WT/DS436/R  
 
14 July 2014  
(14-3936)  Page: 1/172  
  Original: English  
 
 UNITED STATES – COUNTERVAILING MEASURES ON CERTAIN 
HOT-ROLLED CARBON STEEL FLAT PRODUCTS FROM INDIA 
REPORT OF THE PANEL 
 
  
 WT/DS436/R 
 
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  TABLE OF CONTENTS 
 
1   INTROD UCTION  .......................................................................................................... 9  
1.1   Complain t by India .................................................................................................... 9  
1.2   Panel establishm ent and comp osition ........................................................................... 9  
1.3   Panel proceedings ...................................................................................................... 9  
1.3.1   Genera l ............................................................................................................... .. 9 
1.3.2   Working procedures on Busine ss Confidential In formation (BCI) ................................... 10 
1.3.3   Preliminary ruling .................................................................................................. 10 
2   FACTUAL ASPECTS ..................................................................................................... 17  
2.1   The measures at issue ............................................................................................... 17 
3   PARTIES' REQUESTS FOR FI NDINGS AND RECO MMENDATIONS ................................ 19  
4   ARGUMENTS OF  THE PARTIES ................................................................................... 21  
5   ARGUMENTS OF TH E THIRD PA RTIES ........................................................................ 21  
6   INTERIM REVIEW ...................................................................................................... 21  
7   FIND INGS ................................................................................................................. 40 
7.1   General principles regarding treaty interpretation, the applicable standard of review 
and burden of proof ......................................................................................................... 41 
7.1.1   Treaty Interpretation .............................................................................................. 41 
7.1.2   Standard  of Review ................................................................................................ 41 
7.1.3   Burden  of Proof ..................................................................................................... 41 
7.2   The United States' benchmarking mechanism ............................................................... 41 
7.2.1   Relevant WTO provision .......................................................................................... 42 
7.2.2   Relevant US provision ............................................................................................ 42 
7.2.3   Whether Section 351.511(a)(2)(i) to (iii) is inconsistent with Article 14(d) because 
it fails to assess the adequacy of remunerati on from the perspective of the government 
provider, before assessing whether th ere is benefit to  the recipient ......................................... 43 
7.2.4   The exclusion of government pr ices from Tier I and II benc hmarks ............................... 48 
7.2.5   The use of world market pr ices as Tier II pr ice benchm arks ......................................... 50 
7.2.6   Whether Section 351.511(a)(2)(iv) is inconsistent with Article 14(d) because it 
requires the use of delivered  prices for be nchmarking ........................................................... 51 
7.2.7   Co nclusi on ............................................................................................................  54 
7.3   Claims regarding the imposition of countervailing duties in respect of iron ore 
supplied by NMDC ............................................................................................................ 54 
7.3.1   The treatment of NMDC as a public body: Article 1.1(a)(1) .......................................... 54 
7.3.2   USDOC's finding of de facto  specificity ...................................................................... 62 
7.3.3   USDOC's determination of the exis tence and quantum of benefit: Article 14 ................... 73 
7.3.4   Co nclusi on ............................................................................................................  84 
7.4   The USDOC's findings regarding the Captive Mining of Iron Ore Programme and the 
Captive Mining of Coal Programme: Articles 1.1, 2, 12.5 and 14 of the SCM Agreement ............. 84 
7.4.1   The existence of the Captive Mining  of Iron Ore Programme (Article 12.5) ..................... 84 
7.4.2   Specificity of the Captive Mining of Iron Ore Programme (Article 2.1) ............................ 88 WT/DS436/R 
 
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  7.4.3   The provision of goods through the grant of mining rights ............................................ 88 
7.4.4   Whether Tata was provided captive coal mining rights by the GOI under the Coal 
Mines Nationalization Act/Captiv e Mining of Coal Programme .................................................. 93 
7.4.5   Whether the USDOC properly determined that the Captive Mining of Coal 
Programme/Coal Mining Nationalization Act is de jure  specific ................................................ 96 
7.4.6   USDOC's determination of benefit re garding the iron ore and coal programmes .............. 96 
7.4.7   Co nclusi on ............................................................................................................  98 
7.5   Alleged inconsistencies with respect to the USDOC's treatment of loans provided 
under the Steel Development Fund ..................................................................................... 98 
7.5.1   The USDOC's determination that dire ct transfers of funds were provided by a 
public body: Article 1.1(a)(1) ............................................................................................ 98 
7.5.2   Alleged inconsistencies with respect to the USDOC's determin ation of benefit ............... 106  
7.5.3   Conc lusion .......................................................................................................... 1 08 
7.6   USITC's injury assessment ....................................................................................... 108  
7.6.1   Whether the SCM Agreement permits "cro ss-cumulation" in origin al investigations ........ 108  
7.6.2   Whether Article 15 of the SCM Ag reement applies to sunset reviews ........................... 123  
7.6.3   Whether certain economic factors were evaluated by the USITC in its injury 
determination ................................................................................................................ 129  
7.7   Whether the use of "facts available" is consistent with Article 12.7 of the 
SCM Agreement ............................................................................................................. 134  
7.7.1   Relevant WTO provisions ...................................................................................... 134  
7.7.2   Factual background .............................................................................................. 134  
7.7.3   Main argument s of the pa rties ............................................................................... 136  
7.7.4   Main arguments of the third parties ........................................................................ 137  
7.7.5   Evaluation .......................................................................................................... 1 39 
7.8   Whether new subsidy allegations may be  examined in administrative reviews ................. 155  
7.8.1   Relevant WTO provisions ...................................................................................... 155  
7.8.2   Main argument s of the pa rties ............................................................................... 156  
7.8.3   Main arguments of the third parties ........................................................................ 158  
7.8.4   Evaluation .......................................................................................................... 1 58 
7.9   Alleged inconsistencies with respect to the USDOC's public notice: Article 22.5 ................ 161  
7.9.1   Relevant WTO provision ........................................................................................ 161  
7.9.2   Main argument s of the pa rties ............................................................................... 161  
7.9.3   Evaluation .......................................................................................................... 1 64 
7.10   Consequential claims under Articles 10, 19.3, 19.4, 32.1 and 32.5 of the 
SCM Agreement, Article VI of the GATT 1994 an d Article XVI:4 of th e WTO Agr eement ............ 168  
8   CONCLUSIONS AN D RECOMMEND ATION ................................................................. 168  
8.1   Conclusions ........................................................................................................... 1 68 
8.2   Recommendation .................................................................................................... 172  
 WT/DS436/R 
 
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  LIST OF ANNEXES 
ANNEX A 
WORKING PROCEDURES FOR THE PANEL 
Contents Page 
Annex A-1 Working Procedures for the Panel A-2 
Annex A-2 Additional Working Procedures for the Panel Concerning Business Confidential 
Information A-6 
ANNEX B 
ARGUMENTS OF INDIA 
Contents Page 
Annex B-1 Executive Summary of the First Written Submission of India B-2 
Annex B-2 Executive Summary of India's Submissi on Against Requests for Preliminary 
Rulings by the United States B-9 
Annex B-3 Executive Summary of the Oral Opening Statement of India – First Meeting B-18  
Annex B-4 Oral Closing Statement of  India – First Meeting B-25 
Annex B-5 Executive Summary of the Second Written Submission of India B-27  
Annex B-6 Executive Summary of the Oral Opening Statement of India – Second Meeting B-35 
Annex B-7 Oral Closing Statement of India – Second Meeting B-44  
ANNEX C 
ARGUMENTS OF THE UNITED STATES 
Contents Page 
Annex C-1 Executive Summary of the First Written Submission of the United States C-2 
Annex C-2 Oral Opening Statement of the United States – First Meeting C-9 
Annex C-3 Executive Summary of the Second Written Submission of the United States C-16 
Annex C-4 Executive Summary of the Oral Opening Statement of the United States – 
Second Meeting C-24 
ANNEX D 
ARGUMENTS OF THIRD PARTIES 
Contents Page 
Annex D-1 Third Party Written Submission of Australia D-2 
Annex D-2 Executive Summary of the Third Party Oral Statement of Australia D-4 
Annex D-3 Executive Summary of the Third Party Written Submission of Canada D-6 
Annex D-4 Third Party Oral Statement of Canada D-8 
Annex D-5 Executive Summary of the Third Party Written Submission of China D-10 
Annex D-6 Third Party Oral Statement of China D-14 
Annex D-7  Executive Summary of the Third Party Written Submission of the 
European Union D-17 
Annex D-8  Executive Summary of the Third Party Oral Statement of the European Union D-21 
Annex D-9  Executive Summary of the Third Party Written Submission of the 
Kingdom of Saudi Arabia D-24 
Annex D-10  Third Party Oral Statement of the Kingdom of Saudi Arabia D-27 
Annex D-11  Third Party Oral Statement of Turkey D-30 
 WT/DS436/R 
 
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  CASES CITED IN THIS REPORT 
Short title Full case title and citation 
Canada – Aircraft Appellate Body Report, Canada – Measures Affecting the Export of Civilian 
Aircraft , WT/DS70/AB/R, adopted 20 Augu st 1999, DSR 1 999:III, p. 1377 
Canada – Aircraft Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft , 
WT/DS70/R, adopted 20 August 1999, upheld by Appellate Body Report 
WT/DS70/AB/R, DSR 1999:IV, p. 1443 
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 
China – GOES Panel Report, China – Countervailing and Anti -Dumping Duties on Grain 
Oriented Flat-Rolled Electrical Steel from the United States , WT/DS414/R, 
adopted 16 November 2012, upheld by Appellate Body Report 
WT/DS414/AB/R 
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 
China – X-Ray Equipment Panel Report,  China – Definitive Anti-Dumpi ng Duties on X-Ray Security 
Inspection Equipment from the European Union , WT/DS425/R, adopted 
24 April 2013  
EC – Approval and Marketing of 
Biotech Products Panel Reports, European Communities – Measur es Affecting the Approval 
and Marketing of Biotech Products , WT/DS291/R-WT/DS292/R-WT/DS293/R, 
Add.1 to Add.9, and Corr.1, adop ted 21 November 2006, DSR 2006:III, 
p. 847 
EC – Bed Linen 
(Article 21.5 – India) Appellate Body Report, European Communities – An ti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of 
the DSU  by India , WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III, 
p. 965  
EC – Countervailing Measures 
on DRAM Chips Panel Report, European Communities – Counterv ailing Measures on Dynamic 
Random Access Memo ry Chips from Korea , WT/DS299/R, adopted 
3 August 2005, DS R 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 2 011:VII, p. 3995 
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R-WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, p. 135 
EC – Selected Customs Matters Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791 
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – An ti-Dumping Duties on 
Malleable Cast Iron Tube or  Pipe Fittings from Brazil , WT/DS219/AB/R, 
adopted 18 August 2003, DSR 2003:VI, p. 2613 
EC – Tube or Pipe Fittings Panel Report, European Communities – Anti-D umping Duties on Malleable 
Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/R, adopted 18 August 
2003, as modified by Appellate Body Report WT/DS219/AB/R, DSR 2003:VII, 
p. 2701 
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 
EC and certain member States 
– Large Civil Aircraft Panel Report, European Communities and Certai n Member States – Measures 
Affecting Trade in Large Civil Aircraft , WT/DS316/R, adopted 1 June 2011, as 
modified by Appellate Body Report, WT/DS316/AB/R, DSR 2011:II, p. 685 
EU – Footwear (China) Panel Report, European Union – Anti-Dumping Measures on Certain Footwear 
from China , WT/DS405/R, adopted 22 February 2012 WT/DS436/R 
 
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  Short title Full case title and citation 
Japan – DRAMs (Korea) Appellate Body Report, Japan – Countervailing Duties on Dynamic Random 
Access Memories from Korea , WT/DS336/AB/R and Corr.1, adopted 
17 December 2007, DSR 2007:VII, p. 2703 
Korea – Alcoholic Beverages Panel Report, Korea – Taxes on Alcoholic Beverages , WT/DS75/R, 
WT/DS84/R, adopted 17 February 1999, as modified by Appellate Body Report WT/DS75/AB/R-WT/DS84/AB/R, DSR 1999:I, p. 44 
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguar d Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R, adopted 12 January 2000, 
DSR 2000:I, p. 3 
Mexico – 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, adopted 20 December 2005, 
as modified by Appellate Body Report WT/DS295/AB/R, DSR 2005:XXIII, 
p. 11007 
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 – Carbon Steel Appellate Body Report, United States – Countervai ling Duties on Certain 
Corrosion-Resistant Carbon Stee l Flat Products from Germany , 
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, p. 3779 
US – Carbon Steel Panel Report, United States – Countervailing Duties on Certain 
Corrosion-Resistant Carbon Stee l Flat Products from Germany , WT/DS213/R 
and Corr.1, adopted 19 December 2002, as modified by Appellate Body 
Report WT/DS213/AB/R, DSR 2002:IX, p. 3833 
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 Carb on Steel Flat Products from Japan , 
WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, p. 3  
US – Countervailing Duty 
Investigation on DRAMS Appellate Body Report, United States – Countervaili ng Duty Investigation on 
Dynamic Random Access Memory Se miconductors (DRAMS) from Korea , 
WT/DS296/AB/R, adopted 20 July 2005, DSR 2005:XVI, p. 8131 
US – 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 – Large Civil Aircraft 
(2nd complaint) Appellate Body Report, United States – Measures Affecting Trade in Large 
Civil Aircraft (Second Complaint) , WT/DS353/AB/R, adopted 23 March 2012 
US – Oil Country Tubular 
Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R, 
adopted 17 December 2004, DSR 2004:VII, p. 3257 
US – Softwood Lumber IV Appellate Body Report, United States – Final Countervailing Duty 
Determination with Respect to Ce rtain Softwood Lumber from Canada , 
WT/DS257/AB/R, adopted 17 February 2004, DSR 2004:II, p. 571 
US – Softwood Lumber IV Panel Report, United States – Final Countervailing Duty Determination with 
Respect to Certain Softwood Lumber from Canada , WT/DS257/R and Corr.1, 
adopted 17 February 2004, as modified by Appellate Body Report 
WT/DS257/AB/R, DSR 2004:II, p. 641  WT/DS436/R 
 
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  Short title Full case title and citation 
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 – Tyres (China) Appellate Body Report, United States – Measures A ffecting Imports of Certain 
Passenger Vehicle and Ligh t Truck Tyres from China , WT/DS399/AB/R, 
adopted 5 October 2011, DSR 2011:IX, p. 4 811 
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 – Wool Shirts and Blouses Appellate Body Report, United States – Measure A ffecting 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 
 
 WT/DS436/R 
 
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ABBREVIATIONS USED IN THIS REPORT 
Abbreviation Description 
AD Anti-dumping 
AD Agreement Agreement on Implementation of Article VI of the General Agreement on Tariffs 
and Trade 1994 
AFA Adverse facts available 
AR Administrative review 
BCI Business confidential information 
CFR Code of Federal Regulations 
CVD Countervailing duty 
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures  Governing the Settlement of Disputes 
ECSC European Coal an d Steel Community 
Fed. Reg. (or FR) Federal Register 
FOB Free on board 
GATT 1994 General Agreement on Tariffs and Trade 1994 
GOI Government of India 
JPC Joint Plant Committee 
JSIP Jharkhand State Industrial Policy 
JSW Jindal Steel Works 
KIP State Government of Karnataka's New Industrial Policy and Package of 
Incentives and Concessions 
MAI Market Access Initiative 
MDA Market Development Assistance 
MMDR Act Mines and Minerals (Development & Regulation) Act, 1957 
MML Mysore Minerals Limited. 
NMDC National Mineral Development Corporation 
PLR Prime lending rate 
POR Period of review 
RBI Reserve Bank of India 
SCM Agreement (or ASCM) Agreement on Su bsidies and Countervailing Measures  
SDF Steel Development Fund 
SEZ Special Economic Zone 
SGAP State Government of Andhra Pradesh 
SGOC State Government  of Chhattisgarh 
SGOG State Government of Gujarat 
SGOJ State Government of Jharkhand 
SGOK State Government of Karnataka 
SGOM State Government of Maharashtra 
TPS Target Plus Scheme 
United States (or US) United States of America 
USC United States Code 
USDOC United States Department of Commerce 
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 
VMPL Vijayanagar Minerals Pvt. Ltd. 
WTO World Trade Organization 
 WT/DS436/R 
 
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  1  INTRODUCTION 
1.1  Complaint by India 1.1.  On 24 April 2012, India requested consultations with the United States pursuant to Articles 1 
and 4 of the DSU, Article XXII:1 of the GATT 1 994 and Article 30 of the SCM Agreement, with 
regard to the imposition of countervailing duties on certain hot-rolled carbon steel flat products 
from India by the United States as described in document WT/DS436/1/Rev.1. 
1.2.  Consultations were held on 31 May and 1 J une 2012, but were unsuccessful in resolving the 
dispute. 
1.2  Panel establishment and composition 1.3.  On 12 July 2012, India requested, pursuant to  Articles 4.7 and 6 of the DSU and Article 30 of 
the SCM Agreement, that the DSB establish a panel with standard terms of reference.
1 At its 
meeting on 31 August 2012, the DSB established a panel pursuant to the request of India in 
document WT/DS436/3, in accordance with Article 6 of the DSU.2 
1.4.  The Panel's terms of reference are the following: 
To examine, in the light of the relevant pr ovisions of the covered agreements cited by 
the parties to the dispute, the matter re ferred to the DSB by India in document 
WT/DS436/3 and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.3 
1.5.  On 7 February 2013, India requested the Di rector-General to determine the composition of 
the panel, pursuant to Article 8.7 of the DS U. On 18 February 2013, the Director-General 
accordingly composed the Panel as follows: 
Chairperson: Mr Hugh McPhail 
 Members:  Mr Anthony Abad 
   Mr Hanspeter Tschaeni 
 1.6.  Australia, Canada, China, the European Union, the Kingdom of Saudi Arabia (Saudi Arabia) 
and Turkey notified their interest in participating in the Panel proceedings as third parties. 
1.3  Panel proceedings 1.3.1  General 1.7.  After consultation with the partie s, the Panel adopted its Working Procedures
4 and timetable 
on 8 March 2013. The Panel introduced modifications to its timetable on 18 July 2013.  
1.8.  The Panel held a first substantive meeting with the parties on 9-10 July 2013. A session with 
the third parties took place on 10 July 2013. The Panel held a second substantive meeting with the 
parties on 8-9 October 2013. On 25 October 2013, the Panel issued the descriptive part of its 
Report to the parties. The Panel issued its Interim Report to the parties on 31 January 2014. The Panel issued its Final Report to the parties on 11 April 2014. 
                                               
1 WT/DS436/3. 
2 See WT/DSB/M/321. 
3 WT/DS436/4. 
4 See the Panel's Working Procedures in Annex A-1. WT/DS436/R 
 
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  1.3.2  Working procedures on Business Confidential Information (BCI) 
1.9.  After consultations with the parties, the Panel adopted, on 28 March 2013, additional 
procedures for the protection of BCI.5 
1.3.3  Preliminary ruling 
1.10.  On 3 May 2013, the United States submitted to the Panel two requests for preliminary 
rulings concerning the consistency of India's request for the establishment of a panel6 with 
Article 6.2 of the DSU. On 21 May 2013, in advance of the first substantive meeting of the Panel 
with the parties, India provided a written response  to the United States' requests for preliminary 
rulings. 
1.11.  On 16 August 2013, the Panel issued the foll owing preliminary rulings to the parties to the 
dispute.  
1.3.3.1  Introduction 
1.12.  In its first written submission, the United States submitted two requests for preliminary 
rulings that certain claims advanced by India in its first written submission fall outside the Panel's 
terms of reference. The United States' requests are based on Article 6.2 of the DSU, which 
provides in relevant part: 
The request for the establishment of a panel shall … identify the specific measures at 
issue and provide a brief summary of the legal basis of the complaint sufficient to 
present the problem clearly. 
1.13.  The United States' first request concerns India's claims under Article 11 of the 
SCM Agreement. In its panel request, India alleged a violation of: 
Article 11 of the ASCM because no investigation was initiated or conducted to 
determine the effects of new subsidies included in the administrative reviews.7 
1.14.  In its first written submission, India argued claims relating to (i) the alleged failure to 
initiate an investigation into new subsidies and (ii) the alleged initiation of an investigation despite 
the insufficiency of evidence in the domestic industry's written application. With respect to the former, India argued its claim under the follow ing heading of its first written submission: 
Section XII.C.4: The United States violated Article 11.1 by failing to 'Initiate' an 
investigation into the New Subsidies. 
1.15.  With respect to the claims relating to the initiation of an investigation despite the 
insufficiency of evidence, India argued its claims under the following headings of its first written 
submission: 
Section XII.C.1: The United States violated Articles 11.1-11.2 by initiating 
investigation into NMDC and TPS programs in the 2004 AR even when the written 
application of the domestic industry did not contain sufficient evidence as to the 
existence, amount and nature of such subsidies. 
Section XII.C.2: The United States violated Article 11.9 by initiating investigation into 
NMDC and TPS programs in 2004, since the written application of the domestic 
industry did not contain sufficient evidence as to the existence, amount and nature of said alleged subsidies. 
                                               
5 Additional Working Procedures on BCI. 
6 WT/DS436/3 (referred to hereafter as "panel request"). 
7 Ibid. WT/DS436/R 
 
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  1.16.  The United States' second request concerns India's argument in its first written submission 
with respect to a claim that the United States' 2013 sunset review determination is inconsistent with Article 12.7 of the SCM Agreement. India di d not explicitly refer to the 2013 sunset review 
determination in its panel request. 
1.17.  Pursuant to Paragraph 7 of the Panel's working procedures, the Panel invited India to 
respond to the United States' requests prior to the first substantive meeting of the Panel with the parties.
8 In addition, the Panel posed certain question s relating to the requests for preliminary 
rulings and gave both parties the opportunity to comment on each other's answers. 
1.18.  The United States requested the Panel to make certain findings as a preliminary matter.9 In 
contrast, India requested the Panel to reserve its findings on the preliminary ruling requests until the final report.
10 As the United States' requests concern the Panel's terms of reference, and given 
the clarifications provided by the parties, the Pane l decided to issue its rulings prior to the second 
substantive meeting of the Panel with the parties in order to clarify the scope of the dispute. 
1.3.3.2  Arguments of the Parties 
1.3.3.2.1  United States  
1.19.  The United States requests the Panel to find that India's claims under (i) Article 11 of the 
SCM Agreement, and (ii) Article 12.7 of the SCM Agreement with respect to a 2013 sunset review 
determination are outside the Panel's terms of reference because India's panel request fails to 
comply with the requirements of Article 6.2 of the DSU. 
1.3.3.2.1.1  Article 11 of the SCM Agreement 
1.20.  The United States recalls that India's panel request only includes a general reference to 
Article 11 of the SCM Agreement. The United States asserts that Article 11 contains 
11 subparagraphs with different obligations, and subm its that India failed to identify in its panel 
request any specific Article 11 obligation that the United States had allegedly violated.11 Thus, the 
United States submits that India's panel request failed to comply with the requirement of 
Article 6.2 of the DSU to "provide a brief summary of the legal basis of the complaint sufficient to 
present the problem clearly."12 
1.21.  Moreover, the United States notes that India's panel request suggests that the alleged 
violation lies in the failure to initiate or conduct an investigation at all with respect to new subsidies. However, in the United States' view, Article 11 of the SCM Agreement does not contain 
any obligation to initiate an investigation.
13 
1.22.  With respect to the claims relating to the initiation of an investigation despite insufficient 
evidence in the domestic industry's written application, the United States points out that India's panel request alleges that "no investigation was initiated or conducted".
14 However, the relevant 
arguments in India's first written submission allege that the United States erred by actually 
initiating an investigation into the NMDC and TPS programmes in 2004 despite an insufficient written application. The United States submits that the sufficiency of evidence in an application is a 
distinct issue from whether an investigation was initiated.
15 Raising due process concerns, the 
                                               
8 India considered that the United States had not pr operly raised a request for preliminary ruling with 
regard to the claim in Section XII.C.4 of India's first written submission. Du ring the first substantive meeting of 
the Panel with the parties, the United States clarified that  its requests also covered th is claim. In light of the 
United States' explanation, the Panel accepted that the United States' requests for preliminary rulings covered the claim in Section XII.C.4 of India's first written submission, and invited India to respond to this aspect of the United States' requests. 
9 United States' first written submission, para. 3. 
10 India's response to the United States' re quests for preliminary rulings, para. 35. 
11 United States' first written submission, pa ras. 15, 17-19 and 22; and response to Panel 
question No. 38, para. 2. 
12 United States' first written submission, paras. 18 and 22. 
13 Ibid. paras. 17 and 22. 
14 Ibid. paras. 17 and 20. 
15 Ibid. para. 20. WT/DS436/R 
 
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  United States contends that it could not have anticipated that India would bring these claims 
because they were not articulated in India's panel request.16 
1.3.3.2.1.2  2013 sunset review 1.23.  Concerning India's claims under Article 12.7 of the SCM Agreement with respect to a 2013 
sunset review determination, the United States understands India to refer to the final results in the 
most recent sunset review issued by the US Department of Commerce on 14 March 2013. The United States submits that this determination could not have been included in India's request for 
consultations or request for the establishment of a panel, since it was issued eight months after 
the latter.
17 Furthermore, although this sunset review was initiated on 1 November 2010, India 
does not refer to the initiation in its consultations or panel requests. Thus, the United States submits that the final results of the 2013 suns et review fall outside the Panel's terms of 
reference.
18 
1.3.3.2.2  India 1.3.3.2.2.1  Article 11 of the SCM Agreement 
1.24.  India contends that its panel request need not be identically worded as the claims pursued 
in its first written submission, and argues that the Panel should examine the panel request as a whole and in light of "attendant circumstances".
19 India contends that the United States attributed 
an "extremely narrow and acontextual meaning" to India's panel request. India argues that the 
term "initiated" in its request is to be construed in light of footnote 37 of the SCM Agreement. This 
would necessarily imply that "India's panel request is directed to the manner in which investigations into new subsidy programs were initiated and conducted", i.e. the fact that they 
were "not [] initiated, commenced and performed in the manner ' provided [for] in Article 11 ' of the 
SCM Agreement."
20 
1.25.  Moreover, India contends that its panel request clearly connects the challenged measures 
with the relevant obligations under Article 11 of the SCM Agreement.21 According to India, the 
United States fails to appreciate that "India's panel request covers violations of all obligations in Article 11, barring those that are obviously and logically inapplicable to the case at hand".
22 India 
contends that its panel request delineates that violations are limited to (i) Article 11, (ii) the 
initiation and conduct of investigations, and (iii) new subsidy programmes. Thus, according to India, Articles 11.6, 11.8, 11.10 and 11.11 of th e SCM Agreement are logically excluded due to the 
words used in the panel request. India also argues it has the discretion in its first written 
submission to only elaborate on a sub-set of th e remaining provisions in Article 11 covered by 
India's panel request, namely Articles 11.1, 11.2 and 11.9. However, India contends that Articles 11.3, 11.4, 11.5 and 11.7 of the SCM Ag reement have also been breached, but India 
chose not to press these violations in its first written submission.
23 Moreover, India submits that all 
subparagraphs of Article 11 are closely related and interlinked, and the reference to a common obligation, i.e. the manner in which investigations are to be initiated and conducted, is sufficient to 
meet the standard of Article 6.2 of the DSU.
24  
1.26.  Finally, India contends that the due proces s rights of the United States have not been 
prejudiced, and the United States' first written submission shows that it was in a position to file detailed responses to India's claims. India also notes that the claims at issue here only refer to 
determinations made by the United States an d documents made publicly available by the 
United States. Moreover, the consultations between the United States and India prior to the establishment of this panel revealed India's point of concern with respect to these claims. 
                                               
16 United States' first written submission, para. 21. 
17 Ibid. para. 24. 
18 Ibid. para. 27. 
19 India's response to the United States' requests  for preliminary rulings,  paras. 7-8 and 14-15. 
20 Ibid. paras. 10-11. (emphasis original) 
21 Ibid. para. 13. 
22 Ibid. para. 16. 
23 Ibid. paras. 17-19. 
24 Ibid. paras. 20-22. WT/DS436/R 
 
- 13 - 
 
  Therefore, according to India, it cannot be said that "the United States was completely unaware 
that India would raise claims in relation to sufficiency of evidence for commencing investigations into new subsidies."
25 
1.3.3.2.2.2  2013 sunset review 
1.27.  Regarding the 2013 sunset review, India note s that paragraph 5 of its panel request "covers 
all amendments, replacements, implementing acts or any other related measure in connection with the measures referred herein." India submits that  all determinations and orders issued by the 
United States are measures covered in the panel request, and the 2013 sunset review 
determination amends the determinations included in the panel request. Referring to the understanding of past panels and the Appellate Body, India notes that the 2013 sunset review determination does not change the nature of the measures challenged, and India has not raised 
different claims in relation to this determination. India submits that agreeing with the 
United States' preliminary objection would allow the United States to evade adjudicatory review and prevent a positive resolution of the dispute on a purely technical point.
26 
1.3.3.3  Evaluation 
1.28.  The United States' requests for preliminary rulings concern India's claims under 
(i) Article 11 of the SCM Agreement, and (ii) Arti cle 12.7 of the SCM Agreement with respect to a 
2013 sunset review. We examine each request in turn. 
1.3.3.3.1  Whether India's panel request re lating to Article 11 of the SCM Agreement 
satisfies the requirements of Article 6.2 of the DSU 
1.29.  The main issue before the Panel is whether the general reference to Article 11 of the 
SCM Agreement in India's panel request provides "a brief summary of the legal basis of the 
complaint sufficient to present the problem clearly."27 India contends that its panel request refers 
to two different inconsistencies with Article 11, namely: (i) the alleged failure to initiate an 
investigation into new subsidies and (ii) the alleged initiation of an investigation despite the 
insufficiency of evidence in the domestic industry's written application.28 We consider each alleged 
inconsistency separately. 
1.3.3.3.1.1  Alleged failure to initiate  an investigation into new subsidies 
1.30.  It is undisputed that India's panel request refers generally to Article 11 of the 
SCM Agreement, without explicitly identifying any specific paragraphs of that provision as the legal basis of its complaint. We note that Article 11 contains several paragraphs that set out multiple 
distinct obligations. 
1.31.  While the Appellate Body has explained th at when "a provision contains not one single, 
distinct obligation, but rather multiple obligations, a panel request might need to specify which of 
the obligations contained in the provision is being challenged"
29, the Appellate Body has also 
indicated that "compliance with the requirements of Article 6.2 [of the DSU] must be determined 
on the merits of each case, having considered th e panel request as a whole, and in the light of 
attendant circumstances".30 Thus, the mere fact that India failed to explicitly specify in its panel 
request the particular paragraphs of Article 11 at issue does not necessarily mean that India's panel request fails to meet the requirements of Arti cle 6.2 of the DSU. This is because the relevant 
WTO obligations may nevertheless be identifiable from a careful reading of the panel request as a 
whole.
31 Accordingly, we shall examine whether a careful reading of India's panel request, 
                                               
25 India's response to the United States' requ ests for preliminary ru lings, paras. 24-26. 
26 Ibid. paras. 27-33. 
27 Article 6.2 of the DSU. 
28 See paragraphs 1.14 and 1.15 above. 
29 Appellate Body Report, China – Raw Materials , para. 220. See also Appellate Body Reports, Korea – 
Dairy , para. 124; and EC – Fasteners (China) , para. 598. 
30 Appellate Body Report, US – Carbon Steel , para. 127. 
31 With similar understanding, see the preliminary ruling of the panel in US – Countervailing and 
Anti-Dumping Measures (China) , para. 3.35, document WT/DS449/4 dated 7 June 2013. WT/DS436/R 
 
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  including any narrative explanation contained therein32, permits a sufficiently clear identification of 
which particular obligation(s) in Article 11 of the SCM Agreement form(s) the legal basis of India's complaint regarding Article 11, to enable us to conclude that it is consistent with Article 6.2 of the DSU.  
1.32.  In addition to the general reference to Article 11 of the SCM Agreement, India's panel 
request explains India's concern that "no investigation was initiated or conducted to determine the effects of new subsidies included in the administrative reviews". This text indicates that the issue 
raised by India concerns the United States' alleged failure to initiate or conduct an investigation 
into the effects of new subsidy allegations. We note that similar language in Article 11.1 of the SCM Agreement may contain a "potentially relevant obligation"
33 relating to the initiation of "an 
investigation to determine the existence, degree and effect of any alleged subsidy".34 In our view, 
therefore, the general reference to Article 11 and the above-mentioned narrative explanation 
together are sufficient to "provide a brief summary of the legal basis of the complaint sufficient to 
present the problem clearly", consistent with Arti cle 6.2 of the DSU. Consequently, the claim in 
Section XII.C.4 of India's first written submission35 falls within the Panel's terms of reference.36 
1.3.3.3.1.2  Alleged initiation of an investig ation despite the insuffici ency of evidence in 
the domestic industry's written application 
1.33.  However, we are not persuaded that the general reference to Article 11 of the 
SCM Agreement and the above-mentioned narrative explanation in India's panel request are sufficient to bring India's remaining Article 11 claims within the Panel's terms of reference. 
1.34.  We note that the arguments in Sections XII.C.1 and XII.C.2 of India's first written 
submission relate to the fact that an investigation was allegedly initiated despite the fact that the 
written application of the domestic industry did not contain sufficient evidence as to the existence, amount and nature of certain subsidies.
37 We agree with the United States that whether an 
investigation was initiated despite insufficiency of evidence is an issue entirely distinct from 
whether an investigation to determine the effects of new subsidies was initiated or conducted at all.
38 Indeed, the narrative in India's panel request states that "no investigation was initiated or 
conducted". India contends that its panel request should be read as relating to "investigations not 
being initiated, commenced and performed in a manner ' provided in Article 11 ' of the 
SCM Agreement."39 We must objectively determine our te rms of reference on the basis of the 
panel request as it existed at the time of filing.40 In our view, by clearly and only stating that an 
                                               
32 We note in this regard that, in applyi ng Article 6.2 of the DSU, the panel in Mexico – Anti-Dumping 
Measures on Rice  considered the listing of the relevant provis ions of the WTO Agreement together with the 
narrative which accompanied that listing. (Panel Report, Mexico – Anti-Dumping Measures on Rice , para. 7.30) 
33 We note that the panel in EC – Approval and Marketing of Biotech Products  referred to the concept of 
"potentially relevant obligations". See Panel Reports, EC – Approval and Marketing of Biotech Products , 
para. 77 of the preliminary ruling reprod uced at para. 7.47 of the reports. 
34 Article 11.1 of the SCM Agreement. 
35 For a brief summary of this claim, see paragraph 1.14 above. 
36 We emphasize, however, that in considering whet her this aspect of India' s panel request complies 
with the requirements of Article 6.2 of the DSU we expr ess no opinion on the merits of India's complaint. As 
clarified by the Appellate Body in EC – Selected Customs Matters , the "question of whether a measure falls 
within a panel's terms of reference is a threshold issue,  distinct from the question of whether the measure is 
consistent or not with the legal provision(s) of the covered agreement(s) to which the panel request refers." (Appellate Body Report, EC – Selected Customs Matters , para. 131) 
37 For a brief summary of these cl aims, see paragraph 1.15 above. 
38 See United States' first written submission, para. 20. 
39 India's response to the United St ates' requests for preliminary ruli ngs, para. 11. (emphasis original) 
India refers to footnote 37 of the SCM Agreement to argue that it "clearly suggests that an investigation should 
commence in a manner provided in Article 11." See India's response to the Un ited States' requests for 
preliminary rulings, paras. 9-11. Howe ver, it remains unclear to us, and India has not suffici ently explained, 
how the meaning in footnote 37, including the reference to a procedural action to formally commence  an 
investigation as provided in Article 11, permits a sufficiently clear identification of which particular obligations in Article 11 of the SCM Agreement form the legal basis of India's complaints at issue regarding Article 11. 
40 The Appellate Body has stated that "[a]lthough subsequent events in panel proceedings, including 
submissions by a party, may be of so me assistance in confirming the meaning of the words used in the panel 
request, those events cannot have the effect of curing the failings of a deficient panel request. In every 
dispute, the panel's terms of reference must be objectively determined on the basis of the panel request as it 
 WT/DS436/R 
 
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  investigation was  not initiated or conducted, India's panel request precludes claims relating to the 
alleged initiation of an investigation, or the manner in which an investigation was conducted, being included in the scope of the dispute. 
1.35.  India submits that the Panel should examine India's panel request in light of "attendant 
circumstances". India argues that its panel request "covers violations of all obligations in 
Article 11, barring those that are obviously and logically inapplicable to the case at hand".
41 
However, we are unable to reconcile India's view with the general reference to Article 11 read 
together with the narrative in India's panel requ est. Had India intended to raise claims under 
Articles 11.1, 11.2 and 11.9 of the SCM Agreement re lating to the initiation of an investigation 
despite insufficient evidence, India should have provided some summary of the relevant legal basis sufficient to present this particular problem clearly, which in our view it did not. As it is, India's 
panel request is not reasonably open to the reading advanced by India.
42 
1.36.  India also argues that the due process rights  of the United States have not been prejudiced 
because the claims at issue "only refer to determinations already made by the United States and 
only refers to documents made publicly available by the United States."43 We do not consider that 
the United States would be made aware of the "l egal basis of the complaint sufficient to present 
the problem clearly", simply because India's claims refer to determinations or documents issued by 
the United States.44 The fact that the respondent has detailed information relating to the measure 
at issue does not necessarily imply that the problem raised by the complainant in WTO dispute settlement will become obvious for purposes of Article 6.2 of the DSU. We recall in this regard that, in the context of the AD Ag reement, the Appellate Body in Thailand – H-Beams  found that 
even when specific issues were raised before the investigating authority, the "underlying 
investigation cannot normally, in and of itself, be determinative in assessing the sufficiency of the claims made in a request for the establishment of a panel."
45 
1.37.  Finally, India contends that a certain list of questions filed during consultations reveals 
India's concerns relating to the claims at issue here.46 The Panel was not privy to those 
consultations, and is therefore unable to refer to the substance of the consultations for present 
purposes. We note in this regard that the Appellate Body in US – Upland Cotton  agreed with the 
finding of the panel in Korea – Alcoholic Beverages  that "[w]hat takes place in [] consultations is 
not the concern of a panel."47 
                                                                                                                                               
existed at the time of fili ng." (Appellate Body Report, EC and certain member States – Large Civil Aircraft , 
para. 642) 
41 India's response to the United States' re quests for preliminary rulings, para. 16. 
42 We find support in the Appellate Body Report in EC – Fasteners (China) , where it was found that the 
mere reference to a general provision would not allow a complaining party to introduce an issue that does not fall within the scope of the narrative explanation or de scription included in the panel request. See Appellate 
Body Report, EC – Fasteners (China), paras. 595-599. 
43 India's response to the United States' re quests for preliminary rulings, para. 24. 
44 In EC and certain member States – Large Civil Aircraft , the Appellate Body clarified that the "due 
process objective is not constitutive of, but rather follows from, the proper establishment of a panel's 
jurisdiction. The principal task of the adjudicator is therefore to assess what the panel's terms of reference 
encompass, and whether a particular measure or claim fa lls within the panel's remit." (Appellate Body Report, 
EC and certain member States – Large Civil Aircraft , para. 640)  
45 Appellate Body Report, Thailand – H-Beams , para. 94. The Appellate Body found that it is not 
necessarily the case that there is always continuity between claims raised in an underlying anti-dumping 
investigation and claims raised by a complaining part y in a related dispute brought before the WTO. The 
Appellate Body noted that "[t]he parties involved in an underlying anti-dumping investigation are generally 
exporters, importers and other commercial entities, wh ile those involved in WTO dispute settlement are the 
Members of the WTO. Therefore, it cannot be assumed that the range of issues raised in an anti-dumping investigation will be the same as the claims that a Member chooses to bring befo re the WTO in a dispute. 
Furthermore, although the defending pa rty will be aware of the issues rais ed in an underlying investigation, 
other parties may not." (Appellate Body Report, Thailand – H-Beams , para. 94) 
46 India's response to the United States' re quests for preliminary rulings, para. 25. 
47 Appellate Body, US – Upland Cotton , para. 287, quoting Panel Report, Korea – Alcoholic Beverages , 
para. 10.19. The Appellate Body also st ated that "the Panel should have lim ited its analysis to the request of 
consultations … Examining what took place in the consultations would seem contrary to Article 4.6 of the DSU … In addition, there is no public record of what actual ly transpires during consultations and parties will often 
disagree about what, precisely, was discussed." (Appellate Body, US – Upland Cotton , para. 287) WT/DS436/R 
 
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  1.38.  Thus, with respect to the issue of the initiation of an investigation despite insufficient 
evidence under Article 11 of the SCM Agreement, we  conclude that India's panel request does not 
comply with the requirement of Article 6.2 of th e DSU to "provide a brief summary of the legal 
basis of the complaint sufficient to present the problem clearly." Consequently, the arguments in 
Sections XII.C.1 and XII.C.2 of India's first written submission relate to claims that are not within 
the Panel's terms of reference. 
1.3.3.3.2  Whether the 2013 sunset review is included in the Panel's terms of reference 
1.39.  We now turn to India's claims relating to the 2013 sunset review. The main issue before the 
Panel is whether the 2013 sunset review is one of the "specific measures" (within the meaning of 
Article 6.2 of the DSU) identified in India's panel request. 
1.40.  In considering this issue, we note that the Appellate Body in US – Carbon Steel  explained 
that "compliance with the requirements of Article 6.2 [of the DSU] must be demonstrated on the 
face of the request for the establishment of a pa nel … [and] determined on the merits of each 
case, having considered the panel request as a whole, and in the light of attendant 
circumstances."48 The Appellate Body also found that "the identification of a measure within the 
meaning of Article 6.2 need be framed only with sufficient particularity so as to indicate the nature of the measure and the gist of what is at issue".
49 Accordingly, we shall examine India's panel 
request as a whole, to determine whether or no t that request identifies the 2013 sunset review 
with the requisite particularity. In this regard, we recall that India's panel request identifies the relevant measures at issue in the following terms: 
The United States conducted a countervailing duty (the "CVD") investigation 
(No. C 533 821) and levied countervailing duti es on the subject goods. The provisional 
measures were imposed with effect from  20 April 2001 and the final measures were 
imposed with effect from 3 December 2001. The United States concluded a sunset 
review in 2007 and continued the duties for a further period of five years. The 
United States also conducted several Administrative Reviews (the "AR") to determine the CVD rate/s to be applied on the imports made during the relevant AR period. The 
measures continue to be in force. This request covers the countervailing duties applied 
on the subject goods by the United States fr om time to time. A non-exhaustive list of 
determinations, orders, etc. issued by the United States in Case No. C-533-821 is enclosed as Annex 1.
50 
India's panel request also states that it "cover s all the amendments, replacements, implementing 
acts or any other related measure in conne ction with the measures referred herein."51 
1.41.  Turning first to the statement that India's panel request "covers the countervailing duties 
applied on the subject goods by the United States from time to time", we consider that the 2013 
sunset review may reasonably be treated as a measure concerned with the application of countervailing duties on the subject goods. We also  note that India explicitly referred to the only 
sunset review determination that had been issued  prior to its panel request: the 2007 sunset 
review. In our view, this indicates that sunset revi ews were of interest to India. Finally, we note 
that India's request "covers … any other related measure in connection with the measures referred 
herein." We consider that the 2013 sunset review may reasonably be considered a "related 
measure in connection with the measures" explicitly referred to in India's panel request. 
Considering these factors together, we are of the vi ew that India's panel request, read as a whole, 
indicates the nature of the measure and the gist of what is at issue with sufficient particularity to 
put the United States on notice that the 2013 sunset review, when issued, would be covered by 
India's claims. 
                                               
48 Appellate Body Report, US – Carbon Steel , para. 127. 
49 Appellate Body  Report, US – Continued Zeroing , para. 169. 
50 India's panel request, para. 3. 
51 Ibid. para. 5. Similar language is also found in Annex 1 of India's panel request. WT/DS436/R 
 
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  1.3.3.3.3  Conclusion 
1.42.  The Panel concludes that, with respect to the alleged failure to initiate or conduct an 
investigation into the effects of new subsidy allegations under Article 11 of the SCM Agreement, India's panel request complies with the requirement of Article 6.2 of the DSU to "provide a brief 
summary of the legal basis of the complaint sufficient to present the problem clearly." 
Consequently, the arguments in Section XII.C.4 of India's first written submission relate to a claim that falls within the Panel's terms of reference. In addition, the Panel concludes that the 
2013 sunset review is within the Panel's terms of reference. Therefore, we will consider these 
claims and the arguments pertaining to them in our disposition of the issues in this case. 
1.43.  However, the Panel concludes that, with respect to the issue under Article 11 of the 
SCM Agreement relating to the alleged initiation of an investigation despite the insufficiency of 
evidence in the domestic industry's written application, India's panel request does not comply with 
the requirement of Article 6.2 of the DSU to "pro vide a brief summary of the legal basis of the 
complaint sufficient to present the problem clearly." Consequently, the arguments in 
Sections XII.C.1 and XII.C.2 of India's first written submission relate to alleged claims that fall 
outside the Panel's terms of reference, and we will not consider them or make any rulings with respect to the alleged claims. 
2  FACTUAL ASPECTS 
2.1  The measures at issue 2.1.  This dispute concerns the imposition by the United States of countervailing duties on imports 
of certain hot-rolled carbon steel flat products from India. India has challenged the following 
measures, and their amendments, replacements, implementing acts or any other related measure 
in connection with them: 
a. Original Investigation 
i. Preliminary Affirmative Countervailing Duty Determination and Alignment of Final 
Countervailing Determination With Final Antidumping Duty Determinations: Certain Hot-Rolled Carbon Steel Flat Products From India:, 66 FR 20240-01, 20 April 2001; 
ii. Issues and Decision Memorandum – Final Results of the Countervailing Duty 
Investigations: Certain Hot-Rolled Carbon Steel Flat Products From India, 66 ITADOC 49635, 21 September 2001; 
iii. Final Affirmative Countervailing Duty Determination: Certain Hot-Rolled Carbon Steel 
Flat Products From India, 66 FR 49635-01, 28 September 2001; 
iv. Injury Determination: Hot-Rolled Steel Products from China, India, Indonesia, 
Kazakhstan, Netherlands, Romania, South Africa, Taiwan, Thailand, and Ukraine, 
701-TA-405-408 and 731-TA-899-904 and 906-908, Pub. 3468, United States 
International Trade Commission, November 2001; 
v. Amended Final Results of Countervailing Duty Orders: Certain Hot-Rolled Carbon 
Steel Flat Products From India and Indonesia, 66 FR 60198-01, 3 December 2001; 
and 
vi. Countervailing Duty Order in the Investigation: Certain Hot-Rolled Carbon Steel Flat 
Products from India, 8 January 2002; 
b. Administrative Review: POR 20 April 2001 through 31 December 2002 
(2002 administrative review) 
i. Preliminary Results of Countervailing Duty Administrative Review: Certain Hot-Rolled 
Carbon Steel Flat Products from India, 69 FR 907-01, 7 January 2004; WT/DS436/R 
 
- 18 - 
 
  ii. Issues and Decision Memorandum – Final Results of the Countervailing Duty 
Investigation: Certain Hot-Rolled Carbon Steel Flat Products From India, 69 ITADOC 26549, 6 May 2004; and 
iii. Final Results of Countervailing Duty Administrative Review: Certain Hot-Rolled 
Carbon Steel Flat Products from India, 69 FR 26549-01, 13 May 2004; 
c. Administrative Review: POR 1 January 2004 through 31 December 2004 
(2004 administrative review) 
i. Preliminary Results of Countervailing Duty Administrative Review: Certain Hot-Rolled 
Carbon Steel Flat Products from India, 71 FR 1512-01, 10 January 2006; 
ii. Issues and Decision Memorandum – Final Results of Administrative Review of the 
Countervailing Duty Order : Certain Hot-Ro lled Carbon Steel Flat Products from 
India, 71 ITADOC 28665, 10 May 2006; and 
iii. Final Results of Countervailing Duty Administrative Review: Certain Hot-rolled 
Carbon Steel Flat Products from India, 71 FR 28665-01, 17 May 2006; 
d. Sunset Review 
i. Issues and Decision Memorandum – Final Re sults of Expedited Sunset Reviews of the 
Countervailing Duty Orders: Certain Hot-Rolled Carbon Steel Flat Products from 
Argentina, India, Indonesia, South Af rica, and Thailand, 71 ITADOC 70960, 
7 December 2006; 
ii. Final Results of the Expedited Five-Year (Sunset) Reviews of the Countervailing Duty 
Orders: Certain Hot-Rolled Carbon Steel Flat Products from Argentina, India, 
Indonesia, South Africa, and Thailand, 71 FR 70960-03, 7 December 2006; 
iii. Injury Determination – Hot-Rolled Steel Products from China, India, Indonesia, 
Kazakhstan, Argentina, Romania, South Africa, Taiwan, Thailand, and Ukraine, 
701-TA-404-408 and 731-TA-898-902 and 904-908(Review), Pub. 3956, 
United States International Trade Commission, October 2007; and 
iv. Continuation of Antidumping Duty and Countervailing Duty Orders – Certain 
Hot-Rolled Carbon Steel Flat Products from India, Indonesia, the People's Republic of 
China, Taiwan, Thailand, and Ukraine, 72 FR 73316-03, 27 December 2007; 
e. Administrative Review: POR 1 January 2006 through 31 December 2006 
(2006 administrative review) 
i. Preliminary Results of Countervailing Duty Administrative Review: Certain Hot-Rolled 
Carbon Steel Flat Products from India, 73 FR 1578-02, 9 January 2008; 
ii. Issues and Decision Memorandum – Final Results of Countervailing Duty 
Administrative Review: Certain Hot-Rolled Carbon Steel Flat Products From India, 
73 ITADOC 40295, 7 July 2008; and 
iii. Final Results of Countervailing Duty Administrative Review: Certain Hot-Rolled 
Carbon Steel Flat Products From India, 73 FR 40295-02, 14 July 2008; 
f. Administrative Review: POR 1 January 2007 through 31 December 2007 
(2007 administrative review) 
i. Preliminary Results of Countervailing Duty Administrative Review: Certain Hot-Rolled 
Carbon Steel Flat Products from India, 73 FR 79791-01, 30 December 2008; WT/DS436/R 
 
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  ii. Issues and Decision Memorandum – Final Results of Countervailing Duty 
Administrative Review: Certain Hot-Rolled Carbon Steel Flat Products from India, 74 ITADOC 20923, 29 April 2009; and 
iii. Final Results of Countervailing Duty Administrative Review: Certain Hot-Rolled 
Carbon Steel Flat Products from India, 74 FR 20923-01, 6 May 2009; 
g. Administrative Review: POR 1 January 2008 through 31 December 2008 
(2008 administrative review) 
i. Preliminary Results of Countervailing Duty Administrative Review: Certain Hot-Rolled 
Carbon Steel Flat Products from India, 75 FR 1496-01, 11 January 2010; 
ii. Issues and Decision Memorandum – Final Results of Countervailing Duty 
Administrative Review: Certain Hot-Rolled Carbon Steel Flat Products from India, 
75 ITADOC 43488, 19 July 2010; and 
iii. Final Results of Countervailing Duty Administrative Review – Certain Hot-Rolled 
Carbon Steel Flat Products from India, 75 FR 43488-01, 26 July 2010. 
2.2.  The challenged measures also cover the following provisions of the United States Tariff Act, 
1930 as codified in the United States Code, Title 19, Chapter 4, Subtitle IV (US statue), and the United States Code of Federal Regulations, Title 19, Volume 3, Chapter III, Part 351 
(US regulations), and their amen dments, replacements, implementing acts or any other related 
measure in connection with them: 
a. 19 CFR § 351.511(a)(2)(i) to (iii); 
 
b. 19 CFR § 351.511(a)(2)(iv); 
 
c. 19 USC § 1677(7)(G);  
 
d. 19 USC § 1675a(a)(7);  
 
e. 19 USC § 1675b(e)(2); 
 
f. 19 USC § 1677e (b); and 
 
g. 19 CFR § 351.308. 
 3  PARTIES' REQUESTS FOR FI NDINGS AND RECOMMENDATIONS 
3.1.  India requests the Panel to find that:  
a. The provisions contained in 19 CFR § 351.511(a )(2) (i) to (iii) are inconsistent "as such" 
with Article 14(d) of the SCM Agreement; 
b. The provision contained in 19 CFR § 351.511(a)(2)(iv) is inconsistent "as such" with 
Article 14(d) of the SCM Agreement; 
c. The provision contained in 19 CFR § 351.511(a)(2)(iv) is inconsistent "as such" with 
Articles 19.3 and 19.4 of the SCM Agreement; 
d. The provisions contained in 19 USC § 1677(7)(G), 19 USC § 1675a(a)(7) and 
19 USC § 1675b(e)(2) are "as such" inconsistent with Articles 15.1, 15.2, 15.3, 15.4 and 15.5 of the SCM Agreement; 
e. The provisions contained in 19 USC § 1677e (b) and the implementing regulations 
contained in 19 CFR § 351.308 are "as such" inconsistent with Article 12.7 of the SCM Agreement; WT/DS436/R 
 
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  f. In connection with the provision of "High Grade Iron Ore" by the NMDC: 
i. The United States' determination as to the existence of financial contribution is 
inconsistent with Article 1.1(a)(1) of the SCM Agreement; 
ii. The United States' determination of specificity is inconsistent with Articles 2.1(c) 
and 2.4 of the SCM Agreement; 
iii. The United States' determination as to the existence and calculation of benefit is 
inconsistent with Articles 1.1(b) and 14(d) of the SCM Agreement; and 
iv. The United States' imposition of countervailing duty is inconsistent with Articles 19.3 
and 19.4 of the SCM Agreement; 
g. In connection with the provision of "Captive Mining Rights of Iron Ore": 
i. The United States' identification of, and investigation into, the program is 
inconsistent with Article 12.5 of the SCM Agreement; 
ii. The United States' determination that grant of mining rights amounts to provision of 
iron ore is inconsistent with Article 1.1(a)(1)(iii) of the SCM Agreement; 
iii. The United States' determination regarding specificity is inconsistent with 
Articles 2.1(c) and 2.4 of the SCM Agreement; 
iv. The United States' determination as to the existence and calculation of benefit is 
inconsistent with Articles 1.1(b) and 14(d) of the SCM Agreement; and 
v. The imposition of countervailing duties by the United States is inconsistent with 
Articles 19.3 and 19.4 of the SCM Agreement; 
h. In connection with the provision of "Captive Mining Rights for Coal": 
i. The United States' determination that grant of mining rights amounts to provision of 
coal is inconsistent with Article 1.1(a)(1)(iii) of the SCM Agreement; 
ii. The United States' determination regarding specificity is inconsistent with 
Articles 2.1(a) and (b) of the SCM Agreement; 
iii. The United States' determination as to the existence and calculation of benefit is 
inconsistent with Articles 1.1(b) and 14(d) of the SCM Agreement; and 
iv. The imposition of countervailing duties by the United States is inconsistent with 
Articles 19.3 and 19.4 of the SCM Agreement; 
i. In connection with "SDF": 
i. The United States' determination that the loans from SDF constituted a financial 
contribution is inconsistent with Article 1.1(a)(1)(i) of the SCM Agreement; 
ii. The United States' determination regarding existence and calculation of benefit is 
inconsistent with Articles 1.1(b) and 14(b) of the SCM Agreement; and 
iii. The imposition of countervailing duties by the United States is inconsistent with 
Articles 19.3 and 19.4 of the SCM Agreement; 
j. The injury determination by the United States is inconsistent with Articles 15.1, 15.2, 
15.3, 15.4 and 15.5 of the SCM Agreement; WT/DS436/R 
 
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  k. The initiation of investigation into new subsidies during Administrative Reviews is 
inconsistent with Articles 11.1, 11.2 and 11.9 of the SCM Agreement; 
l. The failure to invite India for consultation at the time of initiating investigation into new 
subsidies is inconsistent with Article 13.1 of the SCM Agreement; 
m. The investigation into new subsidies during Administrative Reviews is inconsistent with 
Articles 21.1 and 21.2 of the SCM Agreement; 
n. The failure to issue a public notice of initiation of investigation into new subsidies during 
Administrative Reviews is inconsistent with Article 22.1 and Article 22.2 of the 
SCM Agreement; 
o. The application of adverse facts available standard is inconsistent with Article 12.7 of the 
SCM Agreement; 
p. The United States' determinations are inconsistent with Article 22.5 of the 
SCM Agreement; and 
q. As a consequence of inconsistencies ment ioned hereinabove, the United States' 
determinations are inconsistent with Articles 10 and 32.1 of the SCM Agreement, 
Article VI of the GATT 1994 and Article XVI: 4 of the WTO Agreement. 
3.2.  Pursuant to Article 19 of the DSU, India re quests the Panel to suggest the following specific 
ways by which the United States may bring its me asures into conformity with the SCM Agreement, 
the GATT 1994 and the WTO Agreement: 
a. the United States repeals or amends the impugned provisions of law; and 
b. the United States withdraws the countervailing duty on hot-rolled carbon steel flat 
products from India. 
3.3.  The United States requests that the Panel reject India's claims in this dispute. 4  ARGUMENTS OF THE PARTIES 
4.1.  The arguments of the parties, other than in their answers to questions, are reflected in their 
written submissions, oral statements or executiv e summaries thereof, provided to the Panel in 
accordance with paragraph 17 of the Working Procedures adopted by the Panel (see Annexes B 
and C). 
5  ARGUMENTS OF THE THIRD PARTIES 5.1.  The arguments of the third parties, other than  in their answers to questions, are reflected in 
their written submissions, oral statements or ex ecutive summaries thereof, provided to the Panel 
in accordance with paragraph 17 of the Working Procedures adopted by the Panel. These 
arguments are attached as addenda to this Report in Annexes D-1-D-11. The arguments of Australia, Canada, China, the European Union and Saudi Arabia are reflected in their written 
submissions, oral statements or executive summari es thereof, while the arguments of Turkey are 
reflected in its oral statement. 
6  INTERIM REVIEW 
6.1  Introduction 
6.1.  On 31 January 2014, the Panel submitted its Interim Report to the parties. On 
21 February 2014, both parties submitted written re quests for review of precise aspects of the 
Interim Report. On 14 March 2014, both parties submitted written comments on each other's 
written requests. Neither party requested that the Panel hold an interim review meeting. WT/DS436/R 
 
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  6.2.  The Panel explains below its response to substantive issues raised by the parties in their 
comments on the Interim Report. The Panel has also corrected a number of typographical errors and other non-substantive errors, including those identified by the parties. Due to changes as a result of our review, certain numbering of the paragraphs and footnotes in the Final Report has 
changed from the Interim Report. The text below refers to the numbers in the Interim Report, with 
the numbers in the Final Report in parentheses for ease of reference. 
6.2  United States' requests for changes to the Interim Report 
6.2.1  Paragraph 7.51 (paragra ph 7.51 of the Final Report) 
6.3.  The United States requests that paragrap h 7.51 be modified to include an explanation of 
Section 351.511(a)(2)(ii) itself.
52 
6.4.  India disagrees with the United States' requ est, because paragraph 7.51 is part of the Panel's 
evaluation. If the United States' suggestion is to be included, India (i) submits that it may be more 
appropriately placed in the paragraph summari zing the United States' submissions, and 
(ii) requests that India's position also be included, as explained in its written comments.53 
6.5.  We have decided not to accommodate the United States' request. Paragraph 7.51 is part of 
our evaluation, and sets forth our understanding of the measures at issue and resolution of the claim. In the absence of evidence regarding how the USDOC determines the availability of 
benchmarks, and bearing in mind the United States' reply to Panel question No. 84, the Panel is 
not persuaded that the United States has established that a standard referring to "a world market price where it is reasonable to conclude that such price would be available to purchasers in the country in question"
54 necessarily provides the type of analysis of "prevailing market conditions" 
envisaged by the Panel in this paragraph. 
6.2.2  Paragraph 7.63 (paragra ph 7.62 of the Final Report) 
6.6.  The United States requests the Panel to note that India did not provide any evidence in 
support of India's specific argument at issue.55 
6.7.  India disagrees with the United States' reques t, because India's claim at issue is an "as such" 
claim which does not depend on any factual evidence. In addition, India recalls that 
paragraph 7.63 is part of the Panel's evaluation. If  the United States' suggestion is included, India 
(i) submits that it may be more appropriatel y placed in the paragraphs summarizing the 
United States' submissions, and (ii) requests that India's position be also included, as explained in 
its written comments.56 
6.8.  We have decided not to accommodate the United States' request, because we are able to 
resolve India's claim as a matter of law, without assessing whether India has established any factual basis for that claim. 
6.2.3  Paragraph 7.87 (paragra ph 7.86 of the Final Report) 
6.9.  The United States requests that paragraph 7.87 be modified to reflect that there is 
no evidence that Clause 49 applied to NMDC during the review periods, and consequently there is 
no need for the Panel to address the significance  of Clause 49 on the question of whether NMDC 
                                               
52 United States' requests to review precise aspects of the Interim Report, paras. 3-5. 
53 India's comments on the United States' requests to review precise aspects of the Interim Report, 
paras. 1-2. 
54 United States' requests  to review precise aspects of the In terim Report, paras.  4-5. (emphasis 
omitted) 
55 Ibid. para. 6. 
56 India's comments on the United States' requests to review precise aspects of the Interim Report, 
paras. 4-6. WT/DS436/R 
 
