considering that 
slab is an intermediate product used to manufacture hot -rolled steel, the price of slab forms part of 
the cost -structure of  hot-rolled steel. An incorrect projection of the price of slab therefore means an 
incorrect projection of the cost -structure of the hot -rolled industry, and must have had an impact 
on business decisions, such as investment and production capacity, among o thers.441 Morocco 
contends in response that the MDCCE found that the inaccurate projection of the price of slab did 
not have a major effect in Maghreb Steel 's overall operations because the MDCCE considered that 
Maghreb Steel quickly reduced its purchases of  slab as its electric steel plant was put into operation 
in 2012.442 
7.287.   In our view, an unbiased and objective investigating authority would consider that an 
inaccurate projection of the price of slab, given that it is an intermediate product used to 
                                                
437 Morocco's  first written submission, para.  249. 
438 Final determination, (Exhibit TUR -11), para.  161. 
439 Turkey's  first written submission, pa ra. 9.34. 
440 Morocco's  first written submission, para.  250 (referring to Final determination, (Exhibit TUR -11), 
para. 161). 
441 Turkey's  first written submission, para.  9.36. 
442 Morocco's  first written submission, para.  251. WT/DS513/ R 
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  manufactur e hot -rolled steel, would affect the projected cost of production of hot -rolled steel, and 
therefore the projections of the hot -rolled industry 's performance. Such an authority would consider 
that because the domestic industry 's actual performance was comp ared against those projections of 
the domestic industry 's performance to analyse injury to the industry, an inaccurately projected 
price of slab could affect the overall injury analysis. In the case at hand, the MDCCE dismissed the 
significance of the inac curacy in the projected price of slab on the basis that Maghreb Steel quickly 
stopped purchasing slab. We consider that the MDCCE 's explanation was not reasoned and adequate. 
As Turkey asserts443, Maghreb Steel 's electric works were implemented in  2012, whic h even 
assuming that the works were implemented in January 2012, was 19 months after the company 
began producing hot -rolled steel. We recall that the entire 19 -month period fell within the injury 
period.444 We agree with Turkey that in those 19 months, the i naccuracy in the projected price of 
slab was likely to have had an impact on Maghreb Steel 's performance. We therefore consider that 
the MDCCE did not act objectively in dismissing the significance of the inaccuracy in the projected 
price of slab, without investigating the actual impact of the inaccuracy on the hot -rolled steel 
industry 's performance.   
7.288.   Based on the foregoing, we take the view that the inaccuracies in the Business Plan were of 
a nature that an unbiased and objective investigating authority would not have relied on them, 
without further analysis. The MDCCE dismissed the significance of the inaccuracies in the Business 
Plan, without further investigating the impact of those inaccuracies on Maghreb Steel 's actual and 
projected performance level s, and did so based on explanations that were not reasoned and 
adequate. Therefore, the MDCCE improperly relied on the McLellan report (on which the Business 
Plan was based) . As a result, we find that the MDCCE's  overall injury analysis, which was based on  
that report, is inconsistent with Articles  3.1 and 3.4 of the Anti -Dumping  Agreement .  
7.7.3   Overall Conclusion  
7.289.   For the foregoing reasons, we conclude that:  
a. The MDCCE acted inconsistently with Articles  3.1 and 3.4 of the Anti -Dumping  Agreement  
in failing to evaluate 5 of the 15 injury factors listed in Article  3.4, in particular, return on 
investments, actual and potential negative effects on cash flow, growth, wages, and ability 
to raise capital or investments. T he MDCCE did not act  inconsistently with Articles  3.1 
and 3.4 by failing to evaluate factors affecting domestic prices.  
b. The MDCCE acted inconsistently with Articles  3.1 and 3.4 of the Anti -Dumping  Agreement  
in disregarding the captive market in its injury analysis.  
c. The MDCCE , in relying in its injury analysis on the McLellan report (on which the Business 
Plan was based) without properly investigating the significance of inaccuracies in that 
report, did not base its injury determination on an objective examination, and therefo re 
acted inconsistently with Articles  3.1 and 3.4 of the Anti -Dumping  Agreement . 
8  CONCLUSIONS AND RECO MMENDATION  
8.1.  For the reasons set out in this Report, we conclude that the following claims of Turkey are 
outside  our terms of reference:  
a. the claim under foot note 9 to Article  3 of the Anti -Dumping  Agreement  in respect of the 
MDCCE 's finding  of "establishment "; 
b. the claims under Articles  6.5 and 6.5.1  of the Anti -Dumping  Agreement  in respect of the 
confidential treatment of the domestic industry 's (Maghreb Steel) break -even threshold ; 
and 
                                                
443 Turkey's  first written submission , para.  9.37. 
444 See fn 347 above.  WT/DS513/ R 
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  c. the claim under Article  6.9 of the Anti -Dumping  Agreement  in respect of the alleged failure 
to inform all interested parties of  the domestic industry 's (Maghreb Steel) break -even 
threshold . 
8.2.  For the procedural reaso ns set out in this Report, we decline  to rule on:  
a. the claim under Article  VI:6(a) of the GATT 1994 in respect of the MDCCE 's finding  of 
"establishment "; and  
b. the claim under Article  6.9 of the Anti -Dumping  Agreement  in respect of any "essential 
facts" used by the MDCCE in cross -checking the facts available rate.  
8.3.  For the reasons set out in this Report, we conclude that Turkey has established that Morocco 
acted inconsistently  with: 
a. Article  5.10 of the Anti -Dumping  Agreement  by failing to conclude the investig ation within 
the 18 -month maximum time  limit set out in that provision;  
b. Article  6.8 of the Anti -Dumping  Agreement  by rejecting the reported information and 
establishing the margins of dumping for the two investigated Turkish producers on the 
basis of facts available;  
c. Article  6.9 of the Anti -Dumping  Agreement  by failing to inform all interested parties of : 
(i) any ess ential facts in respect of the additional, unidentified export sales that the MDCCE 
considered the pr oducers to have failed to report ; and ( ii) the essential facts in respect of 
the data for the C&F prices and for the adjustments used in arriving at the 
producers ' margins of dumping using facts available ; 
d. Article  3.1 of the Anti -Dumping  Agreement  in determining that the domestic industry was 
"unestablished";  
e. Articles  3.1 and 3.4 of the Anti -Dumping  Agreement  by improperly conducting the injury 
analysis in t he form of "material retardation of the establishment of the domestic 
industry "; and  
f. Articles  3.1 and 3.4 of the Anti -Dumping  Agreement  by: (i) failing to evaluate 5 of the 
15 injury factors listed in Article  3.4; (ii) disregarding the captive market in th e injury 
analysis ; and ( iii) relying in the injury analysis on the McLellan report without properly 
investigating the significance of inaccuracies in that report.  
8.4.  For the reasons set out in this Report, we conclude that Turkey has not established that Moro cco 
acted inconsistently  with: 
a. Article  6.9 of the Anti -Dumping  Agreement  by failing to inform  all interested parties of  the 
movement certificates and commercial invoices in respect of the [[ ***]] tonnes of 
allegedly unreported  export sales in sufficient time for the two investigated Turkish 
producers to defend their interests; and  
b. Articles  3.1 and 3.4 of the Anti -Dumping  Agreement  by failing to evaluate "factors 
affecting domestic prices".  
8.5.  We do not consider it necessary to add ress Turkey 's claims under paragraphs 1 , 3, 5, 6, and  7 
of Annex II of the Anti -Dumping  Agreement . 
8.6.  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 . Accordingly, to the extent the MDCCE  
has acted inconsistently with certain provisions of the Anti -Dumping  Agreement , we conclude that 
Morocco  has nullified or i mpaired benefits accruing to Turkey  under th is Agreement . WT/DS513/ R 
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  8.7.  Pursuant to Article  19.1 of the DSU, we recommend that Morocco  bring its measures into 
conformity with its obligations under the above -mentioned  Agreement . 
8.8.  In light of the inconsistencies of the measures with the Anti -Dumping  Agreement , includin g 
with Article 5.10 , Turkey also requests the Panel to exercise its discretion under the second sentence 
of Article  19.1 of the DSU  and to suggest that Morocco bring its measures into conformity with its 
WTO obligations b y immediately revoking the anti -dumping measure at issue .445  
8.9.  We consider that Article  19.1 of the DSU allows, but does not require, us to suggest ways in 
which the Member concerned could implement the Panel's  recommendations.446 Further, 
implementation of DSB recommendations and rulings is left, in the first instance, to the discretion 
of the implementing Member.447 We therefore deny Turkey's request.  
 
__________  
                                                
445 Turkey's first written submission, para s. 5.20  and 11.4. 
446 Panel Report, US – Stainless Steel (Korea) , para. 7.9. 
447 Panel Reports, US – Shrimp II (Viet Nam) , para. 8.6; EC – Fasteners (China) , para. 8.8; US – Hot-
Rolled Steel , para. 8.11 .