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  directors are independent.57 The United States also proposes deletion of the last sentence of 
paragraph 7.87. 
6.10.  India disagrees with the bulk of United States' requests. India submits that it did not 
concede to any non-compliance of Clause 49. In addition, India objects to the unfounded selective 
deletion proposed by the United States. India pr oposes the deletion of the entire paragraph 7.87.58 
6.11.  For the most part, we have decided not to accommodate the United States' requests. We do 
not consider that the WTO-consistency of the USDOC's public body determination should hinge on 
whether or not Clause 49 was complied with, since in any event that provision does not regulate 
the conduct of NMDC's governmental directors. We  have, though, deleted the last two sentences of 
paragraph 7.87. 
6.2.4  Paragraph 7.124 (paragraph  7.123 of the Final Report) 
6.12.  The United States requests the Panel to add a reference to the Panel Report in US – Upland 
Cotton  as further support for the Panel's interpretation.59 
6.13.  India disagrees with the United States' re quest. India submits that the specific reference 
suggested by the United States concerns a factual finding in US – Upland Cotton  and does not 
relate to the Panel's evaluation in paragraph 7.12 4. Alternatively, India submits a number of other 
references that the Panel could consider.60 
6.14.  We have decided not to accommodate the United States' request. While a reference to the 
findings in US – Upland Cotton  would not be inconsistent with our evaluation, our reasoning 
focuses more on the issue of limited access. 
6.2.5  Paragraph 7.179 (paragraph  7.178 of the Final Report) 
6.15.  The United States submits that the description of its arguments relating to India's alleged 
"comparative advantage" is incomplete, and suggests a revision to paragraph 7.179.61 
6.16.  India submits that, if the Panel accepts the United States' suggestions, the Panel should 
clarify that the text reflects the position of the United States. In addition, India requests the Panel 
to revise paragraph 7.176 (paragraph 7.175 of  the Final Report) to fully capture India's 
arguments.62 
6.17.  We have modified paragraphs 7.176 and 7.179 to reflect the comments of both parties. 
6.2.6  Paragraph 7.186 (paragraph  7.185 of the Final Report) 
6.18.  The United States requests that paragraph 7.186 be modified to reflect that India failed to 
present any actual evidence of a comparative advantage.63 
6.19.  India disagrees with the United States' request, because paragraph 7.186 is part of the 
Panel's evaluation and the United States' contention is already included in paragraph 7.179 (paragraph 7.178 of the Final Report), which summarized the United States' arguments.
64 
                                               
57 United States' requests to  review precise aspects of the Interim Report, para. 7. 
58 India's comments on the United States' requests to review precise aspects of the Interim Report, 
paras. 8 and 10. 
59 United States' requests to  review precise aspects of the Interim Report, para. 9. 
60 India's comments on the United States' requests to review precise aspects of the Interim Report, 
paras. 13-14. 
61 United States' requests to  review precise aspects of the Interim Report, para. 10. 
62 India's comments on the United States' requests to review precise aspects of the Interim Report, 
paras. 15-16. 
63 United States' requests to  review precise aspects of the Interim Report, para. 11. 
64 India's comments on the United States' requests to review precise aspects of the Interim Report, 
paras. 17-18. WT/DS436/R 
 
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  6.20.  We have decided not to accommodate the Un ited States' request, because we are able to 
resolve India's claim without assessing whether India advanced evidence of any comparative advantage. 
6.2.7  Paragraph 7.199 (paragraph  7.198 of the Final Report) 
6.21.  The United States requests that paragraph 7.199 be modified to accurately reflect the 
United States' arguments.
65 
6.22.  India does not comment on this request. 
6.23.  We have decided to accommodate the United States' request and have made the 
adjustment sought. 
6.2.8  Paragraph 7.251 (paragraph  7.250 of the Final Report) 
6.24.  The United States requests the Panel to correct a factual inaccuracy with respect to the 
Indian laws at issue, and reconsider its findings in this respect.66 
6.25.  While India agrees with the factual inaccura cy identified by the United States, India submits 
that the Panel's conclusions need not be modified.67 
6.26.  We have corrected the factual inaccuracy in our evaluation, and modified paragraph 7.247 
(paragraph 7.246 of the Final Report), which also refers to this matter, and paragraph 7.251 accordingly. 
6.2.9  Paragraph 7.311 (paragraph  7.310 of the Final Report) 
6.27.  The United States requests that a footno te be added to the end of paragraph 7.311 to 
reflect that India does not dispute that the PLRs were the only interest rates on record that were comparable to SDF loans examined in the 2006 administrative review.
68 
6.28.  India does not comment on this request. 
6.29.  We have decided to accommodate the United States' request and have made the 
adjustment sought. 
6.2.10  Paragraphs 7.324 and 7.325 (paragra phs 7.323 and 7.324 of the Final Report) 
6.30.  The United States requests that paragrap hs 7.324 and 7.325 be modified to reflect that 
imports from India were subsidized and dumped , and that all subsidized imports from other 
countries were also dumped.69 
6.31.  India does not comment on this request. 6.32.  We have decided to accommodate the United States' requests and have made the 
adjustments sought, albeit not in the precise manner proposed by the United States. 
                                               
65 United States' requests to review precise aspects of the Interim Report, paras. 12-13. 
66 Ibid. paras. 14-15. 
67 India's comments on the United States' requests to review precise aspects of the Interim Report, 
para. 19. 
68 United States' requests to  review precise aspects of the Interim Report, para. 17. 
69 Ibid. paras. 18-19. WT/DS436/R 
 
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  6.2.11  Paragraph 7.376 and footnote 521 to  paragraph 7.390 (paragraph 7.375 and 
footnote 646 to paragraph 7.389 of the Final Report) 
6.33.  The United States submits that the US provision referred to in these paragraphs is not at 
issue in this dispute, and India has acknowledged this fact. The United States requests that these 
paragraphs be revised accordingly.70 
6.34.  India does not comment on this request. 6.35.  We have decided to partly accommodate the United States' requests. Although the 
United States contends that India acknowledged that the relevant provision is not at issue in this 
dispute, we note India only accepted that "the said provision has nothing to do with cumulation in changed circumstances review".
71 Thus, we have modified footnote 491 (footnote 616 of the 
Final Report) accordingly. However, we also note that India contends that "the sunset review [can 
be] conducted post such countries becoming members of the WTO."72 For this reason, we have 
decided not to accommodate the United States' request regarding footnote 521. 
6.2.12  Paragraphs 7.410, 7.415-7.418, 7.421 and 7.299 (paragraphs 7.409, 
7.414-7.417, 7.420 and 7.298 of the Fina l Report), and abbreviations table 
6.36.  The United States submits that it may be confusing to refer to the US measures at issue 
using the abbreviation "AFA", defined as "adverse facts available", since this expression does not 
reflect the legal operation of such measures. The Un ited States requests deleting the abbreviation 
"AFA Provisions" from the abbreviations table, and changing the references in the mentioned 
paragraphs to the expression "U.S. facts available provisions".73 
6.37.  India does not comment on this request. 
6.38.  We note that "AFA Provisions" is an expression repeatedly used in India's submissions and 
statements. Thus, a reference to it, including in the abbreviations table, is necessary for a proper understanding of India's arguments, as summarized in paragraphs 7.410 and 7.415-7.418. For 
this reason, we have decided not to accommodate the United States' requests in these places. We 
note, however, that paragraphs 7.421 and 7.299 do not specifically summarize India's arguments. Thus, although the USDOC itself uses the abbreviation "AFA", we have decided to accommodate 
the United States' request with respect to these paragraphs, and have modified them accordingly. 
6.2.13  Paragraph 7.419 (paragraph  7.418 of the Final Report) 
6.39.  The United States requests a change to the wording in paragraph 7.419.
74  
6.40.  India does not comment on this request. 
6.41.  We have decided to accommodate the United States' request and have made the 
adjustment sought. 
6.2.14  Paragraphs 7.453 and 7.460 (paragra phs 7.452 and 7.459 of the Final Report) 
6.42.  The United States requests changes to the wording in paragraphs 7.453 and 7.460 to reflect 
the proper standard of review of the Panel.75  
6.43.  India does not comment on this request. 
                                               
70 United States' requests to review precise aspects of the Interim Report, paras. 20-21. 
71 India's response to Panel question No. 31. 
72 Ibid. 
73 United States' requests to review precise aspects of the Interim Report, paras. 22-23. 
74 Ibid. para. 24. 
75 Ibid. paras. 25-26. WT/DS436/R 
 
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  6.44.  We have decided to accommodate the United States' requests and have made the 
adjustments sought. 
6.3  India's requests for changes to the Interim Report 6.3.1  Paragraphs 1.34-1.38 (paragra phs 1.34-1.38 of the Final Report) 
6.45.  India requests that the Panel examine the term  "initiated" in India's panel request in light of 
footnote 37 of the SCM Agreement. India recalls its argument that the statement in its panel 
request that "no investigation was initiated or conducted" should be read as no investigation was 
"initiated, commenced and performed in the manner ' provided  [for] in Article 11 ' of the 
SCM Agreement".
76 India contends that "the Panel simply ignored the legal basis of India's claim", 
despite being required to evaluate such legal basis.77  
6.46.  The United States submits that India's request must be disregarded for the same reasons 
the Panel rejected India's arguments in its Interim Report. In addition, the United States notes 
that India's request is not for "review precise aspects of the interim report", but rather for the Panel to evaluate India's claim.
78 
6.47.  We have decided not to accommodate India's request. We note that India's arguments, 
referred to above, were summarized in paragraph 1.24 of the Interim Report (paragraph 1.24 of 
the Final Report), and specifically addressed and rejected in paragraph 1.34. However, for the 
sake of clarity, we have made minor modifications to paragraph 1.34, including adding a sentence 
in footnote 39 to paragraph 1.34 (footnote 39 of the Final Report). 
6.3.2  Section 7.2: India's third ground 6.48.  India requests the Panel to evaluate the spec ific and independent ground raised by India, as 
the Panel has neither recorded nor evaluated such ground in the Interim Report.
79 
6.49.  The United States disagrees with India's request, because the Panel has in fact both noted 
and discussed India's argument at issue.80 
6.50.  We have decided not to accommodate India's request, because the matter raised by India is 
already addressed effectively by our evaluation set forth in Section 7.2.3. The fact that we have not followed the order set forth in India's first written submission does not mean that parts of 
India's claims have been overlooked, or misrepresented. 
6.51.  The third ground identified by India relates, in India's words, to the "hierarchical approach" 
provided for in Section 351.511(a)(2)(i)-(iii). This is evident from paragraphs 71 and 72 of India's 
first written submission. We addressed the issue of  "hierarchical preference" in Section 7.2.3. In 
further support of its third ground, India also argues in its first written submission that "without 
the United States proving that the 'provision [of goods] is made for less than adequate remuneration', there is no benefit conferred by providing the goods".
81 This issue again relates to 
the substance of Section 7.2.3. The overlap with matters raised in Section 7.2.3 is further 
evidenced by the opening phrase of paragraph 67 of India's first written submission, which refers the reader to a previous section of India's subm ission. In that section, India argues that the 
"adequacy of remuneration referred to in Article 14(d) must be assessed from the perspective of 
                                               
76 India's requests to review precis e aspects of the Interim Report, paras. 2-4. See also India's response 
to the United States' re quests for preliminary rulings, paras. 9-11. 
77 India's requests to review precise aspect s of the Interim Report, paras. 2 and 5. 
78 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 6-7, referring to Article 15.2 of the DSU. 
79 India's requests to review precise as pects of the Interim Report, para. 9. 
80 United States' comments on India's requests to  review precise aspects of the Interim Report, 
para. 10. 
81 India's first written submission, para. 64. WT/DS436/R 
 
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  whether the remuneration is adequate to the provider of the goods or not".82 Again, this is 
precisely the matter addressed in Section 7.2.3. 
6.3.3  Section 7.2: India's sixth ground 6.52.  India requests the Panel to evaluate the spec ific and independent ground raised by India, as 
the Panel has neither recorded nor evaluated such ground in the Interim Report.
83 
6.53.  The United States disagrees with India's request, because the Panel has in fact both noted 
and considered India's argument at issue.84 
6.54.  We have decided not to accommodate India's request, because the matter raised by India is 
already addressed effectively in our findings. We note that this ground is based on India's allegations that the Tier-II approach (i) countervails the exporting Member's "comparative advantage"
85, and (ii) gives preference to the method "that is not in relation to the market in 
question"86. As stated above, we have already evaluated and rejected these arguments in our 
findings. 
6.3.4  Paragraph 7.20 (Paragra ph 7.20 of the Final Report) 
6.55.  India requests the Panel to (i) re-evaluate its argument concerning "commercial 
considerations" as an independent ground to challenge the measures at issue, and (ii) modify paragraph 7.20 by correcting one of its references and replacing the first sentence as proposed by 
India.
87 
6.56.  The United States disagrees with India's requests, because the Panel has examined and 
rejected India's proposed two-step analysis, and contrary to India's statement, the first sentence and the reference at paragraph 7.20 support the Panel's view.
88 
6.57.  We have decided not to accommodate India's request. With respect to India's first point, as 
stated in footnote 80 (footnote 195 of the Final Report), India's argument concerning "commercial considerations" is no longer relevant once one rejects the notion that Article 14(d) of the 
SCM Agreement requires a two-step analysis. For this reason, there is no need for us to evaluate 
this argument as an independent ground. 
6.58.  Turning to India's second point, in our view , the Panel's statement is a fair representation of 
paragraph 50 of India's first written submission, where India states that "a given 'remuneration' 
may be 'adequate' under Article 14(d) even if th ere is a difference between the price in question 
and the price for the similar goods transacted be tween private parties in the market concerned". 
Furthermore, we considered it unnecessary to include a reference to paragraphs 58-62 of India's 
first written submission, since paragraph 63 of that submission makes it clear that the basic issue 
addressed in those paragraphs concerns the fact that USDOC "determines a remuneration to be inadequate merely on the basis of a price differenc e with a certain benchmark price (i.e. Tier-I and 
Tier-II method), without actually evaluating whether the remuneration is otherwise justified by 
market or commercial considerations (i.e. Tier-III method)." This is precisely the point addressed by the Panel. 
6.3.5  Paragraphs 7.19 and 7.31 (paragra phs 7.19 and 7.31 of the Final Report) 
6.59.  India recalls that India raised separate and independent arguments on the first and second 
sentences of Article 14(d) of the SCM Agreement,  and submits that the Panel erroneously treated 
                                               
82 India's first written submission, para. 23. 
83 India's requests to review precise as pects of the Interim Report, para. 11. 
84 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 15-16. 
85 India's first written submission, para. 84. 
86 Ibid. 
87 India's requests to review precise aspe cts of the Interim Report, paras. 14-18. 
88 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 20-29. WT/DS436/R 
 
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  these two grounds as if they were one. India reques ts the Panel to correct this error and review its 
evaluation in the relevant paragraphs accordingly.89 
6.60.  The United States disagrees with India's request, because the Panel found that it was not 
necessary to evaluate India's arguments with respect to "commercial considerations" in light of the 
fact that the adequacy of remuneration is assess ed from the perspective of the recipient and not 
the government provider.90 
6.61.  We have decided not to accommodate In dia's request. As noted above, footnote 80 
(footnote 195 of the Final Report) makes it clear that, once Article 14(d) of the SCM Agreement is 
interpreted properly, the issue of "commercial considerations" is not legally relevant. Furthermore, India improperly suggests that the Panel's findings in section 7.2.3 are concerned exclusively with the first sentence of Article 14(d), when in fact, at paragraph 7.33 (paragraph 7.33 of the 
Final Report), the Panel also considers aspects relating to the second sentence thereof, particularly 
the requirement that the adequacy of remuneration be assessed "in relation to prevailing market 
conditions … in the country of provision". 
6.3.6  Section 7.2: India's second ground 
6.62.  India requests the Panel to evaluate the spec ific and independent ground raised by India, as 
the Panel has failed to do so in the Interim Report.
91 
6.63.  The United States disagrees with India's request, because the Panel has already considered 
and rejected India's argument at issue.92 
6.64.  We have decided not to accommodate India's request, because, as noted above, 
footnote 80 (footnote 195 of the Final Report) ma kes it clear that, once Article 14(d) of the 
SCM Agreement is interpreted properly, the issue of "commercial considerations" is not legally 
relevant. 
6.3.7  Paragraphs 7.26 and 7.28 (paragra phs 7.26 and 7.28 of the Final Report) 
6.65.  India requests the Panel to clarify the la nguage in paragraphs 7.26 and 7.28, because while 
the former appears to present a possibility, the latter suggests a more definitive conclusion.93 
6.66.  The United States disagrees with India's request, because the United States considers the 
language used by the Panel in the paragraphs at issue appropriate, in light of the text of 
Article 14(d) of the SCM Agreement.94 
6.67.  We have decided to accommodate India's request. Thus, we have amended paragraph 7.28 
to more closely reflect the language in Article 14(d) of the SCM Agreement. 
6.3.8  Section 7.2.5.2: comparative advantage 
6.68.  India requests the Panel to evaluate the sp ecific ground raised by India, as the Panel has 
neither recorded nor evaluated such ground in the Interim Report.95 
6.69.  The United States disagrees with India's request, because the Panel is not required to 
include a recitation and separate discussion of ev ery argument put forward by the parties. In any 
event, the United States submits that the Panel has already both fully considered and rejected 
                                               
89 India's requests to review precise aspe cts of the Interim Report, paras. 21-23. 
90 United States' comments on India's requests to  review precise aspects of the Interim Report, 
para. 32. 
91 India's requests to review precise as pects of the Interim Report, para. 27. 
92 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 34-35. 
93 India's requests to review precise as pects of the Interim Report, para. 31. 
94 United States' comments on India's requests to  review precise aspects of the Interim Report, 
para. 38. 
95 India's requests to review precise as pects of the Interim Report, para. 32. WT/DS436/R 
 
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  India's arguments with respect to an alleged "comparative advantage". If the Panel decides to 
accommodate India's request, the United States requests the Panel to similarly record the United States' submissions in respect of comparative advantage.
96 
6.70.  We have decided to partly accommodate India's request. Thus, we have included a footnote 
at the end of paragraph 7.51 (paragraph 7.51 of the Final Report) with a cross-reference to the 
Panel's treatment of India's comparative advantag e argument at paragraph 7.63 (paragraph 7.62 
of the Final Report). 
6.3.9  Paragraph 7.47 (paragra ph 7.47 of the Final Report) 
6.71.  India requests that paragraph 7.47 be modifi ed to accurately reflect India's position. India 
also requests the Panel to revise its findings in paragraph 7.50 (paragraph 7.50 of the Final Report) accordingly.
97 
6.72.  The United States disagrees with India's request, because the Panel has accurately captured 
India's primary argument, and the Panel need not include a separate discussion of every argument 
put forward by the parties. Moreover, the United States also contends that India's argument at 
issue lacks factual or legal basis.98 
6.73.  We have decided not to accommodate India's request, as we see no need to amend our 
description of the "main arguments" made by India. India's argument regarding the use of 
out-of-country benchmarks "every time there is lack of information relating to in-country 
benchmark" is clearly linked to this main argument, in the sense that India suggests that the United States' uses lack of information "as an excuse to desecrate the … very narrow exception that has been tailored by the Appellate Body for extreme cases".
99 Once it is established by the 
Panel that the exception identified by the Appe llate Body is not as narrow as India suggests, 
India's concern about that exception allegedly being "desecrate[d]" becomes moot. 
6.74.  Regarding the so-called "exhaustion" of Tier I benchmarks, we note that India is referring to 
an argument, at paragraph 29 of its second written submission, made in response to an argument 
by the United States regarding the object and pu rpose of the SCM Agreement. Since the Panel did 
not consider it necessary to evaluate this US argument in its findings, there is similarly no need for 
the Panel to evaluate India's response to this argument. 
6.3.10  Paragraph 7.49 (paragra ph 7.49 of the Final Report) 
6.75.  India submits that the Appellate Body in US – Softwood Lumber IV  referred to the use of 
out of country benchmarks in "very limited" circumstances. India request the Panel to replace the 
phrase "appropriate circumstances" with the phrase "very limited circumstances".100  
6.76.  The United States disagrees with Indi a's request, because the use of the phrase 
"appropriate circumstances" is fully consistent with the Appellate Body Report in US – Softwood 
Lumber IV . In addition, the United States contends that India repeats arguments which the Panel 
has considered and properly rejected in the Interim Report.101 
6.77.  We see no need to make the change proposed by India. Out-of-country benchmarks may be 
used in appropriate circumstances, irrespective of how limited those circumstances may be. 
                                               
96 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 40-41. 
97 India's requests to review precise aspe cts of the Interim Report, paras. 37-39. 
98 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 47-48. 
99 India's first written submission, para. 79, last sentence. 
100 India's requests to review precise aspe cts of the Interim Report, paras. 34-35. 
101 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 44-45. WT/DS436/R 
 
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  6.3.11  Paragraph 7.60 (paragra ph 7.60 of the Final Report) 
6.78.  India submits that the Panel has taken Indi a's arguments out of context, and requests the 
Panel to (i) review its findings in paragraph 7.60 and Section 7.2.6.3 accordingly, and (ii) delete paragraph 7.61 (paragraph 7.61 of the Final Report).
102 
6.79.  The United States disagrees with India's requests, because contrary to India's assertions the 
Panel has accurately captured India's arguments.103 
6.80.  We have decided not to accommodate India's requests. We do not agree with India that the 
Panel has considered an extract from India's oral statement at the first substantive meeting out of 
context. Paragraph 15 of India's first oral statem ent expresses the concern that the delivered price 
will be applied "even if the government price in question does not include such delivery charges". 
India then refers to the application of this mandatory requirement in cases "where the price under 
challenge" is ex works . At paragraph 16 of its oral statement, India asserts that the delivered price 
adjustment is made "[e]ven where the prevailing 'conditions of sale' for the transaction  of the 
goods in question  do not include transportation or other delivery charges, such as when goods 
are being transacted on an ex-works  basis" (bold emphasis added). India then explains that "this 
method allows the United States to consider something more than the actual remuneration  
received by the provider of the goods , which disregards the plain words of Article 14(d)" (bold 
emphasis added). These subsequent references to the "transaction in question" and the 
"remuneration received by the provider of the g oods" confirm the Panel's understanding of India's 
argument, and make it clear that the reference in paragraph 15 of India's oral statement was not an isolated case taken out of context by the Panel. The argument is also made at paragraph 8 of 
India's first written submission, where India indicates that "[e]ven if the government price  is at 
ex-factory level, ocean freight, delivery charges and import duties are included in the benchmark 
price to arrive at delivered prices". 
6.81.  Finally, the above-mentioned reference to the remuneration of the provider of the goods 
(which, in the context of Article 14(d) of the SC M Agreement, would indicate the remuneration to 
the government  provider) is also included in paragraph 89 of India's first written submission, 
where India asserts that "transportation and other delivery charges can never be considered as 
'remuneration' to the provider of goods" in cases wh ere "terms of sale of the goods in question in 
the country of provision may be on an ex-works or ex-mines, or CIF or FOB, or anything other than 'delivered'". 
6.3.12  Section 7.2.6.3: foreclosure of exam ination of prevailing market conditions  
6.82.  India contends that the Interim Report contains no finding on why mandatory foreclosure 
should or should not be considered an "as such" violation of Article 14(d) of the SCM Agreement, 
despite India's arguments on this matter. India requests the Panel to evaluate the relevant 
submissions of India, and review its findings accordingly.
104 
6.83.  The United States disagrees with India's request, because contrary to India's assertions the 
Panel has considered and rejected India's arguments.105 
6.84.  We have decided not to accommodate India's request. India's request is based on an 
understanding of its argument that would not equate "prevailing market conditions" to the specific conditions of sale by the government provider at issue. As noted above, this does not reflect a 
proper understanding of India's argument. 
                                               
102 India's requests to review precise aspe cts of the Interim Report, paras. 41-44. 
103 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 49-52. 
104 India's requests to review precise aspe cts of the Interim Report, paras. 45-46. 
105 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 53-55. WT/DS436/R 
 
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  6.3.13  Paragraph 7.62 (delet ed from the Final Report) 
6.85.  India queries the relevance of the Panel's ev aluation set forth in paragraph 7.62. India notes 
that the Panel refers to issues pertaining to India's "as applied" claims, whereas the relevant Section of the Report addresses India's "as such" claim.
106 
6.86.  The United States disagrees with India's request, and considers that India's critiques are 
misplaced.107 
6.87.  We have decided to delete paragraph 7.62 from our Report. We have amended the 
introduction to paragraph 7.63 (paragraph 7.62 of the Final Report) accordingly. 
6.3.14  Section 7.3.1.4 6.88.  India requests the Panel to evaluate the im plications of the United States' admission before 
the panel in US – Anti-Dumping and Countervailing Duties (China) . India submits that the Panel 
has neither recorded nor evaluated such matter in the Interim Report.
108 
6.89.  The United States disagrees with India's request, because the investigations at issue in the 
present dispute are wholly distinct from the investigations at issue in US – Anti-Dumping and 
Countervailing Duties (China) , and those statements are simply not relevant to the present 
dispute.109 
6.90.  We have decided not to accommodate India's request. Our findings should not be based on 
any alleged admission by the United States in other WTO dispute settlement proceedings. Rather, 
our findings should be based on the evidence placed on the record by the parties. As this issue was raised in a footnote to India's first written submission, we consider there is no need to include this matter in the summary of India's "main" arguments. 
6.3.15  Footnote 131 (footno te 245 of the Final Report) 
6.91.  India requests the Panel to record that the term "governed by" was never explained by the 
United States in the determination at issue, and that this term was first explained by the 
United States before this Panel.
110 
6.92.  The United States disagrees with India's request, because India is incorrect in stating that 
the explanations provided by the USDOC were not contained in the determinations themselves.111 
6.93.  We have decided not to accommodate India's request, because there is no need to provide 
the requested clarification. As to whether or not the term "governed by" was explained in the 
USDOC's determinations at issue, we consider that those determinations speak for themselves. 
6.3.16  Paragraph 7.82 and footnote 130 (par agraph 7.81 and footnote 244 of the Final 
Report) 
6.94.  India requests the Panel to review its findings after properly evaluating the implication of 
certain USDOC's statements in the 2007 administrative review.112 
                                               
106 India's requests to review precise aspe cts of the Interim Report, paras. 47-48. 
107 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 57-58. 
108 India's requests to review precise aspe cts of the Interim Report, paras. 56-57. 
109 United States' comments on India's requests to  review precise aspects of the Interim Report, 
para. 68. 
110 India's requests to review precise as pects of the Interim Report, para. 58. 
111 United States' comments on India's requests to  review precise aspects of the Interim Report, 
para. 71. 
112 India's requests to review precise aspe cts of the Interim Report, paras. 59-63. WT/DS436/R 
 
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  6.95.  The United States disagrees with India's request, because there is no inconsistency between 
the Panel's acknowledgment of the USDOC's statements and the Panel's findings.113 
6.96.  We have decided not to accommodate India's request. Footnote 130 of the Interim Report 
explains that, notwithstanding the USDOC's assertion in the relevant issues and decision 
memorandum, the USDOC had already referred to a factor other than majority government share 
ownership in a prior determination. There is no contradiction between this statement and the findings of the Panel in paragraphs 7.82-7.84 (paragraphs 7.81-7.83 of the Final Report). 
Furthermore, the Panel is correct to resolve India's claim on the basis of the totality of the 
evidence before it. 
6.3.17  Paragraph 7.83 (paragra ph 7.82 of the Final Report) 
6.97.  India requests the Panel to (i) consider that the reference to evidence in the 2007 
administrative review is irrelevant to the 2004 and 2006 administrative reviews, as the latter 
pre-dated the former; and (ii) record that the United States has specifically admitted before the Panel that "administrative control" was not used in its determinations.
114 
6.98.  The United States disagrees with India's requests. The United States recalls that the Panel 
has referred to several facts considered by the USDOC in the 2004, 2006 and 2007 administrative reviews. The Interim Report also does not indicate that the evidence referred to in the 2004 
administrative review was insufficient to support the USDOC's public body finding. Finally, the 
United States made no such statements as India contends.
115 
6.99.  We have decided not to accommodate India's requests. First, we do not consider that there 
is any inaccuracy regarding the last sentence of paragraph 7.83 (paragraph 7.82 of the Final 
Report). While that sentence refers to evidence of government appointment of directors addressed 
by the USDOC in the 2007 administrative review , paragraph 7.84 (paragraph 7.83 of the Final 
Report) also discusses similar evidence of government appointment of directors on USDOC's 
record of the 2004 administrative review. In addition, paragraph 7.83 cites a statement in 
USDOC's 2007 Issues and Decision Memorandum to the effect that the 2007 evidence "bolsters" the 2004 evidence. Thus, the fact that the 2007 evidence post-dates the 2004 review does not 
mean that there was no evidence of government ap pointment of directors in respect of that earlier 
review.  
6.100.  Second, we do not consider that the United States should be understood to have admitted 
that USDOC did not rely on "administrative control" in its determinations. The fact that this phrase 
may not have been used by the USDOC does not mean that the United States is precluded from 
relying on evidence – on USDOC's record – of "administrative control" in this Panel proceeding. 
6.3.18  Paragraphs 7.85-7.87 (paragra phs 7.84-7.86 of the Final Report) 
6.101.  India requests the Panel to record the distinction highlighted in the underlying 
investigation, as well as before the Panel, between GOI nomination  and GOI appointment  of 
directors. India also requests the Panel to examine whether NMDC would be a public body 
considering that the GOI is involved only in the nomination of a majority of NMDC's board as 
opposed to appointing a very small minority of NMDC's board.
116 
6.102.  The United States does not object to India's request that this argument be recorded by the 
Panel in its Final Report. The United States submits that this argument does not warrant any 
changes to the Panel's findings.117 
                                               
113 United States' comments on India's requests to  review precise aspects of the Interim Report, 
para. 73. 
114 India's requests to review precise aspe cts of the Interim Report, paras. 65-66. 
115 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 76-77. 
116 India's requests to review precise aspe cts of the Interim Report, paras. 65-66. 
117 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 78-79. WT/DS436/R 
 
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  6.103.  We have decided to accommodate India's request, and have modified paragraph 7.86 to 
record India's appointment versus nomination argument. However, we do not consider that this argument alters the Panel's findings. We have also amended the first line of paragraph 7.87. 
6.3.19  Paragraph 7.87: content of websit es (paragraph 7.86 of the Final Report) 
6.104.  India requests the Panel to record India's rebuttal to this issue, including the fact that 
annual reports are indeed part of the static portion of the website and such published annual reports are not changed.
118 
6.105.  The United States does not object to India's request, and suggests that it could be 
addressed in existing footnote 140 (footnote 254 of  the Final Report). The United States submits 
that this argument does not warrant any changes to the Panel's findings.119 
6.106.  We have decided to accommodate India's request, and have included a new footnote 255 
in the Final Report and modified paragraph 7.87 accordingly. However, our finding remains 
unchanged, since it is based on the fact that websites are generally not static. Investigating authorities should not be required to trawl through websites, and ascertain what parts of such 
websites may or not remain unchanged, particularly given the risk that changes may be made at 
any time by the host, and websites may even disappear. 
6.3.20  Paragraph 7.87: consideration of the record (paragraph 7.86 of the Final Report) 
6.107.  India refers to the Panel's finding that the listing agreement has been submitted only 
before this Panel and is not part of the records of the USDOC. India requests the Panel to fully consider the records of this case, record India's submissions, and review the relevant Panel's findings.
120 
6.108.  The United States disagrees with India's requests. The United States submits that India 
has no basis for its argument, particularly because India does not point to any record evidence in which the listing agreement was contained or even mentioned.
121 
6.109.  We have decided not to accommodate India's request. At paragraph 210 of its first written 
submission, India asserted that "Essar submitted that NMDC is not a government authority or a public body since the GOI was not involved in the daily operations of NMDC and that NMDC's 
operations are managed by an independent board consisting of 13 members". There is nothing in 
India's first written submission to suggest that, in making its argument, Essar was specifically referring to Clause 49 of the Listing Agreement. 
6.3.21  Paragraph 7.87: government involvem ent (paragraph 7.86 of the Final Report) 
6.110.  India requests the Panel to clarify whether it is the Panel's view that any degree of 
government involvement in the appointment of NMDC's directors will suffice in concluding that NMDC is a public body. Alternatively, India reques ts that the relevant statement by the Panel be 
struck from the Report.
122 
6.111.  The United States disagrees with India's clarification request, because this paragraph 
should not be modified on the basis of the relevance of Clause 49 of the Listing Agreement. While 
the Interim Report contains an interpretation of Article 1.1(a)(1) of the SCM Agreement, the 
statement regarding the Listing Agreement does no t amount to a general articulation of this 
                                               
118 India's requests to review precise as pects of the Interim Report, para. 71. 
119 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 80-81. 
120 India's requests to review precise aspe cts of the Interim Report, paras. 72-73. 
121 United States' comments on India's requests to  review precise aspects of the Interim Report, 
para. 82. 
122 India's requests to review precise aspe cts of the Interim Report, paras. 74-75. WT/DS436/R 
 
- 34 - 
 
  provision. However, the United States also requests that the relevant part in paragraph 7.87 
identified by India be struck from the Report.123 
6.112.  As both parties agree on the deletion of the relevant part of the Interim Report, we have 
amended this paragraph accordingly.  
6.3.22  Paragraphs 7.87-7.89 (paragra phs 7.86-7.88 of the Final Report) 
6.113.  India requests the Panel to (i) accurately reflect India's arguments; (ii) record that the 
United States admitted before the Panel that the alleged "administrative control" was never a 
factor used by the United States in its determinations; and (iii) delete certain findings in 
paragraphs 7.87-7.89 because they are not aligned with the proper standard of review of the 
Panel.124 
6.114.  The United States disagrees with India's requests. The United States fails to see how 
India's arguments were misrepresented by the Pa nel. In addition, the United States has never 
made the admission indicated by India. Finally, th e United States submits that India has no basis 
for arguing that the Panel should delete paragraphs 7.87-7.89 in their entirety.125 
6.115.  We have decided not to accommodate India's requests. The Panel simply addressed 
Clause 49 and the issue of Navatna/Miniratna status in its findings in response to arguments presented by India. The fact that such evidence  was not on the USDOC's record does not mean 
that India's arguments should simply have been disregarded by the Panel. Furthermore, India has 
provided no basis for concluding that the relevant evidence should have been on the USDOC's record. Regarding the issue of whether the United States admitted that "administrative control" was never a factor relied on by the USDOC, the United States' response to Panel question No. 42 
speaks for itself. 
6.3.23  Paragraph 7.88 (paragra ph 7.87 of the Final Report) 
6.116.  India requests the Panel to clarify the me aning of the expression "administrative control" 
as used by the Panel.
126 
6.117.  The United States disagrees with India's cl arification request, because this expression is 
used by NMDC on its own website. The United St ates submits that the Panel made use of this 
expression as used by the entity in questi on, and was not seeking to identify its own 
characterization of the entity.127 
6.118.  For the sake of clarity, we have amen ded the beginning of the second sentence of 
paragraph 7.88. 
6.3.24  Paragraph 7.147 (paragraph  7.146 of the Final Report) 
6.119.  India asks the Panel to review its "as applied" findings in light of India's comments on the 
Panel's "as such" findings.128 
6.120.  The United States asks us to reject India's request, on the basis of the United States' 
objections to India's comments regarding the Panel's "as such" findings.129 
                                               
123 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 83-84. See also United States ' requests to review precise aspect s of the Interim Report, para. 7. 
124 India's requests to review precise aspe cts of the Interim Report, paras. 77-79. 
125 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 86-89. 
126 India's requests to review precise as pects of the Interim Report, para. 76. 
127 United States' comments on India's requests to  review precise aspects of the Interim Report, 
para. 85. 
128 India's requests to review precise as pects of the Interim Report, para. 81. 
129 United States' comments on India's requests to  review precise aspects of the Interim Report, 
para. 90. WT/DS436/R 
 
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  6.121.  We have already explained that there is no need for us to amend our "as such" findings 
pursuant to India's comments. Accordingly, there is similarly no need for us to amend our "as applied" findings. 
6.3.25  Paragraph 7.160-7.166 (paragra phs 7.159-7.165 of the Final Report) 
6.122.  India contends that the Panel has committed an error by ruling on matters (in the form of 
ex post  rationalizations) that are not before it.
130 
6.123.  The United States considers that the Panel is cautious with respect to its finding of ex post  
rationalization. According to the United States, it is therefore appropriate for the Panel to opine on 
the justification offered by the United States.131 
6.124.  We do not believe it is necessary to amend our findings. Paragraph 7.160 provides ample 
explanation of the reasons why we consider it appropriate to include the relevant considerations in 
our Report. 
6.3.26  Paragraph 7.183 (paragraph  7.182 of the Final Report) 
6.125.  India asserts that the Panel has failed to provide any referencing for the relevant 
statements of the NMDC officials.132 India also asserts that those statements relate to the setting 
of export/international prices, rather than domestic prices.133 
6.126.  The United States notes that referencing has been provided by the Panel in footnote 248 
(footnote 366 of the Final Report). The United St ates also asserts that the relevant statements 
also relate to prices in the domestic market.134 
6.127.  We observe that the references to the relevant statements are already included in 
footnote 248 of the Interim Report (footnote 366 of  the Final Report). Furthermore, the relevant 
statements make it clear that domestic prices are set in light of "the negotiated international 
price". 
6.3.27  Section 7.4.1.3 
6.128.  India asks the Panel to include certain factual evidence in its findings.135 
6.129.  The United States asserts that India prov ides no rationale or explanation for why this 
information should be included.136 
6.130.  We decline India's request. It is not evident to us, and India has not explained, why the 
evidence referred to by India is relevant to the Panel's findings. 
6.3.28  Section 7.4.3.4 6.131.  India asked the Panel to include the fact that the royalty paid for the grant accounts for 
only a certain percentage of the costs borne by th e miner. India also asks the Panel to delete its 
observation in footnote 310 (footnote 429 of the Fi nal Report) regarding an apparent contradiction 
in India's position. India denies that there is any contradiction in its position. India also asks the 
                                               
130 India's requests to review precise aspe cts of the Interim Report, paras. 82-86. 
131 United States' comments on India's requests to  review precise aspects of the Interim Report, 
para. 92. 
132 India's requests to review precise as pects of the Interim Report, para. 88. 
133 Ibid. para. 89. 
134 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 96-98. 
135 India's requests to review precise as pects of the Interim Report, para. 90. 
136 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 99-101. WT/DS436/R 
 
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  Panel to record India's submission that GOI has no control over how much and in what manner the 
iron ore is mined.137 
6.132.  The United States asserts that India provides no rationale or explanation for why the 
proportion of royalty payable should be included in the Panel's findings. The United States asserts 
that the Panel's evaluation makes it clear that the amount of royalty is irrelevant. Regarding 
footnote 310 (footnote 429 of the Final Report), the United States contends that the Panel's reference to an inconsistency in India's position is fully supported by the record. The United States 
also contends that India provides no basis or justification for the Panel to include any reference to 
India's lack of control over the amount and manne r of iron ore mined. The United States asserts 
that the Panel already rejected India's argument regarding uncertainty, risk and control at paragraphs 7.237-7.238 (paragraphs 7.236-7.237 of the Final Report.
138 
6.133.  We decline India's requests. Concerning th e amount of royalty and GOI's lack of control 
over the extraction, India has not explained – and it is not evident to us – why these issues are 
necessary for, or relevant to, the Panel's findin gs. Regarding footnote 310 (footnote 429 of the 
Final Report), we consider that the inconsistency referred to therein is plain. India's assertion to 
the contrary is unpersuasive. 
6.3.29  Paragraph 7.247 (paragraph  7.246 of the Final Report) 
6.134.  India asks the Panel to exclude certain in formation which, in its view, is confidential.139 
6.135.  The United States denies that the relevant information is confidential. The United States 
observes that the relevant information was included in non-confidential submissions to the USDOC, and treated as non-confidential by the USDOC, during the underlying proceedings.
140 
6.136.  We have deleted the quotation containing the information referred to by India. The 
information was included in a quote which, in light of changes reflecting the scope of the Coal Mining Nationalization Act, need no longer be included in the Panel's findings. 
6.3.30  Paragraph 7.261 (paragraph  7.260 of the Final Report) 
6.137.  India asks the Panel to amend its findings to reflect India's argument
141 that remuneration 
received by a government can only be actual, rather than notional.142 
6.138.  The United States asserts that the Panel already considered and rejected India's argument 
that government prices be actual as opposed to notional. According to the United States, the question of whether the remuneration received by the government is actual or notional is equivalent to whether remuneration is assessed from the perspective of the government-provider 
in the first place.
143 
6.139.  We decline to make the change proposed by India. India's argument that the government's 
remuneration can only be actual, rather than notional, is necessarily premised on its view that the 
adequacy of remuneration is first assessed from the perspective of the government provider. We 
have already rejected this  view in our findings. 
                                               
137 India's requests to review precise aspe cts of the Interim Report, paras. 91-93. 
138 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 102-113. 
139 India's requests to review precise as pects of the Interim Report, para. 94. 
140 United States' comments on India's requests to  review precise aspects of the Interim Report, 
para. 114. 
141 India refers to para. 389 of its first written submission and para. 231 of its second written 
submission. 
142 India's requests to review precise as pects of the Interim Report, para. 95. 
143 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 115-118. WT/DS436/R 
 
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  6.3.31  Para graph 7.262 (paragraph 7.261 of the Final Report) 
6.140.  India asks the Panel to review its finding that India's "good faith" claim is outside the 
Panel's terms of reference. India notes that its request for consultation and request for establishment refer to the nullification or impairment of benefits. India also observes that 
Article 27 of the Vienna Convention  indicates that parties to a treaty are required to interpret and 
apply treaty obligations in good faith. India also refers to various findings of the Appellate Body in support.
144 
6.141.  The United States asks the Panel to reject India's request. The United States observes that 
India's request for establishment contains no "good faith" claim. The United States asserts that an allegation of nullification or impairme nt is not a reference to "good faith".
145 
6.142.  We reject India's request. India has not established that the Panel should address a claim 
that is not within the Panel's terms of refe rence, as determined by India's request for 
establishment. Furthermore, an allegation of nulli fication or impairment does not amount to an 
allegation of violation of the principle of "good faith". 
6.3.32  Paragraph 7.264 (paragraph  7.263 of the Final Report) 
6.143.  India asks the Panel to correct an error regarding the scope of its findings in respect of the 
USDOC's rejection of certain domestic price information submitted by GOI and Tata.146 
6.144.  The United States contends that India's comment fails to address the Panel's explanation 
for its finding, or the connection between the relevant claims. The United States suggests that the scope of the Panel's findings is explained by the scope of India's claims.
147 
6.145.  We acknowledge the inconsistency in our findings, and have amended them accordingly. 
We have also amended the relevant parts of paragraph 7.266 (paragraph 7.265 of the Final 
Report), and the Section 8.1 on Conclusions. 
6.3.33  Paragraphs 7.404-7.407 (parag raphs 7.403-7.406 of the Final Report) 
6.146.  India requests the Panel to clarify a num ber of legal questions relating to the Panel's 
assessment of whether certain economic factors were evaluated by the USITC in its injury determination. Recalling certain points listed in the Panel's reasoning, India contends that the only 
relevant point is the evaluation of factors which are closely related to "growth", "return on 
investment" and "ability to raise capital". Thus, India requests the Panel to "clarify whether it is of the view that as a matter of law, the USITC complies with Article 15.4 [of the SCM Agreement] simply because it evaluates other factors 'closely related' to 'growth', 'return on investment' and 
'ability to raise capital', without actually evaluating these factors themselves."
148  
6.147.  Second, India contends that "return on investment" requires an analysis of profitability in 
relation to the capital employed during the rele vant period. Thus, India requests the Panel to 
"clarify whether as matter of law, investigating authorities are entitled to skip separate evaluation 
of 'return on investment', merely because they ha ve separately analyzed capital expenses, without 
correlating the same with profitability."149  
6.148.  Finally, India contends that the evaluation of "ability to raise capital" requires a much 
broader analysis than mere profitability, as it depends on the creditworthiness of a firm and its promoters, other products dealt with by the fi rm, future outlook of the firm and market, and 
overall state of affairs of the firm over a certain period of time. Thus, India requests the Panel to 
                                               
144 India's requests to review precise aspects of the Interim Report, paras. 96-100. 
145 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 119-120. 
146 India's requests to review precise aspects of the Interim Report, paras. 101-102. 
147 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 121-122. 
148 India's requests to review precise aspects of the Interim Report, paras. 104-105. 
149 Ibid. para. 106. WT/DS436/R 
 
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  "clarify whether as matter of law, investigating authorities are entitled to skip separate evaluation 
of 'ability to raise capital' by merely analyzing 'profitability'."150 
6.149.  The United States submits that India's comments on the Interim Report do not identify any 
specific issues that require clarification, but rather amount to repetition of India's arguments, 
which the Panel has already rejected.151 
6.150.  We have decided not to accommodate India's requests. The Appellate Body in EC – Tube 
or Pipe Fittings  stated that the particular facts of each case  will determine whether a panel is able 
to find in the record "sufficient and credible evidence" that a factor has been evaluated, even 
though a separate record of the evaluation of that factor has not been made.152 After examining 
the particular facts of this case, the Panel identified in the record sufficient and credible evidence that the factors at issue were evaluated.
153 On this basis, we refrain from addressing India's 
queries "as a matter of law". 
6.3.34  Paragraph 7.407 (paragraph  7.406 of the Final Report) 
6.151.  India notes that the USITC has not provided indexed figures or its analysis with regard to 
information included in Appendix E, and requests that this be recorded in the Panel's Report.154  
6.152.  The United States recalls that the information contained in Appendix E was a compilation 
of the confidential responses of certain domestic producers, and notes that the redacted individual 
firm data was provided in aggregate form in the USITC's determination at Table VI-8, among other 
places.155 
6.153.  We have decided to partly accommodate India's requests. As explained by the 
United States, Table VI-8 provides in aggregate form the data redacted from Appendix E. For the 
sake of clarity, however, we have modified footnote 551 (footnote 676 of the Final Report) to 
address India's request. 
6.3.35  Paragraph 7.440 (paragraph 7.439 of  the Final Report) and Section 7.5.5.2.1 
6.154.  India requests the Panel to correct certain alleged errors and re-evaluate independently all 
three distinct arguments raised by India. First, In dia contends that the correct reference to India's 
argument relating to the punitive application of "facts available" should refer to 
paragraphs 173-174, and 188 of its first written submission. Second, India contends that the Panel 
incorrectly stated that India's arguments relating to the punitive application of "facts available", 
and the "evaluative, comparative approach" are "int er-dependent". Third, India asks the Panel to 
examine its argument relating to the United States' consistent application of the challenged 
provision within the context of India's alternative argument.156 Finally, on the basis of the above, 
India requests the Panel to review its findings regarding India's "as applied" claims.157  
6.155.  According to the United States, India's requests fundamentally relate to whether the Panel 
has separately and independently recorded and examined India's punitive application argument. 
The United States submits that the Panel has fully recorded and addressed this argument. In addition, the United States recalls that India challenged the US laws themselves, and not the 
USDOC's "practice" with respect to the applicatio n of "facts available". Thus, the United States 
                                               
150 India's requests to review precise aspects of the Interim Report, para. 107. 
151 United States' comments on India's requests to  review precise aspects of the Interim Report, 
para. 123. 
152 See paragraph 7.401 of the interim report, citing the Appellate Body Report, EC – Tube or Pipe 
Fittings , para. 161. 
153 See paragraphs 7.402-7.409 of the Interim Report (paragraphs 7.401-7.408 of the Final Report). 
154 India's requests to review precise aspects of the Interim Report, para. 108. 
155 United States' comments on India's requests to  review precise aspects of the Interim Report, 
para. 124. 
156 India's requests to review precise aspects of the Interim Report, paras. 109-115. 
157 Ibid. para. 116. WT/DS436/R 
 
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  asks the Panel to reject India's requests relating to both India's "as such" and "as applied" 
claims.158  
6.156.  We have decided not to accommodate India's requests. First, paragraphs 173-174 of 
India's first written submission do not refer to Indi a's argument, but rather to India's description of 
the United States' Statement of Administrative Action, and the understanding of the United States' 
Court of Appeals for the Federal Circuit. Moreover, paragraph 188 of India's first written submission refers to India's alternative argument relating to the WTO compatibility of discretionary 
provisions. However, paragraph 7.440 of the Interim Report does not refer to India's alternative 
argument, and thus should not include a reference to this part of India's first written submission. 
6.157.  Second, the Panel has not stated that the arguments at issue are "inter-dependent" in 
paragraph 7.440. India's punitive application argument is summarized at paragraph 7.416 
(paragraph 7.415 of the Final Report) as a separate argument, and we specifically addressed it 
under Section 7.7.5.1.2, which is entitled "adverse conclusions". However, for the sake of clarity, we have modified footnote 608 (footnote 733 of th e Final Report), and added a quote from India's 
first written submission. 
6.158.  Third, India's alternative argument at issue relates to whether discretionary measures may 
be found WTO inconsistent. We have explained at footnote 597 (footnote 722 of the Final Report) 
that our examination is limited to the US provisions "as such", and not the USDOC's "approach" as 
a "measure", because India's claims related to the US law "as such". In addition, we have found that the measure at issue is not inconsistent with Article 12.7 of the SCM Agreement. Consequently, as explained at footnote 617 (foot note 742 of the Final Report), we need not 
address whether the United States' measure at issue is not mandatory and thus cannot breach the 
United States' obligations under the WTO covered agreements. 
6.159.  Finally, having decided not to accommodate India's requests discussed above, we also 
decide not to accommodate India's corresponding requests relating to its "as applied" claims. 
6.3.36  Paragraph 7.465 (paragraph  7.464 of the Final Report) 
6.160.  India requests the Panel to explain ho w the determination in the 2008 administrative 
review is not contrary to the "facts available" from the 2006 administrative review, taking into 
account the uncontested definition of "new industrial unit" and that Tata could not fall within this definition.
159 In addition, India requests the Panel to explain whether the determination of 6.06% 
subsidy margin against Tata for the alleged benefit under certain subsidy programmes was 
justified under Article 12.7 of the SCM Agreement,  when the maximum benefit under the pollution 
control equipment subsidy and the feasibility study and project report cost reimbursement programme was respectively INR 2 million and INR 0.05 million.
160  
6.161.  The United States asks the Panel to reject India's requests because information from a 
prior administrative review cannot be used as facts available for a later review when interested parties have not provided, as requested, any rele vant information pertaining to the later period.
161 
6.162.  We have decided not to accommodate India's requests. With respect to the subsidy 
programmes on exemption of electricity duty, capital power generating subsidy, interest subsidy, and stamp duty and registration, and the pollution control equipment subsidy, we have found at 
paragraph 7.465 that there was a sufficient factual foundation for USDOC's determination, and the 
information used by USDOC was a reasonable replacement for the missing information in the 
record of the 2008 administrative review. We recall the United States' arguments, summarized at paragraph 7.463 (paragraph 7.462 of the Final Report), that the USDOC could not have 
automatically relied on the information submitte d in the 2006 administrative review, without any 
relevant information being provided by interested parties in the 2008 administrative review. In 
                                               
158 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 125-131. 
159 India's requests to review precise aspects of the Interim Report, paras. 117-120. 
160 Ibid. paras. 121-124. 
161 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 132-137. WT/DS436/R 
 
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  addition, with regard to the 6.06% subsidy rate for the pollution control equipment subsidy, the 
United States submitted that the USDOC "applied the benefit rate of a cooperating company for a similar program."
162 Finally, at paragraph 7.466 (paragraph 7.465 of the Final Report), we have 
already upheld India's claim under Article 12.7 of the SCM Agreement regarding the programme 
on feasibility study and project report cost reimbursement, and thus need not address India's 
additional argument. 
6.3.37  Section 7.7.5.2.9 
6.163.  India requests the Panel to consider that the 2013 sunset review determinations are also 
inconsistent with Article 12.7 of the SCM Agreement to the extent they repeat those instances held 
inconsistent with this provision in the 2006, 2007 and 2008 administrative reviews.163  
6.164.  The United States submits that the interim review stage is not an appropriate time to raise 
new arguments, and that the Panel has already addressed the relevant arguments and evidence 
submitted by India.164 
6.165.  We have decided not to accommodate India's request, because it does not change the 
reasons that led us to conclude, at paragraph 7.480 (paragraph 7.479), that we are unable to 
evaluate India's claims. 
6.3.38  Paragraphs 7.501-7.509 (parag raphs 7.500-7.508 of the Final Report) 
6.166.  India requests the Panel to clarify whether the Panel intended to exercise judicial economy 
with regard to India's claims under Articles 11. 1, 13.1, 22.1 and 22.2 of the SCM Agreement. India 
also requests that the Panel make a specific finding on whether the United States has complied with these provisions. India argues that its claims under these provisions were entirely 
independent from India's other claims relating to new subsidy allegations.
165  
6.167.  The United States submits that the Panel has correctly addressed India's claims, and asks 
the Panel to reject India's requests.166 
6.168.  We have decided not to accommodate India's request. The Panel has not exercised judicial 
economy with regard to India's claims under Articles 11.1, 13.1, 22.1 and 22.2 of the SCM Agreement. Rather, at paragraphs 7.502-7.508, we explained that as the USDOC was 
entitled, under Articles 21.1 and 21.2 of the SCM Agreement, to examine new subsidy allegations 
in the administrative reviews at issue, there was no need to examine the provisions at issue regulating investigations. 
7  FINDINGS 
7.1.  This case concerns the imposition by the Un ited States of countervailing duties on imports of 
certain hot-rolled carbon steel flat products from India. India challenges certain provisions of the United States Tariff Act, 1930 "as such" and "as applied" in the context of the relevant 
countervailing duties investigations. India's claims pertain to various procedural and substantive 
provisions of the SCM Agreement and, cons equently, to Article VI of the GATT 1994 and 
Article XVI:4 of the WTO Agreement. The United States denies India's claims. 
7.2.  We shall begin by examining India's substant ive claims. Thereafter, we shall turn to India's 
procedural claims. Before reviewing India's claims, though, we recall a number of general principles regarding treaty interpretation, standard  of review and burden of proof in WTO dispute 
settlement proceedings. 
                                               
162 United States' response to India' s question No. 10(d)(ii), para. 23. 
163 India's requests to review precise aspects of the Interim Report, para. 128. 
164 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 138-140. 
165 India's requests to review precise aspects of the Interim Report, paras. 129-133. 
166 United States' comments on India's requests to  review precise aspects of the Interim Report, 
paras. 141-142. WT/DS436/R 
 
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  7.1  General principles regarding treaty interp retation, the applicable standard of review 
and burden of proof 
7.1.1  Treaty Interpretation 7.3.  Article 3.2 of the DSU provides that the dispute settlement system serves to clarify the 
existing provisions of the covered agreements "in accordance with customary rules of 
interpretation of public international law". It is generally accepted that the principles codified in Articles 31 and 32 of the Vienna Convention are such customary rules. 
7.1.2  Standard of Review 
7.4.  Panels are bound by the standard of review set forth in Article 11 of the DSU, which provides, 
in relevant part: 
[A] panel should make an objective assessment of the matter  before it, including an 
objective assessment of the facts of the case  and the applicability of and conformity 
with the relevant covered agreements. (emphasis added) 
7.5.  The Appellate Body has stated that the "objective assessment" to be made by a panel 
reviewing an investigating authority's determination is to be informed by an examination of 
whether the agency provided a reasoned and adequa te explanation as to: (i) how the evidence on 
the record supported its factual findings; and (ii) how those factual findings supported the overall 
determination.
167 
7.6.  The Appellate Body has also commented that a panel reviewing an investigating authority's 
determination may not conduct a de novo  review of the evidence or substitute its judgment for 
that of the investigating authority. A panel must limit its examination to the evidence that was 
before the agency during the course of the investigation and must take into account all such 
evidence submitted by the parties to the dispute.168 At the same time, a panel must not simply 
defer to the conclusions of the investigating authority. A panel's examination of those conclusions 
must be "in-depth" and "critical and searching".169 
7.1.3  Burden of Proof 7.7.  The general principles applicable to the al location of the burden of proof in WTO dispute 
settlement require that a party claiming a violation of a provision of a WTO Agreement must assert 
and prove its claim.
170 Therefore, as the complaining party, India bears the burden of 
demonstrating that the measures at issue from the United States are inconsistent with the WTO agreements invoked by India. The Appellate Body has stated that a complaining party will satisfy 
its burden when it establishes a prima facie  case, namely a case which, in the absence of effective 
refutation by the defending party, requires a panel, as a matter of law, to rule in favour of the complaining party.
171 Finally, it is generally for each party asserting a fact to provide proof 
thereof.172 
7.2  The United States' benchmarking mechanism 7.8.  India challenges US Regulation Section 351.511(a)(2)(i) to (iv) "as such". 
Section 351.511(a)(2)(i) to (iii) contains the price benchmarking mechanism to be applied by the 
USDOC when determining whether or not the provision of goods by a government or public body confers a benefit on the recipient. Section 351.511(a)(2)(iv) provides that price comparisons shall be made at the delivered level. 
                                               
167 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS , para. 186. 
168 Ibid. para. 187. 
169 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 - Canada) , para. 93. 
170 Appellate Body Report, US – Wool Shirts and Blouses , p. 14. 
171 Appellate Body Report, EC – Hormones , para. 104. 
172 Appellate Body Report, US – Wool Shirts and Blouses , p. 14. WT/DS436/R 
 
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  7.9.  India makes a number of claims regardin g the consistency of Section 351.511(a)(2)(i)-(iii) 
with Article 14(d) of the SCM Agreement. First, India claims that the hierarchical preference 
provided for in the US benchmarking mechanism conflates two separate issues, namely (i) the adequacy of remuneration paid for the good and (ii)  benefit. India claims that, by focusing on the 
issue of benefit to the recipient, the United States  fails to determine the threshold issue of whether 
or not the remuneration is adequate for the govern ment provider of the good. India contends that 
there can be no benefit to the recipient of the good if the remuneration is adequate for the 
government provider, even if the price paid by the recipient is lower than a market benchmark. 
Second, India claims that prices set by the govern ment provider of goods should be included as 
part of the "prevailing market conditions" referred to in the second sentence of Article 14(d). Third, India claims that the use of world mark et prices under Tier II of the benchmarking 
mechanism is inconsistent with Article 14(d). 
7.10.  India submits that Section 351.511(a)(2)(iv) is inconsistent with Article 14(d) and, 
consequently with Articles 19.3 and 19.4, becaus e the requirement to use delivered prices means 
that the price benchmark will not relate to prevaili ng market conditions in the country of provision 
in all cases. 
7.11.  The United States asks the Panel to reject India's claims. 
7.2.1  Relevant WTO provision 
7.12.  Article 14(d) of the SCM Agreement provides that: 
the provision of goods or services or purcha se of goods by a government shall not be 
considered as conferring a benefit unless the provision is made for less than adequate 
remuneration, or the purchase is made for more than adequate remuneration. The 
adequacy of remuneration shall be determ ined in relation to prevailing market 
conditions for the good or service in question in the country of provision or purchase 
(including price, quality, availability, marketability, transportation and other conditions 
of purchase or sale). 
7.13.  Article 19.3 of the SCM Agreement provides in relevant part: 
When a countervailing duty is imposed in respect of any product, such countervailing 
duty shall be levied, in the appropriate amounts in each case, on a non–discriminatory basis on imports of such product from all sources found to be subsidized and causing injury, except as to imports from those sources which have renounced any subsidies 
in question or from which undertakings under the terms of this Agreement have been 
accepted. 
7.14.  Article 19.4 of the SCM Agreement provides that: 
No countervailing duty shall be levied on any imported product in excess of the 
amount of the subsidy found to exist, calculated in terms of subsidization per unit of the subsidized and exported product. (footnote omitted) 
7.2.2  Relevant US provision 
7.15.  The text of Section 351.511(a)(2)(i) to (iv) is reproduced below: 
§ 351.511 Provision of goods or services. (a) Benefit—(1) In general. In the case where goods or services are provided, a 
benefit exists to the extent that such g oods or services are provided for less than 
adequate remuneration. See section 771(5)(E)(iv) of the Act. 
(2) ''Adequate Remuneration'' defined— 
(i) In general. The Secretary will normally seek to measure the adequacy of 
remuneration by comparing the government price to a market-determined price for WT/DS436/R 
 
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  the good or service resulting from actual transactions in the country in question. Such 
a price could include prices stemming from actual transactions between private parties, actual imports, or, in certain circumstances, actual sales from competitively run government auctions. In choosing such transactions or sales, the Secretary will 
consider product similarity; quantities sold, imported, or auctioned; and other factors 
affecting comparability. 
(ii) Actual market-determined price unavailable. If there is no useable market-
determined price with which to make the comparison under paragraph (a)(2)(i) of this 
section, the Secretary will seek to measure the adequacy of remuneration by comparing the government price to a world market price where it is reasonable to conclude that such price would be available to purchasers in the country in question. 
Where there is more than one commercia lly available world market price, the 
Secretary will average such prices to the ex tent practicable, making due allowance for 
factors affecting comparability. 
(iii) World market price unavailable. If ther e is no world market price available to 
purchasers in the country in question, the Secretary will normally measure the 
adequacy of remuneration by assessing whether the government price is consistent 
with market principles. 
(iv) Use of delivered prices. In measuring the adequacy of remuneration under 
Paragraph (a)(2)(i) or (a)(2)(ii) of this section, the Secretary will adjust the 
comparison price to reflect the price that a firm actually paid or would pay if it 
imported the product. This adjustment will include delivery charges and import duties.  
7.16.  We begin by assessing India's claim regard ing the hierarchical preference provided for in 
Section 351.511(a)(2)(i) to (iii). 
7.2.3  Whether Section 351.511(a )(2)(i) to (iii) is inconsistent with Article 14(d) 
because it fails to assess the adequacy of remuneration from the perspective of the 
government provider, before assessing wh ether there is benefit to the recipient 
7.2.3.1  Main arguments of the parties 
7.2.3.1.1  India 7.17.  India considers that (i) adequacy of remuneration for the government provider of a good 
and (ii) benefit to the recipient are distinct issues . For India, the adequacy of remuneration for the 
government provider of goods is a "threshold condition to be answered prior to going into the 
question of benefit".
173 India submits that "unless the remuneration is less than adequate, the 
question of calculating benefit does not arise within the meaning of Article 14(d)".174 India submits 
that the United States' benchmarking mechanism fails to address the adequacy of remuneration 
prior to an examination of benefit175, since it contains a preference for determining benefit using 
Tier I and Tier II price benchmarks, and only provides for a Tier III analysis of the adequacy of 
remuneration for the government provider when Ti er I and II price benchmarks are not available. 
India submits that, to the extent that adequacy of  'remuneration' to the provider of the goods is 
not evaluated in every case, the relevant US provisions are inconsistent with the two-pronged approach provided for in the first sentence of Article 14(d).
176 
7.18.  India submits that the fact that Article 14(d) distinguishes between the terms 
"remuneration" and "benefit" indicates that the concepts are different. India suggests that to argue otherwise would result in a circular provision. According to India, measuring the adequacy of 
"remuneration" seems to be the pre-requisite for ca lculating the "benefit" to the recipient. India 
contends that the verb "remunerate" means "pay (someone) for services rendered or work 
                                               
173 India's second written submission, para. 10. 
174 India's response to Panel question No. 4. 
175 India's second written submission, para. 14. 
176 India's first written submission, para. 32. WT/DS436/R 
 
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  done"177 and the noun "remuneration" refers to the "money paid for work or a service".178 India 
suggests that this ordinary meaning implies that there is someone who is being remunerated for the work done or services rendered. India notes that , in the case of provision of goods or services, 
the structure of Article 1.1(b) and Article 14(d) refers to only two entities – the receiver of the 
goods and the provider of the goods.  India asserts that since "benefit" is anyway being assessed 
from the perspective of the receiver of the goods , the term "remuneration" is to be seen from the 
perspective of the provider of the goods . In making this argument, India submits that it is not 
seeking to redefine the term "benefit" using a cost-to-government standard. Indeed, India does 
not dispute that, once the question of benefit arises, it is "to be measured from the perspective of the recipient of the goods".
179 According to India, though, the adequacy of remuneration for the 
government provider of the good must be exam ined before considering whether there is any 
benefit to the recipient. 
7.19.  India considers that its position is supported by differences in the structure of the various 
sub-paragraphs to Article 14.180 According to India, sub-paragraphs (b) and (c) clearly state that 
the method to calculate benefit is by reference to a "comparable", such that benefit is calculated 
using a comparative benchmark. India submits that sub-paragraph (d), by contrast, uses a different structure, providing that no benefit may be found unless – and therefore as a threshold 
issue - remuneration for the government provider  is inadequate. India contends that, unlike the 
structure of sub-paragraphs (b) and (c), Article 14(d) does not specify that benefit shall be established using a comparative benchmark. In particular, Article 14(d) does not state that the provision of goods would confer a benefit as soon as there is a difference in the amount paid by 
the recipient for the goods provided by the gove rnment and the amount the recipient would have 
to pay to obtain the same goods on the market. 
7.20.  India submits that remuneration may be adequate for the government provider of goods 
even though the price paid by the recipi ent may be less than a market benchmark.
181 According to 
India, remuneration paid by the recipient will be adequate for government providers of goods if it is based on commercial considerations, irrespective of the results of comparisons with the price 
that the recipient would have to pay on the market. India asserts that a price based on commercial 
considerations will necessarily relate to "prevailing market conditions", as required by the second sentence of Article 14(d). India notes in this regard that Article XVII:1(b) of the GATT 1994 requires state trading enterprises to make any purchases or sales solely in accordance with 
"commercial considerations", and states that such considerations include "price, quality, 
availability, marketability, transportation and other conditions of purchase or sale". India contends that the fact that the "commercial considerations" enumerated in Article XVII:1(b) of the 
GATT 1994 are the same as the "prevailing market conditions" set forth in Article 14(d) of the 
SCM Agreement must be given meaning. India also refers to WTO case law regarding the interpretation and application of Article XVII:1(b) of the GATT 1994.
182 
7.2.3.1.2  United States 
7.21.  The United States asserts that its benchmarking mechanism properly assesses the adequacy 
of remuneration. The United States submits that Ar ticle 14(d) defines "benefit" by reference to the 
concept "adequacy of remuneration".183 The United States contends that the essence of the benefit 
determination under the SCM Agreement is to determ ine whether the recipient is better off in light 
of the government financial contribution than if the recipient had relied on the market, a determination which involves assessing whether the recipient obtained something "on terms more 
favorable than those available in the market."
184 The United States submits that, to do this, an 
investigating authority must compare the differenc e between the government price and a private, 
arm's-length benchmark price. To the extent that  the government price is less than the market 
benchmark price, the remuneration for the governme nt is not adequate, and a benefit is conferred 
                                               
177 The Oxford Dictionary of English , 3rd ed., A. Stevenson (ed.) (Oxford University Press, 2010), 
p. 1503. 
178 Ibid. 
179 India's second written submission, paras. 12 and 13. 
180 India's first written submission, paras. 49 and 50. 
181 Ibid. para. 50. 
182 Ibid. paras. 34-47. 
183 United States' first written submission, para. 44. 
184 United States' second written submission, para. 7, citing to Canada – Aircraft (Panel) , para. 9.112. WT/DS436/R 
 
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  on the recipient. The United States submits that the analysis under Article 14(d) is therefore not 
the two-step process suggested by India, bu t rather a (single) comparative exercise.185 
7.22.  The United States argues that the structure of Article 14(d) is no different from that of 
Article 14(b) or (c). The United States asserts that a consistent structure is employed throughout 
these provisions, since each provision identifies a condition that must be satisfied in order to 
establish that a benefit has been conferred.186 The United States contends that each sub-
paragraph of Article 14 provides for a determination of the existence of a benefit based on some 
deviation between what a recipient has actually paid and what they would otherwise have paid 
according to a benchmark price. For loans, subparagraph (b) prescribes that a benefit exists if there is a "difference" in the price of a governmental loan versus a "comparable commercial loan." For loan guarantees, subparagraph (c) similarly identifies a benefit if there is a "difference" 
between the amounts a firm pays for a loan with a government guarantee compared with what a 
"firm would pay on a comparable commercial loan absent the government guarantee." For the provision of goods and services, subparagraph (d) states that a benefit exists if the government 
provides the goods or services in exchange for "less than adequate remuneration" or if the 
government purchases such goods or services for "more than adequate remuneration." The 
United States contends that terms such as "less than" or "more than" are comparative in nature, 
just like the term "difference" in Article 14(b) and (c). 
7.23.  The United States rejects India's argument that remuneration will necessarily be adequate 
in relation to the prevailing market conditions if it is based on commercial considerations. The United States contends that nothing in the text of Article 14(d) states or implies that "prevailing 
market conditions" means "in accordance with commercial considerations." 
7.2.3.2  Main arguments of the third parties 7.2.3.2.1  European Union 
7.24.  The European Union asserts that India's claims appear to be based on flawed interpretations 
of Article 14(d) of the SCM Agreement. The Europe an Union contends that the perspective of the 
provider of the goods or services, in the sens e of whether the government makes a reasonable 
return when providing the goods or services in question, is not dispositive in determining the 
existence of "benefit" under Article 1.1(b) or its amount in accordance with Article 14(d) of the SCM Agreement. The perspective of the provider ad vocated by India is similar to the "cost to the 
government" approach that has already been rejected to determine the existence of "benefit" 
under Article 1.1(b) of the SCM Agreement. Accord ing to the European Union, the Appellate Body 
Report in Canada – Aircraft  stands for the proposition that a "benefit" is to be determined, not by 
reference to whether the transaction imposes a net cost on the government, but rather by 
reference to whether the terms of the financial contribution are more favourable to what is 
available to the recipient on the market. 
7.2.3.2.2  Saudi Arabia 
7.25.  Saudi Arabia submits that, in determining whether the government provision of a good 
confers a benefit, an investigating authority may use a benchmark other than private, in-country prices in "very limited" circumstances. Article 14(d) of the SCM Agreement establishes domestic market prices as the principal standard for determining whether and to what extent a benefit is 
conferred by the provision of a good. Price is fo remost among the "prevailing market conditions" 
enumerated in Article 14(d) and it should be the first reference point used by an investigating authority to determine benefit. Saudi Arabia assert s that in order to reject private, in-country 
benchmarks when determining whether a govern ment-provided good confers a benefit, an 
investigating authority must establish that domestic prices of that good are "distorted". The government's predominant role in the domestic market might support an investigating authority's 
finding that private prices are distorted, but it may not serve as a per se  proxy for price distortion. 
Saudi Arabia contends that although external benchmarks may be used in very limited situations, they should be avoided because they are inherently  incapable of reflecting prevailing in-country 
market conditions, and because they negate comparative advantages. Saudi Arabia contends that 
                                               
185 United States' second written submission, para. 8. 
186 Ibid. para. 11. WT/DS436/R 
 
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  where an investigating authority has established price distortion, it should use in-country, 
cost-based benchmarks instead of external benchmarks. 
7.2.3.3  Evaluation 7.26.  The first sentence of Article 14(d) provides that the government provision of a good "shall 
not be considered as conferring a benefit unles s the provision is made for less than adequate 
remuneration". In our view, the word "unless" in the first sentence of Article 14(d) establishes a 
clear textual connection between the existence of benefit on the one hand, and the adequacy of 
remuneration on the other. If remuneration is  found to be inadequate, the subsidy may be 
considered to confer a benefit. If the remunerati on is found to be adequate, the subsidy may not 
be considered to confer a benefit. There is nothing in the text of Article 14(d) to suggest that the question of the adequacy of remuneration is a sepa rate threshold issue, such that the question of 
benefit only arises – as a separate and subseque nt matter – after the question of adequacy of 
remuneration has been resolved. 
7.27.  India asserts that "in explaining how … 'benef it' is to be calculated, Article 14(d) refers to a 
second term 'remuneration'".
187 India's statement is consistent with our view that the first 
sentence of Article 14(d) establishes a clear textual connection between the issues of benefit and adequacy of remuneration. Indeed, it is precisely for this reason that, as acknowledged by India, 
Article 14(d) refers to the term "remuneration" in  explaining how "benefit" is to be calculated. 
7.28.  India goes on to argue that the use of different terms - "benefit" and "remuneration" - 
"suggests that the word 'remuneration' is not inte nded to be the same as 'benefit' and to argue 
otherwise, would only result in a circular provision".
188 In our view, the circularity alluded to by 
India would only arise if the issues of adequacy of remuneration and benefit were assessed 
separately, but on the basis of the same standard. As explained above, though, we do not consider that Article 14(d) envisages the issues of adequacy of remuneration and benefit being assessed 
separately. Rather, assessing the adequacy of remuneration is part of the process of determining 
whether a benefit exists. Our understanding is not affected by the use of the distinct terms "remuneration" and "benefit" in Article 14(d). The term "remuneration" relates to the sum that is 
paid for the good provided by the government. Th e term "benefit", by contrast, relates to the 
notion that the recipient received the good on terms more favourable than it could have obtained that good from the market. These terms are necessarily different, since they relate to different notions, and thereby allow for the possibility that the level of remuneration will not confer a benefit 
in all cases. However, although the terms "rem uneration" and "benefit" are different, they are 
nevertheless connected by the concept of adequacy, establishing that a given amount of "remuneration" may be considered to confer a "benefit" if it is not adequate. 
7.29.  As for the perspective from which the adeq uacy of remuneration should be assessed, we 
note India's argument that since "benefit" is determined from the perspective of the receiver of the goods, "remuneration" should be assessed from the perspective of the provider of the goods.
189 
India's argument that the adequacy of remuneration and benefit may be assessed in respect of 
different entities is based on its argument that the adequacy of remuneration and benefit should 
be assessed separately. Since we have rejected this argument, and find that determining the 
adequacy of remuneration is part of the process of determining whether benefit exists, we also 
exclude the possibility of assessing the adequacy  of remuneration and existence of benefit in 
respect of different entities. 
7.30.  We note that India does not dispute the United States' argument that "benefit" should be 
assessed by reference to the recipient.190 It is well established in WTO dispute settlement that this 
is the case, and that a benefit is conferred when a financial contribution makes the recipient better off than it would have been relative to what is available through the market. Since benefit is 
established from the perspective of the recipient,  and since the adequacy of remuneration forms 
part of the assessment of benefit, the adequacy  of remuneration must also, in our view, be 
                                               
187 India's first written submission, para. 23. 
188 Ibid. para. 23. 
189 Ibid. paras. 24 and 25. 
190 India's second written submission, paras. 12 and 13. WT/DS436/R 
 
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  established from the perspective of the recipient. Furthermore, since benefit is assessed by 
reference to the market, so too must  be the adequacy of remuneration.191 
7.31.  India suggests that an assessment of the ad equacy of remuneration from the perspective of 
the recipient, by reference to the market, ignores relevant context concerning the alleged decision 
by the drafters of Article 14 to adopt a diffe rent structure for sub-paragraph (d) than for 
sub-paragraphs (a), (b) and (c). India notes in th i s  r e g a r d  t h a t  A r t i c l e  1 4 ( a )  p r o v i d e s  t h a t  n o  
benefit shall be conferred unless the provision of  equity capital is "inconsistent" with usual 
investment practice. India also notes that sub-para graphs (b) and (c) provide that no benefit shall 
be conferred unless there is a "difference" between the amount paid by the recipient (for the loan 
and loan guarantee, respectively) and the amount  that the recipient would have to pay on the 
market. India contends that sub-paragraph (d) of  Article 14, by contrast, provides for a "more 
comprehensive framework". India notes that the dr afters of Article 14(d) did not specify that 
benefit would be conferred once there is a difference between the amount paid by the recipient to the government and the amount that the recipien t would have paid on the market. According to 
India, this means that the adequacy of remunera tion is not determined by simply comparing the 
government price to a market benchmark. 
7.32.  We are not persuaded by India's reliance on alleged structural differences in Article 14. We 
agree with the United States
192 that the first sentence of Article 14(d) provides for a comparative 
analysis in the same way that sub-paragraphs (b) and (c) of Article 14 do. In the context of the provision of goods, the comparative analysis envi saged by Article 14(d) concerns the question of 
whether the remuneration is "less than" adequate. The phrase "less than" is comparative in 
nature, requiring a comparison between the government price and a price that is representative of 
adequate remuneration in the market, as determined in relation to the prevailing market conditions. The fact that Article 14(d) does not use the term "difference" does not detract from the 
comparative nature of the analysis inherent in the first sentence of Article 14(d).
193 
7.33.  Furthermore, the second sentence of Article 14(d) provides that the adequacy of 
remuneration shall be assessed in relation to the prevailing market conditions. This textual 
consideration prompted the Appellate Body to state in US – Softwood Lumber IV  that "private 
prices in the market of provision will generally represent an appropriate measure of the "adequacy 
of remuneration" for the provision of goods".194 Thus, the Appellate Body has also accepted that 
the structure of Article 14(d) allows Members to assess the adequacy of remuneration, and 
therefore existence of benefit, by comparing the go vernment price to a market benchmark. Once it 
is established that the price paid to the government provider is less than the price that would be required by the market, assessed in relation to prevailing market conditions, the remuneration 
afforded by the government price is inadequate, and a benefit is conferred.
195  
7.34.  Finally, we observe that India's claims are brought under Article 14(d) of the 
SCM Agreement. The title of Article 14 explains that  Article 14 is concerned with the "Calculation of 
the Amount of a Subsidy in Terms of the Benefit to the Recipient". Even India acknowledges that 
"all the guidelines present in Article 14 have be en provided in the context of determining the 
                                               
191 This approach is consistent with the finding by the Appellate Body in US – Softwood Lumber IV  
(para. 90) that "private prices in the market of provis ion will generally represent an  appropriate measure of the 
'adequacy of remuneration' for the provision of goods". In  our view, this finding confirms that the adequacy of 
remuneration is established by reference to the market. 
192 See, for example, United States' se cond written submission, paras. 10-15. 
193 The comparative analysis required by Article 14(d) is  similar to that required  by Article 14(a) which, 
while not using the term "difference", nevertheless requires a comparison of the "investment decision" with "usual investment practice". 
194 Appellate Body Report, US – Softwood Lumber IV , para. 90. The issue before the Appellate Body was 
not whether or not Article 14(d) could be  applied on the basis of benchmarking per se . The issue before the 
Appellate Body was rather whether or not external benchmarks could be us ed instead of dome stic benchmarks 
(i.e. those prevailing in the country of provision). In concluding that external benchmarks could be used in 
certain circumstances, the Appellate Body necessarily accepted the use of benchmarking mechanisms in the application of Article 14(d). 
195 The fact that the govern ment price may have been set according to "commercial considerations" is 
then irrelevant, for the adequacy of remuneration is  not assessed from the pers pective of the government 
provider. For this reason, it is not necessary for us to examine India's "c ommercial considerations" argument – 
including in particular its reliance on case law concer ning the interpretation of  Article XVII:1(b) of the 
GATT 1994 - in any detail. WT/DS436/R 
 
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  benefit conferred on the recipient".196 I n  t h i s  c o n t e x t ,  i t  w o u l d  b e  i n c o n g r u o u s  t o  f i n d  t h a t  t h e  
United States has violated a provision of Article 14 by doing precisely what Article 14 is concerned with, namely calculating benefit in terms of benefit to the recipient, simply because it did not first, as a separate matter, determine the adequacy of remuneration to the government provider of the 
good. 
7.35.  For the above reasons, we reject India's claim that Section 351.511(a)(2)(i) to (iii) "as 
such" is inconsistent with Article 14(d) of the SCM Agreement because it fails to require that the 
adequacy of remuneration be assessed from the perspective of the government provider before 
assessing benefit to the recipient. 
7.2.4  The exclusion of government pr ices from Tier I and II benchmarks 
7.2.4.1  Main arguments of the parties 
7.36.  India claims that the United States' benchmarking mechanism is inconsistent with 
Article 14(d) of the SCM Agreement because th e mechanism excludes the use of government 
prices as Tier I or II benchmarks. India submits that this is contrary to the requirement in 
Article 14(d) that benchmarks for the government provision of goods should be determined in 
relation to "prevailing market conditions" in the country of provision. According to India, government prices form part of the "prevailing market conditions". 
7.37.  The United States contends that its benchmarking mechanism does not, in fact, exclude 
government prices in all cases.
197 The United States asserts that Section 351.511(a)(2)(i) allows 
for the inclusion of prices from government sales where those prices are market-determined, such as through competitively run government auctions. Where this is not the case, the United States 
submits that government prices for the provision of  goods must be excluded from the Article 14(d) 
benchmarks because, according to established WTO case law, the term "benefit" requires a comparison of the financial contribution received by the recipient to what it would otherwise 
receive on the market. 
7.2.4.2  Evaluation 7.38.  As a factual matter, we observe that India does not dispute the United States' assertion that 
government prices are not excluded from the benchmarking mechanism in all cases. The factual 
premise for India's claim is therefore undermined. 
7.39.  Furthermore, we consider that it would be  circular, and therefore uninformative, to include 
the government price for the good provided by th e government in the establishment of the market 
benchmark when assessing whether such governmental provision confers a benefit. In addition, as 
noted above, benefit is assessed in relation to the market. Since governments may set prices in order to pursue public policy objectives, rather than market-based profit maximization, we see no 
basis for requiring investigating authorities to include government prices when determining market 
benchmarks in the context of Article 14(d). In particular, we do not consider that investigating authorities should be required to treat government prices as being representative of "prevailing 
market conditions" within the meaning of the second sentence of that provision.  
7.40.  Our approach to this issue is consistent wi th the following findings by the Appellate Body in 
US – Softwood Lumber IV : 
Although Article 14(d) does not dictate that  private prices are to be used as the 
exclusive benchmark in all situations, it does emphasize by its terms that prices of 
similar goods sold by private suppliers in the country of provision are the primary benchmark that investigating authorities must use when determining whether goods 
have been provided by a government for less than adequate remuneration. In this 
case, both participants and the third participants agree that the starting-point, when determining adequacy of remuneration, is the prices at which the same or similar 
                                               
196 India's first written submission, para. 49. 
197 United States' first written submission, para. 67. WT/DS436/R 
 
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  goods are sold by private suppliers in arm's length transactions in the country of 
provision. This approach reflects the fact that private prices in the market of provision will generally represent an appropriate measure of the "adequacy of remuneration" for t h e  p r o v i s i o n  o f  g o o d s .  H o w e v e r ,  t h i s  m a y  n o t  a l w a y s  b e  t h e  c a s e .  A s  w i l l  b e  
explained below, investigating authorities may use a benchmark other than private 
prices in the country of provision under Article 14(d), if it is first established that private prices in that country are distorte d because of the government's predominant 
role in providing those goods.
198 
7.41.  We consider it noteworthy that th e Appellate Body consistently refers to private  prices in the 
above extract. It is private  prices in the country of provision that are the "primary benchmark" for 
assessing the adequacy of remuneration.  
7.42.  According to India, the above findings by the Appellate Body mean that the government 
price may only be rejected as a price benchmark in situations where the government is the sole or dominant provider of the goods.
199 We disagree. Because governments are generally not profit-
maximizers, but instead often pursue public policy objectives when providing goods to recipients in 
their territory, government prices need not be pr esumed to reflect market principles. When the 
government is not dominant in a market, the non-market aspect of government pricing will 
generally not distort private prices in that market. In such cases, those domestic private prices 
may serve as a benchmark for the purpose of Article 14(d). When the government is dominant in a market, as was the case in US – Softwood Lumber IV , the non-market aspect of government 
prices may distort private prices in the domestic market, such that those domestic prices may not 
then be used as an Article 14(d) benchmark. In such cases, private prices in other markets may be 
used as benchmarks, provided they are properly  adjusted to reflect the prevailing market 
conditions in the country of provision. Thus, the fact that a government is not dominant in its 
domestic market does not mean (as argued by India) that the government's prices are likely to 
reflect market principles, and therefore be indicati ve of prevailing market conditions. It simply 
means that those government prices, which in any event need not be presumed to reflect market 
principles (because the government's pricing may be determined by policy objectives other than 
profit-maximization), would likely not have distorted private  prices in that market, such that those 
private  prices may serve as benchmarks for the purpose of Article 14(d). 
7.43.  India also relies
200 on the following findings by the Appellate Body in US – Anti-Dumping 
and Countervailing Duties (China) : 
Although the Panel did not explicitly rule on the issue, it stated that one possible 
interpretation of "commercial" could be that any loan made by the government would 
ipso facto  not be "commercial". In our view, it would not be correct to conclude that 
any loan made by the government (or by private lenders in a market dominated by 
the government) would ipso facto  not be "commercial". We see nothing to suggest 
that the notion of "commercial" is per se  incompatible with the supply of financial 
services by a government. Therefore, the mere fact that loans are supplied by a government is not in itself sufficient to establish that such loans are not "commercial" and thus incapable of being used as benchmarks under Article 14(b) of the 
SCM Agreement . An investigating authority would have to establish that the 
government presence or influence in the market causes distortions that render interest rates unusable as benchmarks.
201 
7.44.  India refers in particular to the Appellate Body's statement that "it would not be correct to 
conclude that any loan made by the government (or by private lenders in a market dominated by the government) would ipso facto  not be 'commercial'". We do not understand this statement to 
mean that government prices should necessarily be used as market benchmarks for the purpose of 
Article 14(d). Noting in particular the last sentence in the above extract, which refers to potential distortions caused by government presence or influence in the market, we understand the Appellate Body to be repeating, for the purpose of Article 14(b), the approach that it took in US – 
                                               
198 Appellate Body Report, US – Softwood Lumber IV , para. 90. 
199 India's response to Panel question No. 10, and fn. 255 to India's second written submission. 
200 India's second written submission, para. 192. 
201 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 479. WT/DS436/R 
 
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  Softwood Lumber IV  in respect of Article 14(d), as outlined above. Indeed, we observe that in 
US – Anti-Dumping and Countervailing Duties (China) the Appellate Body subsequently referred 
expressly to the issue of distortion caused by government intervention: 
notwithstanding the differences between Article 14(b) and (d) … [r]eading 
Article 14(b) as always requiring a comparison with loans denominated in the same 
currency as the investigated loans, even in circumstances where all loans in the same currency are distorted by government interv ention, would lead to a comparison with 
government distorted loans, thus frustrating the purpose of Article 14(b). If loans in a 
given market and in a given currency are distorted by government intervention, an investigating authority should be permitted, in certain circumstances also under Article 14(b), to use a benchmark other than "a comparable commercial loan which 
the firm could actually obtain on the market".
202 
7.45.  We are therefore not persuaded by India's re liance on the findings of the Appellate Body in 
US – Anti-Dumping and Countervailing Duties (China) . 
7.46.  For the above reasons, we reject India' s claim that the United States' benchmarking 
mechanism is "as such" inconsistent with Article 14(d) of the SCM Agreement because it excludes the use of government prices as Tier I and II price benchmarks. 
7.2.5  The use of world market pr ices as Tier II price benchmarks 
7.2.5.1  Main arguments of the parties 7.47.  India claims that the United States' benchmarking mechanism violates Article 14(d) because 
it provides for the use of world market (Tier II)  price benchmarks whenever Tier I in-country 
benchmarks are not available. There are three comp onents to India's claim. First, India submits 
that the text of Article 14(d) per se  excludes the use of out-of-country benchmarks.
203 Second, 
India submits that out-of-country benchmarks may in any event only be used in situations where 
the market of the country of provision is dist orted because of the predominant role of the 
government provider.204 Third, India submits that the United States' benchmarking mechanism 
fails to require that the conditions prevailing in the country from which the Tier II benchmark is 
taken relate to the market conditions prevailing in the country of provision.205 
7.48.  The United States206 rejects India's assertion that the text of Article 14(d) precludes 
out-of-country benchmarks. The United States asse rts that the Appellate Body has confirmed that 
out-of-country prices may be used. The United States contends that a contrary interpretation 
would mean that where in-country prices do not exist or are not useable, the rights and obligations 
contained in the SCM Agreement would cease to apply. 
7.2.5.2  Evaluation 
7.49.  We are not persuaded by India's assertion that Article 14(d) per se  excludes the use of 
out-of-country benchmarks. The fact that out-of-country benchmarks may be applied in the context of Article 14(d) was clarified by the Appellate Body in US – Softwood Lumber IV . We are 
guided by the findings of that case, and ther efore conclude that the use of out-of-country 
benchmarks in appropriate circumstances is not inconsistent with Article 14(d). 
7.50.  Nor are we persuaded by India's assertio n that out-of-country benchmarks may only be 
used in the context of Article 14(d) of the SCM Agreement in situations where the market in the 
country of provision is distorted because of th e predominant role of the government provider. 
There is nothing in the text of that provision to support India's assertion. Furthermore, while India 
relies on the findings of the Appellate Body in US – Softwood Lumber IV , we note that the 
Appellate Body's findings in that case were nece ssarily circumscribed by the facts of that case. 
                                               
202 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 484. 
203 India's first written submission, para. 77. 
204 Ibid. para. 79. 
205 Ibid. para. 82. 
206 United States' first written submission, paras. 68-70. WT/DS436/R 
 
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  Since that case concerned a situation in which the government provider of goods did, in fact, play 
a predominant role in the market, the Appellate Body only addressed the application of out-of-country benchmarks in that situation. In deed, the Appellate Body expressly stated that 
"[c]onsidering that the situation of government predominance in the market, as a provider of 
certain goods, is the only one raised on appeal by the United States, we will limit our examination 
to whether an investigating authority may use a benchmark other than private prices in the country of provision in that particular situation".
207 However, this does not mean that the 
reasoning underlying the Appellate Body's findings in that case can not apply, with equal force, in 
other situations, in which the government is not a predominant provider. 
7.51.  We next consider India's assertion that the United States' benchmarking mechanism fails to 
require that Tier II benchmarks must relate to the prevailing market conditions in the country of 
provision. In this regard, we note that the benchmarking mechanism implements 
19 U.S.C. § 1677(5)(E), which provides that "the adequacy of remuneration shall be determined in relation to prevailing market conditions for the good or service being provided or the goods being 
purchased in the country which is subject to the investigation or review".
208 Since the overarching 
statutory provision requires that the adequacy of remuneration must in all cases be assessed in relation to the prevailing market conditions in the country of provision, in law Tier II benchmarks 
applied pursuant to the implementing regulation (i.e. Section 351.511(a)(2)(ii)) must also relate 
to the prevailing market conditions in the country of provision. Accordingly, there is no basis for India's claim that the United States' benchmarking mechanism "as such" provides for the use of Tier II benchmarks that do not reflect prevailing market conditions in the country of provision.
209 
7.52.  For these reasons, we reject India's claim that the use of world market prices as Tier II 
benchmarks provided for in Section 351.511(a)(2)(ii) "as such" is inconsistent with Article 14(d) of the SCM Agreement. 
7.2.6  Whether Section 351.511(a)(2)(iv) is in consistent with Article 14(d) because it 
requires the use of delivered  prices for benchmarking 
7.53.  India submits that Section 351.511(a)(2)(iv) "as such" is inconsistent with Article 14(d), 
and consequently also Articles 19.3 and 19.4
210, of the SCM Agreement because it mandates that 
the government provider price and the benchmark price be compared on a delivered basis. 
7.2.6.1  Main arguments of the parties 7.2.6.1.1  India 
7.54.  India contends that the mandatory use of delivered prices in the benchmarking mechanism 
ignores the Article 14(d) requirement that the adeq uacy of remuneration is to be determined in 
"relation to the prevailing market conditions", including conditions of sale, in the country of 
provision. India submits that the second sentence of Article 14(d) requires that consideration of 
the prevailing market conditions for the goods in question in the country of provision includes an assessment of the "conditions of … sale" prevailing  in the country of provision, for the goods in 
question. India contends that the use of delivered prices is a legal fiction contrary to Article 14(d) 
in cases where the conditions of sale prevailing in the country of provision do not include delivery.
211 India contends that, in such cases, the mandatory inclusion of delivery charges 
(including import duties where relevant) eliminates the possibility of adjustments for the terms 
and conditions of sale prevailing in the country of provision212. India submits that 
Section 351.511(a)(2)(iv) is inconsistent with Articles 19.3 and 19.4 for "substantially the same reasons".
213 
                                               
207 Appellate Body Report, US – Softwood Lumber IV , para. 99. 
208 19 U.S.C. § 1677(5), Exhibit USA-4, internal page 344. 
209 We also note that we reject  India's comparative advantage ar gument at para. 7.62 below. 
210 India contends that Section 351.511(a)(2)(iv) is inconsistent with Articles 19.3 and 19.4 "to the 
extent that" there is an inconsistency with Article 14(d) (India's first written submission, para. 99). 
211 India's first written submission, paras. 88-89. 
212 India's second written submission, para. 36. 
213 India's first written submission, para. 104. WT/DS436/R 
 
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  7.2.6.1.2  United States 
7.55.  The United States submits that India's objection to adjustments for delivery costs is based 
on its flawed position that the adequacy of remuneration under Article 14(d) of the SCM Agreement should be a determination with re spect to the provider of the goods, using a 
cost-to-government analysis. The United States contends that the adequacy of remuneration 
should rather be assessed with respect to the recipient. The United States also contends that the Article 14(d) guidelines contemplate adjustments for prevailing market conditions, conditions 
which explicitly include transportation.  
7.56.  The United States asserts that an ex-works  price does not include the cost incurred by the 
purchaser for getting a purchased input to its factory door; an ex-works price therefore is not reflective of the prevailing market conditions fr om the perspective of the recipient. Prevailing 
market conditions are such that a private purchaser (in making a purchasing decision) and a 
private seller (in setting a price at which to sell the good) would consider all of the costs associated with getting the good to the purchaser's factory in establishing the market negotiated 
price. The United States asserts that India's interpretation would artificially isolate delivery costs 
from the price of a good and therefore shield it  from the actual prevailing market conditions. 
According to the United States, such an interpretation would not fulfil the purpose of the 
Article 14(d) benchmark comparison – which is to assess whether the recipient is better off than it 
would have been absent that financial contribution. 
7.57.  The United States submits that as India has not demonstrated that 
Section 351.511(a)(2)(iv) is inconsistent with Article 14(d), it also has not demonstrated any 
inconsistency with Articles 19.3 and 19.4. 
7.2.6.2  Main arguments of the third parties 7.2.6.2.1  European Union 
7.58.  The European Union submits that the dete rmination of the adequacy of the remuneration 
under Article 14(d) of the SCM Agreement requires th e identification of a proper comparator in the 
marketplace of the country of provision, i.e., th e prices at which the same or similar goods are 
sold or bought by private suppliers in arm's length transactions in the country of provision. If such 
prices are distorted in that market, thus rendering the comparison required under Article 14(d) of the SCM Agreement  circular, it may be necessary to have recourse to an external proxy 
benchmark or to a constructed proxy duly adjusted that somehow relates or refers to, or is 
connected with, the conditions prevailing in the market of the country of purchase. The European 
Union contends that, in the absence of an actual price that is available on the market for the same product (e.g., because all prices are distorted be cause of the government intervention or, simply 
because the government controls prices or is the only provider), the comparison envisaged in the 
benefit analysis can be made by using a proxy for what would  have been paid on a comparable 
purchase of goods that could have been obtained on the market in the absence of the distortion 
(i.e., by reference to market principles) and, if needed, by making appropriate adjustments in 
order to avoid in particular the countervailing of genuine comparative advantages. The European Union submits that once the proper benchmark price has been identified, either in-country, outside-country or constructed proxy, the comparison required to determine the 
existence and amount of benefit has to be made at the same level of trade. 
7.2.6.3  Evaluation 7.59.  We begin by evaluating India's Article 14( d) claim. India contends that the mandatory use 
of delivered prices means that price benchmarks will not relate to prevailing market conditions in 
the country of provision "even if the government price in question does not include such delivery charges"
214, such as in situations where the government provider sells the relevant good ex-works 
or, in the case of minerals, ex-mine.215 
                                               
214 India's opening statement at the first meeting of the Panel, para. 15. 
215 We observe that India's claim is not based on an y difference in the levels of trade at which the 
government price and the Tier I or II benchmarks are se t. In response to a question from the Panel, India 
 WT/DS436/R 
 
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  7.60.  We consider that India's argument is flawed, for it conflates the "prevailing market 
conditions" referred to in the second sentence of Article 14(d) with the contractual terms and conditions of the government provision under investigation. As explained above, investigating authorities are entitled to assess the adequacy of remuneration from the perspective of the 
recipient, using market benchmarks that relate to the "prevailing market conditions" in the country 
of provision.
216 We do not consider that such market benchmarks need mirror the contractual 
terms on which the government provider sells its good, since government prices are not an 
indicator of the prevailing market conditions.217 In this regard, we agree with the United States 
that the terms "prevailing market conditions" and "conditions of sale" in the second sentence of Article 14(d) do not relate to the specific contractual terms on which the government provides goods. Instead, these terms relate to the general conditions of the relevant market, in the context 
of which market operators engage in sales transactions. It is for this reason that Article 14(d) 
includes such factors as "availability" and "marke tability", even though these factors could not 
properly be considered as contractual terms. 
7.61.  Furthermore, we recall that we have rejected India's claim that the United States' 
benchmarking mechanism is inconsistent with Article 14(d) of the SCM Agreement because it excludes the use of government prices as Tier I and II price benchmarks. Consistent with this 
finding, we also reject the notion that the contractual terms on which a government provides 
goods must necessarily be considered to establish or reflect prevailing "market" conditions in the country of provision. Because of the propensity fo r governments to pursue public policy objectives 
in providing goods to recipients in their territory, it is possible that contractual terms set by 
governments are not set in accordance with "market" principles, and therefore do not reflect 
prevailing "market" conditions. 
7.62.  We also reject India's argument that the use of delivered price benchmarks "nullifies the 
comparative advantage of the country of provision in terms of being able to provide the goods in 
question locally".
218 To the extent that a delivered price benchmark relates to the prevailing 
market conditions in the country of provision, it will reflect any comparative advantage that such 
country might have. In this regard, we note the following finding by the Appellate Body in US – 
Softwood Lumber IV : 
It is clear, in the abstract, that different factors can result in one country having a 
comparative advantage over another with resp ect to the production of certain goods. 
In any event, any comparative advantage would be reflected in the market conditions 
prevailing in the country of provision and,  therefore, would have to be taken into 
account and reflected in the adjustment s made to any method used for the 
determination of adequacy of remuneration, if it is to relate or refer to, or be 
connected with, prevailing market conditions in the market of provision.219 
As discussed above, import transactions occur even in situations where minerals may be sourced 
locally, and such import transactions necessarily relate to prevailing market conditions in India 
because they are made by entities in India op erating subject to Indian market conditions. 
7.63.  For the above reasons, we reject India's claim that Section 351.511(a)(2)(iv) "as such" is 
inconsistent with Article 14(d) of the SCM Agreemen t. For the same reasons, we also reject India's 
consequent claims under Articles 19.3 and 19.4 of the SCM Agreement. 
                                                                                                                                               
expressly accepted the United States' contention that the delivered price adjustme nt is made to both the 
government price and the Tier I or II benchmark. 
216 India also submits that, in cases where the gove rnment sells ex works, transportation and other 
delivery charges can never be considered as "remuneratio n" to the government provider of the goods (India's 
first written submission, para. 89). This argument is premised on th e adequacy of remuneration being 
assessed from the perspective of the government provider, rather than the recipient. We dealt extensively with this issue above. 
217 If the price benchmark had to match all the term s applied by the government provider, including 
presumably price, the resultant comparison with  the government price would be meaningless. 
218 India's first written submission, para. 97. 
219 Appellate Body Report, US – Softwood Lumber IV , para. 109. WT/DS436/R 
 
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  7.2.7  Conclusion 
7.64.  In light of the foregoing, we reject Indi a's claim that Section 351.511(a)(2)(i)-(iv) "as such" 
is inconsistent with Article 14(d) of the SCM Agreement. We also reject India's claim that Section 351.511(a)(2)(iv) "as such" is inconsistent with Articles 19.3 and 19.4 of the 
SCM Agreement. 
7.3  Claims regarding the imposition of co untervailing duties in respect of iron ore 
supplied by NMDC 
7.65.  India raises a number of claims regarding the USDOC's determinations, in the 2004, 2006, 
2007 and 2008 administrative reviews, that NMDC pr ovided specific subsidies to Essar, ISPAT, 
JSW and Tata in the form of iron ore sold for less than adequate remuneration. India's claims 
concern: USDOC's treatment of NMDC as a public body; USDOC's finding of de facto  specificity; 
and USDOC's determination of the existence and quantum of benefit. 
7.3.1  The treatment of NMDC as a public body: Article 1.1(a)(1) 
7.3.1.1  Relevant WTO provision 
7.66.  Article 1.1(a)(1) of the SCM Agreement provides: 
For the purpose of this Agreement, a subsidy shall be deemed to exist if: (a)(1)  there is a financial contribution by a government or any public body within the 
territory of a Member (referred to in this Agreement as "government"), i.e. where: 
(i) a government practice involves a direct transfer of funds (e.g. 
grants, loans, and equity infusion), po tential direct transfers of funds or 
liabilities (e.g. loan guarantees); 
(ii) government revenue that is otherwise due is foregone or not 
collected (e.g. fiscal incentives such as tax credits); 
(iii) a government provides goods or services other than general 
infrastructure, or purchases goods; 
(iv) a government makes payments to a funding mechanism, or 
entrusts or directs a private body to carry out one or more of the type of 
functions illustrated in (i) to (iii) above which would normally be vested in 
the government and the practice, in no real sense, differs from practices normally followed by governments. 
7.3.1.2  Main arguments of the parties 
7.3.1.2.1  India 
7.67.  India claims that the USDOC improperly focused on the GOI's 98% shareholding in NMDC, 
contrary to Article 1.1(a)(1) of the SCM Agreem ent. According to India, the USDOC failed to 
consider whether NMDC fulfilled two essential public body criteria: (i) the carrying out of 
governmental functions, and (ii) the exerci se of governmental power or authority. 
7.68.  India's arguments concerning the alleged deficiencies in the USDOC's determination that 
NMDC is a public body rely heavily on findings made by the Appellate Body in US – Anti-Dumping 
and Countervailing Duties (China) . India begins by noting the finding by the Appellate Body that 
the essence of 'government' is that it enjoys the effective power to "regulate, control, or supervise 
individuals, or otherwise restrain their conduct, through the exercise of lawful authority."
220 
According to India, the Appellate Body reiterated that this finding was derived, in part, from the 
                                               
220 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 290. WT/DS436/R 
 
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  functions performed by a government and, in part, from the government having the powers and 
authority to perform those functions. According to India, therefore, an entity only constitutes a 
public body if it performs a governmental func tion, and has the powers and authority to perform 
that function.221  
7.69.  India contends that the USDOC failed to conduct the analysis described by the 
Appellate Body.222 India states that the USDOC focused instead on the fact that GOI held a 98% 
shareholding in NMDC.223 According to India, such an approach was condemned by the 
Appellate Body in US – Anti-Dumping and Countervailing Duties (China)  in the following terms: 
the mere fact that a government is the majority shareholder of an entity does not 
demonstrate that the government exercises meaningful control over the conduct of 
that entity, much less that the government has bestowed it with governmental 
authority. In some instances, however, where the evidence shows that the formal 
indicia of government control are manifold, and there is also evidence that such control has been exercised in a meaningful way, then such evidence may permit an 
inference that the entity concerned is exercising governmental authority.
224 
7.70.  India claims that, in focusing on the GOI shareholding in NMDC, the USDOC failed to 
examine whether NMDC has been vested with th e power and authority to perform governmental 
functions; whether NMDC has the power and authority to direct or entrust a private body; and 
whether NMDC is, in fact, exercising governmental functions, i.e. regulate, control, or supervise 
individuals, or otherwise restrain conduct.225 India also contends that the USDOC made no attempt 
to cite any evidence or undertake any analysis as to whether the "indicia of government control" 
was manifold, over and above the mere majority holding of the government, as well as whether 
this control was exercised in any meaningful way. India submits that, as a result, the USDOC's determination that NMDC constitutes a public body is inconsistent with Article 1.1(a)(1) of the 
SCM Agreement. 
7.3.1.2.2  United States 7.71.  The United States' disputes the interpretation of the term "public body" adopted by the 
Appellate Body in US – Anti-Dumping and Countervailing Duties (China) , on which India's claim is 
based. The United States contends that neither India nor the Appellate Body explain why the interpretation of the term public body should be based on the issue of whether an entity performs 
governmental functions, or is vested with, and exercises, the authority to perform such functions. 
The United States submits that, when interpreted according to the customary rules of treaty 
interpretation of public international law pursuant to Article 3.2 of the DSU
226, the term "public 
body" means an entity that is controlled by the government such that the government can use 
that entity's resources as its own. The United States contends that the USDOC's treatment of 
NMDC as a public body is consistent with this approach. 
7.72.  In the alternative, the United States contends that the USDOC's treatment of the NMDC as a 
public body is in any event consistent with the interpretation by the Appellate Body in US – 
Anti-Dumping and Countervailing Duties (China) . The United States rejects India's argument that 
the USDOC's determination that the NMDC is a public body was based solely on a determination that India owned over 98% of the NMDC.
227 According to the United States, record evidence also 
indicates that NMDC has the authority to perform Indian government functions. The United States 
notes in this regard that the USDOC also found that the NMDC, as a state-owned mining company, 
was governed by the GOI's Ministry of Steel.228 The United States points in this regard to record 
                                               
221 India's first written submission, para. 222. 
222 Ibid. para. 222. 
223 Ibid. paras. 232 and 234. 
224 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 318. 
225 India's first written submission, para. 234. 
226 The United States is referring  to Articles 31 and 32 of the Vienna Convention . 
227 India's first written submission, para. 232. 
228 Notice of preliminary results of countervailing duty administrative review, 10 January 2006, 
71 Fed. Reg.  1512 ("2004 Preliminary Results"),  Exhibit IND-17, p. 8, intern al page 1516; Notice of 
preliminary results of countervailing duty admi nistrative review, 9 January 2008, 73 Fed. Reg.  1578 
("2006 Preliminary Results"),  Exhibit IND-32, pp. 9-10, internal pages 1586-1587; Issues and decision 
 WT/DS436/R 
 
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  evidence of NMDC's own website, which declared that the "NMDC was established as a fully owned 
Government of India Corporation in 1958 with the ob jective of developing all minerals other than 
coal, petroleum oil and atomic minerals. NMDC is under the administrative control of the Ministry of Steel & Mines, Department of Steel, Government of India."
229 The United States also asserts 
that during the 2004 review verification, Indian  and NMDC officials explained that the GOI was 
heavily involved in the selection of the direct ors of the NMDC, a few of whom were directly 
appointed by the Ministry of Steel.230 Furthermore, during the 2007 review, GOI further explained 
that it appoints 2 directors and had approval power over an additional 7 directors out of a total of 
13 directors. According to the United States, the USDOC explicitly found that this evidence supported its determinations that the NMDC was "part of the GOI".
231 
7.73.  In addition, the United States notes that the Appellate Body in US – Anti-Dumping and 
Countervailing Duties (China)  s t a t e d  t h a t  " t h e  l e g a l  o r d e r  o f  t h e  r e l e v a n t  M e m b e r  m a y  b e  a  
relevant consideration whether or not a specific entity is a public body."232 The United States 
submits that, in the legal order of India, th e NMDC performs a government function. The 
United States maintains that record evidence in the relevant reviews shows that the Indian 
government, i.e., the state and federal governments,  owns all the mineral resources on behalf of 
the Indian public233, and that the Indian federal government has the final approval of the granting 
of mining leases for iron ore.234 According to the United States, therefore, it is a function of the 
g o v e r n m e n t  o f  I n d i a  t o  a r r a n g e  f o r  t h e  e x p l o i t a t i o n  o f  p u b l i c  a s s e t s ,  i n  t h i s  c a s e  i r o n  o r e .  T h e  United States asserts that the GOI specifically established the NMDC to perform part of this 
function, i.e., "developing all minerals other than coal, petroleum oil and atomic minerals."
235 The 
United States also asserts that, during the USDOC's verification in the 2004 administrative review, 
an official from the Indian Ministry of Steel id entified the NMDC as a strategic company which was 
monitored and reviewed by the government because it provided a specific service to the Indian 
public. The United States submits that, because the NMDC is exploiting public resources on behalf 
of the Indian government, the owner of the reso urces, the NMDC is performing a government 
function in India. 
7.3.1.3  Main arguments of the third parties 
7.3.1.3.1  Australia 7.74.  Australia asserts that the Appellate Body in US – Anti-Dumping and Countervailing Duties 
(China) concluded that a public body is an entity th at possesses, exercises or is vested with 
governmental authority, which is to be determined on a case-by-case basis having regard to all 
the relevant facts, which may point in different directions. Australia considers that the Appellate Body's conclusion suggests that a public body must  meet one of three descriptions – an entity that 
possesses governmental authority, an entity that exercises governmental authority, or an entity 
that is vested with governmental authority. In Australia's view, these descriptions are alternatives to one another and are not cumulative. Australia further submits that one relevant criterion for 
examining a "public body" under Article 1.1(a)(1) of the SCM Agreement should be to what extent  
the government controls the entity. 
                                                                                                                                               
memorandum: final results and partial recession of ad ministrative review, 29 April 2009 ("2007 Issues and 
Decision Memorandum"), Exhibit IND-38, pp. 43-45, comment 10; and Notice of preliminary results of countervailing duty administrative review, 11 January 2010, 75 Fed. Reg.  1496 ("2008 Preliminary Results"),  
Exhibit  IND-40), p. 8, internal page 1503. 
229 New subsidy allegations, 2 May 2005 ("2004 New Subsidy Allegations") , Exhibit USA-69, p. 8, 
internal exhibit 6, page 2. 
230 Verification of the questionnaire responses submitted by the Government of India, 3 January 2006 
("2004 Verification India"), Exhibit USA-66, pp. 5-6. 
231 2007 Issues and Decision Memorandum,  Exhibit IND-38, pp. 43-45, comment 10. 
232 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 297. 
233 The report of the "expert group" on preferential grant of mining leases fo r iron ore, manganese ore 
and chrome ore, attached to the New subsidy allegations (JSW), 23 May 2007 ("DANG Report attached to 2006 New Subsidy Allegations (JSW)"), Exhibit USA-50, internal page 79. (Under Indian law, the state governments owns the minerals in the land, however, for iron ore, which is  listed a Schedule 1 mineral, the 
federal Indian government must  approve all mining leases.) 
234 DANG Report attached to 2006 New Subsidy Allegations (JSW),  Exhibit USA-50, internal page 79. 
235 2004 New Subsidy Allegations , Exhibit USA-69, internal exhibit 6, p. 2. WT/DS436/R 
 
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  7.3.1.3.2  Canada 
7.75.  Canada contends that the appropriate interpretation of the term "public body" is that it is an 
entity controlled by the government. According to Ca nada, such an interpretation is consistent with 
the context of Article 1.1(a)(1) and the ob ject and purpose of the SCM Agreement. 
7.3.1.3.3  China 
7.76.  China submits that the legal interpretation regarding public body developed by the Appellate 
Body in US – Anti-Dumping and Countervailing Duties (China)  should be followed by the Panel in 
this case and should serve as the foundation for any findings regarding the public body 
determination at issue. 
7.3.1.3.4  European Union 7.77.  The European Union submits that the Appellate Body Report in US – Anti-Dumping and 
Countervailing Duties (China)  had to be unconditionally accepted by the parties to that dispute and 
is now part of the acquis  of the WTO dispute settlement system, implying that, absent cogent 
reasons, the same legal question will be resolved in the same way in a subsequent case. The 
European Union asserts that, in that case, the Appellate Body sought a balance between the US 
approach, with its emphasis on ownership and control in general terms and China's approach, with its emphasis on governmental authority and function. 
7.3.1.3.5  Saudi Arabia 
7.78.  Saudi Arabia submits that, for the purp oses of finding the existence of a financial 
contribution under Article 1.1(a)(l) of the SCM Agr eement, a public body must possess, exercise or 
be vested with "governmental authority", which is the power of an entity to command or compel a 
private body. The unique "defining elements" of th e term "government" – "the effective power to 
regulate, control, or supervise individuals, or othe rwise restrain their conduct, through the exercise 
of lawful authority" – also define the term "public body". Saudi Arabia contends that possessing or 
exercising governmental authority is distinct from being owned or controlled by the government, 
and the two concepts are not interchangeable. Sa udi Arabia asserts that a government-owned or 
controlled entity might be a public body, but on ly where the government has delegated to the 
entity the ability to "control or govern the acti ons of a private body". According to Saudi Arabia, 
the government's delegation of authority, not its ownership or control, thus dictates the entity's status as a public body. 
7.3.1.4  Evaluation 
7.79.  India's claim is brought under Article 1.1(a)(1) of the SCM Agreement. That provision refers 
to financial contributions that are provided by any government or "public body". India's claim 
challenges the determination by the USDOC that the NMDC constitutes a "public body". The term 
"public body" was interpreted by the Appellate Body in US – Anti-Dumping and Countervailing 
Duties (China) . The Appellate Body issued its report in that case in March 2011, after the relevant 
USDOC determinations that the NMDC is a public body. India's arguments rely heavily on the 
findings of the Appellate Body in that case, to the point that India asserts that the USDOC's 
analysis "falls short of the test specified by the Appellate Body"
236 in that case. While we are 
required by Article 11 of the DSU to make our own objective assessment of the matter before us, the Appellate Body has affirmed that "[f]ollowing the Appellate Body's conclusions in earlier 
disputes is not only appropriate, it is what would be expected from panels, especially where the 
issues are the same".
237 We therefore begin by reviewing what we consider to be the most 
relevant findings made by the Appellate Body in US – Anti-Dumping and Countervailing Duties 
(China) , in order to consider the extent to which they may offer relevant guidance for our 
objective assessment of India's claim challenging the USDOC's determination that the NMDC is a "public body" in this case. In this regard, we observe the following findings made by the Appellate 
Body: 
                                               
236 India's first written submission, para. 237. 
237 Appellate Body Report, US – Continued Zeroing, para. 362. WT/DS436/R 
 
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  288. As we see it, the juxtaposition of th e collective term "government" on the one 
side and "private body" on the other side, as well as the joining under the collective term "government" of both a "government" in the narrow sense and "any public body" 
in Article 1.1(a)(1) of the SCM Agreement , suggests certain commonalities in the 
meaning of the term "government" in th e narrow sense and the term "public body" 
and a nexus between these two concepts. When Article 1.1(a)(1) stipulates that "a government" and "any public body" are referred to in the SCM Agreement  as 
"government", the collective term "government"  is used as a superordinate, including, 
inter alia , "any public body" as one hyponym. Joining together the two terms under 
the collective term "government" thus implies a sufficient degree of commonality or overlap in their essential characteristics that the entity in question is properly 
understood as one that is governmental in nature and whose conduct will, when it falls 
within the categories listed in subparagraphs (i)-(iii) and the first clause of subparagraph (iv), constitute a "financial contribution" for purposes of the 
SCM Agreement .  
… 290. … As we see it, the[] defining elemen ts of the word "government" inform the 
meaning of the term "public body". This suggests that the performance of 
governmental functions, or the fact of being vested with, and exercising, the authority to perform such functions are core commonalities between government and public body. 
… 
317. Having completed our analysis of the interpretative elements prescribed by 
Article 31 of the Vienna Convention , we reach the following conclusions. We see the 
concept of "public body" as sharing certain attributes with the concept of 
"government". A public body within th e meaning of Article 1.1.(a)(1) of the 
SCM Agreement must be an entity that possesses, exercises or is vested with 
governmental authority. Yet, just as no two governments are exactly alike, the precise 
contours and characteristics of a public body are bound to differ from entity to entity, State to State, and case to case. Panels or investigating authorities confronted with the question of whether conduct falling within the scope of Article 1.1.(a)(1) is that of 
a public body will be in a position to answer  that question only by conducting a proper 
evaluation of the core features of the entity concerned, and its relationship with government in the narrow sense.  
318. In some cases, such as when a statute or other legal instrument expressly vests 
authority in the entity concerned, determining that such entity is a public body may be 
a straightforward exercise. In others, the picture may be more mixed, and the 
challenge more complex. The same entity may possess certain features suggesting it 
is a public body, and others that suggest th at it is a private body. We do not, for 
example, consider that the absence of an express statutory delegation of authority 
necessarily precludes a determination that a particular entity is a public body. What 
matters is whether  an entity is vested with authority to exercise governmental 
functions, rather than how that is achieved. There are many different ways in which 
government in the narrow sense could provide entities with authority. Accordingly, 
different types of evidence may be relevant to showing that such authority has been 
bestowed on a particular entity. Evidence that an entity is, in fact, exercising 
governmental functions may serve as evidence that it possesses or has been vested 
with governmental authority, particularly where such evidence points to a sustained 
and systematic practice. It follows, in our view, that evidence that a government exercises meaningful control over an enti ty and its conduct may serve, in certain 
circumstances, as evidence that the releva nt entity possesses governmental authority 
and exercises such authority in the performance of governmental functions. We 
stress, however, that, apart from an express delegation of authority in a legal instrument, the existence of mere formal links between an entity and government in 
the narrow sense is unlikely to suffice to establish the necessary possession of 
governmental authority. Thus, for example, the mere fact that a government is the majority shareholder of an entity does not demonstrate that the government exercises WT/DS436/R 
 
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  meaningful control over the conduct of that entity, much less that the government has 
bestowed it with governmental authority. In some instances, however, where the evidence shows that the formal indicia of government control are manifold, and there is also evidence that such control has been  exercised in a meaningful way, then such 
evidence may permit an inference that the entity concerned is exercising 
governmental authority. 
319. In all instances, panels and investigating authorities are called upon to engage 
in a careful evaluation of the entity in question and to identify its common features 
and relationship with government in the narrow sense, having regard, in particular, to whether the entity exercises authority on behalf of government. An investigating authority must, in making its determination, evaluate and give due consideration to all 
relevant characteristics of the entity and, in reaching its ultimate determination as to 
how that entity should be characterized, avoid focusing exclusively or unduly on any single characteristic without affording due consideration to others that may be 
relevant.
238 
7.80.  We understand the Appellate Body to have found that the critical consideration in identifying 
a public body is the question of government al authority, i.e. the authority to perform 
governmental functions. In the Appellate Body's  own words, "being vested with governmental 
authority is the key feature of a public body".239 The relevant entity must be shown to have been 
vested with such authority, or to have actually exercised such authority through the performance of governmental functions. To determine whether an entity has governmental authority, an 
investigating authority must evaluate the core features of the entity and its relationship to 
government. Governmental control of the entity is relevant if that control is "meaningful". Indeed, 
the Appellate Body explicitly stated that "evidence that a government exercises meaningful control 
over an entity and its conduct may serve, in cert ain circumstances, as evidence that the relevant 
entity possesses governmental authority and exer cises such authority in the performance of 
governmental functions".
240 
7.81.  India contends that the USDOC's determination that NMDC constitutes a public body is 
based solely on the fact that GOI holds 98%241 of the shares in NMDC and asserts that to be 
inadequate, referring to the Appellate Body's statem ent that "the mere fact that a government is 
the majority shareholder of an entity does not demonstrate that the government exercises 
meaningful control over the conduct of that entity".242 We do not agree with India's understanding 
of the USDOC's determination. In reviewing the USDOC's 2004 administrative review determination, we observe that the USDOC found that "the NMDC is a mining company governed 
by the GOI's Ministry of Steel and that  the GOI holds 98 percent of its shares".
243 This language in 
the USDOC's determination indicates that the USDOC's public body determination is not based solely on the GOI's shareholding in NMDC
244, for it makes clear that the USDOC's determination is 
also based on NMDC being "governed by" GOI. To us, this indicates that the USDOC looked to the 
question of control of NMDC, and thus we consider that the USDOC's determination that the NMDC constitutes a public body was based on considerations of government control as well as government ownership. In this regard, we agree with the Appellate Body that, in certain 
circumstances, a body may be found to be public in nature when it is subject to "meaningful 
control" by governmental, and therefore public, auth orities. We also agree with the Appellate Body 
                                               
238 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , paras. 288, 290 
and 317-319. (footnotes omitted) 
239 Ibid. para. 310. 
240 Ibid. para. 318. 
241 India does not contest the USDOC' s determination that the GOI held just over 98% of the shares in 
the NMDC. 
242 Appellate Body Report,  US – Anti-Dumping and Coun tervailing Duties (China) , para. 318. 
243 2004 Preliminary Results, Exhibit IND-17, p. 5. 
244 We acknowledge that, during the 2007 administrative review, the USDOC stated in its issues and 
decision memorandum that "majority ownership of an  input supplier qualifies [NMDC] as a government 
authority within the meaning of [Section 1677(5)(D)(i))] ," and that "[a]nalyzing additional factors is not 
necessary absent information that calls into question whether government ownership does not mean government control" (2007 Issues and Decision Memo randum, Exhibit IND-38, p. 45). That statement was 
made, though, in light of an earlier assertion that "[t]he NMDC  is governed by the Ministry of Steel and the 
GOI holds the vast majority of its shares" (2007 Issues and Decision Memorandum, Exhibit IND-38, p. 14). WT/DS436/R 
 
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  that "meaningful control" may not be established on the basis of government shareholding alone, 
but a combination of government shareholding plus other factors indicative of control may suffice. We shall therefore examine whether the USDOC's determination amounts to a proper finding that the NMDC is subject to "meaningful control" by the GOI. 
7.82.  The United States submits that
245, in addition to GOI's shareholding in NMDC, the USDOC's 
determination that NMDC is "governed by" the GOI246 is based on record evidence demonstrating 
that: (i) the GOI was heavily involved in the selection of directors of the NMDC, some of whom 
were directly appointed by the Ministry of Steel ; and (ii) the NMDC's own website stated that 
NMDC is under the "administrative control" of GOI. The United States also refers to evidence in the 2007 administrative review that the GOI had reported in a questionnaire response that it appointed two directors and had approval power over  an additional seven out of 13 total directors. 
7.83.  In respect of GOI involvement in the appointment of NMDC's directors, we note that there 
was evidence on the USDOC's record indicating that GOI officials informed USDOC at verification for the 2004
247 administrative review that the NMDC's chairman, or managing director, and 
four functional directors are full-time directors se lected by a Board that is part of the GOI. GOI 
officials also informed the USDOC that there ar e two part-time directors from, and appointed by, 
the Ministry of Steel.248 In addition, the USDOC stated in its Issues and Decision Memorandum for 
the 2007 administrative review: 
The information on the record of the instant review only further bolsters the 
Department's prior determinations that the NMDC is a GOI authority capable of providing a financial contribution within the meaning of section 771(5)(D)(iii) of the 
Act. For example, with regard to the NMDC's 13 board members, information from the 
GOI indicates that it directly appoints tw o members and approves the appointments of 
an additional seven members.
249 
7.84.  India contends that the fact that GOI approves the nomination of NMDC directors "is 
irrelevant to the determination of whether NMDC is a public body or not".250 According to India, 
"shareholding and appointment of directors are mere ly two sides of the same coin". India suggests 
that just as an entity is not a public body simply  because of government shareholding, an entity is 
also not a public body simply because of gove rnment involvement in the appointment of its 
directors. 
7.85.  We disagree with India. In our view, go vernment involvement in the appointment of an 
entity's directors (involving both nomination and direct appointment) is extremely relevant to the 
issue of whether that entity is meaningfully controlled by the government, because government involvement in the appointment of an entity's dire ctors suggests that the relationship between the 
                                               
245 United States' second written submission, paras. 104 and 105. India contends that the United States' 
explanation of the USDOC's determination constitutes ex post  rationalization (India's second written 
submission, paras. 128-138). We disagree. The USDOC's "r ationalization" for its public body determination, 
namely government ownership and the NMDC being "gov erned by" the GOI, is expressly set forth in the 
USDOC's determinations. The United Stat es merely refers to evidence on the USDOC's record to explain that 
rationalization. India also contends that there is no ev idence that the "government directions or policies have 
influenced the transactions or pricing of the products sold by NMDC" (India's second written submission, para. 138). We do not consider that evidence of such influence is required in order for an investigating 
authority to determine that the status of an entity is public rather than private. While such evidence may be relevant in instances of alleged entrustment or directio n of a private body by a government or public body, 
such considerations did not form the basis of the USDOC's finding of financial contribution. 
246 2004 Preliminary Results,  Exhibit IND-17, p. 8, internal page 1516; 2006 Preliminary Results,  
Exhibit IND-32, pp. 9-10, internal pages 1586-1587; and Notice of preliminary results and partial recession of countervailing duty administrative review, 20 December 2008, 73 Fed. Reg.  79791 ("2007 Preliminary 
Results"), Exhibit IND-37, p. 6, internal page 79796. 
247 We note India's argument that the USDOC referred to government in volvement in the composition of 
NMDC's board for the first time in the 2007 administrative review (India's opening statement at the second meeting of the Panel, para. 26). On the basis of record evidence regarding the USDOC's reference to this issue 
in the 2004 administrative review (2004 Verification India , Exhibit USA-66, pp. 5-6), we reject India's 
argument. 
248 2004 Verification India , Exhibit USA-66, pp. 5-6. 
249 2007 Issues and Decision Memorandum, Exhibit IND-38, p. 45. 
250 India's second written submission, para. 137. WT/DS436/R 
 
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  government and that entity is closer than it would be if the government simply held a shareholding 
in that entity. While a government shareholding indicates that there are formal links between the 
government and the relevant entity, government involvement in the appointment of individuals – including serving government officials – to the gove rning board of an entity suggests that the links 
between the government and the entity are more su bstantive, or "meaningful", in nature. Indeed, 
we observe that in  US – Anti-Dumping and Countervailing Duties (China)  the Appellate Body 
implicitly accepted that an investigating authority's determination that certain entities constitute 
public bodies could be based on evidence indicating  that the chief executives of those entities were 
"government appointed", and "the party retain[ed] significant influence in their choice".
251 
7.86.  India also argues252 that the relevance of certain directors being appointed or nominated by 
the GOI is reduced by the fact that in India th e independence of non-governmental directors is 
guaranteed by Clause 49 of the Listing Agreem ent with Stock Exchanges. The United States 
contends that the Listing Agreement had not been  submitted to the USDOC, and should therefore 
not be considered by the Panel. We note that the Listing Agreement is contained in an Annexure to 
NMDC's Annual Report.253 While GOI informed the USDOC that all financial details of the NMDC are 
available at its website, and provided USDOC wi th NMDC's website address, GOI did not provide 
the USDOC with hard copies or screen-prints of any financial documentation posted on that 
website, including the NMDC's Annual Report or any Annexures thereto.254 Since websites are not 
static, it is not reasonable to expect investigating authorities to base their determinations on the contents of a website on any given day.
255 In our view, investigating authorities are entitled to 
require interested parties wishing to refer to website material to submit hard copies thereof. 
Furthermore, although GOI did refer to NMDC's financial details being available on NMDC's website 
in response to a request for NMDC's financial report256, GOI made no specific reference to NMDC's 
Annual Report generally, or Clause 49 of the Listing Agreement in particular, when responding to 
USDOC's questions regarding the role of GOI in NMDC's operations.257 For these reasons, we are 
not persuaded that the USDOC should have taken account of Clause 49 when considering GOI involvement in the appointment of directors. 
7.87.  Regarding the issue of the "administrative control" of the NMDC, we note that petitioners 
submitted hard copies of material taken from th e NMDC's own website stating that "NMDC is under 
the administrative control of the Ministry of Steel & Mines, Department of Steel Government of India."
258 Although the NMDC website does not specify what precisely is meant by "administrative 
control", the fact that an entity is under the "administrative control" of the government suggests 
that the relationship between that entity an d the government is very different from the 
relationship that would normally prevail between a private body and the government. Accordingly, 
in the context of government ownership and government involvement in the appointment of 
directors, such evidence provides additional su pport for a finding that an entity is under the 
"meaningful control" of the government. 
7.88.  India contends that NMDC in fact enjoyed a "significant amount of autonomy" from GOI, as 
a result of having been granted either "Miniratna" or "Navratna" status during the relevant review 
periods.259 India refers in this regard to certain notifications set forth in Exhibits IND-72 1(2) 
and 72 2(1). We note that the first paragraph of the GOI document set forth in 
Exhibit IND-72 1(2) refers to the GOI "[t]urning selected public sector enterprises into global 
                                               
251 Appellate Body Report,  US – Anti-Dumping and Coun tervailing Duties (China) , para. 350. 
252 India's second written submission, para. 137. 
253 Ibid. fn. 189. 
254 Ibid. 
255 We observe India's argument that  the relevant annual reports are pa rt of the static portion of the 
website, and such published annual reports are not chan ged. We are not persuaded by this argument, since 
investigating authorities should not have to trawl through websites in order to ascertain what parts may or may not be subject to change. Websites, or documents linked thereto, may generally be changed at any time, and may even disappear. 
256 Administrative review for the period 01/01/2006 to 31/12/2006, supplemental questionnaire 
response from the Government of India, 2 September 2007 ("2007 Supplemental Questionnaire Response from the GOI for 2006 AR"), Exhibit IND-58, p. 6, concerning GOI's response to Question 2e of USDOC's questionnaire. 
257 2007 Supplemental Questionnaire Response from the GOI for 2006 AR, Exhibit IND-58, p. 4, 
concerning GOI's response to Question 2a of USDOC's questionnaire. 
258 2004 New Subsidy Allegations, Exhibit USA-69, Exhibit 6, p. 2. 
259 India's second written submission, para. 138. WT/DS436/R 
 
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  giants". We also note that the first paragraph of the GOI document set forth in Exhibit IND-72 2(1) 
explains that the greater autonomy referred to by India is granted "to make the public sector more 
efficient and competitive". So long as public sect or enterprises are involved, we are not persuaded 
that the grant of a greater degree of autonomy is necessarily at odds with a determination that 
such public sector enterprises constitute public bodies. India has not suggested that "Miniratna" or 
"Navratna" companies are effectively private in nature. 
7.89.  We recall our assessment that, in certain circumstances, a body may be found to be public 
in nature when it is subject to "meaningful control" by the government. We further recall that 
government shareholding, when combined with other factors, may well be indicative of the government's "meaningful control" of an entity. We consider that the USDOC's determination, when viewed in light of the above-mentioned record evidence, effectively amounted to a 
determination that the NMDC was under the "meaningful control"
260 of GOI.261 Accordingly, we 
reject India's claim that the USDOC's determination that NMDC is a public body is inconsistent with Article 1.1(a)(1) of the SCM Agreement. 
7.3.2  USDOC's finding of de facto  specificity 
7.90.  By virtue of Article 1.2 of the SCM Agreem ent, the Agreement only applies to subsidies that 
are specific. Accordingly, countervailing duties may only be levied on imports that benefit from 
specific subsidies. According to Article 2 of the SCM Agreement, subsidies may be de jure  
(Article 2.1(a) & (b)) or de facto  (Article 2.1(c)) specific. 
7.91.  The USDOC determined in the 2004 administrative review that the NMDC's provision of 
high-grade iron ore is de facto  specific "because the actual recipient of the subsidy is limited to 
industries that use iron ore, including the steel industry, and is thus limited in number".
262 India 
challenges the USDOC's determination of de facto  specificity. The United States asks the Panel to 
reject India's claim. 
7.3.2.1  Relevant WTO provision 
7.92.  Article 2 provides in relevant part: 
2.1 In order to determine whether a subsidy, as defined in paragraph 1 of Article 1, 
is specific to an enterprise or industry or group of enterprises or industries (referred to 
in this Agreement as "certain enterprises") within the jurisdiction of the granting authority, the following principles shall apply: 
(a) Where the granting authority, or the legislation pursuant to which the granting 
authority operates, explicitly limits access to a subsidy to certain enterprises, such 
subsidy shall be specific. 
(b) Where the granting authority, or the legislation pursuant to which the granting 
authority operates, establishes objective criteria or conditions governing the eligibility 
for, and the amount of, a subsidy, specificity shall not exist, provided that the eligibility is automatic and that such criteria and conditions are strictly adhered to. The 
criteria or conditions must be clearly spelled out in law, regulation, or other official 
document, so as to be capable of verification. 
(c) If, notwithstanding any appearance of non-specificity resulting from the 
application of the principles laid down in subparagraphs (a) and (b), there are reasons 
to believe that the subsidy may in fact be specific, other factors may be considered. 
Such factors are: use of a subsidy pr ogramme by a limited number of certain 
enterprises, predominant use by certain enterp rises, the granting of disproportionately 
                                               
260 To avoid any uncertainty, we affirm that this conc lusion is not based on the United States' proposal 
to define a "public body" as an entity  that is controlled by the governme nt such that the government can use 
that entity's resources as its own. (United States' first written submission, para. 286) 
261 Taking this view, we need not and do not addr ess the United States' arguments relating to the 
relevance of India's legal order (and  the performance of government func tion) to this matter. See para. 7.73 
above. 
262 2004 Preliminary Results, Exhibit IND-17, internal page 1516. WT/DS436/R 
 
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  large amounts of subsidy to certain enterprises, and the manner in which discretion 
has been exercised by the granting authorit y in the decision to grant a subsidy. In 
applying this subparagraph, account shall be taken of the extent of diversification of economic activities within the jurisdiction of  the granting authority, as well as of the 
length of time during which the subsidy programme has been in operation. 
… 2.3 Any subsidy falling under the provisions  of Article 3 shall be deemed to be 
specific. 
2.4 Any determination of specificity under the provisions of this Article shall be 
clearly substantiated on the basis of positive evidence. 
7.3.2.2  Main arguments of the parties 
7.3.2.2.1  India 
7.93.  India claims that the USDOC's determination of de facto  specificity is inconsistent with 
Articles 2.1(c) and 2.4 of the SCM Agreement beca use: the USDOC failed to show that the subsidy 
discriminated in favour of "certain enterprises" over a comparative set of other, similarly-situated 
enterprises; the USDOC based its determination of specificity on limitations inherent in the nature of the product; the USDOC failed to establish that the subsidy was used by a limited number of 
certain enterprises; the USDOC failed to examine all the mandatory factors listed in Article 2.1(c); 
and the USDOC failed to determine de facto  specificity on the basis of positive evidence. 
7.3.2.2.1.1  Discrimination in favour of certain enterprises 
7.94.  Noting the reference to "certain enterprise s" in the chapeau of Article 2.1, India submits 
that, in order to demonstrate specificity under any of the three paragraphs of Article 2.1, it is 
necessary to show that the subsidy is available to  certain known and particularized enterprises, as 
opposed to all entities in general.
263 India submits in particular that an investigating authority 
must demonstrate that the subsidy favours certain enterprises over a comparative set of other 
entities that are similarly-situated with regard to their potential/capability to receive the subsidy in question.
264 According to India, there must be a showing of discrimination against a comparative 
set of other entities that would, but for the governmental instrument or conduct, also have had 
access to the subsidy in question.265 
7.95.  India claims that the USDOC failed to identify any comparative set of entities that had been 
discriminated against in terms of eligibility for the alleged subsidy provided by NMDC.266 India 
contends that the USDOC's finding of specificity was not based on any action on the part of NMDC 
or GOI to restrict the sale of iron ore to a limited set of industries.267 India contends that no such 
restrictions were in place, and that the sale of iron ore from NMDC is open to any person willing to 
pay the market price sought by NMDC.268 I n d i a  d e n i e s  t h a t  N M D C  o r  G O I  d i r e c t l y  o r  i n d i r e c t l y  
influences the nature and type of enterprises that may purchase iron ore from NMDC.269 
7.96.  India also submits that the USDOC should have examined specificity under Articles 2.1(a) 
and (b) of the SCM Agreement before proceeding to apply Article 2.1(c).270 
7.3.2.2.1.2  Limitations inherent  in the nature of the product 
7.97.  India submits that, rather than establishing that a comparative set of entities had been 
discriminated against, the USDOC simply relied on the inherent characteristics/attributes of the 
                                               
263 India's first written submission, para. 243. 
264 Ibid. para. 246. 
265 Ibid. para. 248. 
266 Ibid. para. 263. 
267 Ibid. para. 262. 
268 Ibid. para. 264. 
269 Ibid. para. 264. 
270 India's opening statement at the second meeting of the Panel, para. 34. WT/DS436/R 
 
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  product at issue.271 India asserts that as a matter of basic common sense, because of the nature 
of the product, a given raw material may be capable of being used only by certain types of industries, depending on the nature and use of the raw material involved.
272 India contends that 
such inherent limitations concerning the nature of the product cannot directly be changed or 
influenced by government actions. 
7.3.2.2.1.3  USDOC's alleged failure to de monstrate that the subsidy was used by a 
limited number of certain enterprises 
7.98.  India notes that, according to Article 2.1(c)  of the SCM Agreement, a subsidy may in fact be 
specific notwithstanding any appearance of ( de jure ) non-specificity when, inter alia , there is "use 
of a subsidy programme by a limited number of certain enterprises". India contends that the 
USDOC should have shown that the "limited number"  of entities benefiting from the subsidy was 
part of a broader set of "certain enterprises".273 According to India, because the term "certain 
enterprises" is shorthand for the beneficiaries in question, what the United States needs to prove 
is that the programme in question was being used by only a limited number of users within the set 
of beneficiaries. India contends that it is not relevant whether the entire set of beneficiaries was 
limited in number.274 
7.99.  India submits that the USDOC's determination was unclear as to the subsidy being obtained 
by a "limited number" of entities within a broader set of "certain enterprises".275 In particular, 
India contends that it is unclear whether the USDOC considered: (i) that the users of iron ore were the "certain enterprises", and that the subsidy wa s only made available to a "limited number" of 
users within that set; or (ii) that (all) the users of iron ore constitute the "limited number" of 
entities within some broader, but undefin ed, category of "certain enterprises".
276 India submits 
that, as a result of such uncertainty, the USDOC's determination is inconsistent with Article 2.1(c). 
7.3.2.2.1.4  USDOC's alleged failure to examine all mandatory factors listed in 
Article 2.1(c) 
7.100.  India notes that, according to Article 2.1(c) of the SCM Agreement, a finding of de facto  
specificity must take into account "the extent of diversification of economic activities within the 
jurisdiction of the granting authority, as well as of the length of time during which the subsidy 
programme has been in operation".277 India contends that the USDOC failed to take account of 
these two mandatory factors, contrary to Articles 1.2 and 2.1(c).  
7.3.2.2.1.5  USDOC's alleged failure to base it s finding of specificity on positive evidence 
7.101.  India notes that, pursuant to Article 2.4 of the SCM Agreement, "[a]ny determination of 
specificity under the provisions of this Article shall be clearly substantiated on the basis of positive evidence". 
7.102.  India submits that, although the USDOC dete rmined that the sale of iron ore by NMDC was 
de facto  specific since the actual receipt of the subsidy would only be "limited to industries that 
use iron ore, including the steel industry, and is thus limited in number", there is no evidence on 
record indicating that NMDC only made iron ore available to users of iron ore, or that only users of 
iron ore purchased from NMDC.
278 India asserts that the USDOC rather assumed that iron ore was 
being purchased from NMDC only by users of  iron ore. India submits that the USDOC's 
determination was devoid of positive evidence, contrary to Article 2.4. 
                                               
271 India's first written submission, para. 262. 
272 Ibid. para. 264. 
273 Ibid. para. 272. 
274 India's second written submission, para. 182. 
275 India's first written submission, paras. 271-272. 
276 Ibid. paras. 272-273. 
277 Ibid. paras. 274-276. 
278 Ibid. para. 278. WT/DS436/R 
 
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  7.3.2.2.2  United States 
7.103.  As an initial matter, the United States submits that India errs in requesting the Panel to 
find a U.S. measure inconsistent with Article 2.1.279 According to the United States, Articles 2.1(a) 
and 2.1(c) of the SCM Agreement are definitional  provisions that do not contain obligations. 
7.3.2.2.2.1  Discrimination in favour of certain enterprises 
7.104.  The United States rejects India's argument that a determination of specificity can only be 
made with reference to a "comparative set" of "similarly-situated" entities280, with consideration of 
whether the actual use of the subsidy is limited to certain enterprises, i.e., a subset of that 
group.281 The United States submits that Article 2.1( c) of the SCM Agreement does not state that 
specificity can only be found if a subset of similarly situated entities receives the subsidy. Rather, the United States submits that Article 2.1(c) provides that de facto  specificity may be found in light 
of the "use of a subsidy programme by a limited number of certain enterprises."
282 The 
United States asserts that if a limited number of enterprises use the programme, this fact supports a finding of specificity. For the United States, the question a panel or investigating authority must 
answer when considering whether a subsidy programme is used by "a limited number of certain 
enterprises" is whether the "certain enterprises" constitute a discrete segment of the economy.
283 
According to the United States, this assessment is made with respect to the economy of the 
Member concerned (rather than with respect to a broader category of similarly-situated 
enterprises, as alleged by India). In addition, the United States rejects India's argument that specificity should be examined under Articles 2.1(a) and (b) of the SCM Agreement before proceeding to apply Article 2.1(c).
284 
7.3.2.2.2.2  Limitations inherent  in the nature of the good 
7.105.  The United States also disagrees with India's argument that if the inherent characteristics 
of a good, rather than the government programm e, limits the uses of that good to certain 
enterprises, the programme canno t be found to be specific.285 The United States submits that a 
similar argument was rejected by the panel in US – Softwood Lumber IV , when Canada argued 
that the provision of standing timber was not specific because it was the inherent characteristics of 
the standing timber, rather than the Government of Canada, that limited the number of 
enterprises that uses standing timber.286 According to the United States, the panel found that 
Article 2 permits a specificity finding precisely because the use of the good is limited to certain enterprises. 
7.3.2.2.2.3  USDOC's alleged failure to de monstrate that the subsidy was used by a 
limited number of certain enterprises 
7.106.  The United States contends that the positive evidence supporting the USDOC's 
determination that the iron ore programme was us ed by a limited number of certain enterprises 
consists of a list of 43 NMDC customers identified on the NMDC website, most of which were iron and steel companies.
287 The United States also contends that the Dang Report demonstrates that 
the total Indian domestic consumption of iron ore was accounted for by steel producers and pig 
and sponge iron producers288, with the overwhelming majority, approximately 76%, being used by 
steel producers.289 
                                               
279 India's first written submission, para. 641(f)(ii), (g)(iii), and (h)(ii). 
280 Ibid. para. 245-261. 
281 Ibid. para. 261. 
282 SCM Agreement, Art. 2.1(c). 
283 United States' first written submission, para. 402. 
284 United States' response to Panel question No . 70, paras. 109-111; and opening statement at the 
second meeting of the Panel, para. 30. 
285 India's first written submission, paras. 239-279. 
286 The United States refers in this  regard to the Panel Report in US – Softwood Lumber IV , para. 7.116. 
287 2004 New Subsidy Allegations, Exhibit USA-69, p. 4, Exhibit 7. 
288 DANG Report attached to 2006 New Subsidy Allegations (JSW), Exhibit USA-50, internal exhibit 31. 
289 Ibid. WT/DS436/R 
 
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  7.3.2.2.2.4  USDOC's alleged failure to examine all mandatory factors listed in 
Article 2.1(c) 
7.107.  The United States submits that USDOC did account for India's economic diversification and 
the length of time during which the subsidy prog ramme operated. According to the United States, 
the USDOC considered that the facts and circumstances of the challenged specificity determination 
demonstrated that neither of these factors would affect the conclusion that the provision of iron ore was specific.
290 The United States denies that the USDOC was required to address these 
factors explicitly. 
7.108.  The United States contends that the USDOC accounted for the fact that India's economy is 
highly diverse by specifically recognizing a vari ety of Indian industries such as polyethylene 
terephthalate film and resin in the challenged investigation.291 The United States asserts that the 
USDOC also determined that only a limited number of enterprises use iron ore, in contrast to the 
large number of industries in the Indian economy. 
7.109.  The United States submits that the evidence underlying USDOC's specificity findings with 
respect to high-grade iron ore led to the conclu sion that the issue of the duration of that 
programme's operation was not relevant to the subsidy programme at issue. The United States contends that because the USDOC found that "the actual recipient of the subsidy is limited to 
industries that use iron ore, including the steel industry, and is thus limited in number"
292, no 
additional analysis of the duration of the subsidy was necessary. This is because the only industries that could receive the subsidy over time  would still be defined as part of the original, 
limited group of beneficiaries – those that use iron ore. 
7.110.  According to the United States, when record evidence and the circumstances of an 
investigation demonstrate that the issues of diversification and duration of the subsidy would not affect the specificity analysis, and no party argues to the contrary, USDOC is not required to make 
explicit determinations as to those aspects of the de facto  analysis. The United States relies in this 
regard on the finding by the panel in EC – Countervailing Measures on DRAM Chips  that an 
investigating authority need not make explicit findings regarding these considerations when other 
parties fail to raise the issue: "[t]he record does not indicate that the parties ever raised the issue 
that the disproportionate use of the Programme's funds ... was somehow to be explained by the lack of diversification of the Korean economy or the length of time the programme had been in operation. We therefore do not find it unreaso nable that the EC did not include in the Final 
Determination any explicit statement regarding these matters."
293 The United States contends that 
no party challenged USDOC's specificity findings wi th respect to the sale of high-grade iron ore, 
and no party suggested that either limited economic  diversification or the duration of the subsidy 
programme was relevant to the limited number of industries benefiting from that programme.294 
7.3.2.2.2.5  USDOC's alleged failure to base it s finding of specificity on positive evidence 
7.111.  The United States submits that the USDOC's determination of specificity was based on 
positive evidence. The United States refers in th is regard to the above-mentioned evidence (taken 
from the NMDC website and Dang Report) regarding the use of domestic iron ore by iron and steel 
producers. 
                                               
290 See, Panel Report,  EC and certain member States – Large Civil Aircraft , para. 7.975 ("[T]he 
relevance of the[] two factors to understanding whet her there has been 'predominant use {of a subsidy 
programme} by certain enterprises' will depe nd on the particular facts" at issue.) 
291 See, e.g., 2004 Preliminary Results,  Exhibit IND-17 (citing  Notice of Final Affirmative Countervailing 
Duty Determination: Polyethylene Tereph thalate Film, Sheet, and Strip from India , 67 FR 34950 (16 May 2002) 
and Final Affirmative Countervailing Duty Determination: Bottle-Grade Polyethylene Terephthalate (PET) Resin 
from India , 70 FR 13460 (21 March 2005)). 
292 2004 Preliminary Results,  Exhibit IND-17, internal page 1516, unchanged in the final results of 
countervailing duty administrative review, 17 May 2006, 71 Fed. Reg.  28665 ("2004 Review Final Results"), 
Exhibit IND-19, internal page 28667. 
293 Panel Report, EC – Countervailing Measures on DRAM Chips , para. 7.229. 
294 2004 Review Final Results,  Exhibit IND-19, 28667; and issues and decision memorandum: 
final results of administrative review, 10 Ma y 2006 ("2004 Issues and Decision Memorandum"), 
Exhibit IND-18, II. Analysis of Programs, 4. Sale of Hi gh-Grade Iron Ore for Less th an Adequate Remuneration 
and IV. Analysis of Comments. WT/DS436/R 
 
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  7.3.2.3  Main arguments of the third parties 
7.3.2.3.1  Canada 7.112.  Canada disagrees with the interpretation of Article 2.1 of the SCM Agreement suggested by 
India. Canada submits that the ordinary meaning of  the text of Article 2.1 does not require the use 
of "comparative sets" of "similarly-situated entities" in order to determine specificity. According to 
Canada, Article 2.1 is not a non-discrimination obligation, as India seems to suggest. 
7.3.2.3.2  China 
7.113.  China submits that Article 2.1 contemplates an analysis in a manner that the assessment 
of de facto  specificity under Article 2.1(c) must follow the initial appearance of non-specificity 
concluded as a result of the analysis under Arti cle 2.1 subparagraphs (a) and (b). According to 
China, an investigating authority is therefore obliged first to consider the principles set out in 
subparagraphs (a) and (b), and may proceed to the "other factors" under subparagraph (c) only if 
the application of the prior principles under subparagraphs (a) and (b) has led to an appearance of non-specificity. China also considers that a "subsidy programme" must have been identified and 
substantiated when an investigating authority evaluates specificity under the first two "other 
factors" under Article 2.1(c). 
7.3.2.3.3  European Union 
7.114.  The European Union disagrees with India' s argument that Article 2.1(c) pre-supposes an 
appropriate "comparative set" of "similarly situated" firms. Contrary to what India asserts, Article 2.1 is not addressed towards an issue of discrimination : rather, it addresses the issue of 
specificity . 
7.3.2.3.4  Saudi Arabia 
7.115.  Saudi Arabia submits that, when determining de facto  specificity under Article 2.1(c) of the 
SCM Agreement, investigating authorities must take into account the level of diversification of 
economic activities in the exporting country. The explicit diversification requirement of 
Article 2.1(c) obligates investigating authorities to consider the broader economic context in which a subsidy programme operates. Saudi Arabia asserts that de facto  specificity cannot be applied in 
the same way to less diversified developing countries as it would be applied to a fully developed, 
diversified economy. Such an approach would penalize less diversified, developing economies for seeking to diversify and develop in a WTO-consistent manner. That is exactly what the diversification requirement of Article 2.1(c) was de signed to prevent. Saudi Arabia further submits 
that de facto  specificity may not be determined solely on the basis of the inherent characteristics 
of a good or service. First, there is nothing in the text of the SCM Agreement that permits a finding of specificity on this basis. Second, investigating authorities have an affirmative obligation under 
the SCM Agreement to "clearly substantiate" determinations of de facto  specificity on the basis of 
positive evidence relating to the four factors found in Article 2.1(c). Authorities may not avoid this obligation by simply referring to the "inherent characteristics" of a good. Third, this expansive 
interpretation could also render the specificit y determination under Article 2 redundant – the 
investigating authority need only determine (under Article 1) the nature of the "good" which is provided, and that determination would often automatically justify a finding of de facto  specificity. 
Finally, any decision on whether de facto  specificity may be based solely on a good's inherent 
characteristics may not penalize less diversified economies in express violation of Article 2.1(c). 
7.3.2.4  Evaluation 7.116.  Before examining India's claims, we consider the United States' argument that 
Articles 2.1(a) and 2.1(c) are merely definition al provisions, devoid of any legal obligations.
295 We 
                                               
295 United States' first written submission, para. 389. WT/DS436/R 
 
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  also consider India's argument that the USDOC should have examined specificity under 
Articles 2.1(a) and (b) of the SCM Agreement before applying Article 2.1(c).296 
7.3.2.4.1  Are Articles 2.1(a)  and (c) merely definitional? 
7.117.  The United States submits that Article 2.1 is definitional, and does not contain obligations. 
The United States submits, therefore, that ther e can be no finding of inconsistency with that 
provision. 
7.118.  We acknowledge that Article 2 defines th e scope of subsidies that are subject to the 
disciplines of the SCM Agreement. We also acknow ledge that the Appellate Body emphasised that 
Article 2.1 imposes "principles" rather than "rules".297 That being said, we note that Article 2.4 
refers to a "determination" of specificity being made under the provisions of Article 2. Except in situations envisaged by Article 2.3, such determination is made – explicitly or implicitly – every 
time that a Member finds that a subsidy falls with in the scope of the SCM Agreement. In our view, 
a panel may reasonably find that such "determinati on" is either consistent, or inconsistent, with 
the principles set forth in Article 2.1(a)-(c). We note that, consistent with this approach, the 
Appellate Body in  US – Anti-Dumping and Countervailing Duties (China)
298 upheld the panel's 
finding that the United States had not acted inconsistently with its obligations under Article 2.1(a). Implicit in the Appellate Body's finding is a determination that Article 2.1(c) does contain legal 
obligations that a Member may be found not to have complied with. 
7.3.2.4.2  Sequential application of sub-pa ragraphs (a), (b) and (c) of Article 2.1 
7.119.  Regarding India's argument that the USDOC should have examined specificity under 
Articles 2.1(a) and (b) of the SCM Agreement before applying Article 2.1(c), we observe that, the 
Appellate Body has stated that the sub-paragraphs of Article 2.1 need not be applied sequentially 
in all cases. The Appellate Body explicitly "recognize[s] that there may be instances in which the evidence under consideration unequivocally indicates specificity or non-specificity by reason of law, 
or by reason of fact, under one of the subparagraphs, and that in such circumstances further 
consideration under the other subparagraphs of Article 2.1 may be unnecessary".
299 We note that 
there is no suggestion in the USDOC's determinations that the provision of iron ore by the NMDC 
was restricted by law. Nor has India suggested that this would have been a relevant consideration. 
Accordingly, we consider that the USDOC was entitled to proceed directly to consider, in the context of Article 2.1(c), whether the provision of the NMDC's iron ore was restricted in fact. 
7.3.2.4.3  Discrimination in favour of certain enterprises 
7.120.  India submits that a subsidy can only be specific if it discriminates, in terms of access or 
eligibility, between similarly-situated entities. India's discrimination argument is based on a statement by the Appellate Body in US – Anti-Dumping and Countervailing Duties (China) that the 
principles set forth in Articles 2.1(a) and (b) concern the issue of whether the "conduct or 
instruments of the granting authority discriminate or not".
300 India contends that there cannot be 
discrimination "unless there are entities other than the 'certain enterprises' that would have, but 
for the governmental instrument or conduct, had access to the subsidy in question".301 India 
contends that "a conclusion that a program is specific to 'certain enterprises' under Articles 2.1(a) and (b) can only be reached in the context of a 'comparative set', whereby an investigating authority can determine that the subsidy only benefits 'certain enterprises' over this 'comparative 
set'". According to India, this "comparative set" "must consist of 'similarly-situated' entities, i.e. 
entities that share a mutual or common relation/degr ee of similarity as the 'certain enterprises' in 
question, such that entities covered thereby woul d have otherwise been capable of receiving the 
subsidy in question".
302 India contends that the same approach must also apply to de facto  
                                               
296 India's opening statement at the second meeting of the Panel, para. 34. 
297 Appellate Body Report,  US – Anti-Dumping and Coun tervailing Duties (China) , para. 366. 
298 Ibid. para. 401.  
299 Ibid. para. 371. 
300 Ibid. para. 367. 
301 India's first written submission, para. 248. 
302 Ibid. para. 250. WT/DS436/R 
 
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  specificity under Article 2.1(c), since all three sub-paragraphs of Article 2.1 are all concerned with 
the same issue, namely specificity.303 
7.121.  We are not persuaded by India's argument. Article 2.1(a), which deals with de jure  
specificity, provides that a subsidy shall be specific when the granting authority or relevant legal 
instrument "explicitly limits access to a subsidy to certain enterprises". Article 2.1(c), in respect of 
de facto  specificity, similarly provides that a subsidy shall be specific inter alia  when a subsidy 
programme is "use[d] … by a limited number of certain enterprises". These two provisions 
complement one another. Article 2.1(a) concerns limitations on access to subsidies that exist in 
law. Article 2.1(c) concerns limitations on access that are not expressly provided for in legal instruments, but whose existence may nevertheless be determined by reference to facts. In both 
cases, what matters is the existence of a restrictio n on access to the subsidy, in the sense that the 
subsidy is available to certain enterprises, industries, or groups of enterprises or industries, but 
not to others. The entities with access to the subs idy are referred to in the chapeau to Article 2.1 
as "certain enterprises". Once access to the subsidy is shown to be limited to those "certain 
enterprises" (either de jure  or de facto ), the subsidy is specific. There is no requirement to show 
that the subsidy is at the same time not available to other, undefined  – but similarly situated – 
entities. Article 2.1 simply makes no provision for such requirement. The focus of Article 2.1 is on 
the "certain enterprises", and their limited access to the subsidy. Article 2.1 is not concerned with 
other enterprises, and whether or not such othe r enterprises have been discriminated against. 
7.122.  By limiting access to a subsidy to certai n enterprises, a Member will necessarily prevent 
other enterprises from also accessing that subsidy. This goes without saying, since any restriction 
on access to a subsidy implies that access will be denied to other enterprises. If other enterprises 
were not deprived access to the subsidy, that su bsidy would be generally available, and therefore 
not "specific" within the meaning of Article 2.1 of  the SCM Agreement. The point, though, is that 
Article 2 is not concerned with the identity or nature of the excluded entities. Thus, if a law limits 
access to a subsidy to steel producers, specificity may be established pursuant to Article 2.1. Article 2.1 is not concerned with the entities that are implicitly excluded from access to that 
subsidy. In particular, Article 2.1 is not concerned with whether the excluded entities are 
aluminium producers, refrigerator producers or farmers. Nor is Article 2.1 concerned with the issue of whether the excluded entities are like, or simi larly situated, to the steel producers who do have 
access. 
7.123.   Although India states that "a finding of specificity cannot arise simply because a subsidy is 
made available to certain enterprises rather than the entire economy", this is precisely what the text of Article 2.1 provides. Let us recall in this regard that Article 2.1(a) applies when a legal 
instrument "explicitly limits access to a subsidy to  certain enterprises". Thus, once the subsidy is 
made available to certain enterprises only, the text of Article 2.1(a) requires that such a subsidy shall be found to be specific.
304 There is no requirement in Article 2.1(a) to conduct any further 
analysis regarding the nature of the entities to which the subsidy is not made available. As 
explained above, the same applies in respect of specificity established pursuant to Article 2.1(c). 
7.124.  Furthermore, we observe that Article 2 contains no reference to the notion of 
"discrimination". The basis for India's argument regarding discrimination reposes rather on a 
statement made by the Appellate Body in US – Anti-Dumping and Countervailing Duties (China)  to 
the effect that the principles set forth in Articles 2.1(a) and (b) concern the issue of whether the "conduct or instruments of the granting authority discriminate or not".
305 Given our review of the 
text of Article 2.1, we are not persuaded that the Appellate Body's solitary306 use of the term 
"discriminate" suggests that Article 2.1 should be  interpreted in the manner suggested by India. 
This is because there is no suggestion in the Appellate Body's analysis or findings that, having 
determined that access to a subsidy is limited to certain enterprises, an investigating authority 
must also determine that access is denied to other, similarly situated entities. Thus, when 
                                               
303 India's first written submission, para. 258. 
304 We observe that India itself states  that the question addressed by a ll sub-paragraphs of Article 2.1 is 
"whether a given subsidy is specific to certain enterprises" (India's second written submission, para. 172). Thus, even India acknowledges that specificity is determined in relation to "certain enterprises", rather than some sub-category thereof. 
305 Appellate Body Report, para. 367. 
306 Having made the above-mentioned statement, the Appellate Body in  US – Anti-Dumping and 
Countervailing Duties (China)  makes no further reference to the concept of discrimination. WT/DS436/R 
 
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  interpreting Article 2.1(a), the Appellate Body found that "a subsidy is specific under Article 2.1(a) 
of the SCM Agreement  when the explicit limitation reserves access to that subsidy to 'certain 
enterprises'".307 The Appellate Body did not state that a subsidy is specific when access is reserved 
to "certain enterprises", and access is denied to other similarly situated entities . Furthermore, 
when reviewing the panel's evaluation of the investigating authority's determination of specificity, 
the Appellate Body concluded that the panel's acknowledgment that the investigating authority's determination "that the alleged subsidy was explicitly limited" by certain documents was "a proper 
and a sufficient basis for the Panel to conclude that the USDOC had not acted inconsistently with 
Article 2.1(a) of the SCM Agreement  in determining [that the relevant programme] was de jure  
specific".
308 Again, there is no suggestion by the Appella te Body that, in addition to determining 
that access to the subsidy was limited to "certain enterprises", the investigating authority should 
also have determined that access was denied to other, similarly situated entities. Thus, there is no 
meaningful support for India's discrimination argument in the findings of the Appellate Body in US – Anti-Dumping and Countervailing Duties (China) .  
7.125.  Further, in cases where the "certain ente rprises" represent the totality of an industry, a 
requirement that the recipient of a financial contribution must be compared to a "comparative set" of "similarly situated entities" would make little, if  any, sense. Assuming the industry is defined by 
the products it produces, there will generally be no "similarly-situated" entities that the relevant 
industry could be part of. In such cases, the "similarly-situated" entities and the "certain 
enterprises" would be the same, such that it would not be possible to establish that similarly situated entities were excluded from the subsidy. While India's approach to specificity would 
suggest that specificity could not be established in such circumstances, such approach is clearly at 
odds with the plain language of Article 2.1 as discussed above. 
7.126.  For all of the above reasons, we reject India's argument that specificity under Article 2 
must be established on the basis of discrimination in favour of "certain enterprises" against a 
broader category of other, similarly situated entities. 
7.3.2.4.4  Limitations inherent in the nature of the product 
7.127.  India contends that the USDOC's determination of de facto  specificity, based on entities 
that use iron ore being limited in number, can only be justified if the 'comparative set' of excluded entities comprises the entire economy of India.  According to India, "considering the entire 
economy as the 'comparative set', including industries and enterprises that are inherently 
incapable of using iron ore, results in the automatic and mechanistic application of the specificity 
requirement, thereby robbing it of its value and purpose", since it "will result in an affirmative finding of de facto  specificity in all cases where the government is involved in providing raw 
materials".
309 India submits that specificity should not be established on the basis of limited use 
under Article 2.1(c) in cases where, because of th e nature of the subsidized product, the use of 
that product is necessarily restricted to a limited number of entities.  
7.128.  In accordance with Article 32 of the Vienna Convention, supplementary material may be 
used to assist in interpretation of the terms of a treaty "to confirm the meaning resulting from the 
application of Article 31" or to determine the meaning if the interpretation according to Article 31 "(a) leaves the meaning ambiguous or obscure; or (b) leads to a result with is manifestly absurd 
or unreasonable." In this context, India refers to the Second Cartland Draft circulated in the 
Negotiating Group on Subsidies and Countervailing Measures in September 1990, in which the concept of de facto  specificity was enunciated in draft Articles 4.1(c) and (d):  
(c) Where discretion is exercised in the cour se of the administration of a subsidy, 
specificity shall not be deemed to exist if there is a clear indication, substantiated on the basis of positive evidence, that discretion has not been exercised so as to limit 
access to the subsidy to certain enterprises or to award amounts of subsidy so as to 
direct the subsidy to certain enterprises. In this regard, information on the frequency with which applications for the subsidy are refused and the reasons for such refusal shall, in particular, be considered. 
                                               
307 Appellate Body Report,  US – Anti-Dumping and Coun tervailing Duties (China) , para. 373. 
308 Ibid. para. 393. 
309 India's first written submission, para. 264. WT/DS436/R 
 
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  (d) A subsidy may be specific in fact if it can be demonstrated, on the basis of facts 
which were known - or should have been known - to the granting authority at the time of establishment of the subsidy programme, that the subsidy would be limited to certain enterprises.*** 
***It remains for signatories  to address the issue of limited access as a result of the 
inherent characteristics of goods, services or  extraction or harvesting rights provided 
by a government .
310 
7.129.  According to India, the absence of the asterisked footnote in the final text of the 
SCM Agreement shows that "there was no consensus among the negotiating members on the issue of determining specificity based solely on the inhe rent characteristics of the goods". According to 
India, Article 2.1(c) of the SCM Agreement cannot be interpreted in a manner that would indirectly 
incorporate into the treaty what the negotiators could not originally agree on. 
7.130.  We are not persuaded by India's arguments. Regarding India's reliance on the 
above-mentioned negotiating history, we first note that such negotiating history would only 
become relevant if the Panel were to conclude that the interpretation set out in the preceding 
sub-section "(a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable." This is not the case here. As explained above, our 
interpretation of Article 2.1(c), based on the text , in its context and in view of the object and 
purpose of the provision, is clear and is contrary to India's position. Second, the fact that negotiators reserved the right to consider "the i ssue of limited access as a result of the inherent 
characteristics of goods", but ultimately did not include any provisions regarding this issue in the 
final version of the SCM Agreement, does not, as India argues, require the conclusion that 
negotiators could not agree to include a provision concerning specificity based on the inherent characteristics of goods. It, in our view, may suggest that negotiators addressed the issue, and 
concluded that no such provision was necessary. What is clear, is that the SCM Agreement, as 
agreed by Members, does not provide for any special regime in cases where access to a subsidy is limited by the inherent characteristics of goods.  
7.131.  In terms of India's broader argument, we recall our earlier findings to the effect that once 
it is established that access to the subsidy is limited, that subsidy is specific within the meaning of Article 2. Thus, if access is limited by virtue of the fact that only certain enterprises may use the subsidized product, the subsidy is specific. As explained above, there is no need for a further 
consideration regarding the nature of the excluded entities. Similarly, there is no need, in such 
cases, to establish that the excluded entities would also have been able to use the subsidized product. We note that a similar issue was addressed by the panel in US – Softwood Lumber IV , 
reaching essentially the same conclusion: 
We first address Canada's argument that a subsidy is specific only when the authority 
deliberately limits access of this subsidy to certain enterprises within the group of 
enterprises eligible or naturally apt to use the subsidy. In our view, Article 2 
SCM Agreement is concerned with the distortion that is created by a subsidy which either in law or in fact is not broadly available. While deliberate action by a government to restrict access to a subsidy that is in principle broadly available, 
through the use of discretion, could well be the basis for a finding of de facto  
specificity, we see no basis in the text of Article 2, and 2.1 (c) SCM Agreement in particular, for Canada's argument that if the inherent characteristics of the good 
provided limit the possible use of the subsidy to a certain industry, the subsidy will not 
be specific unless access to this subsidy is limited to a sub-set of this industry, i.e. to certain enterprises within the potentia l users of the subsidy engaged in the 
manufacture of similar products. Article 2 speaks of the use by a limited number of 
certain enterprises or the predominant use by  certain enterprises, not of the use by a 
limited number of certain eligible  enterprises. In the case of a good  that is 
provided by the government  - and not just money, which is fungible – and that 
has utility only for certain enterp rises (because of its inherent 
characteristics), it is all the more likely that a subsidy conferred via the 
provision of that good is specifically  provided to certain enterprises only . We 
                                               
310 Document MTN/GNG/NG10/W/38/Rev.1, 4 September 1990. (emphasis added) WT/DS436/R 
 
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  do not consider that this would imply that any provision of a good in the form of a 
natural resource automatically would be specific, precisely because in some cases, the goods provided (such as for example oil, gas, water, etc.) may be used by an indefinite number of industries. This is not the situation before us. As Canada 
acknowledges, the inherent characteristics of  the good provided, standing timber, limit 
its possible use to "certain enterprises" only.
311 
7.132.  We agree with this reasoning, which we consider to be consistent with our approach 
outlined above.  
7.133.  For the above reasons, we reject India's argument that if the inherent characteristics of 
the subsidized good limit the possible use of the subsidy to a certain industry, the subsidy will not be specific unless access to this subsidy is further limited to a sub-set of this industry. 
7.3.2.4.5  USDOC's alleged failure to demonstr ate that the subsidy was used by a limited 
number of certain enterprises 
7.134.  India submits that because the term "certain enterprises" is shorthand for the beneficiaries 
in question, the USDOC needed to prove that the programme was being used by only a limited 
number of users within this set of beneficiaries.
312 India submits that it is not relevant whether the 
entire set of "certain enterprises" was limited in number.  
7.135.  India's argument is based on a proposed  distinction between "users" and "beneficiaries" 
that is not provided for in Article 2.1(c) of th e SCM Agreement. As we explain above, Article 2.1 
refers to "certain enterprises". Article 2.1 does not refer to other "users" of the relevant subsidy programme. Nor does it refer to "certain enterprises" as "beneficiaries". Furthermore, as explained 
above, Articles 2.1(a) and (c) are concerned with situations where access to a subsidy is limited to 
the same category of "certain enterprises". An authority may determine that a subsidy is specific – in the sense that access to that subsidy is limited to "certain enterprises" – pursuant to 
Article 2.1(c) by relying on the fact that the number of "certain enterprises" using the subsidy is 
limited. It is the category of "certain enterprises" that is relevant for this numerical exercise, just as it is the category of "certain enterprises" that is relevant for the purpose of Article 2.1(a). 
Accordingly, there was no obligation on the USDOC to establish that only a "limited number" within 
the set of "certain enterprises" actually used the programme. 
7.3.2.4.6  USDOC's alleged failure to examine all mandatory factors listed in 
Article 2.1(c) 
7.136.  The text of Article 2.1(c) expressly requ ires that, in the context of a determination of 
de facto  specificity, "account shall be taken" of the extent of diversification of the relevant 
economy and the length of time that the relevant programme has been in operation. Our 
evaluation of the USDOC's compliance with that requirement must be based on the USDOC's 
determinations, and other contemporaneous USDOC documents. In reviewing USDOC's determinations, we see nothing to indicate that the USDOC did actually take account of the 
two factors identified by India. Nor has the United States pointed us to any other 
contemporaneous document in which the USDOC did so. Accordingly, we find that the USDOC failed to comply with the Article 2.1(c) requirement to take those factors into account when determining whether the provision of goods by NMDC is de facto  specific.  
7.137.  We note the United States' argument that the USDOC accounted for the fact that India's 
economy is highly diverse by specifically recogn izing a variety of Indian industries such as 
polyethylene terephthalate film and resin in the challenged investigation.
313 However, this 
argument merely alludes to a number of references made by the USDOC to prior proceedings in 
which the United States imposed trade remedies on imports from India. The USDOC referred to 
                                               
311 Panel Report, US – Softwood Lumber IV , para. 7.116. (bold emphasis added) 
312 India's second written submission, para. 182. 
313 See, e.g., 2004 Preliminary Results, Exhibit IND-17, internal pages 1513-14 (citing  Notice of Final 
Affirmative Countervailing Duty Determination: Polyethy lene Terephthalate Film, Sh eet, and Strip from India , 
67 FR 34950 (16 May 2002) and Final Affirmative Countervailing Duty Determination: Bottle-Grade 
Polyethylene Terephthalat e (PET) Resin from India , 70 FR 13460 (21 March 2005)). WT/DS436/R 
 
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  these proceedings in order to address issues totally unrelated to its determination of de facto  
specificity.314 Furthermore, we do not consider that isolated references to a limited number of prior 
trade remedy proceedings involving imports from a Member is necessarily sufficient to establish the economic diversity of that Member. Accordingly, we are unable to accept that such references 
suffice to demonstrate that the USDOC took into account the economic diversification of India for 
the purpose of Article 2.1(c). 
7.138.  We also note the United States' argument that the evidence underlying USDOC's specificity 
findings with respect to high-grade iron ore led to  the conclusion that the issue of the duration of 
that programme's operation was not relevant to the subsidy programme at issue. The United States contends that because the USDOC found that "the actual recipient of the subsidy is limited to industries that use iron ore, including the steel industry, and is thus limited in 
number"
315, no additional analysis of the duration of  the subsidy was necessary. Since there is no 
statement to this effect in the USDOC's determinations, nor in any contemporaneous documentation, we are unable to take this argument into account when considering whether or not 
the USDOC complied with the requirements of Article 2.1(c). 
7.3.2.4.7  USDOC's reliance on positive evidence 7.139.  We recall that the USDOC determined that the provision of iron ore by the NMDC is specific 
because provision is "limited to industries that use iron ore, including the steel industry".
316 India 
claims that there was no evidentiary basis for the USDOC's finding that NMDC only made iron ore available to users of iron ore, or that only users of iron ore purchased from NMDC. 
7.140.  In response to India's argument, the Unit ed States refers to evidence on the USDOC's 
record regarding NMDC's customer base. This evidence is set forth in Exhibit USA-69, and 
concerns a list of 43 customers enumerated in a document posted on the NMDC's website.
317 The 
United States contends that most of these custom ers are iron and steel companies. India does not 
dispute this. Our own review of the evidence refe rred to by the United States indicates, on the 
basis of the relevant companies' names, that many of the companies enumerated in the above-mentioned list are indeed concerned with the iron and steel business. Accordingly, and 
particularly in light of India's failure to disput e the United States' categorization of the NMDC's 
customers, we find that there is no factual basis for India's Article 2.4 claim that the USDOC's determination of de facto  specificity was not based on positive evidence. 
7.3.3  USDOC's determination of the existe nce and quantum of benefit: Article 14 
7.141.  India's claims relate to the USDOC's determinations that, by providing iron ore for less 
than adequate remuneration, the NMDC conferred a benefit on its customers. India submits that, in assessing the existence and quantum of benefit in the 2006, 2007 and 2008 administrative 
reviews, the USDOC violated Articles 1.1(b) and 14(d) of the SCM Agreement because: the USDOC 
used price benchmarks to assess benefit to the reci pient, without first considering the adequacy of 
the remuneration for NMDC; the USDOC failed to apply certain Tier I benchmarks; the USDOC 
used benchmark prices adjusted for delivery charges; and the USDOC excluded NMDC export 
prices from the world benchmark price. The United States asks the Panel to reject India's claims. 
7.3.3.1  Relevant WTO provision 7.142.  Article 14(d) of the SCM Agreement is set forth above.
318 Article 1.1(b) of the 
SCM Agreement provides that a subsidy may only be deemed to exist if "a benefit is … conferred" 
by the relevant financial contribution. 
7.143.  Our evaluation of India's claims also requir es us to consider Article 12.4 of the SCM, which 
provides: 
                                               
314 2004 Preliminary Results, Exhibit IND-17, internal pages 1513-14. 
315 Ibid. internal pages 1516, unchanged in 2004 Revi ew Final Results; and Exhibit IND-19, internal 
page 28667. 
316 2004 Preliminary Results, Exhibit IND-17, internal page 1516.  
317 2004 New Subsidy Allegations, Exhibit USA-69, p. 4, internal exhibit 7. 
318 See para. 7.12 above. WT/DS436/R 
 
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  Any information which is by nature confidential (for example, because its disclosure 
would be of significant competitive advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom the supplier acquired the information), or 
which is provided on a confidential basis by parties to an investigation shall, upon 
good cause shown, be treated as such by the authorities. Such information shall not be disclosed without specific permission of the party submitting it. 
7.3.3.2  USDOC's use of benchmark price comp arisons to assess benefit to the recipient, 
without first considering the adequacy of the remuneration for NMDC 
7.3.3.2.1  Main arguments of the parties 7.144.  India submits that, because of the hier archical preference for using Tier I and II 
benchmark comparisons set forth in Section 351.511(a)(2)(i)-(iii), the USDOC acted inconsistently 
with Article 14(d) by failing to determine whether the price charged by NMDC was adequate for NMDC itself, prior to applying the Tier I and II be nchmarks to determine benefit to the recipient. 
India submits that USDOC ignored record evidence indicating that NMDC's prices were based on 
commercial considerations, such that the revenue received by NMDC was adequate. 
7.145.  The United States asks
319 the Panel to reject India's claim, for the same reasons that it 
asks the Panel to reject India's "as such" claim discussed above. 
7.3.3.2.2  Evaluation 7.146.  We recall that we have already rejected India's claim of inconsistency of 
Section 351.511(a)(2)(i)-(iii) "as such". India's present claim concerns 
Section 351.511(a)(2)(i)-(iii) "as applied". India's present claim is dependent on its "as such" 
claim.
320 For the same reasons that we rejected India's "as such" claim, we also reject India's 
claim against Section 351.511(a)(2)(i)-(iii) "as applied". 
7.3.3.3  USDOC's treatment of Tier I benchmarks 
7.147.  India claims that the USDOC acted inconsistently with Article 14(d) by failing to apply 
certain Tier I, i.e. in-country, benchmarks to assess sales by the NMDC of high grade iron ore 
lumps and fines, despite a preference for in-country benchmarks being set forth in Article 14(d). 
There are two elements to India's claim. First, India claims that the USDOC failed, in the 2006, 2007 and 2008 administrative reviews, to consider the use of domestic price information submitted by Tata and GOI during the 2006 administrative review. Second, India challenges the 
USDOC's refusal to apply the in-country benchmark it determined for ISPAT to other Indian steel 
producers. 
7.3.3.3.1  USDOC's alleged failure to consid er domestic price information submitted by 
Tata and GOI 
7.3.3.3.1.1  Main arguments of the parties 7.148.  India's claim concerns (i) price charts submitted by GOI and Tata, that were compiled by 
the Mine Owners/Goa Mineral Ore Exporters Association, and (ii) a letter submitted by Tata in 
which a private iron ore supplier quotes existing and revised prices for sales of high grade iron ore to Tata.
321 
                                               
319 United States' first written submission, para. 438. 
320 India's first written submission, para. 283. 
321 Ibid. para. 287. The price charts submitted by GOI an d Tata are set forth in Administrative review for 
the period 01/01/2006 to 31/12/2006, Government of India's questionnaire response to supplemental questionnaire, 8 February 2008 ("2008 Supplemental Qu estionnaire Response from the GOI for 2006 AR"), 
Exhibit IND-61; Tata's responses for  questionnaires issued on 11 January 2008 and 18 January 2008 ("2008 Questionnaire Responses from Tata"), Exhibit IND-67; and Ce rtification of service of verification exhibits and 
 WT/DS436/R 
 
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  7.149.  India claims that the USDOC improperly failed to use the above-mentioned price charts 
and price quote as Tier I benchmarks, and opted to use Tier II (out-of-country) benchmarks instead. India submits that the USDOC simply failed to consider the use of the relevant domestic price information as potential Tier I benchmarks, and failed to provide the reasons for doing so.
322 
India contends that the United States' attempts to justify USDOC's rejection of this data during the 
Panel proceedings constitute ex post  rationalizations that should be rejected in limine . 
7.150.  The United States rejects India's assertion that the USDOC should have used the price 
data submitted by GOI and Tata as Tier I benchmarks. With respect to the price charts, the 
United States contends that, because the parties involved in the transactions are generally not identified in the charts, there was no way to de termine if the prices were in fact private or 
governmental. The United States asserts that, of th e three parties that are identified in the charts, 
two are state-owned companies (MML and Orissa). Th e United States also contends that there was 
no record evidence or explanation provided in or accompanying the charts to demonstrate that the prices represented actual private market transactions, as required by US law. Further, the 
United States contends that the specific percentage of iron ore content is not identified in the data. 
The United States asserts that this is an important factor in assessing the value of iron ore.  
7.151.  With respect to the price quote provided by  Tata, the United States submits that this could 
not be used as a Tier I benchmark because it is a proprietary document containing confidential 
information. The United States asserts that the price quote provided by Tata was "easily 
susceptible to disclosure"
323, since the data were so limited in scope that if USDOC used it as a 
benchmark, the proprietary numbers provided in the quote could be reverse calculated by the 
companies to which that benchmark was subsequently applied. 
7.152.  The United States denies that it is relying on ex post  rationalizations to defend the 
USDOC's rejection of relevant domestic price information. The United States contends that the 
USDOC was not required to make any determination regarding the potential use of the price data 
as Tier I benchmarks as "none of the parties argued that the information contained in the association chart should be used in calculating the appropriate benchmarks".
324 The United States 
further contends that the arguments now characterized by India as ex post  rationalizations were 
merely made by the United States in response to arguments raised by India in its first written submission. 
7.3.3.3.1.2  Evaluation 
7.153.  Before addressing the parties' substantive arguments, we first address India's argument 
that the rationalization provided by the United States for the USDOC not using the price information proffered should be rejected by the Panel because it was provided ex post . 
Whether the United States' arguments constitute ex post  rationalization 
7.154.  It is well established that a Member may not offer during dispute settlement proceedings a 
new rationale for its investigating authority's determinations. For example, the Appellate Body 
noted in US – Tyres (China)  that it "has previously clarified that a panel's examination of the 
conclusions of an investigating authority 'must be critical and searching, and be based on the information contained in the record and the explanations given by the authority in its published report.' The Appellate Body has also clarified that during panel proceedings a Member is precluded 
from providing an ex post rationale to justify the investigating authority's determination".
325 An 
investigating authority's determinations must be evaluated in light of the rationale provided contemporaneously by that investigating authority. We note, in this regard, that there is no 
reference to the domestic price data at issue in the USDOC's preliminary or final determinations, or 
in any other contemporaneous USDOC document , even though (as acknowledged by the 
                                                                                                                                               
minor corrections, 17 March 2008 ("Tata Verification Exhibits"), Exhibit IND-70, p. 24. The price quote 
submitted by Tata is set forth in Tata  Verification, Exhibit IND-70, p. 23. 
322 India's first written submission, paras. 288 and 289. 
323 United States' first written submission, para. 445. 
324 United States' second written submission, para. 53. 
325 Appellate Body Report, US – Tyres (China) , para. 329. (footnotes omitted) WT/DS436/R 
 
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  United States326) domestic prices "are the primary benchmark"327 for assessing the adequacy of 
remuneration. Nor is there any explanation by the US DOC of why it applied Tier II instead of Tier I 
benchmarks. Indeed, there is nothing contemporaneous with the determinations to suggest that the USDOC actually rejected the domestic price data for the reasons presented by the 
United States during these proceedings. 
7.155.  The United States contends that the USDOC was not required to make any determination 
regarding the potential use of the price data as Ti er I benchmarks as "none of the parties argued 
that the information contained in the association chart should be used in calculating the 
appropriate benchmarks".
328 In considering this argument, we note that the United States 
acknowledges that domestic price information was requested by the USDOC for benchmarking purposes.
329 Given the context in which the information was requested, and supplied by interested 
Indian parties, we consider that those parties submitting that information could reasonably have 
expected that it would be used, or at least considered, for the purpose of establishing Tier I benchmarks. In this context, the United States' argument that interested parties did not expressly 
assert that the relevant information should be used for benchmarking purposes is unpersuasive. 
7.156.  For these reasons, we find that the United States' explanation of the USDOC's rejection of 
certain domestic price information for Tier I benchmarking purposes constitutes ex post  
rationalization, which we are bound not to consider when evaluating India's claim. 
Whether India has established a prima facie  case in support of its claim 
7.157.  Our finding that the United States has advanced ex post  rationalizations in support of 
USDOC's actions does not, however, resolve the matter before us. In order for India's claim to 
prevail, India must first establish a prima facie  case in support of that claim, before we turn to 
substantive consideration of the United States' defence of USDOC's actions. 
7.158.  We recall that private domestic prices are the "primary benchmark" for assessing benefit 
under Article 14(d) of the SCM Agreement.
330 According to India, the domestic price information 
submitted by GOI and Tata "contained the market prices of iron ore in India".331 Our review of the 
information in question shows that it does relate to domestic prices in India. In our view, 
therefore, it should have been considered for potential use as price benchmarks by the 
United States. Accordingly, we find that India has established a prima facie  case in support of its 
claim. Since India's prima facie  case is not rebutted by any contemporaneous rationale or 
justification in the USDOC's determinations, we uphold India's claim that the USDOC's failure to 
consider the relevant domestic price information for use as Tier I benchmarks is inconsistent with 
Article 14(d), and therefore Articl e 1.1(b), of the SCM Agreement. 
7.159.  Notwithstanding the above finding, we belie ve that the United States' implementation of a 
DSB recommendation to bring its measures into conformity in this regard may be facilitated if we 
consider the rationale provided by the United States to justify the USDOC's rejection of the domestic sales information as Tier I benchmarks. Such consideration may also be relevant in the 
event that the Appellate Body reverses our finding that the United States has advanced ex post  
rationalization, and wishes to complete the analysis  of India's claim. For these reasons, we will go 
on to address the United States' arguments in this regard. 
                                               
326 United States' first written submission, para. 40. 
327 Appellate Body Report, US – Softwood Lumber IV , para. 90. 
328 United States' second written submission, para. 53. We note that the United States does not invoke 
this argument in respect of th e price quote submitted by Tata. 
329 United States' response to  Panel question No. 80(b). 
330 Appellate Body Report, US – Softwood Lumber IV , para. 90. 
331 India's first written submission, para. 287. WT/DS436/R 
 
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  Consideration of the rationale provided by the United States 
7.160.  We begin with the United States' assertion that the USDOC was entitled to reject price 
information concerning sales identified as having been made by government-owned entities.332 We 
recall that we have already found that Article 14(d) does not require an investigating authority to 
rely on a government's domestic prices when determining market benchmarks.333 Accordingly, and 
for the same reasons, we consider that the USDOC would have been entitled to reject government price information when determining its price benchmarks. 
7.161.  Regarding the United States' argument th at the USDOC had no means of knowing whether 
or not the relevant price information concerned government or private suppliers, we agree with the United States that an investigating authority is not required to determine price benchmarks on the basis of price information pertaining to unidentified entities. 
7.162.  We also agree with the United States that an investigating authority is not required to 
determine price benchmarks on the basis of information that is not shown to pertain to actual transactions. We consider that Article 14(d) allows sufficient discretion
334 to allow Members to 
require actual transaction data for purposes of determining a benchmark if they choose. That 
being said, we note India's contention that the USDOC's alleged insistence on actual transaction price data for Tier I benchmarks is inconsistent with the USDOC's use of price "negotiation" 
information as Tier II benchmarks.
335 Upon reviewing the price information used by the USDOC as 
Tier II benchmarks336, we note that it is taken from charts entitled "Iron Ore Prices in the Japanese 
Market".337 The United States has explained that the data in the charts concerns actual pricing. 
While this may indeed be the case, we are not pe rsuaded that the price charts submitted by the 
GOI and Tata should be treated any differently, particularly since they are similarly entitled "Prices 
of Iron Ore".338 In the absence of any compelling explanation to the contrary, we see no reason 
why information labelled "Prices of Iron Ore" should not be treated as actual transaction prices, in 
the absence of any factual basis for concluding that the information is not, in fact actual 
transaction price data. 
7.163.  Regarding the price quote submitted by Tata, we consider that the USDOC was entitled to 
reject that quote on the basis that it did not spec ify the exact percentage of iron ore content, but 
rather only indicated whether it was low grade or high grade. Although the designation of low or high grade would have indicated whether the iron content was above or below 64%, the precise percentage of iron content is important in determining prices, because iron ore is priced per unit of 
iron content, and the USDOC made adjustments to reflect this.
339 It would not have been 
appropriate for the USDOC to determine price be nchmarks based on information that did not 
reflect the precise iron content of the iron ore involved.  
7.164.  India contends340 that the USDOC should have sought additional clarification from the GOI 
and/or Tata before rejecting the domestic price information submitted by them. The United States 
submits that the USDOC was not required to seek additional clarification, since it had not made a 
facts available determination. According to the United States, the USDOC was not required to seek 
                                               
332 The relevant entities are MML and Orissa. The USDOC determined that both of these entities 
constitute public bodies. India has not challenged these determinations under Article 1.1(a)(1) of the SCM Agreement. 
333 See paras. 7.38 et seq.  above. 
334 We observe the finding by the Appellate Body in US – Softwood Lumber IV  (para. 92) th at Article 14 
does not determine "the precise detailed method of calcul ation" of benefit. India also  accepts that investigating 
authorities enjoy discretion under Article 14 (India's second written submission, para. 11). 
335 India's second written submission, para. 193. 
336 Tex Reports of 2006 and 2007 iron ore prices from foreign suppliers paid by purchasers in Japan 
(respectively Response of Essar Steel Ltd. to supplemental questionnaire, 14 November 2007 ("2007 Supplemental Questionnaire Response from Essar for the 2006 AR"), Exhibit USA 118; and Response of Essar Steel Ltd. to supplemental questionnaire, 21 November 2008 ("2008 Supplemental Questionnaire Response from Essar for the 2007 AR"), Exhibit USA-119). 
337 2007 Supplemental Questionnaire Response from Essar for the 2006 AR, Exhibit USA-118; and 2008 
Supplemental Questionnaire Response from Essar for the 2007 AR, Exhibit USA-119. 
338 See, for example, 2008 Supplemental Questionnaire Response from the GOI for 2006 AR, 
Exhibit IND-61. 
339 2006 Preliminary Results, Exhibit IND-32, internal page 1587. 
340 India's second written submission, para. 196. WT/DS436/R 
 
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  further clarification relating to any deficiencies in order to employ other benchmark data found to 
be more suitable.341 The United States notes that, in any event, the USDOC had informed GOI and 
Tata that their information was deficient, and yet neither interested party chose to remedy that deficiency.
342 India has also clarified that it "is not arguing that the United States must 
continuously seek the same information again and again".343 Bearing in mind the USDOC did not 
apply Tier II benchmarks on the basis of facts avai lable, and considering that India does not deny 
that the USDOC had already sought additional clarification from GOI and Tata, we are not 
persuaded by India's argument that the USDOC should have sought further clarification before 
rejecting the domestic price information submitted by them. 
7.165.  With respect to the price quote provided by  Tata, the United States also submits that this 
information could not be used as a Tier I benchmark because it is a proprietary document 
containing confidential information that was easily susceptible to disclosure. In response to this 
argument, India contests the confidentiality of the relevant document.344 However, India does not 
deny that Tata requested confidential treatment for that document.345 While India might consider 
that the USDOC's treatment of the price quote as confidential is misplaced, this is not a matter 
that we are required to address in this dispute. Since India does not contest that the information was submitted and treated as confidential but is easily susceptible to disclosure (through reverse 
calculation), we see no basis to consider that the USDOC should have used the price quote as a 
Tier I benchmark to assess NMDC's sales to other purchasers. 
7.3.3.3.2  USDOC's non-application of th e ISPAT Tier I price benchmark to other 
producers 
7.3.3.3.2.1  Main arguments of the parties 
7.166.  India claims that, during the 2006 administrative review, the USDOC improperly declined 
to use the in-country benchmark that it had established for ISPAT when considering whether 
NMDC had provided Essar and JSW with iron or e for less than adequate remuneration. India 
contends that the USDOC improperly relied on th e fact that the ISPAT benchmark was based on 
confidential information regarding the price at which that steel producer had purchased iron ore 
from another supplier. India claims that the USDOC's improper reliance on the confidentiality of 
the information was inconsistent with Article 14(d) of the SCM Agreement, because of that 
provision's preference for the use of domestic price benchmarks. 
7.167.  India acknowledges that, by virtue of Ar ticle 12.4 of the SCM Agreement, confidential 
information submitted to an investigating authority "shall not be disclosed without specific 
permission of the party submitting it." Nevertheless, India denies that Article 12.4 justified the non-use of the ISPAT benchmark in respect of Essar and JSW.
346 India submits that, whereas 
Article 12.4 prohibits the disclosure of confidential information, that provision does not prohibit the 
use of such information by the investigating authority (in respect of other interested parties). In response to a question from the Panel, India contends that the USDOC could have used the 
information without disclosing "the nature and source of such information".
347 
7.168.  The United States submits that the USDOC properly declined to use certain ISPAT price 
benchmark for Essar and JSW, because to do so would have resulted in the unauthorized disclosure of confidential information to those entiti es. The United States refers in this regard to 
the ability of those two entities to reverse calcul ate the underlying confidential information on the 
basis of their rate of subsidization. The United States submits that the fact that the USDOC could not ensure the data would not be used by other parties once disclosed reinforces that the USDOC 
could not disclose the data under Article 12.4. 
                                               
341 United States' response to Pa nel question No. 81, para. 13. 
342 Ibid. para. 11. 
343 India's comments on the United States' response to Panel question No. 81. 
344 See, for example, India's opening statement at the second meeting of the Panel, paras. 32 and 33. 
345 India's response to Panel question No. 88. 
346 India's first written submission, para. 292. 
347 India's response to Panel question No. 27. WT/DS436/R 
 
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  7.3.3.3.2.2  Evaluation 
7.169.  We note that Article 12.4 of the SCM Agreement obliges an investigating authority not to 
"disclose" confidential information provided to it. India's claim hinges on the issue of whether or not the USDOC could have used the confidential domestic pric e information submitted by ISPAT 
(and used by the USDOC to determine a Tier I be nchmark price for ISPAT) as a Tier I benchmark 
to assess sales of iron ore by NMDC to Essar and JSW, without disclosing  that confidential 
information to those entities. 
7.170.  The confidential information in question concerns the price at which another domestic mine 
sold iron ore to ISPAT. India has not contested the confidentiality of this information. The United States has demonstrated to our satisfaction
348 that, if the USDOC had used that confidential 
information as a Tier I benchmark for Essar or JSW,  those entities would have been able to reverse 
calculate – using the rate of subsidization determined by USDOC, and the price at which they 
purchased iron ore from NMDC – the price at wh ich ISPAT had purchased iron ore from the other 
domestic supplier. In other words, the USDOC's use of the relevant confidential information to 
determine price benchmarks for Essar and JSW would necessarily have disclosed that information 
to those entities, contrary to the requirements of Article 12.4. While India contends that the 
USDOC could have used the relevant information without disclosing the "nature and source" 
thereof349, India has failed to provide any details as to how this might have been achieved by the 
USDOC. 
7.171.  We decline to interpret Article 14(d) in a manner that would require an investigating 
authority to breach the confidentiality obli gation provided for in Article 12.4 of the 
SCM Agreement. Accordingly, we reject India's claim that the USDOC violated Articles 1.1(b) 
and 14(d) by failing to apply the ISPAT Tier I benc hmark price to assess sales of iron ore by NMDC 
to Essar and JSW in the 2006 administrative review. 
7.3.3.4  Claims against the USDOC's us e of "as delivered" price benchmarks 
7.172.  In the 2006, 2007 and 2008 administrative reviews, the USDOC compared the NMDC price 
for certain types of iron ore with the price charged by an Australian producer of iron, adjusted for 
import duties and ocean freight from Australia to India. The USDOC compared the NMDC price for 
other types of iron ore with the delivered price paid  by an Indian producer for iron ore from Brazil 
(including ocean freight and import duties). India claims that the USDOC's use of such "as delivered" benchmark prices is inconsistent with Article 14(d) of the SCM Agreement. 
7.3.3.4.1  Main arguments of the parties 
7.173.  India submits that the benchmarks should have been assessed at the ex-mine level, to 
reflect the prevailing market conditions in India which, according to India, included the ex-mine 
sales made by NMDC. India notes that, in requiring that the adequacy of remuneration be 
assessed in relation to the prevailing market conditions, Article 14(d) includes "price" as one such condition. According to India, the prices in the Indian market include both private and 
government/NMDC prices. India submits that the USDOC's use of delivered prices precluded any 
adjustment of the price benchmarks to the ex-min e level, even though NMDC prices were set at 
that level. 
7.174.  India submits that the USDOC failed to de termine, in applying these benchmarks, whether 
the prevailing market conditions in Australia and Brazil reflected the market conditions prevailing 
in India. India submits that the USDOC merely presumed that this was so, without undertaking any comparison between the market conditions prevailing in Australia and Brazil, and those 
prevailing in India.
350 
7.175.  India also submits that the inclusion of all delivery charges in the relevant benchmarks 
nullifies the comparative advantage that India has in being able to locally source iron ore for 
Indian steel producers. India argues that it is a comparative advantage for a country that users of 
                                               
348 United States' response to Panel question No. 87. 
349 India's response to Panel question No. 27. 
350 India's first written submission, para. 302. WT/DS436/R 
 
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  the natural resources can procure it locally without having to suffer the costs and risks associated 
with their import from a different country.351 India contends that the benchmarks used by the 
United States, which are under challenge, relate to iron ore sourced from outside India that were inflated to include delivery charges in all cases (including ocean freight). According to India, these 
benchmarks effectively represent the cost incurred by an Indian steel maker, in the event it is 
forced to procure iron ore by way of import. India ar gues that this method is built on the artificial 
premise that iron ore is otherwise not available in India forcing Indian steel makers to import iron 
and bear the costs and risks associated with inte rnational trade. India, therefore, argues that 
adopting benchmark prices that include all delivery charges on imported iron ore nullifies the comparative advantage that India has in being able to locally source iron ore for Indian steel makers.
352 
7.176.  The United States rejects India's argument that the USDOC improperly presumed that the 
Australian and Brazilian market conditions were identical to the prevailing Indian market conditions. The United States asserts, as an initial matter, that the Brazilian price relied on by the 
USDOC represents the price at which an Indian steel company, Essar, actually purchased iron ore 
from Brazil and had it delivered to its facility in India. The United States contends that the 
Brazilian delivered price, therefore, is not an out-of -country price, but is rather an in-country price 
between private parties.
353 Concerning the USDOC's use of certain Australian prices, the 
United States submits that such prices do relate to the prevailing market conditions in India. The United States contends in this regard that iron ore is a highly traded commodity, and that Australian iron ore can be imported into India. The United States also recalls that the Article 14(d) 
guidelines require that the benchmark price be determined based upon "the prevailing market 
conditions ... in the country of provision." The United States submits that, unless the delivery charges are included in a world market benchmar k, the world market benchmark does not satisfy 
the Article 14(d) guideline that the price be based on market conditions in the country of provision. 
According to the United States, the use of an ex-m ine price in Australia would be a pure Australian 
price, and not the price of Australian iron in relation to the prevailing market conditions in the 
Indian market. 
7.177.  The United States also disagrees with India that the "prevailing market conditions" should 
be determined in light of NMDC sales at the ex-mine level. The United States denies that the phrase "prevailing market conditions" must be in terpreted to refer to th e specific terms of the 
government sales in question.
354 The United States asserts that the term "prevailing market 
conditions" should not be read so narrowly, since Article 14(d) does not direct that the benchmark must be limited to the specific terms of the government price being compared for benchmark 
purposes. According to the United States, to limit the comparison to the specific terms of the 
government sale would be to force a Member to ignore the actual more general prevailing market conditions, such as the fact that the true cost of an input to a producer includes all of the delivery 
charges to get the input to the producer's facility for use.
355 The United States notes in this regard 
that a producer cannot use an input which is not delivered to the factory. The United States also submits that the essence of the benefit analysis  under Article 14 of the SCM Agreement is to 
determine whether the recipient is better off than it would have been absent the government 
action. The United States asserts that the only way to make that determination is to assess 
whether the recipient obtained something "on terms more favourable than those available in the market"
356, to the exclusion of government prices. Th e United States suggests that comparing the 
government price with a benchmark price that includes government prices (be they domestic or 
export prices), would result in a circular comparison.357 The United States notes in this regard that 
the Appellate Body has stated that the "primary benchmark" for determining the benefit for goods 
sold at less than adequate remuneration is "prices of similar goods sold by private suppliers in the 
county of provision."358 The United States submits that, by specifically using the term "private" 
                                               
351 India's first written submission, para. 305. 
352 Ibid. paras. 306-308. 
353 United States' first written submission, para. 455. 
354 Ibid. paras. 462 and 463. 
355 Ibid. para. 464. 
356 Panel Report, Canada – Aircraft , para. 9.112. 
357 United States' first written submission, para. 469. 
358 Appellate Body Report, US – Softwood Lumber IV , para. 90. WT/DS436/R 
 
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  suppliers, which means the opposite of public359, the Appellate Body recognized that the preferred 
benchmark prices are private prices rather than government prices.360 
7.178.  The United States submits that India has not provided any evidence of the existence of 
comparative advantage.361 The United States notes India's reference to India having "certain raw 
materials" and the ability to extract and use those materials.362 The United States contends that 
India does not explain why this gives India a comparative advantage over, for instance, Australia, which also has the same materials and the ability to extract and use (including export) them. The 
United States asserts that, because the Dang Report demonstrates that Australia has more iron 
ore reserves and exports more iron ore than India
363, any adjustment for comparative advantage 
would in fact not be in India's favour.364 Moreover, the United States notes that India misuses the 
macroeconomic concept of "comparative advantage" in its arguments. The United States asserts 
that India offers no source to support the proposition that "the risk and expense of international 
transactions" has anything to do with comparative advantage. Rather, according to the United States, "comparative advantage" - as opposed to "competitive advantage" - is the 
advantage one country has over another in the production of a particular good relative to other 
goods if, as compared with the other country, it produces that good less inefficiently than it 
produces other goods. It is the United States' contention that India appears to confuse these 
terms.
365 
7.3.3.4.2  Evaluation 7.179.  India makes three distinct arguments in support of its Article 14(d) claim against the world 
price benchmarks used by the USDOC. First, India challenges the USDOC's use of benchmark 
prices set at the delivered level, despite the fact that prices were set by the NMDC at the ex-mine 
level. Second, India asserts that the USDOC failed  to make the adjustments necessary to ensure 
that the Australian and Brazilian delivered price be nchmarks reflected prevailing market conditions 
in India. Third, India contends that the world benchmark price applied by the USDOC countervailed 
India's comparative advantage.  
7.3.3.4.2.1  Whether the USDOC' s price benchmarks should have been set at the ex-mine 
level 
7.180.  India's argument is based on its claim against Section 351.511(a)(2)(iv) "as such". In both 
cases, India contends that the use of delivered pr ices means that price benchmarks do not relate 
to prevailing market conditions in India which, according to India, should be determined by 
reference to the fact that the NMDC provided iron  ore at the ex-mine level. For the same reasons 
that we rejected India's "as such" claim, we also reject the present argument. 
7.3.3.4.2.2  Whether the Australian and Br azilian prices used by the USDOC reflect 
prevailing market conditions in India 
7.181.  We begin by considering the USDOC's Brazilian price benchmark in isolation. We observe 
that this benchmark was based on an actual transaction in which an Indian steel producer 
purchased iron ore from a Brazilian mine on a de livered (and therefore imported) basis. Since the 
transaction was made by an Indian steel producer established in India, the transaction necessarily 
related to the prevailing market conditions in India. It was in light of those prevailing market conditions that the Indian steel producer engaged in the transaction, notwithstanding the cost of 
transporting the iron ore from the Brazilian mine to  its facility in India. As a result, the Brazilian 
transaction, including delivery charges, reflects and relates to the prevailing market conditions in India, consistent with the second sentence of Article 14(d). 
                                               
359 The New Shorter Oxford English Dictionary, 1993 ("Oxford Dictionary"), Exhibit USA-64, internal 
page 2359 (defines "private" as ""[o]f a service, business, etc.: provided or owned by an individual rather than 
the State or public body"). 
360 Appellate Body Report, US – Softwood Lumber IV , para. 90. 
361 United States' first written submission, para. 459. 
362 India's first written submission, para. 305. 
363 DANG Report attached to 2006 New Subsidy Allegations (JSW), Exhibit USA-50, internal exhibit 31, 
internal pages 37-38, 39 and 41-43.   
364 United States' first written submission, para. 459. 
365 United States' second written submission, para. 44 and fn. 60. WT/DS436/R 
 
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  7.182.  Regarding the USDOC's use of Australian and Brazilian prices more generally, we note 
that, upon verification, NMDC officials explained that "international prices … end up becoming the international benchmark prices for their own contract negotiations". Those officials also explained that "India must compete with Australia, Brazil and other countries so it must follow the 
Tex Report's prices to remain competitive". NMDC officials further stated that, "[i]n setting the 
price in the domestic market, … NMDC reviews the negotiated international price when determining how much the purchaser would be willing to pay to import".
366 Since NMDC sets its 
domestic prices in light of competition from Australia and Brazil, and therefore in light of how 
much an Indian steel producer "would be willing to pay to import" iron ore from mines in those countries, we are not persuaded by India's assertion that Australian and Brazilian prices, adjusted for delivery to steel producers in India, do not rela te to the prevailing market conditions in India. 
Since such prices indicate what an Indian steel producer would be "willing to pay", they necessarily 
relate to the prevailing market conditions in India. 
7.183.  Given the existence of record evidence es tablishing the relationship between the delivered 
Australian and Brazilian iron ore prices used by the USDOC and prevailing market conditions in 
India, we reject India's argument that the USDO C acted inconsistently with Article 14(d) of the 
SCM Agreement by failing to adjust those delive red prices to reflect the market conditions 
prevailing in India.  
7.3.3.4.2.3  Whether the USDOC's actions nullified India's comparative advantage 
7.184.  India's argument regarding comparative advantage is based on the existence of iron ore in 
India. According to India, "the comparative advantage for [a country with natural resources] lies in 
the fact that users of the natural resources can procure it without having to suffer the costs and 
risks associated with their import from a different country".
367 
7.185.  Expressed in these terms, we consider that India's comparative advantage argument is 
essentially resolved by our findings regarding the USDOC's use of Australian and Brazilian price 
benchmarks, discussed above. In light of record evidence that Indian steel producers actually imported iron ore from overseas, and that NMDC set its domestic prices in light of import 
competition, there is no factual basis for the argument that India's comparative advantage was 
such that users of iron ore had no need to engage in import transactions. Accordingly, we reject India's argument that the price benchmarks applied by the USDOC nullified India's comparative advantage.  
7.3.3.5  The inconsistent treatment of NMDC export prices  
7.3.3.5.1  Main arguments of the parties 7.186.  India asserts that NMDC's export prices to Japan were excluded from the world benchmark 
price in the 2006, 2007 and 2008 administrative revi ews, even though they had been included in 
the world benchmark price in the 2004 administrative review (and in the preliminary determination for the 2006 review). India claims that, to avoid in consistency, the USDOC should also have taken 
NMDC's export prices into account when determ ining the Tier II benchmark prices for the 2006, 
2007 and 2008 reviews. India contends that there was no risk that NMDC's ex port prices would be 
subsidized, since NMDC would have no desire to  confer any benefit on Japanese steel-makers. 
India also claims that the USDOC was in any event required by the chapeau of Article 14 to explain 
why, in those reviews, it departed from the approach it had adopted in the 2004 review.  
7.187.  The United States disagrees with India's argument that the USDOC should have included 
certain NMDC export prices in its world benchmark price. The United States suggests that 
comparing the government price with a benchmark price that includes government prices (be they 
domestic or export prices), would result in a circular comparison.
368 The United States notes in this 
regard that the Appellate Body has stated that  the "primary benchmark" for determining the 
benefit for goods sold at less than adequate rem uneration is "prices of similar goods sold by 
                                               
366 2004 GOI Verification Report, Exhibit USA-114, pp. 6 and 7. 
367 India's first written submission, para. 305. 
368 United States' first written submission, para. 469. WT/DS436/R 
 
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  private suppliers in the county of provision."369 The United States submits that, by specifically 
using the term "private" suppliers, the Appellate Body recognized that the preferred benchmark 
prices are private prices rather than government prices.370 
7.188.  Regarding the use of the NMDC export price in calculating the world market price 
benchmark in the 2004 review and not in the 2006, 2007 and 2008 reviews, the United States 
contends that the exclusion of the export pr ice from the world benchmark price in these 
subsequent reviews was merely correcting the mistaken inclusion of that price in the 
2004 review.371 
7.3.3.5.2  Evaluation 7.189.  We recall that we have already found that Article 14(d) does not require an investigating 
authority to rely on a government's domestic prices when determining market benchmarks.
372 This 
is because a government may set prices on the basis of public policy considerations rather than 
market principles. We consider that the same risk arises in respect of a government's export pricing. For example, a government might prov ide goods to export customers for less than 
adequate remuneration in order to promote domest ic production and employment. For this reason, 
w e  r e j e c t  I n d i a ' s  c l a i m  t h a t  t h e  U S D O C  s h o u l d  h a v e  u s e d  N M D C ' s  e x p o r t  p r i c e s  t o  d e t e r m i n e  Tier II benchmark prices in the 2006, 2007 and 2008 administrative reviews. 
7.190.  India also claims that the USDOC failed to  comply with the obligation in the chapeau of 
Article 14 to "adequately explain[]" why it did not apply the same approach in the later reviews as 
it did in the 2004 review. India contends that th e USDOC was required "in the event the method 
employed or the benchmark used was modified duri ng the course of the proceedings, [to] provide 
a sufficient/good enough reason or justification as to how and why such modification was 
made".
373 
7.191.  The chapeau of Article 14 requires that  the application of the "method used by the 
investigating authority to calculate the benefit to the recipient … to each particular case shall be 
transparent and adequately explai ned". The requirement in the chapeau of Article 14 that the 
application of a benefit methodology be "transparent" conveys the sense that such application 
should be set out in such a fashion that it can be easily understood or discerned. The obligation to 
"adequately explain[]" conveys the sense of making clear or intelligible, and giving details of how 
the methodology was applied.374 We agree with the United States that the adequacy of an 
investigating authority's explanation should be assessed on a case-by-case basis.375 
7.192.  We observe that, in its preliminary dete rmination for the 2006 administrative review, the 
USDOC continued to apply the Tex Report benchmarks that it had applied in previous reviews.376 
Thus, in its preliminary determination for the 2006 administrative review, the USDOC applied 
benchmarks based in part on NMDC's export prices (reported in the Tex Report), just as the 
USDOC had done in the 2004 administrative review. In its subsequent Issues and Decision Memorandum for the 2006 administrative review, though, the USDOC explained that it had revised 
the benchmark used in its preliminary determination by excluding the NMDC prices that had been 
reported in the Tex Report. The USDOC explained that it did so because the NMDC prices pertain to "the very government provider at issue".
377 In our view, the USDOC's explanation of its change 
in approach in respect of the NMDC export prices is clear and intelligible, and is easily understood 
                                               
369 Appellate Body Report, US – Softwood Lumber IV , para. 90. 
370 Ibid. 
371 United States' first written submission, para. 471. 
372 See paras. 7.38 et seq.  above. 
373 India's first written submission, para. 315. 
374 According to the Fifth Edition of the Shorter Oxford  English Dictionary, the ve rb "explain" in relevant 
context means to "make clear or intelligible (a meanin g, difficulty, etc.); … Give details of (a matter, how, 
etc.)" (emphasis original). The term  "transparent", when used figurati vely, means "easily seen through or 
understood; easily discerned; evident; obvious". 
375 United States' response to Panel question No. 104, para. 60. 
376 2006 Preliminary Results, Exhibit IND-32, p. 10 of 22. 
377 Issues and decision memorandum: final results of administrative review, 7 July 2008 ("2006 Issues 
and Decision Memorandum"), Exhibit IND-33, p. 33 of 98. WT/DS436/R 
 
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  and discerned. Accordingly, we reject India's clai m that the USDOC's explanation of this matter is 
inconsistent with the requirements of the chapeau of Article 14 of the SCM Agreement. 
7.3.4  Conclusion 7.193.  For the reasons set forth above, we reject India's claims that the USDOC's treatment of 
the NMDC as a public body is inconsistent with Article 1.1(a)(1) of the SCM Agreement. We uphold 
India's claim that the USDOC's determination of de facto  specificity is inconsistent with 
Article 2.1(c) of the SCM Agreement because the USDOC failed to take account of all the 
mandatory factors set forth in that provision. Ho wever, we reject India's claim that the USDOC 
violated the Article 2.4 requirement to base its de termination of specificity on positive evidence. 
7.194.  We reject most elements of India's claim that the USDOC's determination of the existence 
and quantum of benefit is inconsistent with Arti cles 1.1(b) and 14(d) of the SCM Agreement and 
the chapeau of Article 14. However, we uphold th at claim in respect of the USDOC's treatment of 
domestic price information submitted by GOI and Tata, in respect of which the United States sought to rely on ex post  rationalization. 
7.4  The USDOC's findings regarding the Capt ive Mining of Iron Ore Programme and the 
Captive Mining of Coal Programme: Articles  1.1, 2, 12.5 and 14 of the SCM Agreement 
7.195.  In its 2006 administrative review, the USDOC investigated new subsidy allegations 
regarding captive mining rights for iron ore and coal. The USDOC found that GOI provided financial 
contributions to steel producers by providing them  with iron ore and coal through the grant of 
captive mining rights (i.e. rights that allowed steel producers to mine iron ore and coal for their o w n  i n t e r n a l  u s e ) .  T h e  U S D O C  f o u n d  t h a t  s u c h  c a p t i v e  m i n i n g  r i g h t s  w e r e  p r o v i d e d  u n d e r  t h e  
Captive Mining of Iron Ore Programme an d the Captive Mining of Coal Programme.
378 The USDOC 
found that the Captive Mining of Iron Ore Programme was de facto  specific because "the provision 
of captive iron ore mining rights is limited to certain enterprises, such as steel producers".379 The 
USDOC found that the Captive Mining of Coal Programme was de jure  specific because "preference 
is given in the allocation of coal blocks to steel producers whose annual production capacity exceeds one millions tons".
380 The USDOC found that the captive mining programmes conferred a 
benefit on steel producers after (i) constructing a notional price for the extracted iron ore and coal 
and (ii) comparing that notional price to a Tier I/II benchmark price.  
7.196.  India makes a number of challenges against the USDOC's findings. India's claims concern: 
the existence of any Captive Mining of Iron Ore Programme (Article 12.5); the de facto  specificity 
of any Captive Mining of Iron Ore Programme (A rticle 2.1(c)); the USDOC's determination that 
steel producers were provided with goods by GOI through the grant of mining rights (Article 1.1(a)(1)); the USDOC's finding that GOI granted Tata coal mining rights 
(Article 1.1(a)(1)); the USDOC's finding that the Captive Mining of Coal Programme is de jure  
specific (Articles 2.1(a) and (b)); and the USDOC' s assessment of benefit using a notional price for 
the extracted iron ore and coal (Articles 1.1(b) and 14). 
7.4.1  The existence of the Captive Mining of Iron Or e Programme (Article 12.5) 
7.197.  India claims that the USDOC violated Ar ticle 12.5 of the SCM Agreement by failing to 
satisfy itself as to the accuracy of information on  the basis of which it determined the existence of 
the Captive Mining of Iron Ore Programme.
381 India submits that such programme does not exist. 
                                               
378 We note that the USDOC refers variously to a "Captive Mining Rights program" (2006 Preliminary 
Results, Exhibit IND-32, p. 14 of 22), a "captive mining rights of iron ore program" (2006 Issues and Decision Memorandum, Exhibit IND-33, p. 19 of 98), and a "Captive  Mining of Iron Ore" programme (Final results of 
countervailing duty administrative review, 14 July 2008, 73 Fed. Reg.  40295 ("2006 Review Final Results"), 
Exhibit IND-34, p. 3 of 5). For coal, the USDOC refers to a "Captive Mining Rights program" (2006 Preliminary Results, Exhibit IND-32, p. 15 of 22). We shall refer to the relevant progra mmes as the Captive Mining of Iron 
Ore Programme and the Captive Mining of Coal Programme. 
379 2006 Preliminary Results, Exhibit IND-32, internal page 1591. 
380 Ibid. 
381 India's first written submission, paras. 353-357. WT/DS436/R 
 
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  7.198.  The United States asks the Panel to reject India's claims. The United States asserts that 
the USDOC satisfied itself as to the accuracy of in formation, consistent with Article 12.5, by finding 
that the information on which it relied was from official reports commissioned by the GOI, to which members of the Indian steel industry contribute d, and newspaper articles by independent press 
sources. 
7.4.1.1  Relevant WTO provision 7.199.  Article 12.5 provides in relevant part: 
the authorities shall during the course of an  investigation satisfy themselves as to the 
accuracy of the information supplied by interested Members or interested parties upon which their findings are based. 
7.4.1.2  Main arguments of the parties 
7.200.   India contends that, rather than satisf ying itself of the accuracy of the information 
supplied by interested parties (as required by Article 12.5), the USDOC simply relied on bare assertions by the petitioner
382 that the GOI operated a Captive Mining of Iron Ore Programme. 
India asserts that, in doing so, the USDOC overlooked information on the record, including 
supporting documents relied upon by the US dome stic industry, clearly showing that the GOI 
scheme granted mining rights simpliciter , and that there was no specific GOI programme allocating 
captive mining rights. 
7.201.  India submits that the USDOC's determination regarding the alleged Captive Mining of Iron 
Ore Programme is factually incorrect since record evidence shows that India granted mining rights for iron ore on a first-come-first-served basis, without regard to whether the applicants were 
engaged in captive mining (i.e. whether they were integrated steel producers or stand-alone 
miners). India contends that "the GOI scheme granted mining rights simpliciter  and there was no 
specific GOI program allotting captive mining rights".
383 According to India, the GOI "only grants 
'mining leases' for iron ore. Whereas some of the licensees may be using it for captive 
consumption, others may only be engaged in selling the extracted iron ore".384 Furthermore, India 
contends that "all the lessees … are granted concessions on the same terms and conditions".385 
India also refers to statements made by Tata to the USDOC indicating "that GOI does not favour 
steel producers over independent miners of iron ore either in terms of allocation of rights or payment of royalty".
386 India further refers to expert eviden ce submitted to the USDOC indicating 
that "there is no provision in the Indian mining law that allows captive mines to pay a reduced or 
special rate".387 
7.202.  The United States submits that the USDOC properly determined that the GOI provided 
captive mining rights for iron ore based on information on the record. The United States contends 
that India's focus on its mining laws suggest s that the USDOC determined that there is a de jure  
captive mining programme, whereas the USDOC actually determined that there is a de facto  
programme. The United States acknowledges that the alleged policy is not provided for in India's 
mining laws, but claims that the existence of such policy is nevertheless "widely known".388 
According to the United States, India's arguments regarding Indian mining law are inconsistent with e vid e nc e  on the USDOC' s  re c ord ind ic at ing  that G OI  "has  a c aptive  i ron ore  mini ng  p olic y under which it has granted captive mining rights to four steel companies".
389 The United States 
refers in this regard to two reports commissioned by GOI, and a series of press clippings. 
                                               
382 India relies in this regard on Panel Report, EC - Countervailing Measures on DRAM Chips , para. 7.368 
and fn. 268. 
383 India's first written submission, para. 354. 
384 India's response to Panel question No. 29. 
385 India's second written submission, para. 226. 
386 India's first written submission, para. 342. 
387 Ibid. paras. 343 and 354. 
388 United States' second written submission, para. 482. 
389 United States' first written submission, para. 480. WT/DS436/R 
 
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  7.203.  The first report relied on by the United States is the "Dang Report". The United States 
observes that the Dang Report envisages that the "[p]olicy of captive mining leases should continue".
390 The second report relied on by the United States is the "Hoda Report". The 
United States observes that the Hoda Report contains a section entitled "Allocation of Captive 
Mines to Steel Makers"391 which, according to the United States, "contains a discussion of whether 
the captive mining policy should be expanded".392 The United States also observes that the Hoda 
Report identifies one of the interested groups in the discussion as "steel mill owners with captive 
mines".393 
7.204.  Regarding press clippings, the United States notes that an article from the Times of India  
suggests that if the recommendations of the Hoda Report are followed, captive mining may be eliminated. The United States also observes that other press clippings refer to four Indian steel 
producers as having captive mines. 
7.4.1.3  Evaluation 7.205.  This claim concerns the USDOC's determination of the existence of the Captive Mining of 
Iron Ore Programme. The United States does not claim that the Captive Mining of Iron Ore 
Programme is contained in any Indian law or regulation, or otherwise set forth in writing. Rather, the United States submits that the existence of  the Captive Mining of Iron Ore Programme was 
properly ascertained by the USDOC by reference to record evidence. 
7.206.  We do not exclude the possibility that Members might opt to provide specific subsidies 
pursuant to programmes or policies that are not expressed in writing. If the existence of such programme or policy is properly established (and assuming the other requirements of the 
SCM Agreement are met), an investigating authority may impose countervailing duties on imports 
benefiting from such programme or policy. We em phasise, though, that the existence of such a 
subsidy programme or policy must be properly established by the relevant investigating authority. 
In this regard, we observe that Article 12.5 of the SCM Agreement requires that an investigating 
authority must satisfy itself as to the accuracy of the information on which its findings – including those concerning the existence of countervailed subsidy programmes – are based. 
7.207.  We shall review all of the record evidence  cited by the United States as supporting the 
USDOC's determination of the existence of the Ca ptive Mining of Iron Ore Programme. We shall 
also consider the probative value of that evidence viewed in its totality. In this way, we shall evaluate whether the USDOC properly established the existence of the Captive Mining of Iron Ore 
Programme on the basis of accurate information, as required by Article 12.5. 
7.208.  The first piece of record evidence cited by the United States is the Dang Report. The 
United States notes that the Dang Report refers to the GOI's "[p]olicy of captive mining leases". 
We observe that the Dang Report was prepared by an Expert Group commissioned by GOI to 
"formulat[e] guidelines for preferential grant of mining leases" for inter alia  iron ore "by state 
governments".
394 The GOI took this initiative because state governments had "shown inclination to 
accord preference to applicants who agree to put up mineral based downstream industry within the 
State boundaries", even though the MMDR Act "does not appear to provide any legitimacy for such 
stipulation".395 The Dang Report explains that "[a]gain st this background, Ministry of Steel 
constituted a Group of Experts to undertake an in-depth examination and frame a set of uniform 
National Guidelines for a System of Preference to be followed in grant of leases for iron ore, 
manganese and chrome ore".396 
                                               
390 DANG Report attached to 2006 New Subsidy Allegations (JSW), p. 52, Exhibit USA-50. 
391 National Mineral Policy, Report of the High Le vel Committee (Hoda Report), attached to the New 
subsidy allegations (Tata), 23 May 2007 ("Hoda Report attached to 2006 New Subsidy Allegations (Tata)"), 
Exhibit USA-71, internal page 143. 
392 United States' second written submission, para. 70. 
393 Hoda Report attached to 2006 New Subsidy Allegations (Tata), Exhibit USA-71, p. 143. 
394 DANG Report attached to 2006 New Subsidy Allegations (JSW), Exhibit USA-50, internal exhibit 31, 
p. 1. 
395 Ibid. p. 4. 
396 Ibid. p. 4. WT/DS436/R 
 
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  7.209.  The Dang Report confirms the existence of captive mining in the Indian industry. Thus, in 
describing the structure of the Indian iron ore in d u s t r y ,  t h e  D a n g  R e p o r t  s t a t e s  t h a t  i r o n  o r e  
"[m]ining is undertaken both by steel companie s, who operate captive mines, and exclusively 
mining companies".397 However, the mere fact that captive iron ore mining exists does not mean 
ipso facto  that there is a Captive Mining of Iron Ore Programme, or any other policy to favour 
captive miners. It simply means that mining licences have been provided to steel producers, which then engage in mining and consume the minerals th ey extract. Of greater significance, in our view, 
is that despite referring to the factual existence of captive mining, the Dang Report does not refer 
to captive mining leases being provided pursuant to any Captive Mining of Iron Ore Programme. Nor, indeed, is there reference to any such programme or policy in the very section of the Dang Report that purports to describe the "policy and regulatory frame work for the grant and operation 
of leases".
398 
7.210.  As part of its Conclusion, the Dang Report states that it is necessary "to encourage and 
involve larger integrated steel plants … to safeguard their raw material security".399 Such 
encouragement in the future could benefit captive mining. However, there is nothing in the 
Dang Report to suggest that such encouragement of  captive iron ore mining already existed at the 
time it was drafted. 
7.211.  In light of the above observations, we are not persuaded that the single reference in the 
Dang Report to the "[p]olicy of captive mining leases"400 provides support for determining the 
existence of a Captive Mining of Iron Ore Programme.  We consider it highly relevant that, although 
the Dang Report describes the Indian iron ore indu stry, and the policies applicable to that industry, 
there is no reference to any programme or policy benefiting captive mining. Nor is there any 
suggestion that mining leases were provided to steel producers on terms any different than those 
provided to other miners. Indeed, it is entirely possible that the reference to a "[p]olicy of captive 
mining leases", on which the United States relies, was merely intended to refer back to the fact 
that mining leases are provided to steel companies, and to suggest that mining leases should continue to be provided to steel producers.  
7.212.  The next piece of evidence referred to by the United States is the Hoda Report. The 
United States refers in particular to a section of that Report entitled "Allocation of Captive Mines to Steel Makers"
401 which, according to the United States, "contains a discussion of whether the 
captive mining policy should be expanded".402 We observe, though, that the United States does 
not identify any reference in the Hoda Report to any captive mining policy or programme. Although 
the Hoda Report again confirms the existence of captive mines, like the Dang Report, it does not identify any Captive Mining of Iron Ore Programme, or any GOI policy in favour of such mines. 
Moreover, the Hoda Report does not, in fact, refer to the possibility of "expanding" such policy, as 
alleged by the United States. While the Hoda Report does consider whether, as a matter of future policy, iron ore mining licences should be awarded "exclusively" to captive miners
403, the 
Hoda Report does not indicate that the exclusiv e award of iron ore mining licences to captive 
miners would constitute an "extension" of any existing policy in their favour. 
7.213.  The United States points to the statement in the Hoda Report that "[s]tand alone mining 
and captive mining should continue to exist".404 The United States also emphasises that one of the 
groups interested in the Hoda process was "steel mill owners with captive mines".405 We recall, 
though, that the factual existence of captive mining does not demonstrate ipso facto  that a Captive 
Mining of Iron Ore Programme, or any policy in favour of captive mining, also exist. It simply 
means that mining licences have been awarded to steel producers that consume the minerals they 
extract. 
                                               
397 DANG Report attached to 2006 New Subsidy Allegations (JSW), Exhibit USA-50, internal exhibit 31, 
p. 50. 
398 Ibid. p. 50. 
399 Ibid. p. 58. 
400 Ibid. p. 52. 
401 Hoda Report attached to 2006 New Subsidy Allegations (Tata), Exhibit USA-71, p. 143. 
402 United States' second written submission, para. 70. 
403 Hoda Report attached to 2006 New Subsidy Allegations (Tata), Exhibit USA-71, p. 149. 
404 Ibid. p. 159. 
405 Ibid. p. 143. WT/DS436/R 
 
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  7.214.  Given the absence of any reference in the Hoda Report to any Captive Mining of Iron Ore 
Programme, or any policy in favour of captive mining, we do not consider that the Hoda Report provides support for determining the existence of a Captive Mining of Iron Ore Programme. Indeed, the Hoda Report actually states that "under the current dispensation … all miners [are 
treated] alike".
406 On its face, this statement would seem to exclude the possibility that any policy 
or programme in favour of captive mining of iron ore might exist. This apparent inconsistency was not addressed by the USDOC. 
7.215.  Regarding the Times of India  article relied on by the United States, we note that this is 
merely a report on the contents of the Hoda Report.
407 We therefore do not consider that the 
article provides any additional support for the alle ged existence of the Captive Mining of Iron Ore 
Programme than the Hoda Report itself. The United States refers to other press articles identifying 
four Indian steel producers as having captive mines.408 A g a i n ,  h o w e v e r ,  t h e  f a c t  t h a t  s t e e l  
producers hold mining leases does not mean ipso facto  t h a t  t h e r e  i s  a  d i s t i n c t  p r o g r a m m e  f o r  
captive mining. 
7.216.  We acknowledge that, in principle, the existence of a subsidy programme that is not 
expressed in writing might be established on the ba sis of evidence which, although not particularly 
instructive when viewed individually, becomes mo re insightful and probative when viewed as a 
whole. We do not consider that this is one of those cases. We see nothing in the evidence 
reviewed above to suggest that, even when viewed  together, they provide a sufficient basis to 
establish the existence of a Captive Mining of Iron Ore Programme. Nor has the United States explained how the existence of the Captive Mining of Iron Ore Programme might be established on 
the basis of the ensemble of the evidence. 
7.217.  For the above reasons, we find that the USDOC did not have sufficient basis to properly 
determine the existence of the Captive Mining of Iron Ore Programme. We therefore uphold India's 
claim that the USDOC failed to determine the existence of the Captive Mining of Iron Ore 
Programme on the basis of accurate information, as required by Article 12.5. 
7.4.2  Specificity of the Captive Mining of Iron Or e Programme (Article 2.1) 
7.218.  India claims that the USDOC's determination that the Captive Mining of Iron Ore 
Programme is de facto  specific is inconsistent with Articles  2.1(c) and 2.4 of the SCM Agreement. 
The United States asks the Panel to reject India's claim. The United States submits that, because India has a Captive Mining of Iron Ore Programme which is limited to four steel companies, the 
programme is de facto  specific within the meaning of Article 2.1(c) because the captive mining 
rights are provided to a limited group of enterprises. 
7.219.  In light of our finding that the evidence relied upon by the United States does not suffice to 
support USDOC's determination that a Captive Mining of Iron Ore Programme exists, which is 
therefore inconsistent with Article 12.5 of the SCM Agreement, there is little if any sense in our 
evaluating whether or not the USDOC properly found the purported programme to be de facto  
specific. We therefore exercise judicial economy in respect of India's Article 2.1 and 2.4 claims in 
respect of the Captive Mining of Iron Ore Programme. 
7.4.3  The provision of goods through the grant of mining rights 7.220.  The USDOC determined that the grant of mi ning licences under the Captive Mining of Iron 
Ore and Captive Mining of Coal Programmes constituted a financial contribution in the form of the 
provision of a good
409 (i.e. iron ore and coal). India claims that the USDOC's determination that 
the grant of the mining rights for iron ore and coal amounts to the provision of goods is 
inconsistent with Article 1.1(a)(1)(iii) of the SCM Agreement.410 The United States asks the Panel 
to reject India's claim. 
                                               
406 Hoda Report attached to 2006 New Subsidy Allegations (Tata), Exhibit USA-71, p. 149. 
407 2006 New Subsidy Allegations (Tata), Exhibit USA-71, internal exhibit 11, internal page 1. 
408 United States' first written submission, para. 482. 
409 2006 Preliminary Results, Exhibit IND-32, p. 14 of 22. 
410 India's first written submission, paras. 358-371. WT/DS436/R 
 
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  7.221.  In light of our finding that the evidence relied upon by the United States does not suffice to 
support USDOC's determination that a Captive Mining of Iron Ore Programme exists, we considered exercising judicial economy in respect of the part of India's claim regarding the provision of iron ore. However, since we must in any event address India's claim regarding the 
provision of coal, we evaluate India's claim in full. 
7.4.3.1  Relevant WTO provision 7.222.  Article 1.1(a)(1)(iii) of the SCM Agreement is set forth above.
411  
7.4.3.2  Main arguments of the parties 
7.223.  India acknowledges that the panel and Appellate Body in US – Softwood Lumber IV  
accepted that the grant of stumpage rights, i.e.  the right to fell standing trees, constitutes the 
provision of a good within the meaning of Article 1.1(a)(1)(iii). However, India contends that not 
every governmental action that may ultimately re sult in goods being made available would amount 
to a financial contribution. India submits that merely making goods available does not amount to "provid[ing]" goods within the meaning of Article 1.1(a)(1)(iii). India refers
412 to findings by the 
Appellate Body in US – Softwood Lumber IV  to argue that, for the government to be providing a 
good, not only must the government have control ov er the availability of that specific good, but 
there must also be a "reasonably proximate rela tionship" between what has been "provided" by 
government on the one hand and the 'good' in question on the other.413 According to India, it is 
the governmental action itself that should directly result in the provision of the goods, and not the intervening acts of non-governmental bodies.
414 
7.224.  India submits that, unlike the grant of a right to fell trees, there is no "reasonably 
proximate relationship" between the grant of mining  rights and the availability of the extracted 
iron ore or coal.415 India asserts that in the case of the stumpage programmes covered in the US – 
Softwood Lumber IV  case, the undisputed factual findings were that at the time of granting the 
right to harvest standing timber, the amount of standing timber actually available was already 
known, and the right to harvest granted through th e stumpage contract also transferred ownership 
over the timber. According to India, therefore, there was an absolute and direct link between the 
rights granted by the government and the 'good'  in question. India submits that a "reasonably 
proximate relationship" arose in that case becaus e there was no intervening act between the right 
to harvest "standing timber" (governmental action) and the extracted "standing timber"' (the good 
in question). India contends that this is not the case in respect of the grant of mining rights. 
7.225.  India notes that the panel in US – Softwood Lumber IV  recognized the difficulty of building 
a "reasonably proximate relationship" between the grant of mining rights and the provision of the extracted minerals in the following footnote to its Report. India refers in particular to the panel's 
statement that "there is a clear difference between tenure agreements concerning standing timber 
and the granting of extraction rights in the case of minerals or oil, or fishing rights where the 
owner of the right is not at all certain what and how much of it he will find, and what he pays for is 
the right to explore a particular site and the chance of finding something.
416 
7.226.  According to India, the licence to mine does not lead to a guaranteed transfer of 
marketable minerals. India submits that the uncertainty inherent in mining activities (regarding what and how much will be found), as well as th e need for significant intervention (between the 
grant of the mining licence and the extraction of minerals) through private conduct, make the link 
between the grant of mining rights by the governme nt and the actual iron ore or coal extracted too 
remote to fulfil the "reasonably proximate relationship"
417 standard applied by the Appellate Body.  
                                               
411 See para. 7.66 above. 
412 India's first written submission, para. 362. 
413 India refers in this regard to Appellate Body Report, Softwood Lumber IV , para. 71. 
414 India's first written submission, para. 365. 
415 Ibid. para. 366. 
416 Panel Report, Softwood Lumber IV , para. 7.18 and fn. 99. 
417 India's first written submission, para. 369. WT/DS436/R 
 
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  7.227.  The United States submits that the USDOC properly determined that the provision of the 
right to mine iron ore constitutes the provision of goods as set out in Article 1.1(a)(1)(iii) of the SCM Agreement, and therefore is a financial contribution under Article 1.1(a)(1) of the SCM Agreement. 
7.228.  Regarding India's argument that the GOI did not "provide" iron ore and coal to steel 
producers, because there is no "reasonably pr oximate relationship" between the provision of 
mining rights and the provision of the minerals themselves
418, the United States contends that 
India's suggested interpretation is not supported by the text of the SCM Agreement. According to 
the United States, the ordinary meaning of "provides"  is to "make available," in addition to "supply 
or furnish for use" and "to put at the disposal of."419 The United States suggests that India does 
not appear to contest this interpretation420, even though a mining lease makes available, supplies 
and furnishes for use, and puts at the disposal of the owner, the good that is covered by the lease. 
7.229.  The United States understands India to  rather argue that the ordinary meaning of 
"provides" is somehow limited or circumscribed, in the sense that "there must … be a 'reasonably 
proximate relationship' between what has been pr ovided by government on the one hand and the 
'good' in question on the other."421 The United States understands that the basis for India's 
"reasonably proximate relationship" test appears to be a phrase from the Appellate Body report in 
US – Softwood Lumber IV. According to the United States, India quotes a passage from that report 
in which the Appellate Body considered an argument by Canada that the provision of rights to a good by a government cannot be considered the pr ovision of a good because, in that case, the 
term "would capture every property law in a jurisdiction."
422 The United States notes that, in 
rejecting that contention, the Appellate Body stated that it could not see "how … general 
governmental acts" of the type referred to by  Canada would fall within the Appellate Body's 
interpretation of "provides a good," since such acts would be "too remote" from the act of 
provision.423 Rather, the "government must have some control over the availability of a specific 
thing being 'made available.'"424 The United States suggests that, viewed in its entire context, the 
Appellate Body's reference to "reasonably proximate relationship" is intended to distinguish 
"general acts" of government from those where the government controls the good in question and 
then makes those goods available to a recipient. The United States submits that the GOI act in 
question – the provision of mining rights for iron ore and coal – is not "general" (like a property law), but rather is a specific provision of rights to goods over which the government has control. 
7.230.  The United States notes India's suggestion  that while the provision of rights to some 
goods, such as the right to harvest a stand of timber, may constitute the provision of a good under Article 1.1(a)(1)(iii), the right to in situ  mineral deposits does not constitute the provision of goods 
because the provision of the minerals is "too remote" from the government action of providing a 
good. The United States submits that Article 1.1(a )(1)(iii) provides for no distinction on the basis 
that it takes more effort to find and mine minerals than it does to harvest a stand of trees.
425 The 
United States contends that India erroneously relies on a footnote from the panel report in 
US - Softwood Lumber IV in which the panel indicated that, in deciding that harvesting rights to 
timber constituted the provision of goods, it was not deciding whether the provision of rights to 
in situ  minerals constituted the provision of goods.426 The United States asserts that the panel 
explicitly stated that it was not expressing a view as to whether extraction rights did or did not 
constitute the provision of goods within the mean ing of Article 1.1.(a)(1)(iii). Furthermore, the 
United States contends that the panel actually suggested that the distinction it might draw was not 
on the basis of the nature of the good to which ri ghts were provided, but rather the nature of the 
right. Thus, the panel stated that if the right at issue in that dispute had consisted of "the right to explore a particular site and the chance of find ing something," the panel might have viewed the 
provision of rights differently. The United States co ntends that the rights at issue in this case are 
                                               
418 India's first written submission, para. 366. 
419 Appellate Body Report, US – Softwood Lumber IV , para. 69. 
420 See India's first written submission, paras. 360-361. 
421 India's first written submission, para. 362. 
422 Appellate Body Report, US – Softwood Lumber IV , para. 70. 
423 Ibid. para. 71. 
424 Ibid. para. 70. 
425 India's first written submission, para. 371. 
426 Ibid. para. 368 (citing Panel Report, US – Softwood Lumber IV , fn. 99). WT/DS436/R 
 
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  not mere rights of exploration, but rather rights to mine iron ore and coal that is known to exist, 
and for which the recipients only pay if they actually extract the good. 
7.4.3.3  Main arguments of the third parties 7.4.3.3.1  European Union 
7.231.  The European Union agrees with the United States that, taking into account the facts and 
circumstances of this case, the grant of mining rights for iron ore and coal does amount to the "provision" of a good within the meaning of Articl e 1 of the SCM Agreement. In the opinion of the 
European Union, India has not established any meaningful distinction between the facts of US – 
Softwood Lumber IV  and the facts of this case. 
7.4.3.3.2  Saudi Arabia 7.232.  Saudi Arabia submits that a government's granting of extraction rights is not covered by 
the definition of a "financial contribution" in Arti cle 1.1(a)(1) of the SCM Agreement. In particular, 
extraction rights are intangible assets that do not constitute "goods" under Article 1.1(a)(1)(iii). 
Panel and Appellate Body rulings support the dist inction between goods and intangible extraction 
rights. The Appellate Body has stated that government acts do not constitute the provision of a 
good unless (i) the government has control over the availability of the good in question and 
(ii) there is a reasonably proximate relationship between the government action and the 
enjoyment of the tangible goods by the recipient.  Saudi Arabia contends that neither of these 
requirements is met where the government grants intangible extraction rights. Saudi Arabia submits that the granting of a right to exploit a nation's in situ  natural resources is a sovereign 
function that the Panel should distinguish from the government's actual provision of those 
resources. 
7.4.3.4  Evaluation 7.233.  Article 1.1(a)(1)(iii) of the SCM Agreement states that there is a financial contribution 
when a government or public body "provides" goods for less than adequate remuneration. India 
disputes the USDOC's determination that the GOI "provided" iron ore and coal through the grant of rights to mine those minerals.
427 India's claim is based on the alleged lack of proximity between 
the provision of the right to mine and the extracted iron ore and coal.  
7.234.  The concept of goods being "provided" th rough the grant of rights to those goods was 
addressed by the Appellate Body in US – Softwood Lumber IV . The Appellate Body found in 
relevant part: 
68. Having considered the meaning of the term "goods", we now turn to consider 
what it means to "provide" goods, for purposes of Article 1.1(a)(1)(iii) of the SCM Agreement . Canada argues that stumpage arrangements do not "provide" 
standing timber. According to Canada, all that is provided by these arrangements is 
an intangible right to harvest. At best, this intangible right "makes available" standing timber. But, in Canada's submission, the connotation "makes available" is not an 
appropriate reading of the term "provides" in Article 1.1(a)(1)(iii). In contrast, the 
United States argues that the Panel's interpretation that stumpage arrangements "provide" standing timber is correct. The United States contends that, where a government transfers ownership in goods by giving enterprises a right to take them, 
the government "provides" those goods, within the meaning of Article 1.1(a)(1)(iii).  
69. Again, we begin with the ordinary me aning of the term. Before the Panel, the 
United States pointed to a definition of the term "provides", which suggested that the 
term means, inter alia , to "supply or furnish for use; make available".
 This definition is 
the same as that relied upon by USDOC in making its determination that "regardless of whether the Provinces are supplying timber or making it available through a right of 
                                               
427 India does not dispute the USDOC's determination that iron ore and coal are "goods" within the 
meaning of Article 1.1(a)(1)(iii). WT/DS436/R 
 
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  access, they are providing timber" within the meaning of the provision of 
United States countervailing duty law that corresponds to Article 1.1(a)(1)(iii) of the SCM Agreement .
 We note that another definition of "provides" is "to put at the 
disposal of".  
70. Notwithstanding these definitions, Cana da submits that the meaning of the term 
"provides" in Article 1.1(a)(1)(iii) of the SCM Agreement should be limited to the 
supplying or giving of goods or services. Canada raises two arguments to support this 
view. First, Canada suggests that the term s "provides goods" and "provides services" 
cannot be read to include the mere "making available" of goods or services, because "[t]o ' make available  services' … would include any circumstance in which a 
government action makes possible a later receipt of services and to ' make 
available  goods' would capture every property law in a jurisdiction".
 Secondly, Canada 
points to the use of the term "provide" in Articles 3.2 and 8 of the Agreement on 
Agriculture a n d  i n  A r t i c l e  X V : 1  o f  t h e  General Agreement on Trade in Services  (the 
"GATS") to suggest that "provides", when used in the context of the granting of 
subsidies, requires the actual giving of a subsidy.  
71. With respect to Canada's first argument, we do not see how the general 
governmental acts referred to by Canada woul d necessarily fall within the concept of a 
government "making available" services or goods. In our view, such actions would be 
too remote from the concept of "making available" or "putting at the disposal of", which requires there to be a reasonably proximate relationship between the action of 
the government providing the good or se rvice on the one hand, and the use or 
enjoyment of the good or service by the re cipient on the other. Indeed, a government 
must have some control over the availability  of a specific thing being "made 
available".
428 
7.235.  We agree with these findings by the Appellate Body, and are guided by them. As explained 
below, we consider that, in certain circumstances, a government might properly be determined to 
have provided goods by making them available through the grant of extraction rights. 
7.236.  India submits that, because of the uncer tainties involved in mining operations, and 
because of the amount of work required by the mini ng entity to extract the iron ore and coal once 
the lease has been granted, the grant of the mi ning lease by the GOI is too remote from the 
extracted minerals to be treated as the "p rovision" of a good within the meaning of 
Article 1.1(a)(1)(iii). 
7.237.  We are not persuaded by India's argument. As a preliminary matter, we observe that 
India's approach lacks legal certainty, for it would lead to different results, depending on the 
complexity of the process required to extract the relevant mineral, or the uncertainty regarding the amount of mineral to be extracted. 
7.238.  More fundamentally, India's approach is at  odds with the meaning of the term "provides". 
We agree with the Appellate Body in US – Softwood Lumber IV that to "provide" means to "make 
available", or "put at the disposal of". Given the GOI's direct control over the availability of the relevant minerals, the GOI's grant of rights to mine those minerals essentially made those 
minerals available to, and placed them at the disposal of, the beneficiaries of those rights. The 
grant of a mining lease is more than a mere "general governmental act" that simply facilitates the mining operation. The grant of the right to mine allows the beneficiary to extract government-
owned minerals from the ground, and then use those minerals for its own purposes, such as in the 
production of steel. In our view, this means that the GOI's grant of the right to mine is "reasonably proximate" to the use or enjoyment of the minerals  by the mining entity for the grant of a mining 
right to be treated as the provision of a good wi thin the meaning of Article 1.1(1)(a)(iii) of the 
SCM Agreement.
429 
                                               
428 Appellate Body Report, US – Softwood Lumber IV , paras. 68-71. 
429 We note some inconsistency in India's position during these proceedings. In the context of its claim 
against the USDOC's determination that the SDF Managing Committee provided direct transfers of funds, India accepts that the term "provides" means to "make availabl e", or "put at the disposal  of" (India's first written 
 WT/DS436/R 
 
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  7.239.   We acknowledge that the panel in US – Softwood Lumber IV  seems to have expressed 
some doubts about treating the grant of certain rights as the provision of a good under Article 1.1(a)(1)(iii): 
we note that there is a clear difference between tenure agreements concerning 
standing timber and the granting of extraction rights in the case of minerals or oil, or 
fishing rights where the owner of the right is not at all certain what and how much of it he will find, and what he pays for is the right to explore a particular site and the 
chance of finding something. In so noting, we do not mean to express a view as to 
what extent, if at all, this uncertainty would be relevant to a determination whether the granting of such extraction rights re presented the provision of goods within the 
meaning of Article 1.1 (a) (1) (iii) SCM Agreement, an issue which is not before us.
430 
7.240.  This statement does not affect our conclusion. First, we observe that the panel expressly 
refrained from making any findings on the matter at hand. Second, and more importantly, in our 
view, the panel's statement refers to a possibly relevant difference between rights to extract 
goods, and rights to explore and, if anything  is found, extract the goods. The present case 
concerns the provision of mining rights, that is the right to extract minerals from known sites, rather than the right to explore or prospect, and, if anything is found, extract it.
431 By acquiring 
mining rights, steel companies have paid for more than "the right to explore a particular site and 
the chance of finding something".432 This is further confirmed by the fact that, according to 
evidence on the USDOC's record, miners pay royalt ies under the relevant mining leases per unit of 
extracted mineral.433 In these circumstances, we consider that the obiter statement of the panel in 
US – Softwood Lumber IV  is not in any event pertinent to our decision, and does not require us to 
change our views.  
7.241.  For the above reasons, we reject India's claim that the USDOC's determination that the 
GOI provided goods through the grant of mining rights for iron ore and coal is inconsistent with 
Article 1.1(a)(1)(iii) of the SCM Agreement. 
7.4.4  Whether Tata was provided captive coal  mining rights by the GOI under the Coal 
Mines Nationalization Act/Captiv e Mining of Coal Programme 
7.242.  The USDOC imposed countervailing duties on imports of steel produced by Tata. The 
USDOC determined that the GOI had provided Tata with a good, coal, through the grant of captive coal mining rights
434 under the Coal Mines Nationalization Act, which USDOC also refers to as the 
Captive Mining of Coal Programme.435 India claims that Tata was not provided any coal mining 
rights by the GOI under the Coal Mines Nationalization Act (or indeed any other instrument), and thus the USDOC's determination is inconsistent with Article 1.1(a)(1)(iii). 
                                                                                                                                               
submission, para. 441). Furthermore, India contends th at the term "transfer" is narrower than the term 
"provides", and yet accepts that the term  "transfer" still covers the situation where the rights or interest in an 
asset are transferred (India's first written submission, paras. 441 and 443). 
430 Panel Report,  US – Softwood Lumber IV , fn. 99. 
431 The USDOC's determinations concern the grant of  mining licences, rather than reconnaissance 
permits or prospecting licences. The diffe rent types of rights associated with mining in India are identified in 
the Hoda Report attached to 2006 New Subsidy Allegations (Tata), Exhibit USA-71, p. 2. 
432 Although the panel subsequently re ferred to "extraction rights", th e earlier reference to exploring a 
site with "the chance of finding something" suggests th at the rights envisaged by that panel were markedly 
different from the rights at issue in the present case. 
433 2007 Supplemental Questionnaire Response from Tata for 2006 AR, Exhibit IND-65, pp. 12 and 16. 
India has not disputed the United States' assertion that  this evidence is proof that miners pay a per unit 
extraction fee (United States' first written submission, para. 494). 
434 2006 Preliminary Results, Exhibit IND-32, p. 15 of 22. 
435 The fact that the USDOC's determination conc erned the Coal Mines Na tionalization Act is 
demonstrated by the reference to that Act in the USDOC's preliminary determination. Furthermore, India stated in response to Panel question No. 96 that "[t]he program identified and countervailed by the United States in this case is the coal mining rights granted under the Coal Mining Nationalization Act". This was not disputed by the United States in its comments on India's response to Panel question No. 96. Instead, the United States' comments sought to establish that "Tata is a beneficiary under the [Coal Mining Nationalization] Act and therefore a recipient of the subsidy" (United States' comments on India's response to Panel question No. 96, para. 10). This confirms that the USDO C countervailed subsidies allegedly provided to Tata 
under the Coal Mines Nationalization Act. WT/DS436/R 
 
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  7.4.4.1  Main arguments of the parties 
7.243.  India asserts that Tata was granted a coal  mining licence in 1907 by the Raja of Ramgarh, 
i.e. prior to India attaining independence, and th erefore independent of the GOI. India contends 
that the lease was renewed from time to time, and extended for a term of 999 years in 1946 (still 
prior to Indian independence and thus independen t of the GOI). India submits that Tata continues 
to mine coal under the said lease, rather than any lease granted by GOI.436 India denies that Tata 
was granted any coal mining lease by the GOI under the Coal Mining Nationalization Act, or any 
amendment thereto. India contends that Tata's coal mines were expressly exempted from that 
Act.437 Furthermore, India submits that Tata did not, and was not required to, obtain any 
additional or new lease from the GOI once the MMDR Act entered into force.438 Furthermore, India 
denies that any lease granted to Tata required that producer to captively consume the extracted 
coal. According to India, the concept of captive mi ning rights was non-existent in any policy/law 
existing at the time that Tata's lease was granted or extended.439 
7.244.  The United States440 asserts that there is no evidence for India's assertion that the 
requirement in the Coal Mines Nationalization Act, as amended in 1976, that leases for coal mining 
be restricted to captive mining by public companies, steel companies and power companies does not apply to Tata Steel's lease. The United States maintains that India acknowledges that "in 1976 
GOI introduced a condition that coal mining rights will be restricted to companies in the public 
sector, companies engaged in the production of st eel and power, washing of coal and such other 
uses the GOI may prescribe."
441 The United States submits that India does not identify any specific 
language in the amended law that exempts Tata Steel 's mining lease from restrictions in the law. 
The United States contends that India fails to recognize that while Tata Steel's "mining facilities" 
may have been exempt from the nationalization law,  the coal that Tata Steel is mining was not. 
According to the United States, Tata Steel pays the GOI a royalty under the coal mining laws to 
extract the coal. For the United States, therefore, even though Tata's lease has not been reissued 
by GOI, Tata is clearly required by the coal la w to pay the GOI the royalties established by the 
law. 
7.4.4.2  Evaluation 
7.245.  India's claim concerns the USDOC's factual determination that Tata was granted captive 
coal mining rights by the GOI under the Coal Mining Nationalization Act, which the USDOC also refers to as the Captive Coal Mining Programme.
442 In determining that GOI granted Tata captive 
coal mining rights under the Coal Mining Nation alization Act, the USDOC observed that "in its 
questionnaire response, Tata acknowledged that the GOI and the State Government of Jharkhand 
(GOJ) granted it captive coal mining rights".443 India submits that the USDOC's observation is 
incorrect and contrary to record evidence.444 The United States defends the USDOC's observation 
by referring to Tata's 1 November 2007 Questionnaire Response. According to the United States, in its Questionnaire Response Tata "explicitly notes the existence of 'captive mining operations' as 
well as its obligations to 'pay the mining royalty in terms of the MMDR Act'".
445 
7.246.  Looking at Tata's 1 November 2007 Questionnaire Response, we note that Tata informed 
the USDOC that "Tata was operating two coking coal mines".446 Tata further explained that GOI 
"took over the management of 214 coking coal mines and 12 coke oven plants" in October 1971, 
                                               
436 India's first written submission, para. 372. 
437 Ibid. para. 375, referring to Section 36 of the Coal Mines Nationalization Act. 
438 Ibid. para. 374. 
439 Ibid. para. 375. 
440 United States' first written submission, paras. 510-511. 
441 India's first written submission, para. 375. 
442 Since only the Coal Mining Nationali zation Act was found by the USDOC to be de jure  specific, the 
possibility that Tata could be found to have been granted a coal mining leas e by the GOI or a State 
Government under some ot her statutory regime is  legally not relevant. 
443 2006 Preliminary Results, Exhibit IND-32, internal page 1591. 
444 India's response to Panel question No. 28. 
445 United States' second written submission, para. 79, referring to 2007 Supplemental Questionnaire 
Response from Tata for 2006 AR, Exhibit IND-65, p. 20 of 27. 
446 2007 Supplemental Questionnaire Response from Tata for 2006 AR, Exhibit IND-65, p. 20 of 27. WT/DS436/R 
 
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  but not those owned and/or managed by Tata.447 Tata also explained that when coking coal mines 
were nationalized by the GOI in May 1972, pursuant to the Coking Coal (Nationalization) Act, Section 36 of that Act excluded entities, including Tata, that were engaged in the production of iron and steel. Tata also explained that th e 1973 Coal Mining Nationalization Act covered 
non-coking coal mines, and that it "is not required to obtain any licence or a mining lease for these 
coal mines either under the Coal Mines (nationalization) Act or under the MMDR Act".
448 
7.247.  We also note Tata's explanation that upon  Indian independence in 1947, the mining leases 
it had been granted by the Raja of Ramgur were  transferred to the State Government of Bihar, 
pursuant to the Bihar Land Reforms Act of 1950. Tata explains that the State Government will continue to hold this lease until it expires in 2945. Tata also explains that the MMDR Act specifies the royalties that it must pay to the State Government to operate under that lease.
449  
7.248.  Having reviewed Tata's Questionnaire Responses in full, we do not consider that there was 
a sufficient evidentiary basis for the USDOC's statement that Tata had "acknowledged that the GOI … granted it captive coal mining rights" under the Coal Mining Nationalization Act. There is no 
reference in Tata's Questionnaire Responses to any lease having been provided by the GOI under 
the Coal Mining Nationalization Act, or indeed any other instrument. Rather, Tata stated unequivocally in its original Questionnaire Response that it "is not required to obtain any licence or 
a mining lease for these coal mines either under the Coal Mines (nationalization) Act or under the 
MMDR Act".
450 Tata also stated in its Supplemental Questionnaire Response that "it has neither 
applied for nor obtained any coal mining licence from [GOI]".451 
7.249.  We recall the United States' argument that Tata notes the existence of its captive mining 
operations in its original Questionnaire Response. However, the fact that Tata has captive coal 
mining operations says nothing about the legal basis of any lease or licence under which those operations are carried out. Regarding the United States' argument that Tata acknowledged that it 
pays royalties under the MMDR Act, we recall that the countervailed programme is the Coal Mining 
Nationalization Act. The United States has not established that Tata's obligation to pay royalties under the MMDR Act somehow depends on a lease having been granted under the Coal Mining 
Nationalization Act. Furthermore, because Tata explained that royalties under the MMDR Act are 
paid to the State Government rather than the GOI
452, the fact that Tata pays royalties under the 
MMDR Act does not establish that Tata was granted any mining lease by the GOI. 
7.250.  The United States further defends the USDOC's determination in these proceedings by 
arguing that in 1976 GOI amended the 1973 Coal Mini ng Nationalization Act to provide that coal 
mining rights will be restricted to companies in the public sector, companies engaged in the production of steel and power, washing of coal and such other uses the GOI may prescribe. The 
United States submits that India does not identify any specific language in the amended law that 
exempts Tata Steel's mining lease from this restriction. While we recognize that India has not identified any provision exempting Tata from the restriction that coal mining rights will be 
restricted to inter alia  steel companies, we observe that the USDOC failed to establish that Tata's 
coking coal mines were covered by the original enactment of the 1973 Coal Mining Nationalization 
Act (which, according to record evidence
453, concerns non-coking coal mines). In these 
circumstances, we believe that the onus is on the United States to identify evidence on the 
USDOC's record that would support a conclusion that, notwithstanding the initial exemption of 
Tata's coking coal mining operations from the scope of the (non-coking) Coal Mining Nationalization Act, the 1976 Amendment reversed that exemption and brought those coking coal 
operations within the scope of that Act. The United States has failed to identify any provision in the 
                                               
447 2007 Supplemental Questionnaire Response from Tata for 2006 AR, Exhibit IND-65, p. 19 of 27. 
448 Ibid. p. 20 of 27. 
449 See footnote 452 below. 
450 2007 Supplemental Questionnaire Response from Tata for 2006 AR, Exhibit IND-65, p. 20 of 27. 
451 2008 Questionnaire Responses from Tata, Exhibit IND-67, p. 8 of 17. 
452 In its response to Panel question  No. 97, India explained that any failure by Tata to pay the relevant 
royalties could result in Tata being sued by the State Government, rather than the GOI, in its capacity as 
successor to the Raja of Ramgarh. The United States did not challenge or otherwise comment on India's response to this question. 
453 2007 Supplemental Questionnaire Response from Tata for 2006 AR, Exhibit IND-65, discussed 
above. We also observe that there is no reference to Ta ta's mines (or TISCO's, as Ta ta was then known) in the 
Schedule to that Act (Exhibit IND-52A). WT/DS436/R 
 
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  1976 Amendment, or any other instrument or evidence, that would have this effect. Moreover, 
there is nothing before us to suggest that USDOC actually considered this matter in making its determination. 
7.251.  The United States suggests that the Coal Mining Nationalization Act would apply to Tata 
because although Tata's mines may have been exempted from nationalization, "the coal that 
Tata Steel is mining was not".
454 The United States supports this argument with the statement that 
Tata "pays the GOI a royalty under the coal mining laws to extract the coal, the rights to which it 
is purchasing on a per unit basis from the GOI for internal consumption".455 The United States 
further asserts that India's response to Panel question No. 97 "confirms that if Tata failed to pay royalties under the Coal Mining Nationalization Act, the State Government would be permitted to sue Tata to reclaim these royalties. This legal obligation to pay royalties under the Act confirms 
that Tata is a beneficiary under the Act".
456 We are unable to accept the factual premise of the 
United States' arguments, because India has established that Tata's obligation to pay royalties derives from the MMDR Act, rather than the Coal Mining Nationalization Act.
457 As explained above, 
this was also made clear to the USDOC by Tata during the course of the 2006 administrative 
review. 
7.252.  In light of the above considerations, we conclude that the USDOC's determination that GOI 
granted Tata a financial contribution in the form of a captive coal mining lease under the 
countervailed programme, i.e. the Captive Mining of Coal Programme/Coal Mining Nationalization Act, lacks a sufficient evidentiary basis. We ther efore uphold India's Article 1.1(a)(1)(iii) claim 
against this determination.
458  
7.4.5  Whether the USDOC properly determ ined that the Captive Mining of Coal 
Programme/Coal Mining Nationalization Act is de jure  specific 
7.253.  In light of our above finding upholding India's claim against the USDOC's determination 
that GOI granted Tata captive mining rights under the Coal Mining Nationalization Act, it is not 
necessary for us to resolve India's claim regarding the USDOC's determination that the Captive Mining of Coal Programme/Coal Mining Nationalization Act is de jure  specific. We therefore 
exercise judicial economy in respect of this claim. 
7.4.6  USDOC's determination of benefit re garding the iron ore and coal programmes 
7.254.  India makes a number of claims regarding the USDOC's determination that the Captive 
Mining of Iron Ore and Coal Programmes conferred a benefit by providing goods for less than 
adequate remuneration. The USDOC determined be nefit by constructing notional government 
prices, and then comparing those prices with Tier I and Tier II benchmarks. The USDOC constructed the notional government prices by calculating a per unit price for the captive mining 
fees paid to GOI, and then adding per unit operational mining costs, which consisted of materials, 
labour, depreciation, overhead, and royalties. 
7.255.  India submits that the USDOC's constructed notional government price methodology is 
inconsistent with Articles 1.1(b) and 14 of the SCM Agreement, and the principle of good faith. 
India also submits that the USDOC's use of the relevant Tier I and Tier II benchmarks is inconsistent with Article 14(d) of the SCM Agreement. The United States asks the Panel to reject India's claims. 
                                               
454 United States' first written submission, para. 511. 
455 Ibid. 
456 United States' Comments on India's resp onse to Panel question No. 96, para. 10. 
457 India's response to Panel question No. 26. 
458 We observe that there would appear to be su fficient evidence on the USDOC's record for a 
determination that Tata is presently mining coal under a lease that has validity in Indian law, and could therefore be attributed to the GOI.  Provided the relevant requirements  of the SCM Agreement are complied 
with, we see no reason why the provision of coal unde r that lease could not be countervailed. However, the 
USDOC's determination that the Coal Mining Nationalization Act/Captive Mining of Coal Programme is de jure  
specific would obviously not be  relevant in this context. WT/DS436/R 
 
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  7.4.6.1  India's claims against the USDOC' s notional government price methodology 
7.4.6.1.1  Main arguments of the parties 7.256.  India contends that because GOI only provided the rights to mine minerals, rather than the 
extracted minerals themselves, the USDOC violated Articles 1.1(b) and 14(d) of the 
SCM Agreement by applying a methodology for determining benefit that compared a notional 
government price for extracted minerals to benchmark prices.
459 India submits that the costs 
incurred by an Indian miner in extracting the mi neral and the reasonable profit, if any, that a 
miner may obtain upon using/selling such extracted mineral does not devolve on the GOI and 
cannot form part of the 'remuneration' to be received by the GOI. 
7.257.  India also recalls its earlier argument that the term 'remuneration' as used in Article 14(d) 
of the SCM Agreement relates to the compensation receivable by the provider and is independent 
of the benefit, if any, that ma y be conferred on the receiver.460 According to India, the USDOC 
should have assessed the adequacy of the remuneration for the GOI before assessing whether there was any benefit to the recipient. India contends that the USDOC could have assessed the 
adequacy of remuneration for the GOI by analysing the royalty rate charged by GOI in comparison 
to royalty rates in other countries.
461 
7.258.  The United States submits that India erroneously argues that the existence of benefit 
should be determined by reference to the cost to the government of the financial contribution. The 
United States contends that the Article 14 guidelines for determining benefit state that a benefit calculation shall be based on the benefit to the recipient. 
7.259.  The United States disagrees with India's argument that USDOC was required to compare 
the mining rights at issue to a benchmark based on royalty rates in other countries. The 
United States asserts that the benefit potentially provided by a mining rights programme is the mineral that is obtained by the producer taking advantage of the programme. The United States 
contends that it would be inappropriate in this case to use the price of mining rights in other 
countries as a benchmark, because the mining rights at third country prices are not available in the Indian market. The United States asserts that the use of such a price would not reflect the 
prevailing market conditions in India, as required by the guidelines in Article 14(d). 
7.4.6.1.2  Evaluation 7.260.  India's claim against the USDOC's notional price methodology is premised on 
two arguments that, for reasons already addressed, we do not accept. First, we recall our finding 
that the USDOC was entitled to treat the provision of mining leases as the provision of a good 
within the meaning of Article 1.1(a)(1)(iii) of the SCM Agreement. Thus, we reject India's argument that the steel producers were only provided the right to mine minerals, rather than the 
extracted minerals themselves. Second, we recall ou r earlier rejection of India's argument that the 
adequacy of remuneration should be assessed fr om the perspective of the government, before 
assessing whether there is any benefit to the recipient. In our view, the USDOC was entitled to 
assess adequacy of remuneration as part of its be nefit analysis, and to make that assessment from 
the perspective of the recipient, using a benchmarking methodology. Since the USDOC needed a government price for the provided "good" against which to compare the relevant benchmarks, we consider that it was reasonable for the USDOC to construct a notional government price for the 
extracted minerals. We note that, apart from ch allenging the USDOC's basic methodology, India 
has not challenged the manner in which the relevant  notional government prices were constructed 
by the USDOC. For these reasons, we reject Indi a's claim that such methodology is inconsistent 
with Article 1.1(b) and 14(d) of the SCM Agreement. 
7.261.  We note that India has also alleged that the USDOC's notional government price 
methodology is inconsistent with the principle of  g o o d  f a i t h .  W e  a g r e e  w i t h  t h e  U n i t e d  S t a t e s '  
                                               
459 India's first written submission, para. 388. 
460 See section II.B.1 of Indi a's first written submission. 
461 India's first written submission, para. 389. WT/DS436/R 
 
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  argument462 that India's good faith claim falls outside the Panel's terms of reference, since it is not 
provided for in India's panel request.463 
7.4.6.2  India's claims against the Tier I and Tier II price benchmarks applied by the 
USDOC 
7.262.  India challenges certain aspects of the Tier I and Tier II price benchmarks against which 
the notional government prices for iron ore and coal were compared. 
7.263.  For iron ore, the USDOC compared the notional government price benchmarks with the 
same Tier II benchmarks that it used to determine benefit in respect of sales of iron ore by the 
NMDC. India repeats the claims it made against those benchmarks in the context of the NMDC.464 
We recall that we have already upheld India's claim regarding the USDOC's rejection of certain 
domestic price information submitted by GOI and Tata when assessing benefit in the context of the 
NMDC. That information was also rejected by the USDOC when assessing benefit in the context of 
the Captive Mining of Iron Ore. For the same reasons, we uphold India's Article 14(d) claim regarding the USDOC's rejection of the relevant domestic price information when assessing benefit 
in the present context also. 
7.264.  For coal, the USDOC applied a Tier I benchmark based on actual delivered prices paid by 
an Indian company for importing coal from a priv ate supplier in Australia. We understand India to 
claim that the USDOC's use of a delivered price is inconsistent with Article 14(d) of the 
SCM Agreement.
465 We recall that we have already reject ed a very similar argument made in the 
context of India's claims concerning the NMDC.466 As we explained, an actual import transaction 
price, as delivered, necessarily relates to the prevailing market conditions in the country of import. 
Accordingly, and for the same reasons,  we reject the present claim also. 
7.4.7  Conclusion 7.265.  For the reasons set forth above, we uphold India's claims that (i) the United States acted 
inconsistently with Article 12.5 of the SCM Agreement by failing to determine the existence of the 
Captive Mining of Iron Ore Programme on the basis of accurate information, and (ii) the United States acted inconsistently with Article 1.1(a)(1)(iii) of the SCM Agreement by determining 
without sufficient evidentiary basis that GOI granted Tata a financial contribution in the form of a 
captive coal mining lease under the Captive Mining of Coal Programme/Coal Mining Nationalization Act. We also uphold India's Article 14(d) claim regarding the USDOC's rejection of certain domestic price information when assessing benefit under the Captive Mining of Iron Ore Programme. We 
reject India's remaining claim in connection with the Captive Mining of Coal Programme. 
7.5  Alleged inconsistencies with respect to  the USDOC's treatment of loans provided 
under the Steel Development Fund 
7.266.  India challenges the USDOC's determination that loans provided under the Steel 
Development Fund (SDF) constitute direct tran sfers of funds by a public body. India also 
challenges the USDOC's determination that such loans conferred any benefit on the recipient steel 
producers. The United States asks the Panel to reject India's claims. 
7.5.1  The USDOC's determination that direct  transfers of funds were provided by a 
public body: Article 1.1(a)(1)  
7.267.  India's claims concern the USDOC's determination that the SDF loans are provided by a 
"public body" within the meaning of Article 1.1( a)(1) of the SCM Agreement; various aspects of 
                                               
462 United States' first written submission, para. 521. 
463 WT/DS436/3. 
464 India's first written submission, para. 403. 
465 Our understanding of India's claim is based on para. 404 of India's first written submission, and 
fn. 423 thereto. Fn. 423 refers simply to Sections III and VII.D of India' s first written su bmission, without 
providing any additional explanation of the substance of India's claim. We observe that the common factor 
challenged in those Sections concerns the use of delivered price benchmarks. 
466 See para. 7.181 above. WT/DS436/R 
 
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  the USDOC's determination that there were "direc t transfers of funds" within the meaning of 
Article 1.1(a)(1)(i); and the USDOC's determination in the 2008 administrative review, on the basis of facts available, that "potential direct tr ansfers of funds" were provided, within the meaning 
of Article 1.1(a)(1)(ii). 
7.268.  Article 1.1(a)(1) of the SCM Agreement is set forth above.
467 
7.5.1.1  Whether SDF loans are provided by a public body 
7.5.1.1.1  Factual clarification by the Panel 
7.269.  We begin by clarifying the precise scope of the relevant USDOC determinations. In 
particular, we consider it necessary to clarify which entity was determined by the USDOC to provide the financial contributions at issue. We also consider it necessary to clarify whether that entity was determined to be part of the Indian government, or a public body. 
7.270.  In its preliminary determination in the original investigation, the USDOC found: 
We preliminary determine that the GOI directed the contribution of funds for the SDF 
within the meaning of section 771(5)(B) of th e Act, by levying price increases on steel 
products which were routed into the SDF. Furthermore, because the Secretary of the 
Ministry of Steel has a major leadership role in the JPC and the SDF Managing Committee, the bodies that issue and administer loans under the SDF, we 
preliminarily determine that the GOI exercises control over the way in which funding 
is disbursed under this program. Therefore, we preliminarily determine that loans under the SDF constitute a financial contribution within the meaning of section 771(5)(D)(i) of the Act.
468 
7.271.  In its Issues and Decision Memorandum pr eceding the final determination in the original 
investigation, the USDOC stated:  
As discussed in the Preliminary Determination and in more detail below, the 
Department has determined in this proceeding that the SDF Management Committee 
is a government body. 
… 
[T]he SDF operates as a government entity, that all lending decisions are decisions 
ultimately made by the GOI, and that the decision to forgive SDF loans is also a decision made by the GOI.
469 
7.272.  The references by the USDOC to a "gov ernmental body" raise the issue of whether the 
USDOC determined that the financial contributions at issue were provided by the GOI, or whether 
they were provided by a "public body" with in the meaning of Article 1.1(a)(1) of the 
SCM Agreement. If provided by a public body, the question arises whether both the JPC and 
SDF Managing Committee were found to have provided the financial contributions, or only the 
latter entity.  
7.273.  In its first written submission, India proceeded on the basis that the USDOC had found that 
SDF loans were provided by JPC and the SDF Managing Committee, and challenged the USDOC's 
designation of these entities as "public bodies".470 In response to a question from the Panel, the 
                                               
467 See para. 7.66 above. 
468 Notice of preliminary affirmative countervaili ng duty determination and alignment of final 
countervailing determination with final antidumping duty determinations, 20 April 2001, 66 Fed. Reg.  20240 
("2001 Preliminary Determination"), Exhibit IND-6, p. 9. 
469 Issues and decision memorandum: final results of the countervailing duty investigation, 
21 September 2001 ("2001 Issues and Decision Memorandum"), Exhibit IND-7, pp. 9 and 10. 
470 India stated that "at no point in time has the United States made an explicit determination that the 
JPC and / or the SDF Managing Comm ittee is 'government' and not a 'public body' within the meaning of 
Article 1.1(a)(1) of the SCM Agreement." (India's first written submission, para. 416) WT/DS436/R 
 
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  United States asserted that the USDOC determined that "the SDF Managing Committee in 
particular was a public body that made all final decisions on SDF loans, including setting the terms and approving waivers".
471 We understand this to mean that the phrase "government body" used 
by the USDOC is synonymous with the phrase "public body" in the SCM Agreement. We also 
understand the United States' response to have clarified that the USDOC determined that the SDF 
loans were provided by the SDF Managing Committee,  a public body, rather than by the GOI itself. 
Furthermore, since the United States made no reference to any determination by the USDOC that 
the JPC constituted a public body, or provided an y financial contributions, we understand that the 
USDOC did not determine that the JPC Committee pr ovided the SDF loans. We observe that India 
had not challenged the United States' description of the USDOC's determination. 
7.274.  In light of the above clarifications, we proceed with our analysis on the basis that the 
USDOC determined that SDF loans were provided by the SDF Managing Committee, in its capacity 
as a public body. We shall now examine whether the USDOC's determination that the SDF Managing Committee is a public body is inconsistent with Article 1.1(a)(1) of the 
SCM Agreement, as alleged by India. 
7.5.1.1.2  The USDOC's determination that the SDF Managing Committee constitutes a 
public body 
7.275.  Like India's claim regarding the NMDC, India's claim against the USDOC's determination 
that the SDF Managing Committee is a public body is based primarily on the findings of the Appellate Body in the US – Anti-Dumping and Countervailing Duties (China) proceedings. We recall 
that the Appellate Body issued its report in th at case in March 2011, after the relevant USDOC 
determinations that the SDF Managing Committee is a public body. India submits that, because 
the USDOC failed to establish that the SDF Managing Committee performs governmental functions, or has the authority to do so, the USDOC failed to comply with the standard laid down by the 
Appellate Body in that case.
472 India contends that the USDOC's determination was based rather 
on governmental control allegedly resulting from the fact that the members of the SDF Managing Committee are officials of the GOI.
473 India suggests that such a determination is akin to a 
determination of public body status based on ma jority government ownership which, India recalls, 
was condemned by the Appellate Body in the above-mentioned case. 
7.276.  Consistent with our evaluation of India's claim against the USDOC's determination that the 
NMDC is a public body, we do not accept India' s argument that a determination of public body 
status may not be based on a finding of governmental control. Provided an investigating authority 
finds that a government's control of an entity is "meaningful", we consider that such finding may suffice to support a determination that the enti ty is a public body within the meaning of 
Article 1.1(a)(1) of the SCM Agreement. Furthermore, while "meaningful control" may not be 
established on the basis of government shareh olding alone, a combination of government 
shareholding plus other factors indicative of su ch control may suffice. We shall therefore examine 
whether the USDOC's determination in respect of  the SDF Managing Committee can be understood 
as a finding that the SDF Managing Committee is subject to "meaningful control" by the GOI. 
7.277.  In respect of its 2001 determination, the USDOC explained in its Issues and Decision 
Memorandum that: 
the Secretary of the Ministry of Steel, an o fficial one level removed from the Minister 
of Steel, is the Chairman of the SDF Managi ng Committee. We further learned that the 
other three members on the SDF Managing Committee consist of the following GOI 
officials: the Secretary of Expenditure, the Secretary of the Planning Commission, and 
the Development Commissioner for Iron and Steel. In addition, during verification we reviewed numerous notes and minutes from SDF Management Committee meetings. 
The documents from the meetings demonstrate the SDF Management Committee's 
ability to control and direct loan approvals, interest payments on SDF loans, and SDF loan waivers. See page 5 and Exhibits 11 and 12 of the GOI Verification Report. 
Therefore, based on the evidence on the reco rd of this proceeding, we determine that 
                                               
471 United States' response to Pa nel question No. 40, para. 7. 
472 India's first written submission, para. 426. 
473 Ibid. para. 424. WT/DS436/R 
 
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  the SDF operates as a government entity, that all lending decisions are decisions 
ultimately made by the GOI, and that the decision to forgive SDF loans is also a decision made by the GOI.
474 
7.278.  We recall our earlier finding that government involvement in the appointment of an entity's 
directors is one factor that might indicate meaningful government control. We consider that the 
relationship between the government and the entity  is even closer when the management of the 
entity is composed exclusively of serving government officials. In our view, India is mistaken in 
arguing that government appointment of serving government officials is akin, in terms of control, 
to government shareholding. While government sh areholding indicates formal links of ownership 
between the government and the relevant entity, which may or may not entail a degree of control, the appointment by the government of serving government officials to actually manage an entity 
in itself demonstrates a degree of control, as th e individuals making the decisions for the entity, 
i.e., exercising control, are public officials acting in their official capacity.
475 Thus, in this situation, 
the links between the government and the entity w ill be more substantive, or "meaningful", in 
nature. We recall in this regard that the SDF Managing Committee was composed of the Secretary 
of the Ministry of Steel, the Secretary of Expend iture, the Secretary of the Planning Commission, 
and the Development Commissioner for Iron and Steel. The USDOC found explicitly that the 
Secretary of the Ministry of Steel served on th e SDF Managing Committee in his capacity as head 
of the Commission for Iron and Steel.476 In our view, the United States is correct to argue that, as 
a result of its composition, the SDF Managing Committee was under the "complete control" of the GOI.
477 For this reason, we reject India's claim that the USDOC's determination that the 
SDF Managing Committee constitutes a public body is inconsistent with Article 1.1(a)(1) of the 
SCM Agreement. 
7.279.  Having established that the USDOC properly determined that the SDF Managing 
Committee constitutes a public body, we now examine whether the USDOC properly determined 
that the SDF Managing Committee provided "direc t transfers of funds" within the meaning of 
Article 1.1(a)(1)(i) of the SCM Agreement. 
7.5.1.2  Whether the USDOC properly de termined that SDF Managing Committee 
provided "direct" "transfers" of funds 
7.280.  India challenges two aspects of the USDOC's determination that the SDF Managing 
Committee provided direct transfers of funds. First, India claims that the SDF Management 
Committee was not directly  involved in any transfer of funds under the SDF loan programme, such 
that the SDF Management Committee could not be found to have made any "direct" transfers of funds within the meaning of Article 1.1(a)(1)(i).
478 Second, India submits that SDF loans do not 
constitute transfers  of funds falling within the scope of Arti cle 1.1(a)(1)(i), since the relevant funds 
were neither public in nature, nor resulted in any charge on the public account.479 
7.5.1.2.1  Main arguments of the parties 
7.281.  India notes that Article 1.1(a)(1)(i) covers only "direct", rather than indirect, transfers of 
funds.480 India contends that the SDF Managing Committee did not directly  transfer any funds.481 
India contends that funds were instead disburse d by an intervening private agency, namely the 
JPC. India submits that the SDF Managing Committee played only an indirect role in this 
process482, as the loan agreements were executed by JPC with the participating steel plants, and it 
is JPC that had access to the funds. According to India, the SDF Managing Committee only had a supervisory role over the JPC. India submits that mere regulation of the actions of another funding 
agency cannot be considered as involving the direct  transfer of funds in the sense of 
                                               
474 2001 Issues and Decision Memorandum, Exhibit IND-7, pp. 9 and 10. 
475 In response to Panel question No. 102, India stated  that there is no evidence on the USDOC's record 
to suggest that GOI officials se rved on the SDF Managing Commit tee in their private capacity. 
476 2001 Preliminary Determination, Exhibit IND-6, p. 9. 
477 United States' second written submission, para. 97. 
478 India's first written submission, paras. 429-438. 
479 Ibid. paras. 443-448. 
480 Ibid. para. 434. 
481 Ibid. para. 435. 
482 Ibid. para. 436. WT/DS436/R 
 
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  Article 1.1(a)(1)(i). India submits that no eviden ce on record indicates that the SDF Managing 
Committee itself disbursed any funds.  
7.282.  India further submits that a direct transfer  of funds within the meaning of 
Article 1.1(a)(1)(i) can occur only where a govern ment or public body has title over the funds 
being transferred or, in the alternative, where the disbursement results in a charge on the public 
account.483 India contends that the ordinary meaning of the phrase " transfer  of funds" would 
require a person to convey the title over money or financial resources to another person.484 Thus, 
the requirement of 'transfer of funds' would only be  satisfied if the government or public body is 
the owner of the funds in question, since it is only the owner of the funds who can transfer the 
funds to another person. According to India485, the use of the term "transfer" in Article 1.1(a)(1)(i) 
can be contrasted with the use of the term "provides" in Article 1.1(a)(1)(iii) of the 
SCM Agreement. India contends that the term "provides" is much broader, and means to "make 
available" or "put at the disposal of".486 Furthermore, recalling that the SCM Agreement covers 
financial contributions "by" governments or public bodies, India submits that if a person other than 
the government or public body in question gives the monetary resources or contribution, it would 
ordinarily not be covered within the scope of the chapeau.  
7.283.  As an alternative argument, India contends that the term "transfer" requires a charge on 
the public account.487 According to India, the essence of a "transfer" involves a situation where, as 
a result of the "transfer", something originally in the hands of the transferor is moved to the transferee: the rights or interest in the asset in question is terminated in the hands of the transferor and simultaneously created in the ha nds of the transferee. India submits that, when 
viewed from this perspective, unless the government incurs a financial charge on its account – 
such that the funds being transferred would ha ve otherwise been at the disposal of the 
government – there cannot be a direct "transfer" of funds within the meaning of 
Article 1.1(a)(1)(i) of the SCM Agreement. 
7.284.  India submits that the USDOC's determination that the SDF Managing Committee made 
direct transfers of funds is inconsistent with Article 1.1(a)(1)(i) of the SCM Agreement, because 
the SDF funds were derived from private levies on steel producers, such that title to those funds 
was not held by GOI, and disbursement of those f unds did not result in any charge on the public 
account. India asserts that the USDOC erred in ho lding that the funds constituting the SDF were 
not the steel producers' own funds, but were rather analogous to tax revenues collected from the 
consumers as mandated by the GOI.
488 
7.285.  The United States submits that the facts demonstrate that the USDOC reasonably 
concluded that the SDF levy operated as a tax imposed on consumers, over which the GOI, 
through the SDF Managing Committee, had complete control. The United States submits that the 
USDOC properly found that the loans provided us ing these funds constituted a "direct transfer" 
within the meaning of Article 1.1(a)(1)(i). 
7.286.  According to the United States, the Appellate Body has interpreted Article 1.1(a)(1)(i) to 
cover any government practice the effect of which is to improve the financial position of the recipient. The United States refers in this regard to the findings of the Appellate Body in Japan – 
DRAMS (Korea).
489 The United States also refers to the finding of the Appellate Body in US – Large 
Civil Aircraft (Second Complaint)  that "[t]he direct transfer of funds in subparagraph (i) therefore 
captures conduct on the part of the government by which money, financial resources, and/or financial claims are made available  to a recipient."
490  
7.287.  The United States submits that the GOI mandated that an additional price element be 
included in the sale of steel, and also mandated that the amounts collected be transferred to the 
                                               
483 India's first written submission, paras. 440-453. 
484 Ibid. para. 440. 
485 Ibid. para. 441. 
486 Appellate Body Report, US – Softwood Lumber IV , para. 69 
487 India's first written submission, para. 443. 
488 Ibid. para. 454. 
489 Appellate Body Report, Japan – DRAMs (Korea) , para. 251. 
490 Appellate Body Report, US – Large Civil Aircraft (2nd complaint) , para. 614. (emphasis added) WT/DS436/R 
 
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  JPC. The JPC then recommends distributing thes e funds in the form of better-than-market rate 
loans to steel companies, and the SDF Managing Committee makes a final decision as to the disbursement of such loans. The United States contends that, through the consumer levy and the JPC, these resources are therefore "made availabl e" to recipient companies by the SDF Managing 
Committee. 
7.288.  The United States also disputes India's argument that the disbursement of SDF funds as 
loans cannot constitute a "direct transfer of funds, " because a direct transfer may only be provided 
where the "public body itself owns the 'financial contribution' in question." According to the 
United States, the Appellate Body has not requ ired that any direct transfer of funds be 
accomplished through the transfer of ownership of the relevant funds from the government to the recipient. The United States notes that the Appella te Body has simply found that a direct transfer 
of funds may be found whenever there is "conduct on the part of the government by which money, 
financial resources, and/or financial claims are made available to a recipient."
491 
7.5.1.2.2  Main arguments of the third parties 
7.5.1.2.2.1  European Union 
7.289.  With respect to the question of whether or  not there is any direct transfer of funds, the 
European Union observes that Article 1.1(a)(1)(i) begins with the phrase "a government practice 
involves". This is therefore what is required to meet the requirements of that provision. The 
European Union contends that the text does not provide that the transfer must involve a change in ownership over the funds from the government to the putative beneficiary, as India would have it: merely that "a government practice involves" such  a transfer. Thus, even if the transfer was made 
by the JPC, as India asserts but the US contests, that in itself would not necessarily mean that the 
measure at issue was inconsistent. 
7.5.1.2.3  Evaluation 
7.290.  India's claim raises the issue of whether SDF loans are "direct transfers of funds" within 
the meaning and coverage of Article 1.1(a)(1)(i ) of the SCM Agreement. India asserts that, 
because of the private status of the entity that  actually disbursed the funds (the JPC), and the 
private source or ownership of the relevant fund s, SDF loans are private transfers falling outside 
the scope of the SCM Agreement. According to  India, the SDF Managing Committee did not 
"directly" transfer any funds itself, such that the USDOC could not properly have determined that "direct" transfers of funds were made by a public  body. In addition, India contends that the funds 
were neither owned by nor sourced from the government, such that the USDOC could not properly 
have determined that the public body at issue,  the SDF Managing Committee, made any direct 
"transfers" of funds. 
7.291.  We note that the USDOC did not determine that the JPC is a public body. The USDOC only 
found that the SDF Managing Committee is a public body. Thus, if SDF loans are not "direct transfers of funds" by the SDF Managing Committee, but rather by the JPC, such loans fall outside 
the scope of a finding that they constitute counterva ilable subsidies as direct transfers of funds by 
a public body. The USDOC made the following observations regarding the role of the SDF Managing Committee in providing SDF loans: 
We asked the GOI officials to describe the role of the SDF Managing Committee. … 
They stated that the SDF Managing Committee considers and grants the ultimate 
approval of the proposals put forth by th e [JPC]. The JPC handles the day-to-day 
affairs of the SDF, such as overseeing and administering the SDF loans. GOI officials 
stated that the SDF Managing Committee handles all decisions regarding the issuance, 
terms, and waivers of SDF loans.
492 
7.292.  India does not deny that the SDF Managing Committee was the decision-maker regarding 
the issuance, terms and waivers of the SDF loan s. However, India considers that this is 
                                               
491 The United States refers to Appellate Body Report, US – Large Civil Aircraft (2nd complaint) , 
para. 614. 
492 2001 Investigation Verification Report of GOI Responses, Exhibit USA-74, p. 3. WT/DS436/R 
 
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  "immaterial for the purposes of present dispute because the disbursement and collection of funds 
was the responsibility of the JPC".493 India also contends that the authority to operate the fund is 
vested only in the JPC, and "the function of management and operation of the corpus of the SDF was with JPC."
494 India also asserts that the SDF loan agreements were executed between the 
JPC and the member steel plants, with the recitals  to the said agreement clearly providing that 
JPC was constituted with the power to maintain and disburse loans out of the SDF. India also 
submits that the issuance and administration of loans under the SDF programme was supervised 
by the JPC.495 
7.293.  We consider that although the JPC may formally have administered the disbursement and 
collection of funds, and the day-to-day operations  of the SDF, the USDOC could reasonably have 
determined that the SDF Managing Committee was "directly" involved in the issuance of 
SDF loans. This is because evidence on the US DOC's record indicates that the SDF Managing 
Committee made the decision whether or not loans should be issued, and on what terms. Thus, while funds were actually disbursed by the JPC, such disbursements were only made following an 
affirmative decision by the SCM Managing Committee as to the issuance, terms, and conditions of 
the loans.
496 In this way, it is clear to us that the SCM Managing Committee was "directly" involved 
in the provision of SDF loans. We recall that  India does not deny that the SDF Managing 
Committee was the decision-maker regarding the i ssuance, terms and waivers of the SDF loans. 
7.294.  Regarding the issue of whether or not the USDOC could reasonably have found that the 
SDF Managing Committee "transfer[red]" the relevant funds, there is nothing in the text of Article 1.1(a)(1)(i) to suggest that the relevant government or public body must have title over 
the funds being transferred, or th at there must be a charge on the public account, in order for a 
direct "transfer" of funds to occur.  
7.295.  In the present case, SDF levies are collected by the JPC. The parties have argued 
extensively whether or not such levies are imposed on consumers pursuant to a government 
mandate, such that they may be similar to government taxation, or whether they are rather voluntary contributions made by the steel producers. We consider important the GOI's assertion 
that, once collected, the funds are "remitted to the Fund".
497 We understand that once the funds 
are remitted to the SDF, the funds are no longer held by either the steel producers or the JPC. They are instead held by the SDF, and dispos ed of pursuant to the instructions of the 
SDF Managing Committee. In these factual circumstances, we consider that the USDOC was 
entitled to find that SDF funds had been "transfer[red]" by the SDF Managing Committee within 
the meaning of Article 1.1(a)(1)(i) of the SC M Agreement. Even though the SDF Managing 
Committee may not have taken title over the funds, or imposed a charge on the public account 
when releasing those funds as loans, the SDF Ma naging Committee was instrumental (because of 
its role as decision-maker regarding the issuance, terms and waivers of SDF loans) in "transfer[ring]" those funds from th e SDF to the loan beneficiaries. 
7.296.  Furthermore, we note the finding of the Appellate Body in US – Large Civil Aircraft 
(Second Complaint)  that "[t]he direct transfer of funds in subparagraph (i) therefore captures 
conduct on the part of the government by which money, financial resources, and/or financial claims are made available  to a recipient".
498 Even if the SDF Managing Committee could not be 
said to have "transfer[red] funds" to the SDF loan beneficiaries, at the very least the 
SDF Managing Committee made those funds available to beneficiaries once it provided the requisite loan authorizations. 
                                               
493 India's second written submission, para. 236. 
494 Ibid. para. 241. 
495 Ibid. 
496 We also note in this regard the USDOC's fi nding that "numerous notes and minutes from SDF 
Management Committee meetings … demonstrate the SDF Management Committee's ability to control and direct loan approvals, interest payments on SDF lo ans, and SDF loan waivers" (2001 Issues and Decision 
Memorandum, Exhibit IND-7, pp. 9 and 10, quoted above at para. 7.277). 
497 Government of India's response to supplemental questionnaire, 20 March 2001 ("GOI's 2001 
supplemental questionnaire response"), Exhibit USA-75, p. 3. 
498 Appellate Body Report, US – Large Civil Aircraft (Second Complaint) , para. 614. (emphasis added) WT/DS436/R 
 
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  7.5.1.2.3.1  Conclusion 
7.297.  For the above reasons, we reject India's claim that the USDOC's determination that the 
SDF Managing Committee provided direct transfers of  funds is inconsistent with Article 1.1(a)(1)(i) 
of the SCM Agreement. 
7.5.1.3  The USDOC's determination that SDF loans constitute potential direct transfers 
of funds 
7.298.  This claim concerns the results of the 2008 administrative review conducted by the 
USDOC. As a result of a failure by interested parties to provide necessary information, the USDOC 
performed its assessment of the SDF loans on the basis of facts available. The USDOC found, "as AFA [adverse facts available], that the GOI's provision of SDF loans under this program provide a financial contribution in the form of a potential direct transfer of funds…."
499 
7.5.1.3.1  Main arguments of the parties 
7.299.  India submits that the USDOC's determinatio n that SDF loans are potential direct transfers 
of funds is inconsistent with Article 1.1(a)(1)(i). India submits that, for a potential direct transfer 
of funds to exist, there has to be a government practice that involves: (i) an obligation to make a 
direct transfer of funds (ii) at some point in the future.500 According to India, there is no reference 
in the USDOC's determination to any such future obligation.501 India further submits that, in view 
of its earlier treatment of SDF loans as (actual rath er than potential) direct transfers of funds, the 
determination made by the United States is bereft of any form of reasoning and is ex facie  illogical 
and unsubstantiated.502 
7.300.  The United States contends that India's concern that this language was intended to 
address "an obligation on the GOI to provide funds in the future"503 is misplaced.504 According to 
the United States, the USDOC's reference to the te rm "potential" was simply meant to convey the 
potential benefit for the 2008 period as there was no specific information on SDF provided by the 
company during the 2008 Administrative Review. 
7.5.1.3.2  Evaluation 7.301.  We recall that the USDOC's reference to a "potential direct transfer of funds" was made in 
applying facts available. In applying facts ava ilable, the USDOC explicitly stated that "no new 
information or evidence of changed circumstance s has been submitted in this proceeding to 
warrant reconsideration" of its earlier determination regarding SDF loans.
505 That earlier 
determination had treated SDF loans as "direct transfers of funds".506 The USDOC also stated that, 
in applying facts available, it "continue[d] to find, as AFA, that the GOI's provision of SDF loans 
under this program provide a financial contribution …"507 In our view, consideration of the broader 
context of the USDOC's determination makes it clear that, in reality, the USDOC was merely 
continuing  to apply its earlier determination that SDF loans constitute direct transfers of funds. 
The USDOC explained that the continued  application of its previous determination to this effect 
was appropriate because there had been no changed circumstances to warrant reconsideration of 
that determination. In this context, we accept the United States' argument that the USDOC used 
the term "potential" to highlight the fact that the USDOC did not have concrete evidence regarding the actual provision of loans during the relevant period. While the USDOC might have avoided confusion by choosing a different textual formulation, the general sense of the USDOC's 
determination is clear enough. Accordingly, we reject India's claim that the USDOC's reference to 
                                               
499 2008 Preliminary Results, Exhibit IND-40, internal page 1501. 
500 India's first written submission, para. 464. 
501 Ibid. para. 464. 
502 Ibid. para. 465. 
503 Ibid. para. 575. 
504 United States' first written submission, para. 252 (the United States made this argument in the 
context of India's Article 12.7 cl aim concerning this matter). 
505 2008 Preliminary Results, Exhibit IND-40, internal page 1501. 
506 At para. 465 of its first written submission, India acknowledges that SDF loans had previously been 
determined to be direct  transfers of funds. 
507 2008 Preliminary Results, Exhibit IND-40, internal page 1501. WT/DS436/R 
 
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  SDF loans as "potential direct transfers of funds" in the 2008 administrative review is inconsistent 
with Article 1.1(a)(1)(i) of the SCM Agreement. 
7.5.2  Alleged inconsistencies with respec t to the USDOC's determination of benefit 
7.302.  India challenges the manner in which the USDOC determined the benefit conferred by SDF 
loans in the 2006 and 2008 administrative reviews. The USDOC did so by comparing the rates at 
which SDF loans were provided with the Prime Lending Rate (PLR) as published by the Reserve Bank of India (RBI). 
7.5.2.1  Main arguments of the parties 
7.303.  India's claims regarding the USDOC's use of PLRs are based on the chapeau to Article 14, 
and Article 14(b). In respect of the chapeau to Article 14, India notes that investigating authorities are required to explain in any given case the method used to calculate the benefit to the 
recipient.
508 India further notes that, pursuant to Article 14(b), the investigating authority must 
compare the terms of the government loan with  the terms of a "comparable commercial loan 
which the firm could actually obtain on the market".509 India submits that the United States 
violated its obligations under Article 14(b) and the chapeau to Article 14 by not adequately 
explaining510 how the PLRs indicate the amount that an SDF loan recipient would pay on a 
comparable commercial loan which that recipient could actually obtain on the market.511 India 
submits that the PLRs used by the USDOC are interest rates for banks, rather than rates for loans 
actually disbursed.512 
7.304.  India also claims that the USDOC's determination of benefit in the 2006 administrative 
review is inconsistent with the chapeau of Article 14, and Article 14(b), because the USDOC did 
not take into account the costs incurred by exporters to participate in the SDF Programme and 
obtain SDF loans, or provide any explanation of its treatment of such costs.513 India submits that 
the USDOC similarly violated Article 1.1(b) by fi nding benefit even though the overall scheme of 
price controls under the SDF actually made producers worse off. 
7.305.   The United States submits that, during the 2006 administrative review, the USDOC 
properly used an average of certain PLRs as a commercial benchmark interest rate. The 
United States contends that the PLRs were compile d and published by the RBI, for loans similar to 
the SDF loans in currency, structure and maturity. The United States contends that the rate calculated by the USDOC was "comparable" wi thin the meaning of Article 14(b) of the 
SCM Agreement.
514 
7.306.  The United States also submits that Article 14(b) clearly states that a benefit is conferred 
where there is a "difference between the amount that the firm receiving the loan pays on the government loan and the amount the firm would pay on a comparable commercial loan which the 
firm could actually obtain on the market." Th e United States contends that no credits or 
adjustments are provided for in the SCM Agreement. The United States contends that there is also 
no requirement to consider that the recipient of a subsidy is required separately to adhere to 
certain price controls.
515 
7.5.2.2  Evaluation 7.307.  We begin by addressing India's claim that the USDOC failed to adequately explain how the 
PLRs applied by the USDOC represent the amount that the firm would pay on a "comparable 
                                               
508 India's first written submission, para. 469. 
509 Ibid. para. 470. 
510 Ibid. para. 475. 
511 Ibid. para. 473. 
512 India's second written submission, para. 255. 
513 India's first written submission, para. 476. 
514 2006 Issues and Decision Memorandum, Exhibit IND-33, section "B- Long-Term Benchmarks and 
Discount Rates." 
515 United States' first written submission, para. 574. WT/DS436/R 
 
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  commercial loan which the firm could actually obtain on the market", contrary to the chapeau of 
Article 14, and Article 14(b), of the SCM Agreement.516 
7.308.  The chapeau of Article 14 requires that  the application of the "method used by the 
investigating authority to calculate the benefit to the recipient … to each particular case shall be 
transparent and adequately explained". We have already explained that the requirement in the 
chapeau of Article 14 that the application of a benefit methodology be "transparent" conveys the sense that such application should be set out in such a fashion that it can be easily understood or 
discerned. The obligation to "adequately explain[]" conveys the sense of making clear or 
intelligible, and giving details of how the methodology was applied.
517 We also agree with the 
United States that the adequacy of an investigat ing authority's explanation should be assessed on 
a case-by-case basis.518 
7.309.  In the present case, we are not persuaded that, having explained that it would determine 
benefit by comparing SDF loan rates with PLRs, and how it proceeded to apply those PLRs519, the 
USDOC was also required by the chapeau of Article 14 to indicate the reasons why it chose to 
determine benefit on that basis. In our view, its explanation was such that the application of its 
benefit methodology was clear and intelligible, and could be easily understood and discerned.  
7.310.  Regarding the USDOC's obligations under Article 14(b), we understand India to argue that 
the USDOC's use of PLRs was inappropriate because PLRs are bank rates, rather than rates for 
loans actually disbursed, i.e. loans "which th e firm could actually obtain on the market".520 In this 
regard, we note the finding by the Appellate Body that "Article 14(b) does not preclude the possibility of using as benchmarks interest rates on commercial loans that are not actually 
available in the market where the firm is located, such as, for instance, loans in other markets or 
constructed proxies".
521 We agree with this finding, and similarly consider that an investigating 
authority is entitled to rely on constructed interest rate proxies where actual comparable 
commercial loan rates are not available. Contrary to India's claim, the USDOC was not prevented 
from applying the PLRs simply because they did not represent rates that SDF loan recipients could actually obtain. India's approach to Article 14( b) would be excessively formalistic, and would 
ignore the flexibility found in the Article 14(b) guideline.
522 We observe that India has not argued 
that the PLRs used by the USDOC are otherw ise not meaningful proxies for comparable 
commercial loan rates that SDF loan recipients could have obtained on the market.523 
7.311.  We next turn to India's claim that the USDOC violated Article 14(b), and the chapeau of 
Article 14, by failing to account, in applying the comparable commercial loan rate, for the costs 
incurred by steel producers in participating in the SDF scheme. India refers in this regard to the fact that steel producers "contributed their own funds to the SDF Program and as a result, lost the 
interest that they could otherwise obtain on th eir own funds had it been invested elsewhere."
524 
Further, India argues that there were various other "administrative expenses" and charges incurred by the steel producers participating in the SDF Programme.
525 As a factual matter, we do 
not agree that SDF levies should have been treated as the producers' own funds. SDF levies were 
                                               
516 It is unclear whether India's claim under Article 14(b) is dependent on its claim under the chapeau to 
Article 14, or whether India is also challenging the USDO C's use of PLRs independent of its transparency claim. 
We shall cover both issues, for the sake of completeness. 
517 According to the Fifth Edition of the Shorter Oxford  English Dictionary, the ve rb "explain" in relevant 
context means to "make clear or intelligible (a meanin g, difficulty, etc.); …. Give details of (a matter, how, 
etc.)" (emphasis original). The term  "transparent", when used figurati vely, means "easily seen through or 
understood; easily discerned; evident; obvious". 
518 United States' response to Panel question No. 104, para. 60. 
519 The relevant explanation is provided in Memorandum  to the File regarding In dia's prime lending rate, 
28 November 2007 ("India's Prime Lending Rate"), Exhibit USA-77, pp. 4-5. This is a public document that was expressly referred to in fn. 14 of the USDOC's 2006 Preliminary Results, Exhibit IND-32, p. 6 of 22. 
520 India's second written submission, para. 255. 
521 Appellate Body Report, US – Anti-Dumping and Coun tervailing Duties (China) , para. 480. 
522 We are guided in this respect by the findings set forth at paras. 480-490 of the Appellate Body 
Report in US – Anti-Dumping and Coun tervailing Duties (China) . 
523 It is also undisputed that the PLRs were the only interest rates on record that were comparable to 
SDF loans examined in the 2006 administrative review (United States' first written submission, paras. 568-569). 
524 India First Written Submission, para. 477. 
525 Ibid. para. 478. WT/DS436/R 
 
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  rather collected from consumers, through an additi on to the steel producers' ex-works prices, and 
then remitted526 directly to the SDF. Since the levies were collected from consumers and always 
destined for the SDF, steel producers would not ha ve been able to obtain interest by investing 
those funds elsewhere. As a legal matter, we do not consider that investigating authorities are 
required to take account of the costs incurred by  recipients in participating in the scheme under 
which the loans are provided. We note in this regard that the text of Article 14(b) provides for a comparison "between the amount that the firm receiving the loan pays on the government loan 
and the amount the firm would pay on a comparable commercial loan". Article 14(b) states that 
the benefit "shall" be the difference between those amounts. The focus of Article 14(b) is therefore 
on the difference between the amounts paid "on" the relevant loans. There is no reference in Article 14(b) to the amount of any cost incurred in obtaining the loans. Furthermore, while 
Article 14(c) provides that the amount of benefit in respect of loan guarantees shall be "adjusted 
for any differences in fees", there is no su ch requirement in Article 14(b). Accordingly, 
Article 14(b) does not require the USDOC to take  into account the costs incurred by SDF loan 
recipients in obtaining SDF loans. Furthermore, since Article 14(b) does not contain any such 
requirement, there is no basis to conclude that the chapeau of Article 14 required the USDOC to adequately explain how it had complied with that requirement. 
7.312.  Regarding India's Article 1.1(b) claim, we note that the basis for that claim is essentially 
the same as the basis for India's Article 14(b) claim discussed in the preceding paragraph. Thus, India's Article 1.1(b) claim is again concerned with the fact that steel producers allegedly had to contribute their own funds, and lost interest that they would otherwise have earned on those 
funds.
527 Article 14 contains guidelines for calculating the benefit to the recipient under 
Article 1.1(b). Since India has failed to establish that the USDOC's failure to take account of costs incurred by SDF loan recipients is inconsistent with the Article 14(b) guideline for calculating 
benefit within the meaning of Article 1.1(b), its claim that the very same conduct is inconsistent 
with Article 1.1(b) must also fail. By complying with the Article 14(b) guideline in respect of loan recipients' costs, the USDOC necessarily complied with Article 1.1(b) in respect of that same 
matter. 
7.5.3  Conclusion 7.313.  For the above reasons, we reject India's claims against the USDOC's determinations that 
loans provided under the SDF constitute direct tran sfers of funds by public bodies, and that such 
loans conferred benefit on the recipient steel producers. 
7.6  USITC's injury assessment 7.314.  India claims that certain US provisions re lating to injury assessment are "as such" and "as 
applied" inconsistent with a number of provisions of the SCM Agreement. In addition, India claims 
that the USITC's injury determination in the CVD investigation of the imports from India is inconsistent with Articles 15.1 and 15.4 of the SCM Agreement.  
7.315.  We begin by addressing issues concerning cumulation in original investigations, and then 
in reviews. Thereafter, we turn to the issue of  whether or not the USITC considered all of the 
mandatory economic factors in its injury determination. 
7.6.1  Whether the SCM Agreem ent permits "cross-cumulation" in original investigations 
7.316.  India claims that Section 1677(7)(G) is inconsistent with Article 15.3 of the 
SCM Agreement "as such" and "as applied" in the original investigation because, in certain situations, this provision requires the cumulative  assessment of the effects of subsidized imports 
                                               
526 See para. 7.295 above. India contends that the SD F levy, even if derived fro m customers, "cannot be 
considered as materially different from the manner in which any commercial company would make profits" 
(India's response to Panel question No . 3). We disagree. The SDF levy is not akin to profit, si nce profits derived 
from sales to customers would not be remitted to the SDF for disbursement pursuant to the instructions of a 
public body. 
527 India's first written submission, para. 483. Furthe rmore, the Article 1.1(b) and Article 14(b) claims 
are both addressed in the same paragraph, and on the basis of the same reasoning, at para. 256 of India's 
second written submission. WT/DS436/R 
 
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  with the effects of imports not subject to simultaneous countervailing duty investigations.528 
Moreover, India claims that Section 1677(7)(G) is inconsistent with Articles 15.1, 15.2, 15.4 and 15.5 of the SCM Agreement "as such" and "as app lied" in the original investigation because, in 
certain situations, this provision requires the assessment of injury based on inter alia  the volume, 
effects and impact of non-subsidized, dumped imports.
529 
7.6.1.1  Relevant WTO provisions 7.317.  Article 15.1 of the SCM Agreement provides: 
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 
subsidized imports and the effect of the subsidized imports on prices in the domestic market for like products
46 and (b) the consequent impact of these imports on the 
domestic producers of such products. 
________ 
46 Throughout this Agreement the term "like product" ("produit similaire") shall be interpreted to 
mean a product which is identical, i.e. alike in al l respects to the product under consideration, or 
in the absence of such a product, another produc t which, although not alike in all respects, has 
characteristics closely resembling those of the product under consideration.  
7.318.  Article 15.2 of the SCM Agreement provides: 
With regard to the volume of the subsidized imports, the investigating authorities shall 
consider whether there has been a significant increase in subsidized imports, either in absolute terms or relative to production or consumption in the importing Member. 
With regard to the effect of the subsidized imports on prices, the investigating 
authorities shall consider whether there has been a significant price undercutting by the subsidized imports as compared with the price of a like product of the importing 
Member, or whether the effect of such imports is otherwise to depress prices to a 
significant degree or to prevent price increases, which otherwise would have occurred, to a significant degree. No one or several of these factors can necessarily give decisive 
guidance. 
7.319.  Article 15.3 of the SCM Agreement provides: 
Where imports of a product from more than one country are simultaneously subject to 
countervailing duty investigations, the investigating authorities may cumulatively 
assess the effects of such imports only if they determine that (a) the amount of 
subsidization established in relation to the imports from each country is more than de minimis  as defined in paragraph 9 of Articl e 11 and the volume of imports from 
each country is not negligible and (b) a cumulative assessment of the effects of the 
imports is appropriate in light of the conditions of competition between the imported products and the conditions of competition between the imported products and the 
like domestic product. 
7.320.  Article 15.4 of the SCM Agreement provides: 
The examination of the impact of the subs idized imports on the domestic industry 
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 output, 
sales, market share, profits, productivity, return on investments, or utilization of 
capacity; factors affecting domestic prices; actual and potential negative effects on 
cash flow, inventories, employment, wages, growth, ability to raise capital or 
investments and, in the case of agriculture, whether there has been an increased 
                                               
528 India's first written submission, paras. 109-115 an d 497-499; opening statement at the first meeting 
of the Panel, paras. 21 and 41-42; second written subm ission, paras. 52 and 56; an d opening statement at the 
second meeting of the Panel, para. 18. 
529 India's first written submission, paras. 128-132, 500-506 and 510-517; opening statement at the 
first meeting of the Panel, paras. 22-23 and 44; and second written submission, paras. 54 and 260. WT/DS436/R 
 
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  burden on government support programmes. This list is not exhaustive, nor can one 
or several of these factors necessarily give decisive guidance. 
7.321.  Finally, Article 15.5 of the SCM Agreement provides: 
It must be demonstrated that the subsidized imports are, through the effects47 of 
subsidies, causing injury within the meaning of this Agreement. The demonstration of 
a causal relationship between the subsidized imports and the injury to the domestic industry shall be based on an examination of all relevant evidence before the 
authorities. The authorities shall also examine any known factors other than the 
subsidized imports which at the same time are injuring the domestic industry, and the injuries caused by these other factors must not be attributed to the subsidized imports. Factors which may be relevant in this respect include, inter alia , the volumes 
and prices of non-subsidized imports of the product in question, contraction in 
demand or changes in the patterns of cons umption, trade restrictive practices of and 
competition between the foreign and domestic producers, developments in technology 
and the export performance and produc tivity of the domestic industry. 
________ 
47 As set forth in paragraphs 2 and 4.  
7.6.1.2  Factual background 
7.322.  India's claims with respect to original investigations concern Section 1677(7)(G) which 
requires the USITC to cumulatively assess, for purposes of determining material injury, the effects of dumped and subsidized imports on the domestic industry when certain conditions are met. The 
US provision provides in relevant part:  
(G) Cumulation for determining material injury   (i) In general  For purposes of clauses (i) and (ii) of subpa ragraph (C), and subject to clause (ii), the 
Commission shall cumulatively assess the volume and effect of imports of the subject 
merchandise from all countries with respect to which– 
(I) petitions were filed under section 1671a(b) or 1673a(b) of this title on the same 
day, 
(II) investigations were initiated under section 1671a(a) or 1673a(a) of this title on 
the same day, or 
(III) petitions were filed under section 1671a(b) or 1673a(b) of this title and 
investigations were initiated under section 1671a(a) or 1673a(a) of this title on the same day, 
if such imports compete with each other and with domestic like products in the 
United States market.
530 
7.323.  In its injury assessment in the original CVD investigations, the USITC cumulated the 
effects of subsidized imports from India with those of imports from ten other countries. Imports 
from Argentina, India, Indonesia, South Africa and Thailand were subject to simultaneous CVD 
investigations and parallel AD investigations. Imports from the remaining six countries (China, Kazakhstan, Netherlands, Romania, Taiwan, and Ukraine) were only subject to parallel 
AD investigations.
531 
                                               
530 Title 19, Customs Duties, USC, Exhibit IND-1, p. 34, internal page 343. 
531 USITC Preliminary Determinations, pp. 8-11, as qu oted in United States' first written submission, 
para. 97; and hot-rolled steel products from Argentina and South Africa, Investigation No. 701-TA-404 (final) and Investigations Nos. 731-TA-898 and 905 (final ), August 2001, publication 3446 ("USITC Final 
 WT/DS436/R 
 
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  7.6.1.3  Main arguments of the parties 
7.6.1.3.1  India 7.6.1.3.1.1  Article 15. 3 of the SCM Agreement 
7.324.  India submits that in cases where only a sub-set of countries subject to AD investigations 
are subject to simultaneous CVD investigations, Section 1677(7)(G) requires the cumulative 
assessment of the effects of subsidized import s with the effects of imports not subject to 
simultaneous CVD investigations.
532 India contends that "the US investigating authority inherently 
increases the probability of reaching a positive injury finding."533 India recalls that in the 
CVD investigation at issue here, the USITC cumulated the effects of imports from India with those of imports from ten other countries, emphasizing that imports from only four of those other countries were also subject to simultaneous CVD investigations.
534 
7.325.  India argues that imports from a country that  is subject only to an AD investigation should 
not be cumulated under Article 15.3 of the SCM Ag reement, as the plain words of this provision 
permit a cumulative assessment only of imports from countries that are simultaneously subject to 
CVD investigations.535 India submits that the term "imports" in Article 15.3 must be understood in 
the context provided by Article 15 of the SCM Ag reement. India contends that the expression 
"subsidized imports" in Articles 15.1 and 15.2 of the SCM Agreement refers only to imports for 
which the subsidy margin is more than de minimis , which would exclude imports that are not 
subsidized or that are not even alleged to be subsidized.536 
7.326.  Moreover, India submits that Article 15.3 of the SCM Agreement allows a cumulative 
assessment of subsidized imports only when three conditions are satisfied: (i) the amount of 
subsidization from each country is more than de minimis , (ii) the volume of imports from each 
country is not negligible, and (iii) there is competition amongst imports and between imports and the like domestic product. With respect to the first two conditions, India argues that these must be 
satisfied for "each country", i.e. a separate and independent country-by-country assessment.
537 
India contends that the measure at issue requir es cumulation without examining whether (i) the 
amount of subsidization for imports from "each" country is above de minimis , and (ii) the volume 
of imports from "each" country is individually not negligible.538 
7.6.1.3.1.2  Articles 15.1, 15.2, 15.4 and 15.5 of the SCM Agreement 
7.327.  India contends that the plain meaning of Articles 15.1, 15.2, 15.4 and 15.5 of the 
SCM Agreement requires consideration of "subsidized imports" for the determination of injury 
because of the repeated reference to "subsidized imports".539 Thus, India argues that (i) the 
"effects" analysis under Article 15.2, (ii) the "impact" analysis under Article 15.4, and (iii) the "causal link" analysis under Article 15.5 shall be limited only to subsidized imports.
540 India recalls 
its arguments that "subsidized imports" under  Article 15 of the SCM Agreement means only 
imports for which the subsidy margin is above de minimis . India argues that imports from 
                                                                                                                                               
Determinations"), Exhibit IND-9, pp. 16-21, internal pages 9-14. See also United States' response to Panel 
question No. 117, para. 95. 
532 India's first written submission, paras. 109-115 an d 497-499; opening statement at the first meeting 
of the Panel, paras. 21 and 41-42; second written subm ission, paras. 52 and 56; an d opening statement at the 
second meeting of the Panel, para. 18. 
533 India's first written submission, paras. 108 and 113. See also India's opening statement at the 
first meeting of the Panel, para. 23. 
534 India's first written submission, para. 499. 
535 Ibid. para. 111; and opening statement at the first meeting of the Panel, para. 22. 
536 India's first written submission, paras. 112, 114 and 498-499; second written submission, para. 54. 
537 India's first written submission, paras. 116-117 and 121; opening statement at the first meeting of 
the Panel, para. 22; second written submission, para s. 56 and 72-73; and closing statement at the second 
meeting of the Panel, para. 4. 
538 India's first written submission, paras. 119-120, 123-127 and 497-499. 
539 Ibid. para. 128, citing the Panel Report, EC and certain member States – Large Civil Aircraft , 
para. 7.2116. See also India's second written submission, para. 63. 
540 India's first written submission, para. 128; opening statement at the first meeting of the Panel, 
para. 22; and second written submission, paras. 57-58 and 61. WT/DS436/R 
 
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  countries subject solely to AD investigations are not "subsidized imports", because the lack of any 
finding relating to the SCM Agreement means their subsidy margin is zero.541 
7.328.  According to India, Section 1677(7)(G) requires the USITC to cumulatively assess the 
effects of subsidized imports with the effects of imports subject only to AD investigations. India 
contends that Section 1677(7)(G) results in the inclusion of non-subsidized imports in the 
assessment of (i) the increase in volume of subsidized imports as well as their effect on domestic prices, under Article 15.2, and (ii) the impact of subsidized imports on the domestic industry, 
under Article 15.4.
542 India recalls that, in the CVD investigation at issue, the USITC cumulatively 
assessed the volume and effects of allegedly subsidized imports with the volume and effects of imports from six countries not subject to simultaneous CVD investigations, which imports must therefore be considered non-subsidized.
543 
7.329.  As a result of the cumulative assessment mandated by Section 1677(7)(G), India contends 
that the causal link between subsidized im ports and injury under Article 15.5 of the 
SCM Agreement is seriously disturbed because the volume, effects and impact of non-subsidized 
imports are taken into account.544 India recalls that Article 15.5 mandates investigating authorities 
to not attribute to the subsidized imports injury caused by any known factor other than the subsidized imports. In this respect, Article 15.5 lists as a possibly relevant factor "the volume and 
prices of non-subsidized imports of the product in question".
545 In the CVD investigation at issue, 
India contends that the existence of non-subsidiz ed imports was "known" to the USITC at the time 
of the injury investigation.546 However, according to India, the United States failed even to 
"identify individual shares of the subsidized imports from the total imports, leave alone the volume 
and price effects, and the consequential impact of such imports."547  
7.6.1.3.2  United States 7.6.1.3.2.1  Article 15. 3 of the SCM Agreement 
7.330.  The United States makes two main arguments seeking to demonstrate that 
Section 1677(7)(G) is not "as such" or "as applied" inconsistent with Article 15.3 of the SCM Agreement.
548 
7.331.  First, the United States argues that Article 15.3 only addresses the conditions for 
cumulation of the effects of imports from multiple countries that are subject to simultaneous countervailing duty investigations. Thus, according to the United States, as this provision is silent concerning whether an investigating authority may cumulate the effects of dumped  and subsidized  
imports in original investigations, it cannot be said to prohibit such practice.
549 The United States 
also contends that the de minimis  subsidy limitation on cumulation raised by India only applies to 
imports that are "simultaneously subject to countervailing duty investigations". Consequently, it 
does not limit the types of other unfairly traded imports that may be cumulated with the 
subsidized imports.550 With regard to the country-specific "negligibility" requirement posited by 
India, the United States submits that Article 15.3 does not define the term "negligibility" in the 
                                               
541 India's first written submission, para. 129. 
542 Ibid. para. 130. See also India's first written submission, paras. 128-132, and 500-501; opening 
statement at the first meeting of the Panel, para s. 22-23; and second written submission, para. 54. 
543 India's first written submission, para. 502. See also  India's first written submission, paras. 502-506; 
and opening statement at the first meeting of the Panel, para. 44. 
544 India's first written submission, para. 131; closing statement at the first meeting of the Panel, 
para. 3; and second written submission, paras. 57-58 and 61. 
545 India's first written submission, paras. 131 and 514. 
546 Ibid. para. 514. 
547 Ibid. paras. 513-514. See also India's second written submission, para. 61. 
548 United States' first written submission, pa ras. 117, 129 and 147; opening statement at the 
first meeting of the Panel, para. 20; second written submission, para. 81; and opening statement at the 
second meeting of the Panel, para. 51. 
549 United States' first written submission, pa ras. 83 and 117-120; opening statement at the 
first meeting of the Panel, para. 20; second written submission, para. 90; and opening statement at the 
second meeting of the Panel, para. 52. 
550 United States' first written submission, para. 130. WT/DS436/R 
 
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  manner proposed by India, and argues that the ty pe of aggregated analysis provided for by the 
US statue is not inconsistent with this provision.551  
7.332.  Second, the United States asserts that the relevant context of Article 15.3 of the 
SCM Agreement, and the object and purpose of  the SCM Agreement and AD Agreement support 
the proposition that cumulation of the effects of dumped and subsidized imports is permitted.552 
With respect to the relevant context, the United States notes that the AD Agreement and the SCM Agreement contain nearly identical provisions on injury analysis, including cumulation. The 
United States recalls that provisions in both agreements allow investigating authorities to consider 
the cumulative effect of unfairly traded imports from multiple sources, given that imports can have a cumulative injurious impact on the domestic industry. The United States submits that Article 15.3 of the SCM Agreement should be re ad in the context of the WTO Agreement as a 
whole, including in particular the AD Agreement.
553 In addition, the United States notes that 
Article VI:6(a) of the GATT 1994 is referred to by Article 15.1 of the SCM Agreement and Article 3.1 of the AD Agreement.
554 The United States argues that Article VI:6(a) supports the view 
that "cross-cumulation" is permitted because it refers to "injury" in the singular when addressing 
"the effect of the dumping or subsidization".555 
7.333.  Turning to the object and purpose of the Agreements, the United States refers to the 
Appellate Body's reports in EC – Tube or Pipe Fittings and US – Oil Country Tubular Goods Sunset 
Reviews  which reflect the view that cumulation of the effects of imports from multiple countries is 
a critical component of the injury analysis auth orized in the AD Agreement. The United States 
argues that the same reasoning is ap plicable to a situation where dumped and subsidized imports 
are having a simultaneous injurious impact on an industry.556 The United States contends that an 
analysis focused solely on the effects of either dumped or subsidized imports alone would necessarily prevent the investigating authority from adequately taking into account the injurious 
effects of all unfairly traded imports, and co nsequently frustrate the purpose of both the 
SCM Agreement and the AD Agreement.
557 
7.6.1.3.2.2  Articles 15.1, 15.2, 15.4 and 15.5 of the SCM Agreement 
7.334.  The United States submits that there is no basis for India's "as such" and "as applied" 
claims under these provisions for several reasons.558 First, "to the extent that the Panel agrees 
[that] the cumulation of subsidized and dumped imports is not inconsistent with Article 15.3, it would necessarily be reasonable for an investigating authority to analyze the volume and price 
effects of subsidized and dumped imports on the industry, as provided under Articles 15.1, 15.2, 
15.3 and 15.4."
559 Second, the phrase "subsidized imports" in these provisions does not limit the 
scope of an authority's injury investigation. If an investigating authority assesses the larger group 
of unfairly traded imports, which includes all subsidized imports, such assessment will necessarily 
address the effects of subsidized imports.560 Third, the United States argues that the injury 
assessments cannot be limited to "subsidized imports" because of practical difficulties for 
investigating authorities to disentangle the effects of dumped imports from those of subsidized 
                                               
551 The United States submits that the definition of "negligibility" contained in Article 5.8 of the 
AD Agreement is relevant context to interpret Article 15.3 of the SCM Agreement. The United States contends that Article 5.8 permits the type of aggregated analysis provided in the US statue. United States' first written submission, para. 132 and fn. 222. See also opening statement at the second meeting of the Panel, 
paras. 64-65. 
552 United States' first written submission, pa ras. 83 and 126; and open ing statement at the 
second meeting of the Panel, paras. 51 and 57. 
553 United States' first written submission, paras. 125 and 127; opening statement at the first meeting 
of the Panel, paras. 21-23; and opening statement at th e second meeting of the Panel, paras. 53 and 57-58. 
554 United States' response to  Panel question Nos. 57, paras. 54-55; and 60, para. 69. 
555 United States' response to Panel question No. 57, para. 54; and opening statement at the 
second meeting of the Panel, para. 58. 
556 United States' first written submission, paras. 123-125; and second written submission, para. 93, 
fn. 164. 
557 United States' first written submission, paras. 122 and 126; and opening statement at the 
second meeting of the Panel, para. 56. 
558 United States' first written submission, para. 147. 
559 Ibid. para. 133. 
560 United States' response to Panel question No. 57, paras. 54-57. WT/DS436/R 
 
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  imports.561 In addition, the United States submits two separate arguments referring respectively to 
Articles 15.4 and 15.5 of the SCM Agreement. The United States contends that the existence of 
dumped imports in the marketplace is a "relevan t factor", for purposes of Article 15.4 of the 
SCM Agreement, and argues that it would be anom alous for the Panel to find that an authority 
could not cumulatively assess both sets of unfairly traded imports.562 The United States also 
argues that, because an authority may cumulate the injurious effects of all unfairly traded imports that are simultaneously affecting the industry, the authority need not perform a non-attribution 
analysis for unfairly traded imports that are cumulated in its analysis.
563 
7.335.  Finally, the United States submits that, contrary to India's assertion, the record of the 
CVD investigation at issue does not show that the USITC's cumulative analysis made it more likely that it would find injury caused by the subsidized imports than if it had not cumulated them with 
dumped imports.
564 
7.6.1.4  Main arguments of the third parties 7.6.1.4.1  European Union 
7.336.  The European Union submits that Articl e 15.3 of the SCM Agreement only permits the 
cumulation of subsidized imports if three conditions are met. First, the amount of subsidization f r o m  e a c h  c o u n t r y  m u s t  b e  m o r e  t h a n  de minimis , otherwise imports cannot be considered as 
"subsidized imports". Second, the volume of imports from each country must not be negligible. If 
either of these two conditions is not met, the investigation with respect to imports from that particular country must be terminated pursuant to Article 11.9 of the SCM Agreement. Third, the cumulative assessment must be appropriate in light of the conditions of competition between 
imported products and between imported products and the like domestic product.
565 
7.337.  The European Union contends that the inclusion of non-subsidized dumped imports in the 
volume of subsidized imports for purposes of injury assessment in a CVD investigation "would not 
be based on any provision of the SCM Agreement and would be illogical."566 The European Union 
argues that "cumulation of imports makes sense in the context of investigation of the same  
phenomenon (dumping or subsidies), where the obje ctive is to determine the total impact of the 
imports at issue on the domestic industry."567 
7.6.1.5  Evaluation 7.338.  India submits two sets of closely related claims relating to Section 1677(7)(G). First, India 
claims that Section 1677(7)(G) is "as such" and "as applied" inconsistent with Article 15.3 of the 
SCM Agreement. India argues that, in certain situ ations, the US provision requires the cumulative 
assessment of the effects of subsidized import s with the effects of imports not subject to 
simultaneous countervailing duty investigations.
568 Second, India claims that Section 1677(7)(G) is 
"as such" and "as applied" inconsistent with Articles 15.1, 15.2, 15.4 and 15.5 of the 
SCM Agreement, because, in certain situations, th e US provision requires that the assessment of 
injury be based on inter alia  the volume, effects and impact of non-subsidized, dumped imports.569 
                                               
561 United States' response to Panel question No. 56, paras. 49-53; second written submission, 
paras. 90-91; and opening statement at the second meeting of the Panel, paras. 55-56. 
562 United States' first written submission, para. 134. 
563 United States' response to Pa nel question No. 58, para. 59. 
564 United States' first written submission, paras. 148-149. 
565 European Union's third-party submission, paras. 63, 65-66, 70-72. 
566 Ibid. para. 67. 
567 Ibid. para. 69. (emphasis original) 
568 India's first written submission, paras. 109-115 an d 497-499; opening statement at the first meeting 
of the Panel, paras. 21 and 41-42; second written subm ission, paras. 52 and 56; an d opening statement at the 
second meeting of the Panel, para. 18. 
569 India's first written submission, paras. 128-132, 500-506 and 510-517; opening statement at the 
first meeting of the Panel, paras. 22-23 and 44; and second written submission, paras. 54 and 260. WT/DS436/R 
 
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  7.6.1.5.1  Whether Section 1677(7)(G) is "as such" and "as applied" inconsistent with 
Article 15.3 of the SCM Agreement 
7.339.  The issue before the Panel is whethe r the SCM Agreement permits the cumulative 
assessment of the effects of imports that are subject to a CVD investigation with the effects of 
imports that are subject only to a parallel AD investigation ("cross-cumulation"). Conceptually, this 
issue relates to whether the SCM Agreement only allows an investigating authority to consider cumulatively, that is, together or as a whole, the effects of one set of imports of a product (those 
subject to simultaneous CVD investigations), or whether it also allows an investigating authority to 
consider together or as a whole the effects of two sets of imports of the same product (those subject to simultaneous CVD investigations and those subject only to parallel, simultaneous 
AD investigations).
570 This issue arises because, pursuant to Section 1677(7)(G), the United States 
shall undertake, in certain situations, a single injury assessment for "unfairly traded imports"571, 
that is, subsidized imports and dumped imports when there are simultaneous countervailing and 
anti-dumping investigations of the same product from different countries.572 The SCM and 
AD Agreements regulate investigations for subsidized and dumped imports – including injury 
determinations – separately.  
7.340.  In our view, Section 1677(7)(G) requires, in  certain situations, the USITC to cumulate the 
effects of subsidized imports with the effects of dumped, non-subsidized imports. 
7.6.1.5.1.1  The text of Arti cle 15.3 of the SCM Agreement 
7.341.  We begin our examination with the text of Article 15.3 of the SCM Agreement. This 
provision starts with the phrase:  
Where imports of a product from more than one country are simultaneously subject to 
countervailing duty investigations, the investigating authorities may cumulatively assess the effects of such imports only if ….  
We agree with India that the term "simultaneously" suggests that imports under consideration 
must all be subject to CVD investigations at the same time.
573 In our view, the plain text of 
Article 15.3 only allows a cumulative assessment of the effects of imports which are 
simultaneously subject to countervailing duty investigations .574 We consider that this fact, that 
imports are subject to simultaneous CVD investigations, is a necessary pre-condition for a cumulative assessment to be undertaken consistently with Article 15.3.
575 Imports which are only 
the subject of a parallel, simultaneous anti-dumping duty investigation plainly do not satisfy this 
requirement as a matter of fact. Thus, we agree with India both that the requirement that imports 
be subject to a CVD investigation is a threshold requirement for cumulation, and that under Article 15.3 the effects of imports which are not subject to CVD investigation cannot be 
cumulatively assessed with those of imports which are subject to CVD investigation.
576 
                                               
570 India clarified that its challenges are limited to "[c]umulation of subsidized imports with dumped 
imports, where all the dumped imports are not subsidized". India expresses no opinion on the cumulation of 
subsidized imports, where all imports are also simultaneously dumped. India's second written submission, paras. 48-49; and response to Panel question No. 32. Thus, our examination and findings are limited to the 
"cross-cumulation" of the e ffects of subsidized imports with the effects of non-subsidized, dumped imports. We 
need not and do not examine any other type or form of cumulative assessment involving subsidized and 
dumped imports in this report. 
571 We note that, although this expression is not found in the US provision at issu e, it is repe atedly used 
by the United States in its arguments. See, e.g., United States' first written submission, paras. 83, 121-122, 125-126, 130, and 134. 
572 United States' response to Pa nel question No. 61, para. 70. 
573 India's first written submission, para. 111. 
574 We note that, although the expression "subsidized imports" is not explicitly used in Article 15.3, both 
parties agree that Article 15.3 only re fers to imports that are "simultane ously subject to countervailing duty 
investigations". India's first written submission, para. 111; United States' first written submission, para. 117; and second written submission, para. 90. 
575 We note that the text of Article 15.3 also lists a number of conditions that must be fulfilled for an 
investigating authority to cumulatively assess the effects of the imports at issue. 
576 India's first written submission, para. 111; and opening statement at the second meeting of the 
Panel, para. 18. WT/DS436/R 
 
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  7.342.  The United States argues that Articl e 15.3 of the SCM Agreement does not regulate 
"cross-cumulation", because this provision only addresses the conditions for cumulation of the effects of imports from multiple countries that are subject to simultaneous CVD investigations , but 
does not address the possibility of "cross-cumulation" of other imports that are not subject to 
CVD investigation. Thus, the United States contends that Article 15.3 does not prohibit the 
cumulation of the effects of subsidized imports with the effects of other unfairly traded imports, namely non-subsidized, dumped imports.
577 We understand the United States' argument to be 
anchored in its view that Article 15.3 does not regulate the type of "cross-cumulation" at issue 
here because its scope of application  is limited by the expression "simultaneously subject to 
countervailing duty investigations". In other words, for the United States, Article 15.3 simply does not address the question whether a cumulative assessment of the effects of imports which are not 
subject to simultaneous CVD investigations is permissible. 
7.343.  We are unable to reconcile the United States' position with the text of Article 15.3 in the 
overall context of Article 15 of the SCM Agreement.  As noted above, Article 15.3 only refers to 
imports that are "simultaneously subject to countervailing duty investigations". In addition, as 
discussed further below, all the provisions in Articl e 15 refer only to "subsidized imports" in setting 
out the requirements for injury determinations. It is clear to us that the object  of the analysis to 
be made under Article 15 is injury caused by "subsidized imports", and not injury caused by 
"unfairly traded imports". In our view, it would not be reasonable to conclude that Article 15, in specifying criteria for an examination of injury based on the effects of subsidized imports, would nevertheless allow – or at least not prevent – the inclusion of non-subsidized imports in that 
analysis without at least an indication in the te xt to that effect. While imports subject to an 
anti-dumping investigation may be unfairly traded, they are clearly not subsidized imports, and the United States does not contend otherwise. We decline to read into the text of Article 15.3 an 
implicit authorization to consider non-subsidized imports in assessing injury caused by subsidized 
imports. As stated above, in our view, the expr ession "simultaneously subject to countervailing 
duty investigations" in Article 15.3 establishes a necessary pre-condition for cumulative 
assessment of the effects of the imports in ques tion – i.e. that they must be subject to 
countervailing duty investigations – rather than a limitation on the scope of application of Article 15.3.
578 
7.344.  Thus, we consider that Article 15.3 does not authorize investigating authorities to 
cumulatively assess the effects of imports that are not subject to simultaneous CVD investigations 
with the effects of imports which are subject to CVD investigation, for purposes of making an injury determination in a countervailing duty investigation.  
7.6.1.5.1.2  The relevant context of  Article 15.3 of the SCM Agreement 
7.345.  We consider that the whole of Article 15 of the SCM Agreement and Article VI:6(a) of the 
GATT 1994 provide relevant context for our understanding of Article 15.3, which supports our view 
that only the effects of imports subject to simultaneous CVD investigations may be assessed 
cumulatively for purposes of an injury analysis in a countervailing duty investigation.  
7.346.  Article 15.3 is the only provision of the SCM Agreement that specifically addresses 
cumulation, and it allows for such analysis only if certain specific criteria are satisfied. Moreover, 
there is nothing in Article 15.3, or in the rest of Article 15, that suggests that there is any 
possibility for cumulation in circumstances other th an those provided for in Article 15.3, i.e. where 
imports are simultaneously subject to CVD investigations and the criteria in that provision are 
satisfied. Articles 15.1, 15.2, 15.4 and 15.5, which set out the different elements required for 
injury analysis, consistently refer to "subsidized imports". There is no mention in any of these 
                                               
577 United States' first written submission, pa ras. 83 and 117-120; opening statement at the 
first meeting of the Panel, para. 20; second written submission, para. 90; and opening statement at the 
second meeting of the Panel, para. 52. 
578 Taking this view, we need not and do not addre ss India's additional arguments relating to whether 
(i) the amount of subsidization from each country is more than de minimis , and (ii) the volume of imports from 
each country is not negligible. India's first written submission, paras. 116-127 and 497-499; opening statement at the first meeting of the Panel, para. 22;  second written submission, paras. 72-73; and closing 
statement at the second meeting of the Panel, para. 4. WT/DS436/R 
 
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  provisions of other "unfairly traded" imports.579 This express limitation of the imports to be 
considered under Article 15 suggests to us that, in an injury analysis under that provision, the effects of other "unfairly traded" imports is not a relevant consideration because such imports are not "subsidized imports". 
7.347.  Turning to Article VI of the GATT 1994, we first note that this provision is referred to in 
Article 15.1 of the SCM Agreement.
580 Article VI:6(a) provides in relevant part: 
No contracting party shall levy any anti-dumping or countervailing duty … unless it 
determines that the effect of the dumping or subsidization, as the case may be , is 
s uc h as  to caus e  or threate n mate rial in jury to an e s tab lis he d d ome s tic  ind us try …  (emphasis added) 
As Article VI of the GATT 1994 concerns both anti-dumping and countervailing duties, 
Article VI:6(a) specifically refers to both types of duties. However, the text of Article VI:6(a) refers 
to the "effect of the dumping or subsidization, as the case may be". The United States argues that 
this phrase indicates that "the injury investigation may involve an examination of the injurious 
effects of dumped imports, subsidized imports, or dumped and subsidized imports."
581 However, 
the United States appears to read an additional alternative into the text of Article VI:6(a). We agree with India that this phrase suggests that in jury may be caused by either the effect of the 
subsidy (one "case") or the effect of dumping (the other "case").
582 In our view, the phrase "as the 
case may be" more logically can be understood to refer to one of the two alternatives expressly listed in this provision. The third alternativ e posited by the United States – "dumped and 
subsidized imports", or "unfairly traded imports" – is not present in Article VI:6(a). In our view, 
this supports our understanding of Article 15.3 that, for purposes of injury analysis in a 
countervailing duty investigation, the effects of subsidized imports may not be "cross-cumulated" with the effects of non-subsidized, dumped imports, since to do so would create an additional third 
"case", the effect of dumping and subsidy, not envisaged by Article VI:6(a).  
7.348.  Moreover, we consider that the use of the conjunction "or" instead of "and" in this phrase 
suggests on its face that these effects are not to be considered cumulatively but rather separately. 
The United States submits that "or" should be read as "an inclusive 'or', meaning 'and/or'."
583 In 
our view, the United States' view that Article VI:6(a) allows the consideration of the effects of both dumped imports and subsidized imports does not comport with the use of the word "effect" in the singular immediately before the reference to "dumping or subsidization". For Article VI:6(a) to be 
understood as the United States does, as referring to the effects of both dumping and 
subsidization on a cumulative basis, one would have expected to see the plural "effect s" rather 
than the singular.  
7.349.  The United States also argues that the use in Article VI:6(a) of the term "injury" in the 
singular "points toward the assessment on a cumulated basis of the effects of the unfairly traded imports, whether subsidized or dumped."
584 However, in our view, the use of the term "injury" in 
the singular does not support the United States' vi ew. If anything, it suggests the opposite, as it 
relates logically to a single injury determination as a result of the "effect" of the dumping, or the "effect" of the subsidization, "as the case may be".  
                                               
579 Article 15.5 does require investigating authorities to not attribute to the subsidized imports any 
injury caused by, inter alia , the volumes and prices of non-subsidized imports of the product in question. In our 
view, this does not lend any support to the United States' arguments. First, it seems to us that this non-attribution analysis is not a part of the affirmative determination whether subsidized imports are causing injury, but is a possible circumstance that would undermine or detract from such a determination. In addition, 
and more importantly, "non-sub sidized imports" in this context may be fa irly traded or unfairly traded. If the 
latter, the analysis under Article 15.5 would not lead to  a finding of injury by such imports, but rather a 
possible finding that the injurious effects of such impo rts are such as to preclude or undermine a finding of 
injury by the subsidized impo rts under investigation. We cannot, in this context, agree with the United States 
that such non-subsidized imports can be affirmatively co nsidered in the assessment of injury in a cumulative 
analysis. 
580 United States' response to Pa nel question Nos. 57, paras. 54-55, and 60, para. 69; and opening 
statement at the second meeting of the Panel, para. 58. 
581 United States' response to Panel question No. 60, paras. 66-68. 
582 India's second written submission, para. 65. 
583 United States' response to Pa nel question No. 60, para. 68. 
584 United States' responses to Panel questions Nos. 57, para. 54; and 61, para. 72. WT/DS436/R 
 
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  7.350.  We note that the United States' arguments relating to Article VI:6(a) place emphasis on 
the fact that this provision regulates both anti-dumping and countervailing duties. However, the United States has not explained why Article VI:6(a) would support the conclusion that "cross-cumulation" is permitted, when the relevant provisions on injury determination in the 
SCM and AD Agreements – which implement the prov isions of Article VI of the GATT 1994 in the 
application of anti-dumping and countervailing measures
585 – do not refer to "subsidized and/or 
dumped imports". Rather, Articles 15 of the SC M Agreement and Article 3 of the AD Agreement 
refer only to "subsidized imports" and "dumped imports" respectively.586 
7.351.  Finally, we note that the United States argues that Article 15.3 of the SCM Agreement 
should be interpreted in light of Article 3.3 of the AD Agreement; the parallel provision regulating 
cumulation in AD investigations. According to the United States, "cross-cumulation" is permitted 
because both Article 15.3 and Article 3.3 allow investigating authorities to consider the cumulative 
effect of unfairly traded imports from multiple sources.587 Thus, according to the United States, an 
investigating authority may "cross-cumulate" the effects of dumped imports in a CVD investigation 
because dumped imports are unfairly traded imports.588 However, we note that Article 15.3 and 
Article 3.3 do not refer to "unfairly traded imports". Article 15.3 allows, under certain conditions, the cumulative assessment of the effects of imports subject to simultaneous CVD investigations. 
Article 3.3 allows, under certain conditions, the cumulative assessment of the effects of imports 
subject to simultaneous AD investigations. Since neither provision refers to "cross-cumulation", it is unclear to us why the authorization to cumulate in each type of investigation would, in addition, allow investigating authorities to "cross-cumulate" the effects of non-subsidized but dumped 
imports in CVD investigations. 
7.6.1.5.1.3  Object and purpose of the SCM Agreement 7.352.  Relying on the Appellate Body reports in EC – Tube or Pipe Fittings  and US – Oil Country 
Tubular Goods Sunset Reviews , the United States also refers to the object and purpose of the 
SCM Agreement to support its position regarding "cross-cumulation". The United States submits 
that the Appellate Body recognized that the ability to cumulate the injurious effects of unfairly 
traded imports from multiple countries is a critical component of the injury analysis authorized in 
the AD and SCM Agreements.
589 The United States contends that an analysis focused solely on the 
effects of either dumped or subsidized imports alone would necessarily prevent the investigating 
authority from adequately taking into account the injurious effects of all unfairly traded imports, 
and consequently frustrate the purpose of bo th the SCM Agreement and the AD Agreement.590 
7.353.  In EC – Tube or Pipe Fittings , the Appellate Body examined whether an investigating 
authority must first analyse the volumes and prices of dumped imports on a country-by-country 
basis under Article 3.2 of the AD Agreement as a pre-condition to cumulatively assessing the 
effects of the dumped imports under Article 3.3 of the AD Agreement. EC – Tube or Pipe Fittings  
concerned a cumulative assessment of the effects of imports from multiple countries subject to 
simultaneous AD investigations, and did not raise issues relating to "cross-cumulation". The 
                                               
585 Article 10 of the SCM Agreement an d Article 1 of the AD Agreement. 
586 See fn. 579 above. Our comments concerning Article 15.5 of the SCM Agreement relate equally to 
the parallel provision of the AD Agreement, Article 3.5. 
587 United States' first written submission, paras. 125 and 127; and opening statement at the 
first meeting of the Panel, paras. 21-23. 
588 The United States compares two scenarios to support  its rationale. In the fi rst scenario, imports from 
five countries are found to be subsidized. When consid ered separately, the subsidized imports from country A 
do not cause material injury to the domestic indust ry. However, when the effects of such imports are 
cumulated with the effects of the subsidized imports fro m the other four countries, the subsidized imports are 
found to be causing injury to the domestic indust ry. In the second scenario, imports from the same 
five countries are found to be dumped, but only the imports from country A are found to be subsidized. The 
unfairly traded imports have the same volume and pric e effects on the domestic industry as in the first 
scenario. The United States argues that in both scenar ios imports from all five countries are unfairly traded and 
injuring the industry in exactly the same manner. Ho wever, if "cross-cumulatio n" is not permitted, the 
subsidized imports from country A would only be subject to countervailing duties in the first scenario. United States' opening statement at the first meeting of the Panel, paras. 22-24. See also United States' opening statement at the second meeting of the Panel, para. 57. 
589 United States' first written submission, paras. 121 and 124-125. 
590 Ibid. paras. 122 and 126; and opening statement at the second meeting of the Panel, para. 56. WT/DS436/R 
 
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  Appellate Body explained the rationale for cumulati on of the effects of dumped imports, the only 
issue that was before it, as follows: 
A cumulative analysis logically is premised on a recognition that the domestic industry 
faces the impact of the "dumped imports" as  a whole and that it may be injured by 
the total impact of the dumped imports, even though those imports originate from 
various countries. … In our view, therefore,  by expressly providing for cumulation in 
Article 3.3 of the Anti-Dumping Agreement , the negotiators appear to have recognized 
that a domestic industry confronted with dumped imports originating from several 
countries may be injured by the cumulated effects of those imports, and that those effects may not be adequately taken into account in a country-specific analysis of the injurious effects of dumped imports.
591 
In US – Oil Country Tubular Goods Sunset Reviews , the Appellate Body addressed whether a 
cumulative analysis of the effects of dumped imports is permissible in sunset reviews under Article 11.3 of the AD Agreement. US – Oil Country Tubular Goods Sunset Reviews  did not include 
issues relating to "cross-cumulation". The Appellate Body stated that: 
Although EC – Tube or Pipe Fittings concerned an original investigation, we are of the 
view that this rationale is equally applicable to likelihood-of-injury determinations in 
sunset reviews. Both an original investigation and a sunset review must consider 
possible sources of injury ... Injury to the domestic industry—whether existing injury 
or likely future  injury—might come from several sources simultaneously, and the 
c u m u l a t i v e  i m p a c t  o f  t h o s e  i m p o r t s  w o u l d  n e e d  t o  b e  a n a l y z e d  f o r  a n  i n j u r y  
determination. 
Therefore, notwithstanding the differences between original investigations and sunset 
reviews, cumulation remains a useful tool for investigating authorities in both inquiries 
to ensure that all sources of injury and their cumulative impact on the domestic 
industry are taken into account in an investigating authority's determination as to whether to impose—or continue to impose—anti-dumping duties on products from 
those sources.
592 
7.354.  Both Appellate Body reports highlight the usefulness of cumulation for examining the 
impact of imports from all sources of dumped, or likely to be dumped, imports in assessing injury or the need for continuation of an anti-dumping  measure. Although these reports refer only to 
dumped imports, the United States submits that they are equally relevant to investigations 
involving both subsidized and dumped imports.
593 However, the United States does not clearly 
explain why the Appellate Body's understanding of the rationale for cumulation of the effects of 
dumped or subsidized imports justifies the "cross-cumulation" of the effects of both types of 
imports. In these reports, the Appellate Body only considered cumulation in the context of 
investigations and reviews under the AD Agreement,  and thus was concerned only with cumulation 
of the effects of one type of unfairly traded im ports, dumped or likely dumped imports. Reading 
both passages together, it is clear that the Appellate Body's reference to "all sources of injury" is simply a rejection of a country-specific analysis, and does not address the possibility of "cross-cumulation", an issue which, as noted, was not before it. Nothing in these passages 
suggests, as the United States argues, that a conclusion that "cross-cumulation" is not provided 
for in Article 15.3 of the SCM Agreement would prev ent an investigating authority from taking into 
account the injurious effect of all unfairly traded imports which are relevant  under the 
SCM Agreement – subsidized imports. Therefore, in our view, the Appellate Body's views, which 
were made in the context of analysis of the AD Agreement, do not give any support for the United States' understanding. 
7.355.  As for the object and purpose of the SCM Agreement, the United States appears to 
understand from these Appellate Body reports th at "the object and purpose of the SCM and 
                                               
591 Appellate Body Report, EC – Tube or Pipe Fittings , para. 116. 
592 Appellate Body Report,  US – Oil Country Tubular Goods Sunset Reviews , paras. 296-297. 
593 United States' first written submission, para. 125; opening statement at the first meeting of the 
Panel, para. 21; response to Panel question No. 59,  para. 64; second written submission, para. 93; and 
opening statement at the second meeting of the Panel, para. 53. WT/DS436/R 
 
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  AD Agreements … authorize Members to provide relief to industries that are being injured by 
unfairly traded imports from a variety of sources."594 However, it is unclear to us that this is an 
accurate reflection of the object and purpose of these Agreements.595 Indeed, the United States 
does not identify an actual object and purpose of the SCM Agreement that could assist the Panel in 
interpreting Article 15.3 of the SCM Agreement. In  addition, as seen above, the United States' 
understanding of "sources of injury" does not comport with our understanding of the views expressed in the Appellate Body reports on which the United States relies. Given that our 
understanding of Article 15.3 is based squarely on the text of that provision, in its context, we fail 
to see anything in the Unites States' arguments concerning object and purpose of the SCM Agreement that would outweigh that understan ding so as to authorize "cross-cumulation" in 
CVD investigations. 
7.6.1.5.1.4  Conclusion 
7.356.  Therefore, in light of the above, the Pa nel upholds India's claims that Section 1677(7)(G) 
is inconsistent with Article 15.3 of the SCM Agreement "as such" and "as applied" in the original 
investigation at issue.
596 
7.6.1.5.2  Whether Section 1677(7)(G) is "as such" and "as applied" inconsistent with 
Articles 15.1, 15.2, 15.4 and 15.5 of the SCM Agreement 
7.357.  Turning to India's claims under Articles  15.1, 15.2, 15.4 and 15.5 of the SCM Agreement, 
the main question before the Panel is whether the use of the expression "subsidized imports" in these provisions limits the scope of the investigating authority's injury assessment only to subsidized imports. 
7.358.  It is clear to us that Section 1677(7)(G) requires, in certain situations, the USITC to 
cumulatively assess the effects of subsidized imports with the effects of dumped, non-subsidized imports. In our view, this results in an assessment of injury based on inter alia  the volume, effect 
and impact of non-subsidized, dumped imports. 
7.359.  India's claims relating to Article 15.3 of the SCM Agreement, which we have upheld, are 
closely related to its claims under Articles 15.1, 15.2, 15.4 and 15.5 of the SCM Agreement. 
Indeed, we have already considered the latter provisions as relevant context in our consideration 
of the meaning of Article 15.3. We will follow a co nsistent approach examining this set of claims.  
7.360.  We recall our conclusion that the object  of the analysis to be made under Article 15 of the 
SCM Agreement is injury caused by "subsidized impo rts", and not injury caused by "unfairly traded 
imports". Indeed, we recall that Articles 15.1, 15.2, 15.4 and 15.5, which set out the different 
                                               
594 United States' first written submission, para. 83. 
595 While the SCM Agreement has no express indication of its object and purpose,  the Appellate Body in 
US – Carbon Steel  examined the object and purpose of the SCM Agreement and stated that "Part V of the 
SCM Agreement … permit[s] Members to levy countervailing duties on imported products to  offset the benefits 
of specific subsidies bestowed on the manufacture, produc tion or export of those goods. However, Part V also 
conditions the right to apply such duties on the demonstrated existence of three substantive conditions 
(subsidization, injury, and a causal link between th e two) and on compliance with its procedural and 
substantive rules, notably the requirement that the co untervailing duty cannot exceed the amount of the 
subsidy." Appellate  Body Report, US – Carbon Steel , para. 73. Referring to its report in US – Carbon Steel , the 
Appellate Body in US – Softwood Lumber IV  stated that the object and purp ose of the SCM Agreement is to 
"strengthen and improve GATT discipli nes relating to the use of both su bsidies and countervailing measures, 
while, recognizing at the same time, the right of Member s to impose such measures under certain conditions." 
Appellate Body Report, US – Carbon Steel , para. 64. Finally, the Appellate Body in China – GOES  examined the 
objective of Article 3 of the AD Agreement and Article 15 of the SCM Agreement, and stated that "Articles 3 and 15 are intended to delineate the fra mework and relevant disciplines for th e authority's analysis in reaching 
a final determination on the injury caused by subjec t imports, and to ensure that the analysis and the 
conclusion drawn therefrom is ro bust." Appellate Body Report, China – GOES , para. 153. 
596 It is undisputed that, in the CVD investigation at issue, the USITC cumulated the effects of subsidized 
imports from India with the effects of  non-subsidized, dumped imports from China, Kazakhstan, Netherlands, 
Romania, Taiwan, and Ukraine, which were only subject to parallel AD investigations. USITC Preliminary Determinations, pp. 8-11, as quoted in United States ' first written submission, para. 97; and USITC Final 
Determinations, Exhibit IND-9, pp. 16-21, internal pages 9-14. See also United States' response to Panel question No. 117, para. 95. WT/DS436/R 
 
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  elements required for injury analysis, consistently refer only to "subsidized imports". As explained 
above, the express limitation of the imports to be considered under Article 15 suggests to us that, 
in an injury analysis under that provision, the effects of other "unfairly traded" imports is not a relevant consideration because such imports are not "subsidized imports". Thus, in our view, the 
use of the term "subsidized imports" in these provisions limits the scope of the investigating 
authority's injury assessment only to subsidized imports. We also recall our consideration of Article VI:6(a) of the GATT 1994 as context for Article 15.3, and our conclusion that it supports 
our understanding that the effects of subsidized imports are not to be cumulatively assessed with 
the effects of non-subsidized, dumped imports.  Thus, consistent with our views concerning 
Article 15.3, it would seem likely that Section 1677(7)(G) is inconsistent "as such" and "as applied" with Articles 15.1, 15.2, 15.4 and 15.5 of the SCM Agreement.  
7.361.  The United States submits two general ar guments in support of its views concerning the 
import of the use of the term "subsidized im ports" in Articles 15.1, 15.2 and 15.4 of the 
SCM Agreement. First, while the United States accepts that the phrase "subsidized imports" 
"cover[s] imports that an authority has found to have received a subsidy"
597, the United States 
submits that this phrase does not limit the scope of an authority's injury investigation. The United States argues that the investigating auth ority's assessment of a larger group of "unfairly 
traded" imports, which includes all subsidized imports, will necessarily address the effects of 
subsidized imports under Articles 15.1, 15.2, and 15.4.
598 The United States' attempt to expand 
the coverage of the injury analysis implies that the phrase "subsidized imports" in the provisions at issue refers to the minimum group of imports that must be examined by an investigating 
authority. We do not accept this view. To us, the phrase "subsidized imports" as used in these 
provisions is more logically understood to describe with precision the group of imports that must be examined in an injury analysis under those provisions, and not merely the necessary minimum 
subset of some undefined larger group of "unfairl y traded" imports that may be examined in that 
analysis. We recall, in this context, that the phrase "unfairly traded" imports does not appear in the SCM Agreement. Nor is it clear to us that  "unfairly traded" imports would be limited to 
subsidized and dumped imports, as the United States seems to assume. It is not difficult to 
conceive of other circumstances in which imports might be considered "unfairly traded". In our view, it is far more likely that the SCM Agreement, in referring to "subsidized imports" in the provisions at issue, describes the entire group of imports to be considered in an injury analysis, 
and does not leave open the possibility of expand ing that group as posited by the United States. 
7.362.  Second, the United States argues that the injury assessments under Articles 15.1, 15.2 
and 15.4 of the SCM Agreement cannot be limited to "subsidized imports" because it is impossible, 
in practice, for an investigating authority to disentangle the effects of dumped imports from those 
of subsidized imports.
599 The United States submits that when subsidized and dumped imports and 
dumped imports are both having injurious effects on the domestic industry, both groups of imports 
will have mutually reinforcing negative effects on the industry's pricing and sales levels.600 
7.363.  As an initial matter, we note that the United States' argument appears to have no 
relevance in respect of the obligation set out in  Articles 15.1 and 15.2 of the SCM Agreement to 
assess the volume of subsidized imports. It is unclear to us why any alleged difficulty in practice to 
disentangle the effects  of subsidized imports from the effects  of dumped imports would affect the 
investigating authority's ability to examine the volume  of subsidized imports, including considering 
whether there has been a significant increase in subsidized imports. 
7.364.  Articles 15.1, 15.2, and 15.4 further requir e that investigating authorities examine (i) the 
effect of the subsidized imports on prices, and (ii) the impact of the subsidized imports on the domestic industry. Again, we do not see the difficulty posited by the United States. The 
United States asserts that it is difficult to "disentangle" the effects of subsidized imports from 
those of dumped imports of the same product which may or may not also be subsidized. However, it is not clear to us, and the United States has not explained, how this alleged problem arises. The question before the Panel is whether an investigating authority may consider only subsidized 
                                               
597 United States' response to Pa nel question No. 57, para. 54. 
598 Ibid. para. 57. 
599 United States' response to Pa nel question No. 56, paras. 49-56; and second written submission, 
paras. 90-91. 
600 United States' response to Pane l question No. 56, para. 50; and second written submission, para. 91. WT/DS436/R 
 
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  imports (regardless of whether such subsidized im ports are also dumped) in its injury assessment 
in countervailing duty investigation, or whether it can also include non-subsidized, dumped imports in that injury assessment. It seems clear to us that an investigating authority can examine the effects of a defined body of imports – subsidized imports – on prices, and the impact of that same 
body of imports on the domestic industry, consistently with the criteria set out in Articles 15.2 
and 15.4, without in addition considering the effects and impact of dumped imports, whether or not those dumped imports are also subsidized.
601 We fail to see how including in the examination 
of the effects of subsidized imports an additional group of dumped imports which are not 
subsidized would add anything to the examination of the effects of the subsidized imports. Moreover, the United States appears to ignore that  "fairly" traded imports – e.g. more efficiently 
produced imports – may also have injurious effects on the domestic industry. Thus, the same 
practical difficulties raised by the United States would appear to arise in this case as well, and yet 
we do not understand the United States to suggest that the effects of such imports should also be included in an investigating authority's examination of the effects and impact of subsidized 
imports.
602 Thus, the "practical difficulty" identified by the United States, to the extent it actually 
may arise, does not justify expanding the meaning of  the term "subsidized imports" to also include 
dumped imports. 
7.365.  Finally, the United States submits two separate arguments referring respectively to 
Articles 15.4 and 15.5 of the SCM Agreement. With respect to Article 15.4, although the 
United States accepts that Article 15.4 does not contain a "non-attribution" obligation603, the 
United States contends that, when "subsidized and dumped imports are found to be 
simultaneously injuring the industry, the existenc e of the dumped imports in the marketplace is a 
'relevant factor' that must be examined by an  authority to assess whether those dumped but 
non-subsidized imports are exacerbating the injury being caused by the subsidized imports."604 
The United States contends that the phrase "relevant economic factors and indices having a 
bearing on the state of the indu stry" in Article 15.4 encompasses factors and indices that are 
indicative  of the state of the industry, as well as those that are responsible  for the state of the 
industry.605  
7.366.  We are unable to reconcile the United States' argument with the text of Article 15.4 of the 
SCM Agreement. The introductory sentence of Arti cle 15.4 states that "[t]he examination of the 
impact of the subsidized imports  on the domestic industry shall include an evaluation of all 
relevant  economic factors and indices having a bearing on the state of the industry".606 We 
understand that dumped imports may have caused, or be causing, injury to the same domestic 
industry under consideration in a countervailing duty case. We also understand that this may be 
seen in the condition of the domestic industry as reflected in the data concerning the Article 15.4 
criteria, and may be a relevant factor having a bearing on the state of the industry. However, we fail to understand how this fact justifies reading the reference to the "impact of the subsidized 
                                               
601 The fact that some of those subs idized imports may also be dumped  does not affect this analysis, 
which is in our understanding an examination of the effect  or impact of the imports,  and not of the effects of 
the subsidization per se . In our view, the "disentangling" problem identified by the United States arises only if 
an investigating authority is required to examine the injurious effects of subsidization independently of the injurious effects of dumping. Article 15.5 makes clear that  the "effects of subsidies" that are relevant to the 
analysis of injury in a countervailing  duty investigation are those set out in paragraphs 2 and 4 of Article 15, 
both of which refer to the price e ffects and impact of subsidized impo rts alone. We do not understand the 
United States to be arguing to the co ntrary, and therefore this is not an issue we are required to address or 
resolve in this dispute. India has made clear that its cl aims are confined to the cumulation of the effects of 
subsidized imports with the effects of non-subsidized, dumped imports, and do not relate to the possible 
disentanglement of the effects of subs idization and dumping in the case of  imports that are both subsidized 
and dumped. India's response to Panel question No. 32; and second written submission, paras. 48-49. In our view, the United States appears to rely on the alleged impossibility of disentangling the injurious effects of 
subsidization from the injuriou s effects of dumping in support of its view  that cumulative analysis of the effects 
of subsidized imports with the effect s of dumped imports is permissible.  United States' response to Panel 
question No. 56, paras. 49-51; respon se to Panel question No. 58, para. 60; and second written submission, 
para. 90. 
602 Of course, as discussed above, in fns. 579 and 586, the injurious effects of such imports must not be 
attributed to the subsidized, or dump ed, imports at issue in a countervai ling or anti-dumping investigation 
under the SCM or AD Agreement, as the case may be. 
603 United States' response to Panel question No. 116(a), para. 92. 
604 United States' first written submission, para. 134. 
605 United States' response to Panel question No 116(b), paras. 93-94. 
606 Article 15.4 of the SCM Agreement. (emphasis added) WT/DS436/R 
 
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  imports" in the first sentence of Article 15.4 to  include consideration of the impact of dumped, 
non-subsidized imports on the domestic industry. 
7.367.  With respect to Article 15.5 of the SCM Agr eement, the United States argues that "because 
an authority may cumulate the injurious effects of all unfairly traded imports that are 
simultaneously affecting the industry, the authority need not … perform a non-attribution analysis 
for unfairly traded imports that are cumulated in its analysis."607 This element of the United States' 
submission fails because we have found above that an investigating authority may not cumulate 
the injurious effects of all "unfairly traded" import s that are simultaneously affecting the industry. 
7.368.  The United States also holds that a find ing contrary to "cross-cumulation" would "negate 
the authority's cumulated analysis because it would require the authority to assess certain groups of cumulated imports as though they were not unfairly traded sources of injury."
608 In our view, 
the United States' arguments import elements into Article 15.5 which are not found in the text of 
this provision. Article 15.5 of the SCM Agreement requires an investigating authority to "examine 
any known factors other than the subsidized imports which at the same time are injuring the 
domestic industry", identifies "the volume and prices of non-subsidized imports of the product in 
question" as a factor which may be relevant in this respect, and requires the investigating authority to ensure that "the injuries caused by these other factors [are] not attributed to the 
subsidized imports."
609 The United States contends that dumped imports are not an "other known 
factor" of injury.610 We do not agree. In our view, the reference in Article 15.5 to "non-subsidized 
imports" as an "other known factor" would also  include "non-subsidized, dumped imports". The 
text of this provision does not suggest that whether non-subsidized imports are "fairly" or 
"unfairly" traded must be determined, or, in deed, is even relevant. Rather, the relevant 
consideration in this respect is that the imports considered in a non-attribution analysis are not subsidized, so as to ensure that injury caused by other factors, including non-subsidized imports, 
is not attributed to subsidized  imports. 
7.6.1.5.2.1  Conclusion 7.369.  Therefore, in light of the above, the Pa nel upholds India's claims that Section 1677(7)(G) 
is inconsistent with Articles 15.1, 15.2, 15.4 and 15.5 of the SCM Agreement "as such" and "as 
applied" in the original investigation at issue.
611  
7.6.2  Whether Article 15 of the SCM Agreement applies to sunset reviews 
7.370.  India claims that Sections 1675a(a)(7) and 1675b(e)(2) are "as such" inconsistent with 
Articles 15.1, 15.2, 15.3, 15.4 and 15.5 of the SCM Agreement because they require a cumulative 
assessment of the effects of both subsidized and non-subsidized imports in sunset reviews.612 In 
addition, India claims that Section 1675a(a)(7), "as applied" in the sunset review at issue here, is 
inconsistent with Articles 15.1-15.5 and 21.3 of the SCM Agreement for essentially the same 
reasons.613 
7.6.2.1  Relevant WTO provisions 
7.371.  Article 21.3 of the SCM Agreement provides: 
                                               
607 United States' response to Pa nel question No. 58, para. 59. 
608 Ibid. 
609 The Appellate Body has explained that the non-attribution language of Article 15.5 of the 
SCM Agreement requires that "an asse ssment must involve separating and distinguishing the injurious effects 
of the other factors from the injurious effects of the [subsidized] imports" . Appellate Body Report, China – 
GOES , para. 150, quoting the Appellate Body Report, US – Hot-Rolled Steel , para. 223. 
610 United States' response to Pa nel question No. 58, para. 59. 
611 It is undisputed that, in the CVD investigation at issue, the USITC cumulated the effects of subsidized 
imports from India with the effects of  non-subsidized, dumped imports from China, Kazakhstan, Netherlands, 
Romania, Taiwan, and Ukraine, which were only subject to parallel AD investigations. USITC Preliminary Determinations, pp. 8-11, as quoted in United States ' first written submission, para. 97; and USITC Final 
Determinations, Exhibit IND-9, pp. 16-21, internal pages 9-14. See also United States' response to Panel question No. 117, para. 95. 
612 India's first written submission, paras. 136-137, 146, 148-149 and 152. 
613 Ibid. paras. 518-519 and 521. WT/DS436/R 
 
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  Notwithstanding the provisions of paragraphs 1 and 2, any definitive countervailing 
duty shall be terminated on a date not later than five years from its imposition (or from the date of the most recent review under paragraph 2 if that review has covered both subsidization and injury, or under this paragraph), unless the authorities 
determine, in a review initiated before that date on their own initiative or upon a duly 
substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to that date, that the expiry of the duty would be likely 
to lead to continuation or recurrence of subsidization and injury.
52 The duty may 
remain in force pending the outcome of such a review. ________ 
52 When the amount of the countervailing duty is assessed on a retrospective basis, a finding in 
the most recent assessment proceeding that no duty is to be levied shall not by itself require the 
authorities to terminate the definitive duty. 
7.372.  Footnote 45 to Article 15 provides: 
Under this Agreement the term "injury" shall, unless otherwise specified, be taken to 
mean material injury to a domestic industry, threat of material injury to a domestic 
industry or material retardation of the establishment of such an industry and shall be 
interpreted in accordance with the provisions of this Article. 
7.373.  Articles 15.1, 15.2, 15.3, 15.4, and 15.5 of the SCM Agreement are set forth above.614 
7.6.2.2  Factual background 
7.374.  India's claims relating to cumulative asse ssment in sunset reviews refer to two provisions: 
Sections 1675a(a)(7) and 1675b(e)(2). Section 1675a(a)(7) regulates cumulation with respect to the determination of likelihood of continuation or recurrence of material injury in sunset reviews 
(under Section 1675(c)).
615 It provides as follows: 
For purposes of this subsection, the Commission may cumulatively assess the volume 
and effect of imports of the subject merchandise from all countries with respect to 
which reviews under section 1675(b) or (c) of this title were initiated on the same 
day, if such imports would be likely to comp ete with each other and with domestic like 
products in the United States market. The Commission shall not cumulatively assess the volume and effects of imports of the subject merchandise in a case in which it 
determines that such imports are likely to have no discernible adverse impact on the 
domestic industry. 
7.375.  Section 1675b(e)(2) regulates cumulation of the effects of imports in investigations 
concerning countries that were not GATT signatories
616 and simultaneous expedited sunset reviews 
(under Section 1675(c)). It provides as follows: 
If a review under Section 1675(c) of this title is initiated under paragraph (1), such 
review shall be treated as having been initiated on the same day as the investigation 
under this Section, and the Commission may, in accordance with Section 1677(7)(G) of this title, cumulatively assess the volume and effect of imports of the subject merchandise from all countries with respect to which such investigations are treated 
as initiated on the same day. 
7.376.  In its likelihood-of-injury assessment for purposes of the sunset review in the case at 
hand, the USITC cumulated the effects of imports from India with those of imports from five other 
countries. Of these, imports from only two countries (Indonesia and Thailand) were subject to 
sunset reviews of the countervailing duty orders. Imports from the remaining three countries 
                                               
614 See paras. 7.317-7.321 above. 
615 The provision also regulates cumulation in changed circumstances reviews (under Section 1675(b)), 
which are not at issue in this dispute. 
616 Both parties agree that this provision does not apply to cumulation in changed circumstances review. 
See India's response to Panel question No. 31, an d United States' first written submission, fn. 112. WT/DS436/R 
 
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  (China, Taiwan, and Ukraine) were only subject to sunset reviews of the anti-dumping duty 
orders.617 
7.6.2.3  Main arguments of the parties 7.6.2.3.1  India 
7.377.  India notes that, although Article 21.3 of the SCM Agreement is silent on whether 
cumulation is permitted, this provision uses the term "injury" in regulating sunset reviews. India argues that this term has a specific meaning wi thin the SCM Agreement flowing from footnote 45 
to Article 15 of the SCM Agreement. According to India, unless otherwise specified, a reference to 
"injury" in the SCM Agreement means "injury" th at has been determined in accordance with 
Article 15.
618 As Article 15.3 of the SCM Agreement is th e sole provision dealing with cumulation, 
India contends that, for purposes of sunset reviews under Article 21.3, Article 15.3 results in an 
obligation to not cumulatively assess likely subsidized goods with non-subsidized goods when 
determining the "likelihood" of injury.619 India refers to its arguments relating to the inconsistency 
of Section 1677(7)(G) with Articles 15.3 and 15.5 of the SCM Agreement in support of its 
argument. For essentially the same reasons, India claims that Section 1675a(a)(7) is inconsistent 
with Articles 15.3 and 15.5.620 Relying on the panel in EU – Footwear (China) , India  further argues 
that a causal link analysis which is inconsistent with Article 15.5 during the original investigation 
will remain tainted and still inconsistent with  Article 15.5 even during the sunset review.621 
7.378.  Moreover, India notes that although Section 1675a(a)(7) contains the word "may", the 
c o n s i s t e n t  p r a c t i c e  o f  t h e  U S I T C  o v e r  a  l o n g  p e r i o d  o f  t i m e  r e v e a l s  t h a t  i t  d o e s  n o t  h a v e  a n y  discretion in reality to choose not to cumulate non-subsidized imports.
622 Alternatively, even if the 
United States retains the discretion under Section 1675a(a)(7) to not cumulatively assess imports 
from non-subsidizing countries, India claims that Section 1675a(a)(7) would still be inconsistent with Articles 15.1-15.5 of the SCM Agreement.
623 India argues that an interpretation of 
Article 15.3 in good faith should not allow the United States to enact legislation permitting 
cumulative assessment of imports where the condit ions of Article 15.3 are not met, as it would 
reserve the right of the United States to perform an act which the United States had promised not 
to do.624 
7.379.  India also argues that Section 1675a(a)(7) is inconsistent with Articles 15.1, 15.2, 15.4 
and 15.5 of the SCM Agreement because it mandates or, alternatively permits, the investigating authority to cumulate the effects of both subsidized and non-subsidized imports for purposes of 
determining injury.
625 
7.380.  India recalls that, in the sunset review determination at issue, the USITC cumulatively 
assessed the likely volume, price effects and impact of subsidized imports with those of 
non-subsidized imports because it included imports from China, Taiwan and Ukraine in its analysis, 
even though no subsidies were alleged against these three countries.626 India contends that the 
United States determined the likelihood of continuation or recurrence of injury based on subsidized 
and non-subsidized imports.627 India claims that this application of Section 1675a(a)(7) was 
                                               
617 India's first written submission, para. 519; United States' first written submission, para. 108, and 
response to Panel question No. 63, fn. 62; and Hot-rolled steel produc ts from Argentina, China, India, 
Indonesia, Kazakhstan, Romania, South Africa, Taiwan, Thailand, and Ukraine, 
Investigation Nos. 701-TA-404-408 and 731-TA-898-902 and 904-908 (review), October 2007, publication 3956 ("USITC Sunset Determinations"), Exhibit USA-10, p. 18. 
618 India's first written submission, paras. 137-138. 
619 Ibid. paras. 139-141; and second written submission, paras. 75-78. 
620 India's first written submission, paras. 141-142. 
621 Ibid. para. 142, citing the Panel Report, EU – Footwear (China) , para. 7.495; and response to Panel 
question No. 34. 
622 India's first written submission, paras. 134-135; and second written submission, paras. 83 and 86. 
623 India's first written submission, paras. 143 and 146. 
624 Ibid. paras. 144-145. 
625 Ibid. paras. 146-149. 
626 Ibid. para. 519. 
627 Ibid. para. 520. WT/DS436/R 
 
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  inconsistent with Articles 15.1-15.5 and 21.3 for the same reasons put forward with respect to its 
"as such" claims.628 
7.381.  Turning to Section 1675b(e)(2), India notes that it refers back to Section 1677(7)(G), 
which requires the cumulative assessment of subsid ized and non-subsidized imports. India recalls 
its arguments that Section 1677(7)(G) is inconsistent with Articles 15.1-15.5 of the 
SCM Agreement, and for essentially the same reasons, India claims that Section 1675b(e)(2) is also "as such" inconsistent with these provisions of the SCM Agreement.
629 
7.6.2.3.2  United States 
7.382.  The United States submits that Section 1675a(a)(7) is not "as such", or "as applied" in the 
investigation at issue here, inconsistent with Articles 15.3, 15.5 and 21.3 of the SCM Agreement.
630 The United States also submits that Section 1675b(e)(2) "has nothing to do 
with cumulation in changed circumstances reviews".631 
7.383.  The United States submits that, as India has not raised an "as such" or "as applied" claim 
under Article 21.3 of the SCM Agreement in its panel request, any claim under this provision falls 
outside the Panel's terms of reference.632 
7.384.  In addition, the United States argues that  the cumulation requirements in Article 15.3 of 
the SCM Agreement are not applicable to sunset reviews. The United States refers to 
Appellate Body's findings that the provisions governing injury determinations in original 
AD investigations, including cumulation requirements, do not apply to the likelihood of injury analysis in subsequent sunset reviews.
633 Given that there are no pertinent differences between 
Article 11.3 of the AD Agreement and Article 21. 3 of the SCM Agreement, the United States 
contends that Article 21.3 of the SCM Agreement "imposes no specific limitation on an 
investigating authority's cumulation decisions in a sunset review."634 In addition, the United States 
disagrees with India's argument based on the definition of the term "injury" in footnote 45 of the 
SCM Agreement, and recalls that the Appellate Body in US – Oil Country Tubular Goods Sunset 
Reviews  rejected the very same argument under the AD Agreement.635 
7.385.  The United States also submits two alte rnative arguments. First, the United States 
contends that, even if the provisions of Arti cle 15.3 of the SCM Agreement were understood to 
apply to sunset reviews, for the same reasons it put forward with respect to India's Article 15.3 claims, this provision does not preclude the cumulation of subsidized and dumped imports in sunset reviews.
636 Second, even if Article 15.3 were understood to prohibit cumulation in sunset 
reviews, the United States argues that India still has no basis for its claims because 
Section 1675a(a)(7) does not mandate cumulation in sunset reviews; rather it explicitly gives the USITC discretion not to cumulate even when the statutory standards are met.
637 
7.386.  With respect to India's claims under Arti cle 15.5 of the SCM Agreement, the United States 
points out that India fails to acknowledge that all imports found by USDOC to be subsidized in the original investigation, including those from India, were also found by USDOC to be dumped. Thus, 
the United States explains that under Article 3.3 of the AD Agreement, the USITC was authorized 
to cumulate the dumped and subsidized imports for purposes of its injury analysis.
638 Moreover, 
                                               
628 India's first written submission, paras. 518-519 and 521. 
629 Ibid. para. 152. 
630 United States' first written submission, paras. 137, 140, 147 and 150. 
631 Ibid. fns. 112 and 252. 
632 United States' second written submission, paras. 84-85; and response to Panel question Nos. 63, 
para. 75, and 64, para. 81. 
633 United States' first written submission, paras. 83 and 137-139; response to Panel question No. 64, 
para. 83; second written submission, paras. 82-83 and 93; and opening statement at the second meeting of the Panel, paras. 51 and 59-62. 
634 United States' first written submission, para. 140. 
635 Ibid. para. 141. 
636 Ibid. para. 142. 
637 Ibid. paras. 89-90 and 143-144; response to Pane l question No. 63, para. 77; and response to 
India's question No. 1, para. 1. 
638 United States' first written submission, para. 150. WT/DS436/R 
 
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  the United States contends that if the Panel were to conclude that cumulation of subsidized and 
dumped products is prohibited, "it would require an investigating authority to separate out the injurious effects of imports that result from their status as 'dumped imports' from the effects that are the result of their simultaneous status as 's ubsidized imports', even though the imports would, 
by definition, have the exact same price and volume effects."
639 
7.6.2.4  Evaluation 7.6.2.4.1  The Panel's terms of refere nce: Article 21.3 of the SCM Agreement 
7.387.  Before turning to the substance of India's claims, we must address the issue raised by the 
United States regarding the Panel's terms of reference. As noted by the United States
640, India has 
not raised any "as such" or "as applied" claims of inconsistency of Section 1675a(a)(7) with Article 21.3 of the SCM Agreement in its panel request. Thus, there is no claim in this respect 
before us, and India's arguments relating to an alleged "as applied" inconsistency of 
Section 1675a(a)(7) with Article 21.3 of the SCM Agreement relate to a claim that is not within the Panel's terms of reference. Therefore, we will no t consider India' arguments in this respect, or 
make any rulings with respect to this putative claim.  
7.6.2.4.2  Alleged inconsistency of US provisio ns regarding cumulative analysis in sunset 
reviews 
7.388.  Turning to the substance of India's chal lenges, India claims that US provisions on 
cumulative assessment in sunset reviews, as well as the sunset review determination at issue here, are inconsistent with a number of obligation s in Article 15 of the SCM Agreement, which is 
the provision governing injury determinations in original investigations. The United States argues 
that Article 15 does not impose obligations with regard to sunset reviews.
641 
7.389.  In the context of the AD Agreement,  the Appellate Body has explained that the 
AD Agreement distinguishes between determinations of injury , under Article 3 of the 
AD Agreement, and determinations of likelihood of continuation or recurrence of injury , under 
Article 11.3 of the AD Agreement.642 After emphasizing the different nature and purpose of original 
investigations, on the one hand, and sunset reviews, on the other hand643, the Appellate Body 
concluded that: 
Given the absence of textual cross-refere nces, and given the different nature and 
purpose of these two determinations, we are of the view that, for the "review" of a 
determination of injury that has already been established in accordance with Article 3, 
Article 11.3 does not require that injury again be determined in accordance with 
Article 3. We therefore conclude that investigating authorities are not mandated  to 
follow the provisions of Article 3 when making a likelihood-of-injury determination.644 
Article 21.3 of the SCM Agreement is substantially id entical to Article 11.3 of the AD Agreement. In 
light of this, and the close parallels between the provisions of Article 3 of the AD Agreement and 
                                               
639 United States' first written submission, para. 151. 
640 United States' second written submission, paras. 84-85; and response to Panel question Nos. 63, 
para. 75, and 64, para. 81. 
641 United States' first written submission, paras. 83 and 137-139; response to Panel question No. 64, 
para. 83; and second written submission, paras. 82-83 and 93. 
642 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 278. 
643 The Appellate Body stated that "[o]riginal investigations require an investigating authority, in order 
to impose  an anti-dumping duty, to make a determination of the existence of dumping in accordance with 
Article 2, and subsequent ly to determine, in accordance with Article 3, whether the domestic  industry is facing 
injury or a threat thereof at the time of the original  investigation. In contrast, Article 11.3 requires an 
investigating authority, in order to maintain  an anti-dumping duty, to review an anti-dumping duty order that 
has already been established—following the prerequisi te determinations of dumping and injury—so as to 
determine whether that order should be cont inued or revoked." Appellate Body Report, US – Oil Country 
Tubular Goods Sunset Reviews , para. 279. 
644 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 280. WT/DS436/R 
 
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  Article 15 of the SCM Agreement645, we consider that the same rationale should apply in the 
context of the SCM Agreement. Thus, we are of th e view that, to paraphrase the Appellate Body, 
for the "review" of a determination of injury that has already been established in accordance with Article 15, Article 21.3 does not require that injury again be determined in accordance with 
Article 15, and consequently investigating authorities are not mandated  to follow the provisions of 
Article 15 when making a likelihood-of- injury determination under Article 21.3.
646 
7.390.  India argues that the term "injury" in Article 21.3 of the SCM Agreement, as defined in 
footnote 45 of the SCM Agreement, should be understood as a reference to "injury" that has been 
determined in accordance with the provisions of  Article 15 of the SCM Agreement, in particular 
Article 15.3 of the SCM Agreement.647 Essentially the same argument was addressed by the 
Appellate Body in US – Oil Country Tubular Goods Sunset Reviews . In that case, the Appellate 
Body examined the definition of "injury" in footno te 9 of the AD Agreement, which is identical to 
the definition of injury in footnote 45 of the SCM Agreement. While the Appellate Body understood 
that footnote 9 defines "injury" for the whole AD  Agreement, the Appellate Body concluded that 
"[i]t does not follow … from this single definition of 'injury', that all of the provisions of Article 3 
are applicable in their entirety to sunset review determinations under Article 11.3."648 We agree, 
and consider that the mere use of the term "inj ury" in Article 21.3 does not alone require the 
application of the provisions of Article 15, including Article 15.3, to sunset reviews. 
7.391.  In addition, we note India's reliance on the finding by the panel in EU – Footwear (China)  
that a causal link analysis which is inconsistent with Article 15.5 of the SCM Agreement in the original investigation will remain tainted and still inconsistent with Article 15.5 during the sunset 
review.
649 We fail to understand why India relies on this case, since in our view, this finding is not 
relevant to this dispute. First, the panel in EU – Footwear (China)  only addressed the application of 
obligations relating to original investigations in the context of sunset reviews because the 
European Union had made a new injury determination in the context of a sunset review, and relied 
on that determination in finding a likelihood of continuation or recurrence of injury.650 However, 
the United States has clarified that the relevant US provision does not mandate the USITC to make 
new injury determinations in sunset reviews, and the USITC did not do so in the sunset review at 
issue here.651 Second, the panel in EU – Footwear (China)  considered that "a failure to examine 
relevant factors set out in the substantive provisions of Article 3 in the determination of likelihood of continuation or recurrence of injury could preclude an investigating authority from reaching a 
'reasoned conclusion', which would result in a violation of Article 11.3 of the AD Agreement."
652 
Thus, ultimately, the panel's analysis and determination concerned whether the determination of likelihood of continuation or recurrence of injury was consistent with Article 11.3, which is the 
provision in the AD Agreement dealing with sunset reviews. However, as we have found India's 
Article 21.3 claims to be outside the Panel's terms of reference above, no such analysis would be possible in this case, even assuming there were a new determination of injury by the USITC to be 
considered, which as noted, there is not. 
7.6.2.4.3  Conclusion 7.392.  Therefore, in light of the above, the Panel concludes that India has failed to establish a 
prima facie  case that Sections 1675a(a)(7) and 1675b(e)(2) are "as such" inconsistent with 
                                               
645 As noted by the Appellate Body in US – Corrosion-Resistant  Steel Sunset Review , "Article 11.3 is 
textually identical to Article 21.3 of the SCM Agreement , except that, in Article 21.3, the word 'countervailing' 
is used in place of the word 'anti-dumping' and the word 'subsidization' is used in place of the word 
'dumping'.". The Appellate Body went on to conclude th at "[g]iven the parallel wording of these two articles, 
we believe that the explan ation, in our Report in US – Carbon Steel , of the nature of the sunset review 
provision in the SCM Agreement  also serves, mutatis mutandis , as an apt description of Article 11.3 of the 
Anti-Dumping Agreement ." Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , fn. 114. 
646 In light of this conclusion, we need not and do  not address the disagreem ent between India and the 
United States relating to the relevance of Section 1675b (e)(2) to cumulation in sunset reviews. See India's 
first written submission, paras. 151-152; and response to Panel question No. 31; and United States' first 
written submission, fns. 112 and 252. 
647 India's first written submission, paras. 137-141. 
648 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 277. 
649 India's first written submission, para. 142; and response to Panel question No. 17. 
650 Panel Report, EU – Footwear (China) , paras. 7.333-7.334 and 7.495-7.496. 
651 United States' response to Panel question No. 63, paras. 78 and 80. 
652 Panel Report, EU – Footwear (China) , para. 7.333. WT/DS436/R 
 
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  Articles 15.1, 15.2, 15.3, 15.4 and 15.5 of the SCM Agreement, and that Section 1675a(a)(7), "as 
applied" in the sunset review at issue here, is inconsistent with the above provisions of the SCM Agreement. Finally, the Panel concludes that India's arguments relating to an alleged "as applied" inconsistency of Section 1675a(a)(7) with Article 21.3 of the SCM Agreement relate to a 
claim that is not within the Panel's terms of reference. 
7.6.3  Whether certain econom ic factors were evaluated by the USITC in its injury 
determination 
7.393.  India claims that the injury determination in the original investigation at issue here is 
inconsistent with Articles 15.1 and 15.4 of the SCM Agreement because the USITC failed to include all mandatory economic factors listed in Article 15.4.
653 
7.6.3.1  Relevant WTO Provisions 
7.394.  Articles 15.1 and 15.4 of the SCM Agreement are set forth above.654 
7.6.3.2  Main arguments of the parties 7.6.3.2.1  India 
7.395.  India submits that, pursuant to Article 15. 4 of the SCM Agreement, the examination of the 
impact of the subsidized imports on the domestic in dustry shall include an evaluation of all factors 
listed therein, including growth, return on investment, and ability to raise capital. India contends 
that there is no written record relating to these three factors in the USITC's determination of 
injury. India submits that the absence of evaluation of mandatory parameters is in itself sufficient to establish an inconsistency with Articles 15.1 and 15.4.
655 In addition, India argues that the mere 
collection of data and responses from the domestic industry is not sufficient to fulfil the 
requirement in Article 15.4 to evaluate the information submitted by interested parties.656 
7.6.3.2.2  United States 7.396.  The United States recalls the Appellate Body's explanation in EC – Tube or Pipe Fittings  
that an authority is not required to make specific findings for each impact factor listed in 
Article 3.4 of the AD Agreement, which is nearly  identical to Article 15.4 of the SCM Agreement. 
The United States explains that, pursuant to the Appellate Body, while it is mandatory to evaluate 
all fifteen factors listed
657, Article 3.4 does not address the manner in which the results of the 
investigating authority's analysis of each injury factor are to be set out in the published document.
658  
7.397.  The United States contends that, consistently with Article 15.4, the USITC evaluated the 
three factors identified by India. The United Stat es submits that the USITC's evaluation of growth 
trends in the industry's condition is necessarily entailed in the USITC's assessment of the changes 
in the industry's production, production capacity , capacity utilization, shipments, employment 
levels, prices, operating profits and orders over the period.659 Turning to the industry's return on 
investment and ability to raise capital, the United States submits that the USITC (i) specifically stated that it considered all relevant economic factors, including these two factors; (ii) obtained 
detailed financial data from the industry; (iii) received from the industry a number of confidential 
                                               
653 India's first written submission, para. 508. 
654 See paras. 7.317 and 7.320 above. 
655 India's first written submission, paras. 508-509. 
656 India's second written submission, para. 263. 
657 United States' first written submission, para. 154. However, we note that elsewhere the 
United States appears to suggest that the evaluation of all fifteen factors is not ma ndatory. The United States 
submits that "in addition to limiting the required evalua tion to 'relevant' economic factors, the SCM Agreement 
includes the term 'or' rather than 'and' between the fact ors listed. … Therefore, an authority is required to 
evaluate only those factors which are relevant to its analysis." United States' response to Panel 
question No. 118, fn. 139. 
658 United States' first written submission, paras. 153-154. 
659 Ibid. paras. 104 and 156. WT/DS436/R 
 
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  comments on the negative effects of imports on the industry's growth, investment, ability to raise 
capital, and/or development efforts; and (iv) spec ifically addressed in its analysis the industry's 
profitability and returns on operations, the changes in productive capacity levels, and overall financial operations.
660 
7.6.3.3  Evaluation 
7.398.  The issue before the Panel is whether the USITC properly evaluated (i) growth, (ii) return 
on investment, and (iii) ability to raise capital as relevant economic factors under Article 15.4 of 
the SCM Agreement. 
7.399.  The Appellate Body in US – Hot-Rolled Steel  stated that "Article 3.4 [of the AD Agreement] 
lists certain factors which are deemed to be relevant in every investigation and which must always be evaluated by the investigating authorities."
661 Given the close identity of the texts, we consider 
that this understanding applies with equal force to Article 15.4662 of the SCM Agreement.663 
7.400.  The Appellate Body in EC – Tube or Pipe Fittings  stated that "because Articles 3.1 and 3.4 
[of the AD Agreement] do not regulate the manner  in which the results of the analysis of each 
injury factor are to be set out in the published documents, … it is not required that in every 
anti-dumping investigation a separate record be made of the evaluation of each of the injury factors listed in Article 3.4."
664 The Appellate Body also stated that the particular facts of each case 
will determine whether a panel is able to find in the record "sufficient and credible evidence" that a 
factor has been evaluated , even though a separate record of the evaluation of that factor has not 
been made.665 Thus, we examine below the USITC's injury determination to assess whether it is 
possible, based on the determination itself, the underlying evidence, and the arguments present, 
to satisfy ourselves that the factors at issue were evaluated by the USITC as required by 
Article 15.4 of the SCM Agreement. 
7.401.  The USITC's injury determination states in relevant part: 
Both commercial shipments and production for downstream processing by the 
domestic industry were higher in 2000 than in 1998. Capacity, production, and capacity utilization rates all rose from 1998 to 2000. Yet despite increased production 
and shipments, the domestic industry's financial performance was poor throughout 
most of the POI. The domestic industry had operating losses on commercial sales and total production in both 1999 and 2000. Several domestic producers entered Chapter 11 bankruptcy proceedings, and two ceased operations altogether. The 
number of production related workers declined throughout the POI, as did the number 
of hours worked and total wages paid. Total capital expenditures increased between 1998 and 2000 but expenditures on research and development dropped. 
Undoubtedly, the industry's performance in the early portion of the POI reflected the 
adverse effects of unfairly traded hot-rolled steel imports from Brazil, Japan, and Russia. But quarterly data indicate that the domestic industry had gained some 
benefit from the import relief imposed on imports from Brazil, Japan, and Russia by 
mid-1999. For a brief time, shipments increased, prices increased, and the domestic industry's financial performance improved, although prices generally remained below pre-injury levels. … 
                                               
660 United States' first written submission, paras. 105 and 157. See also United States' response to 
Panel question No. 118, para. 102. 
661 Appellate Body Report, US – Hot-Rolled Steel , para. 194. See also Appellate Body Report, Thailand – 
H-Beams , para. 125. 
662 We note that Article 3.4 of the AD Agreement and Article 15.4 of the SCM Agreement are similarly 
worded, and that the former includes all general factors listed in the latter.  
663 With similar understanding, see Panel Reports, EC – Countervailing Measures on DRAM Chips , 
paras. 7.356 and 7.359; and US – Softwood Lumber IV , para. 7.123. 
664 Appellate Body Report, EC – Tube or Pipe Fittings , para. 161. 
665 Ibid. WT/DS436/R 
 
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  This improvement did not last. Virtually every financial and production indicator was 
lower in interim 2001 than in interim 2000. Shipments by the domestic industry to the merchant market in interim 2001 were 11.4 percent lower than in interim 2000. Total shipments, including internal consumption, were 16.5 percent lower in interim 2001 
than in interim 2000. Operating loss per ton of net sales was $50 in interim 2001, 
compared to a positive income per ton of $16 in interim 2000. Operating loss per ton of total production was $63 in interim 2001, compared to a positive income per ton 
of $5 in interim 2000. Operating losses were widespread in the industry, affecting 
17 of 21 reporting firms in 2000. Only 12 of 21 firms had reported losses in 1998, and only 13 of 21 firms had reported losses in 1999, when imports from Brazil, Japan, and Russia were adversely affecting the domestic industry. The number of production 
related workers was 29,123 in interim 2001, compared to 31,639 in interim 2000. 
Hours worked were 16.3 million in interim 2001, compared to 18.2 million in interim 2000. 
The record indicates that the domestic industry's condition has been affected by a 
drop in consumption since the latter part of 2000. The industrial production index peaked in the third quarter of 2000 and declin ed thereafter. Similarly, total apparent 
domestic consumption of steel declined in the second half of 2000. We also note that, 
while the industry's internal transfers declined by only 5.3 percent from the first to the third quarter of 2000, commercial shipments fell by 19.2 percent. This is further evidence that the general drop in demand for hot-rolled steel did not begin until the 
end of 2000, and that the sharp drop in commercial shipments through the 
third quarter of 2000 was due primarily to su bject imports. However, the weakening in 
the domestic industry's condition began before the decline in overall consumption. The 
order books of integrated producers peaked  in the fourth quarter of 1999; minimill 
order books peaked a quarter earlier, in the third quarter of 1999. Domestic shipments to the merchant market peaked in the first quarter of 2000, as did total 
domestic shipments, including internal transfers. Domestic shipments to the merchant 
market declined by 7.8 percent from the first quarter of 2000 to the second. … 
We note that the volume of subject import s has declined since the second quarter of 
2000, although the volume remained notably high compared to pre-1999 levels 
through the third quarter of 2000. We also  note that some overselling by subject 
imports occurred in the second half of 2000 as import volume contracted. Nonetheless, we find present material injury by reason of subject imports. Domestic 
shipments and production contracted at a time when overall apparent domestic 
consumption was still strong, as shown by the rapid growth in subject imports. In 
contrast, subject import volume grew ra pidly through most of the POI. Subject 
imports gained those sales from the domestic industry largely through underselling. … 
In sum, the record indicates there have been significant increases in the volume and 
market share of the subject imports, and th at the subject imports have undersold the 
domestic like product and have had a significant suppressing and depressing effect on 
domestic prices. As a result, the overall condition of the industry declined during the 
period. Accordingly, we find that the subject imports are having a significant adverse impact on the domestic industry.
666 
7.402.  In our view, the above excerpt clearly supports the conclusion that the USITC evaluated 
"growth" in the domestic industry, albeit implicitly. The determination identifies and discusses negative trends in the evaluation of certain in jury factors – particularly profit; employment; 
wages; market share; shipments; and financial performance. Logically, these negative trends 
imply a lack of "growth" in the industry. Indi a does not dispute the accuracy of the trend 
information, nor its relevance to a consideration of growth. Our reasoning is consistent with the understanding of the Appellate Body in EC – Tube or Pipe Fittings , where the Appellate Body 
stated: 
Having regard to the nature of the factor "growth", we believe that an evaluation of 
that factor necessarily entails an analysis of certain other factors listed in Article 3.4. 
                                               
666 USITC Final Determinations, Exhibit IN D-9, pp. 23-26. (footnotes omitted) WT/DS436/R 
 
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  Consequently, the evaluation of those factor s could cover also the evaluation of the 
factor "growth".  
… From our perspective, the "declines" and "lo sses" observed with respect to several of 
the factors examined in this particular case necessarily relate to the issue of "growth" 
as well. To put it more precisely, the negative trends in these factors point to a lack of "growth". This, in turn, supports the conclusion that the European Commission 
evaluated this injury factor.
667 
7.403.  We now turn to the factors "return on investment" and "ability to raise capital". With 
respect to the former, we note that the injury determination indicates that the USITC examined 
capital expenditures, and research and development expenditures.668 T h i s  p a r t  o f  t h e  U S I T C ' s  
written analysis also refers to Table VI-8, which contains data, compiled from responses to USITC's 
questionnaires, on US producers' capital expenditures, research and development expenses, and assets utilized (including book value of production facilities).
669 The table is preceded by the 
following written analysis: 
Capital expenditures continuously increased from 1998 through 2000 and R&D 
expenses increased from 1998 to 1999 and decreased from 1999 to 2000. … The 
original cost and book value of productive facilities increased continuously from 1998 
through 2000. For the interim periods, capital expenditures decreased substantially while R&D expenses increased slightly from interim 2000 to interim 2001. …
670 
At the same time, the injury determination indi cates that the USITC evaluated profitability, and 
production.671 T h i s  p a r t  o f  t h e  U S I T C ' s  w r i t t e n  a n a l y s i s  i n c l u d e s  r e f e r e n c e s  t o  T a b l e  V I - 1 ,  
concerning US producers' commercial sales, and Table VI-5, concerning US producers' commercial 
sales, internal consumption and transfers. These tables present data, compiled from responses to 
USITC's questionnaires, on inter alia  sales, gross profit, operating income and operating losses.672 
Furthermore, by gathering and examining inform ation on capital and R&D expenditures and the 
book value of production facilities, on the one hand, and operating income and operating losses, 
on the other hand, we consider that the USITC had relevant information to evaluate "return on 
investment". 
7.404.  With regard to the factor "ability to rais e capital", the injury determination indicates that 
the USITC evaluated profitability, as explained above, and the domestic industry's financial 
performance.673 This part of the USITC's written analysis includes a reference to Table VI-1, 
concerning US producers' commercial sales. This table contains data, compiled from responses to USITC's questionnaires, on inter alia  the cash flow of US producers.
674 Once again, in our view, the 
information on these factors is clearly relevant to an evaluation of an industry's "ability to raise 
capital". In our view, there is no basis to think that, having requested this information, compiled it, and presented it in its report, the USITC somehow ignored it in its analysis and determination. 
Thus, we consider that the USITC's determination and the underlying evidence support the 
conclusion that it did, in fact, evaluate both "r eturn on investment" and "ability to raise capital". 
7.405.  In addition, with regard to both "return on investment" and "ability to raise capital", the 
United States submits that the USITC "requested the members of the industry to 'describe any 
actual or potential negative effects of imports of hot-rolled steel products from the subject 
countries on their growth, investment, ability to raise capital, and/or their development efforts,' 
                                               
667 Appellate Body Report, EC – Tube or Pipe Fittings , paras. 162 and 165. 
668 USITC Final Determinations, Exhibit IND-9, p. 24. 
669 Ibid. p. VI-8. 
670 Ibid. p. VI-7. 
671 Ibid. pp. 23-25. 
672 Ibid. pp. VI-2 and VI-5. 
673 Ibid. pp. 23-24. 
674 Ibid. p. VI-2. WT/DS436/R 
 
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  receiving a significant number of comments from the producers, which were confidential."675 More 
specifically, the USITC asked domestic producers whether they had: 
experienced any actual negative effects on its return on investment or its growth, 
investment, ability to raise capital, existing development and production efforts 
(including efforts to develop a derivative or  more advanced version of the products), 
or the scale of capital investments as a result of imports of hot-rolled steel products from Argentina, China, India, Indonesia, Kazakhstan, Netherlands, Romania, 
South Africa, Taiwan, and Ukraine.
676 
Again, the information requested was compiled and presented in the USITC's report, although it 
was redacted from the non-confidential version. We recall that the USITC specifically stated in its injury determination that it "considered all relevant economic factors that bear on the state of the 
industry in the United States. These factors include … return on investment [and] ability to raise 
capital".
677 We see no basis to conclude that th e USITC nonetheless failed to do so. 
7.406.  India argues that mere collection of data and comments from the industry is not sufficient 
to fulfil the requirement in Article 15.4 to evaluate  information submitted by interested parties.678 
We agree with India that the mere fact that data were collected may not suffice to demonstrate that certain relevant factors were evaluated in ma king an injury determination, as required by 
Article 15.4. However, based on our review of the USITC's determination, and the underlying 
evidence on the record to which it refers, it is clear to us that the USITC went beyond the mere collection of data, and evaluated the factors at issue in making its decision, even though it did not explicitly discuss them in its written determination. First, the USITC did explicitly discuss its 
evaluation of factors which are closely related to "return on investment" and "ability to raise 
capital". Second, the information on assets (including book value of production facilities), capital expenditures, research and development expend itures, production, profitability (including 
operating income and operating losses), and the domestic industry's financial performance was 
explicitly requested, compiled and set out in its report, ensuring that the USITC had relevant information before it to evaluate "return on investment" and "ability to raise capital". Third, the 
USITC requested and received from domestic producers responses to specific questions relating to 
actual negative effects on "return on investment" and "ability to raise capital", which again are set out in its report, albeit not in the public version.
679 Finally, the USITC specifically stated in its 
injury determination that it had considered all relevant economic factors that bear on the state of 
the domestic industry, including "return on investment" and "ability to raise capital". Given that 
relevant information on these factors was before it, and in view of the legal standard set out above, which does not require an explicit discussion of each Article 15.4 factor in order to be 
sufficient, we cannot conclude merely from the lack of explicit reference to these factors in the 
written determination that the USITC failed to evaluate them. Thus, we are satisfied that the 
USITC properly evaluated "return on investment" and "ability to raise capital", albeit implicitly, as 
required by Article 15.4 of the SCM Agreement. 
7.407.  Finally, India argues that, unlike in the investigation at issue, "the Appellate Body [in EC – 
Tube or Pipe Fittings ] found that there was considerable analysis regarding the mandatory 
parameters in question, which satisfied the requirement under Article 15.4."
680 We do not agree 
with India that the Appellate Body Report in EC – Tube or Pipe Fittings  stands for the proposition 
                                               
675 United States' first written submission, para. 157. 
676 Appendix E: effect on imports on producers' ex isting development and prod uction efforts, growth, 
investment, and ability to raise capital ("Appendix E"), Exhibit USA-117 (BCI), p. 3. We note that Appendix E 
contains a compilation of the confidential responses of various domestic producers and includes data on assets, 
capital expenditures, and research an d development; and comments on th e actual and negative effects on 
these issues. See United States' response to Panel ques tion No. 118, para. 104. We also note that the USITC 
did not include in its determination a separate and specific  record of its analysis of the information presented in 
Appendix E. 
677 USITC Final Determinations, Exhibit IND-9, p. 23. See also United States' first written submission, 
para. 157. 
678 India's second written submission, para. 263. 
679 The confidential domestic industry comments and questionnaire responses in this regard are 
redacted, but are clearly part of the repo rt that was before the decision makers. 
680 India's opening statement at the second meeting of the Panel, para. 48. See also India's 
second written submission, para. 263. WT/DS436/R 
 
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  that the requirements under Article 15.4 will be only satisfied if "considerable analysis" regarding 
the mandatory factor has been undertaken by the investigating authority. Rather, as explained above, we understand the Appellate Body to have ta ken the view that a panel must be able to find 
in the injury determination and the evidence on which it is based a sufficient and credible basis to 
satisfy itself that the factors at issue were evalua ted by the investigating authority as required by 
Article 15.4. A panel's analysis in this regard will clearly depend on the particular facts of each case. In the investigation at issue, and explained above, we have been able to conclude, based on 
the record evidence and the USITC's injury dete rmination, that (i) growth, (ii) return on 
investment, and (iii) ability to raise capital were evaluated by the USITC, even though a separate 
record of the evaluation of these factors has not been made. 
7.408.  Therefore, in light of the above, the Panel concludes that India has not established a 
prima facie  case that the USITC's injury determination at issue is inconsistent with Articles 15.1 
and 15.4 of the SCM Agreement. 
7.7  Whether the use of "facts available"  is consistent with Article 12.7 of the 
SCM Agreement 
7.409.  India claims that Sections 1677e(b) of the USC and 351.308(a), (b) and (c) of the CFR 
(AFA Provisions) are "as such" inconsistent with Article 12.7 of the SCM Agreement
681, because, 
according to India, these Sections (i) do not require the use of facts that are most fitting or 
appropriate, and (ii) enable the use of "facts available" in a punitive manner.682 In addition, India 
challenges 407 instances of application of the AFA Provisions in the proceedings at issue. India claims that the United States acted inconsistently with Article 12.7, because the USDOC applied 
"facts available" to penalize allegedly non-cooperating interested parties.
683 
7.7.1  Relevant WTO provisions 7.410.  Article 12.7 of the SCM Agreement provides: 
In cases in which any interested Member or interested party refuses access to, or 
otherwise does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinations, 
affirmative or negative, may be made on the basis of the facts available. 
7.7.2  Factual background 7.411.  Section 1677e(b) refers to adverse inferences in determinations on the basis of facts 
available. It provides: 
If the administering authority or the Commission (as the case may be) finds that an 
interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information from the administering authority or the 
Commission, the administering authority or the Commission (as the case may be), in 
reaching the applicable determination under this subtitle, may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise 
available. Such adverse inference may include reliance on information derived from— 
 (1) the petition, 
                                               
681 In its first written submission, India submitted that "the AFA provisions are 'as such' inconsistent 
with Articles 12.1 and 12.7 of the SCM Agreement". (India's first written submission, para. 156) The United States requested the Panel to find that India's claim under Article 12.1 is outside the Panel's terms of 
reference because India's panel request fails to comply  with the requirements of Article 6.2 of the DSU. 
(United States' first written submission, para. 159) However, in its second written submission, India clarified that its claims relating to the AFA Provisions were on ly brought under Article 12.7, and that Article 12.1 was 
merely referred to as part of the relevant context to interpret Article 12.7. (India's  second written submission, 
para. 87) In light of India's clar ification, the Panel will not make any findings under Article 12.1. 
682 India's first written submission, paras. 172 and 175; and response to Panel question No. 36. 
683 India's first written submission, paras. 525-576. WT/DS436/R 
 
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   (2) a final determination in the investigation under this subtitle, 
(3) any previous review under section 1675 of this title or determination under 
section 1675b of this title, or 
 (4) any other information placed on the record. 
7.412.  The corresponding implementing regulation is found in Section 351.308, which also refers 
to determinations on the basis of facts available. Sections 351.308(a)-(e) provide: 
(a) Introduction. The Secretary may make determinations on the basis of the facts 
available whenever necessary information is not available on the record, an interested 
party or any other person withholds or fails to provide information requested in a timely manner and in the form required or significantly impedes a proceeding, or the Secretary is unable to verify submitted information. If the Secretary finds that an 
interested party "has failed to cooperate by  not acting to the best of its ability to 
comply with a request for information," the Secretary may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise 
available. This section lists some of the sources of information upon which the 
Secretary may base an adverse inference and explains the actions the Secretary will take with respect to corroboration of information. 
(b) In general. The Secretary may make a determination under the Act and this part 
based on the facts otherwise available in a ccordance with section 776(a) of the Act. 
(c) Adverse inferences. For purposes of section 776(b) of the Act, an adverse 
inference may include reliance on: 
 (1) Secondary information, such as information derived from: 
(i) The petition; (ii) A final determination in a countervailing duty investigation or an 
antidumping investigation; 
(iii) Any previous administrative review, new shipper review, expedited 
antidumping review, section 753 review, or section 762 review; or 
 (2) Any other information placed on the record. 
(d) Corroboration of secondary information. Under section 776(c) of the Act, when the 
Secretary relies on secondary information, the Secretary will, to the extent practicable, corroborate that information from independent sources that are 
reasonably at the Secretary's disposal. Independent sources may include, but are not 
limited to, published price lists, official import statistics and customs data, and information obtained from interested parties during the instant investigation or 
review. Corroborate means that the Secretary will examine whether the secondary 
information to be used has probative value. The fact that corroboration may not be practicable in a given circumstance will not prevent the Secretary from applying an 
adverse inference as appropriate and using the secondary information in question. 
(e) Use of certain information. In reaching a determination under the Act and this 
part, the Secretary will not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all the 
applicable requirements established by the Secretary if the conditions listed under 
section 782(e) of the Act are met. WT/DS436/R 
 
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  7.413.  In the investigation at issue, the USDOC relied on "facts available" in a large number of 
instances where the USDOC considered interested parties to be non-cooperative.684 
7.7.3  Main arguments of the parties 7.7.3.1  India 
7.414.  India makes two main arguments seeking to demonstrate that the AFA Provisions are, "as 
such" and "as applied" in the investigation at issue, inconsistent with Article 12.7 of the SCM Agreement. First, the AFA Provisions do not re quire the use of facts that are "most fitting" or 
"most appropriate" since they allow the investigating authority to use adverse facts without an 
evaluative, comparative assessment of all available evidence.
685 Recalling the views of the panel 
and the Appellate Body in Mexico – Anti-Dumping Measures on Rice , India argues that the 
United States is under an obligation to engage in an evaluative, comparative assessment of the 
available evidence, and employ the best, most fitting or most appropriate information available.686 
7.415.  Second, India contends that the AFA Provisions grant the right to draw adverse 
conclusions, resulting in the punitive application of "facts available", because they do not require 
the investigating authority to comply with the standard in Article 12.7, and instead allow the 
investigating authority to use selected facts solely in view of the adverse consequences it would have against the party concerned.
687 India notes that this use of "facts available" is not set out in 
Article 12.7 of the SCM Agreement. This silence means that Article 12.7 cannot be interpreted as 
granting the right to make determinations based on "adverse facts" or draw adverse inferences in all cases of non-cooperation.
688 Consequently, the United States is prohibited from using "facts 
available" in a punitive manner. India contends that the purpose behind Article 12.7 is not to 
punish an allegedly non-cooperating Member, but to ensure that the failure of an interested party 
to provide necessary information does not hinder the investigation.689 
7.416.  India also submits that although the AFA Provisions appear not to mandate, but rather give 
discretion to draw adverse inferences, India can still bring an "as such" challenge. This is because 
the AFA Provisions are incompatible with the ordinary meaning of Article 12.7 of the SCM Agreement.
690 India argues the AFA Provisions bulld oze the need for an assessment of the 
most appropriate information available, and explicitly allow the investigating authority to draw 
certain inferences solely because they are adverse to the party concerned.691  
7.417.  Alternatively, in case the Panel concludes that only mandatory legislation can be 
challenged "as such", India argues that the consis tent practice of the United States reveals that 
the AFA Provisions in fact require  the investigating authority "to draw the worst possible inferences 
and choose the highest prior margin to ensure that the party concerned is penalized for non-cooperation."
692 
7.418.  With respect to the "as applied" claims, India identifies a large number of instances where 
the USDOC allegedly used adverse "facts available" to penalize non-cooperating interested parties, including instances where more appropriate information was made available to the USDOC through 
other means, and where adverse inferences were taken without any factual foundation.
693 
                                               
684 See India's first written submission, paras. 524-576; and United States' first written submission, 
paras. 213-234 and 254-259, with references to the relevant Exhibits.  
685 India's first written submission, paras. 172 and 175; and response to Panel question No. 36. 
686 India's first written submission, paras. 161-164 and 166, referring to the Panel Report, Mexico – 
Anti-Dumping Measures on Rice , para. 7.166, and Appellate Body Report, Mexico – Anti-Dumping Measures on 
Rice, para. 295. 
687 India's first written submission, paras. 164-165, 172 and 175; second written submission, para. 113; 
and opening statement at the second meeting of the Panel, para. 23. 
688 India's first written submission, paras. 158-160 and 165. 
689 Ibid. paras. 157, 164 and 166. 
690 Ibid. paras. 167, 169 and 178. 
691 Ibid. para. 178. 
692 Ibid. para. 187. 
693 Ibid. paras. 525-576. WT/DS436/R 
 
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  7.7.3.2  United States 
7.419.  As an initial matter, the United States points out that two aspects of India's claims are 
outside the Panel's terms of reference, because they were not included in India's requests for consultations and establishment of a panel: (i) the "as applied" claim under Article 12.7 of the 
SCM Agreement relating to the application of "facts  available" concerning MML as a public body in 
the 2006 administrative review
694; and (ii) the "as applied" claims under Article 12.7 relating to 
the 2013 sunset review.695 With respect to the claim that USDOC assumed without proper factual 
basis that MML purchased iron ore for more th an adequate remuneration, the United States 
alternatively argues that the information contained in US Steel's petition was the factual basis for the USDOC's determination.
696 
7.420.  Turning to India's "as such" claims under Article 12.7 of the SCM Agreement, the 
United States makes two main arguments. First, the United States contends that India may not 
bring "as such" claims against the US facts available provisions. The United States explains that the US facts available provisions do not mandate, but rather provide discretion for the USDOC to 
use an inference that is adverse to the interests of non-cooperating parties in selecting from 
among the facts otherwise available.
697 Moreover, according to the United States, India's 
arguments relating to the USDOC's consistent practice cannot stand because India neither 
identified such practice in its panel request, nor demonstrated in its first written submission that 
the USDOC's practice amounts to a norm or rule of general and prospective application.698 
7.421.   Second, the United States argues that Article 12.7 of the SCM Agreement does not limit 
the application of "facts available" to those facts most favourable to the interests of a non-
cooperating interested party, because the expression "facts available" does not speak to which 
facts should be selected.699 According to the United States, India fails to acknowledge that the 
USDOC's use of an adverse inference is based on the application of available facts, and that the 
"adverse" element is introduced when USDOC decides which available facts are appropriate to use 
when a responding party has not provided verifiable, substantiated information.700 The 
United States contends that Article 12.7 allows an investigating authority to incentivize responding 
Members and interested parties to participate in an investigation, ensuring that "an interested 
party may not evade the application of countervailing duties through non-cooperation, and may not obtain a duty margin more favorable to its interests for having not cooperated."
701 
7.422.  Turning to the "as applied" claims, the United States reiterates the above arguments that 
Article 12.7 of the SCM Agreement does not limit the application of "facts available" to those facts 
most favourable to the interests of a non-cooperating interested party.702 The United States also 
submits arguments and evidence to show that USDOC's determination in each case reflected a 
reasoned analysis and was based upon a factual foundation.703 
7.7.4  Main arguments of the third parties 7.7.4.1  Canada 
7.423.  Canada submits that the use of adverse facts and, under certain circumstances, drawing of 
adverse inferences, is consistent with Article 12.7 of the SCM Agreement.
704 Noting that 
Article 12.7 does not distinguish between "facts avai lable" that are favourable to a respondent and 
                                               
694 United States' first written submission, para. 269. 
695 Ibid. paras. 24 and 274-275; and response  to Panel question No. 62, para. 74. 
696 United States' first written submission, paras. 270-272. 
697 Ibid. paras. 161-163 and 167-168. 
698 Ibid. paras. 197-210. 
699 Ibid. para. 180. 
700 Ibid. para. 190. 
701 Ibid. para. 189. 
702 Ibid. paras. 214-215. 
703 Ibid. paras. 216-272. 
704 Canada's third-party subm ission, paras. 22 and 25. WT/DS436/R 
 
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  those that are not, Canada contends that this provision should be read in the context of Annex II 
to the AD Agreement.705 
7.424.  Canada submits that the investigating authority's discretion to choose among the available 
facts is not unlimited. First, an investigating authority must take into account all "substantiated 
facts" even where they constitute an incomplete response to a question. Second, "facts available" 
may only be used where they reasonably replace the information not provided by an interested 
party. Finally, a determination must have a factual foundation.706 
7.425.  However, Canada holds that if there are several sets of "facts available" on the record, a 
reasonable and objective investigating authority may choose facts unfavourable to a respondent because "a party should not benefit from a lack of cooperation" as it is "aware of the record evidence and [], if it had more favourable information, that party could certainly have provided it 
to the investigating authority in its own best interest."
707 Canada argues that an investigating 
authority must have discretion in deciding what is necessary to conduct its investigation effectively and in a reasonable and objective way.
708 
7.7.4.2  China 
7.426.  China submits that Article 12.7 of the SCM Agreement permits only the use of "facts 
available", not "adverse facts availa ble", let alone "adverse inferences".709  
7.427.  China considers that Annex II of the AD Agreement serves as relevant context to the 
interpretation of Article 12.7 of the SCM Agreem ent. China submits that under Article 12.7 (i) an 
investigating authority must, to the extent possible, take into account all substantiated facts provided by an interested party, even if they may not constitute the complete information 
requested from that party, and (ii) "facts avai lable" are generally limited to those that may 
reasonably replace the information that an interested party failed to provide.
710 China submits 
that, pursuant to Article 12.7, an investigating authority must evaluate objectively the "facts 
available" on the record, and is precluded from usin g whatever evidence it wishes. Even in cases of 
non-cooperation, an investigating authority may only replace missing information with the most fitting and appropriate information available in order to arrive at an accurate subsidization or 
injury determination.
711 Finally, China contends that an investigating authority must treat 
information from secondary sources "with special circumspection" by ascertaining "for itself the reliability and accuracy of such information."
712 
7.428.  China highlights that the more fundam ental requirement under Article 12.7 of the 
SCM Agreement is that the investigating authority's determination be based on actual facts on the 
record. China contends that an investigating authority is allowed to use "facts available" to make a determination in the face of incomplete information, but it is prohibited from drawing adverse 
inferences that could not find factual foundations on the record. Otherwise, China argues that an 
investigating authority would have a vehicle to punish non-cooperation by reaching a result adverse to the interests of the responding party, in contradiction to the purpose of Article 12.7.
713 
7.429.  Finally, China notes that the United Stat es includes China among the WTO Members that 
have "incorporated some role for 'adverse inferences' in their legislation governing the use of facts available." China submits that the United States' assertion is misplaced, and that China's legislation is in line with Article 12.7 of the SCM Agreement.
714 
                                               
705 Canada's third-party subm ission, paras. 27 and 29-30. 
706 Ibid. para. 32. 
707 Ibid. para. 34. 
708 Ibid. para. 38. 
709 China's third-party submission, paras. 62 and 77. 
710 Ibid. paras. 66-67 and 70. 
711 Ibid. paras. 65 and 68-70. 
712 Ibid. paras. 68-70. 
713 Ibid. paras. 71-73. 
714 Ibid. para. 76 and fn. 78. WT/DS436/R 
 
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  7.7.4.3  European Union 
7.430.  The European Union considers that Articl e 12.7 of the SCM Agreement is a vital tool to 
counteract non-cooperation and the withholding of information by interested parties in a countervailing duty investigation.
715 
7.431.  The European Union submits that "inference" is a routine and necessary part of all 
economic law determinations. "Inference" is also related to the concept of "facts available", and both are subject to the same principles. If there are two different equally possible inferences, the 
investigating authority is not permitted to select the inference that is more adverse to the interests 
of a particular interested party solely because it is more adverse. Rather, the investigating authority must draw the inference that best fits the facts that have been evidenced.
716 The 
European Union contends that there are no facts that are per se  excluded from the set of facts to 
be taken into consideration by the investigating authority. These facts include the precise question 
that has been put, the procedural circumstances, the availability of evidence being sought, and all 
the circumstances surrounding the absence of the requested information from the record. In this 
context, the European Union argues that the behaviour of an interested party can colour the 
inference that may be reasonable to draw in a particular instance; "[t]he more uncooperative a party is in fact, the more attenuated and extensiv e the inferences that it may be reasonable to 
draw."
717 
7.432.  Thus, the European Union understands that the issue before the Panel depends less upon 
the particular label that has been used, and more upon a specific examination of all the surrounding facts and procedural context of the proceedings at issue. For this reason, the 
European Union considers that the issue "may be more amenable to resolution on an 'as applied' 
basis rather than an 'as such' basis."
718 The European Union is not persuaded that India has 
demonstrated that the US law is "as such" inconsistent with the SCM Agreement.719 
7.7.4.4  Turkey 
7.433.  Turkey submits that there is textual and conceptual parallelism between Article 12.7 of the 
SCM Agreement and Article 6.8 of the AD Agreem ent. Turkey contends that Annex II to the 
AD Agreement should be considered as an integr al part of Article 12.7 of the SCM Agreement. 
Turkey considers that it would be unreasonable to hold that investigating authorities are subject to "clear-cut and detailed rules and procedures" in AD investigations, while at the same time conclude that investigating authorities may "free-ride" in CVD investigations "for the simple reason 
that there is no legal discipline resembling the rules in Annex II."
720 By accepting Annex II as an 
integral part of Article 12.7, Turkey contends th at investigating authorities have the discretion to 
use "adverse facts available" in CVD investigations, subject to the same obligations found in 
Paragraph 7 of Annex II.721 
7.7.5  Evaluation 7.434.  India claims that Sections 1677e(b) and 351.308(a), (b) and (c) are "as such" and "as 
applied" inconsistent with Article 12.7 of the SC M Agreement. We begin by addressing India's "as 
such" claims.  
                                               
715 European Union's third-pa rty submission, para. 76. 
716 Ibid. paras. 77-79 and 81-82. 
717 Ibid. paras. 80-82. 
718 Ibid. para. 84. 
719 Ibid. paras. 86-87. 
720 Turkey's third-party st atement, paras. 12-16. 
721 Ibid. paras. 5-10 and 17. WT/DS436/R 
 
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  7.7.5.1  India's "as such" claims of inconsistency with Article 12.7 of the 
SCM Agreement 
7.435.  The main issue before the Panel is whether Section 1677e(b) of the US statute and 
Sections 351.308(a), (b) and (c) of the US regulation722 are "as such" inconsistent with 
Article 12.7 of the SCM Agreement, because (i) th ey provide for the use of "facts available" 
without an evaluative, comparative assessment of all evidence, and consequently do not require the use of "best information", i.e. facts that are "most fitting" or "most appropriate"; and (ii) they 
punish non-cooperation by granting the USDOC a right to draw adverse conclusions in all cases of 
non-cooperation.
723 We turn to each of these aspects of India's claim below. 
7.7.5.1.1  The use of "facts available" without an evaluative, comparative assessment of 
evidence for selecting the best information, i.e. the most fitting or most appropriate 
information available 
7.436.  India first argues that Article 12.7 of the SCM Agreement obligates investigating 
authorities to engage in an evaluative, comparative assessment of the available evidence, and 
employ the best, most fitting or most appropriate information available.724 India asserts that the 
US provisions at issue do not require the use of facts that are most fitting or most appropriate since they allow the investigating authority to use adverse facts without an evaluative, 
comparative assessment of all available evidence.
725 
7.437.  The text of Article 12.7 of the SCM Agreement does not set out any express conditions for 
determining which and what type of "facts available" should be used by an investigating authority when necessary information is not provided. We note, however, that Article 12.7 refers to " facts 
available". Thus, we agree with the panel in China – GOES  that "even when applying facts 
available, an investigating authority's determination must have a factual foundation ."
726 
7.438.  In addition, we recall that the Appellate Body in Mexico – Anti-Dumping Measures on Rice  
examined the context of Article 12.7, and conclude d that an investigating authority faces certain 
limits when using "facts available". The Appe llate Body stated that "Article 12 of the 
SCM Agreement  as a whole 'set[s] out evidentiary rules that apply throughout  the course of the … 
investigation, and provide[s] also for due process rights that are enjoyed by 'interested parties' 
throughout  … an investigation'."727 The Appellate Body also stated that the "due process obligation 
[in Article 12.1 of the SCM Agreement]—that an interested party be permitted to present all the evidence it considers relevant—concomitantly requires the investigating authority, where 
appropriate, to take into account the information submitted by an interested party."
728 The 
Appellate Body recalled the purpose of Article 12.7729, and concluded that: 
                                               
722 The United States submitted that India cannot challenge the USDOC's "approach" to making 
determinations "as such" because (i) such claim is not within the Panel's terms of reference, and (ii) India has not identified the USDOC's "approach" as a "measure" of general and prospective application that may be 
challenged "as such". (United States' first written submission, paras. 196-203; and second written submission, 
para. 121) India clarified that India does not challenge the USDOC's "practice" or "approach" as a "measure", 
and recalled that India's claims relate to US law "as such", i.e. Sections 1677e(b) and 351.308 (India's second written submission, para. 89) Thus, our examination is limited to the US provisions "as such". We need not and do not examine the USDOC's "approach" as a "measure". 
723 India's first written submission, paras. 164-165, 172 and 175; and response to Panel 
question No. 36. 
724 India's first written submission, paras. 161-164 and 166, referring to the Panel Report, Mexico – 
Anti-Dumping Measures on Rice , para. 7.166, and Appellate Body Report, Mexico – Anti-Dumping Measures on 
Rice, para. 295. 
725 India's first written submission, paras. 172 and 175; and response to Panel question No. 36. 
726 Panel Report, China – GOES , para. 7.296. (emphasis added) 
727 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 292, quoting Appellate Body 
Reports, EC – Tube or Pipe Fittings , para. 138, and EC – Bed Linen (Article 21.5 - India) , para. 136. 
728 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 292. 
729 The Appellate Body stated that "Article 12.7 is inte nded to ensure that the failure of an interested 
party to provide necessary information does not hinder an agency's investigation. Thus, the provision permits the use of facts on record solely for the purpose of re placing information that may be missing, in order to 
arrive at an accurate subsidization or injury determination." (Appellate Body Report, Mexico – Anti-Dumping 
Measures on Rice , para. 293.) WT/DS436/R 
 
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  [R]ecourse to facts available does not permit an investigating authority to use any 
information in whatever way it chooses. First, such recourse is not a licence to rely on only part of the evidence provided. To the extent possible, an investigating authority 
using the "facts available" in a countervailing duty investigation must take into 
account all the substantiated facts provided by an interested party, even if those facts 
may not constitute the complete information requested of that party. Secondly, the "facts available" to the agency are generally limited to those that may reasonably 
replace the information that an interested party failed to provide. In certain 
circumstances, this may include information from secondary sources.
730 
7.439.  When referring to the "most fitting" or  "most appropriate" facts and the "evaluative, 
comparative assessment of all available evidence", India relies on the findings of the panel in 
Mexico – Anti-Dumping Measures on Rice concerning Article 6.8 of the AD Agreement, read in light 
of Annex II to the AD Agreement. We are not convinced that these findings in Mexico – 
Anti-Dumping Measures on Rice  support India's understanding of the obligations set forth in 
Article 12.7 of the SCM Agreement. We recall that the panel and the Appellate Body in Mexico – 
Anti-Dumping Measures on Rice  were requested to examine the consistency of certain Mexican 
legislation with both Article 12.7 of the SCM Agr eement and Article 6.8 of the AD Agreement, read 
in light of Annex II to the AD Agreement. Although the Appellate Body endorsed the panel's finding 
with regard to the legal standard applicable under Article 6.8 of the AD Agreement read in light of 
Annex II to that Agreement, the Appellate Body ve ry clearly did not apply that same standard in 
respect of its findings pursuant to Article 12.7 of  the SCM Agreement, noting expressly the lack of 
an equivalent to Annex II of the AD Agreement in the SCM Agreement.731 Thus, as noted above, 
the Appellate Body concluded that, in the absence of more detailed conditions such as those in Annex II of the AD Agreement, Article 12.7 requires that (i) an investigating authority must, to the 
extent possible, take into account all the substantiated facts provided by an interested party, and 
that (ii) the use of "facts available" be generally limited to those that may reasonably replace the missing information.
732 In our view, India's argument seeks to import into the standard under 
Article 12.7 the specific requirements the Appellate Body found applicable under Article 6.8 of the 
AD Agreement read in light of Annex II of that Agreement. We do not consider this appropriate, given the lack of an equivalent to that Annex in the SCM Agreement. Thus, we reject India's 
assertion that the findings of the panel in Mexico – Anti-Dumping Measures on Rice establish that 
Article 12.7 of the SCM Agreement requires that in vestigating authorities engage in a comparative 
evaluation of all available evidence with a view to selecting the best information, i.e. the most 
fitting or most appropriate information available. 
7.7.5.1.2  Adverse conclusions 
7.440.  India also argues that the US provisions at issue punish non-cooperation by granting the 
USDOC a right to draw adverse conclusions in all cases of non-cooperation, without regard to the 
requirements of Article 12.7 of the SCM Agreement.  India accepts that adverse conclusions may be 
drawn under Article 12.7, but claims that adverse conclusions may only be drawn on the basis of 
                                               
730 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 294.  
731 The Appellate Body in Mexico – Anti-Dumping Measures on Rice  began its examination of Article 12.7 
of the SCM Agreement by observing that "there are important textual differences between the relevant 
provisions of the Anti-Dumping Agreement  and the SCM Agreement —namely, the absence in the 
SCM Agreement  of an equivalent to Annex II to the Anti-Dumping Agreement ." (Appellate Body Report, Mexico 
– Anti-Dumping Measures on Rice , para. 290) The Appellate Body also noted that "[u]nlike the Anti-Dumping 
Agreement , the SCM Agreement  does not expressly set out in an annex the conditions for determining 
precisely which 'facts' might be 'available' for an agency  to use when a respondent fails to provide necessary 
information. This does not mean, however, that no such conditions exist in the SCM Agreement ." (Appellate 
Body Report, Mexico – Anti-Dumping Measures on Rice , para. 291) 
732 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 294. In addition, the 
Appellate Body considered that Annex II of the AD Agr eement supported its Article 12.7 interpretation. ("This 
understanding of the limitations on an investigating authority's use of 'facts available' in countervailing duty investigations is further suppo rted by the similar, limited recourse to 'facts available' permitted under Annex II 
to the Anti-Dumping Agreement . Indeed, in our view, it would be anomalous if Article 12.7 of the 
SCM Agreement  were to permit the use of 'facts available' in  countervailing duty investigations in a manner 
markedly different from that in anti-dumping  investigations.") (Appellate Body Report, Mexico – Anti-Dumping 
Measures on Rice , para. 295) WT/DS436/R 
 
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  the "best information available", following an "evaluative, comparative assessment" of the 
evidence available.733 
7.441.  We have already rejected India's understanding that Article 12.7 of the SCM Agreement 
requires an investigating authority to employ the "best information available", following an 
"evaluative, comparative assessment" of the evidence  available. As a result, we must also reject 
India's argument that adverse conclusions may on ly be drawn under Article 12.7 on the basis of 
the "best information available". Contrary to Indi a's understanding, the standard in Article 12.7 of 
the SCM Agreement requires that all substantiated facts on the record be taken into account, that 
"facts available" determinations have a factual foundation, and that "facts available" be generally limited to those facts that may reasonably replace the missing information. Provided adverse conclusions are drawn on the basis of this standard, such conclusions will not be punitive.
734 
7.442.  India has not argued that the US provisio ns at issue provide for the drawing of adverse 
conclusions in a manner inconsistent with the proper  Article 12.7 standard, as detailed above. 
Furthermore, we note that Sections 1677e(b) and 351.308(a) provide that the USDOC may only 
use an inference that is adverse to the interests of a non-cooperating party "in selecting from 
among the facts otherwise available."735 This indicates that any adverse inference drawn by the 
USDOC will in fact be based on the facts avai lable. Furthermore, there is nothing in the 
US provisions at issue to suggest that the USDOC is not required to take into account all 
substantiated facts on the record736 or to apply "facts available" that do not reasonably replace the 
missing information.737 
7.443.  Our understanding is consistent with the views of the panel in EC – Countervailing 
M e a s u r e s  o n  D R A M  C h i p s . While emphasizing that Article 12. 7 of the SCM Agreement does not 
allow investigating authorities to punish non-cooperation, particularly in the absence of a factual foundation, that panel considered that in certain circumstances an investigating authority may be 
justified in drawing adverse inferences from non-cooperation in selecting from and assessing "facts 
available": 
In reviewing the findings of the investigating authority, the extent to which the 
interested parties cooperated with the authority is, of course, also a relevant element 
to be taken into account. In those cases where certain essential information which was clearly requested by the investigating authority is not provided, we consider that this uncooperative behaviour may be taken into account by the authority when 
weighing the evidence and the facts before it. The fact that certain information was 
withheld from the authority may be the element that tilts the balance in a certain 
                                               
733 India's first written submission, para. 164 ("While the 'best information' may lead to a conclusion 
adverse to the party concerned, this is no t necessarily true in all cases, since the most fitting or most 
appropriate information  available in a given case may also be fa vourable to a party concerned.") See also 
India's first written submission, paras. 175. 
734 In the case of non-cooperation by an interested  party (where the invest igating authority has not 
otherwise obtained the information requested, for inst ance, from another source), the investigating authority 
will not know the actual missing relevant information. Therefore, the investigating authority will also not know 
whether the application of "facts available", selected on the basis of "adverse inferences", will lead to a 
conclusion which is less favourable or more advers e to the interests of the uncooperative party. (See 
United States' response to Panel question No. 69(d), para. 103). It could well be that the most unfavourable "fact available", selected on the basis of "adverse inferences" as a result of non-cooperation, is still more 
favourable to the interests of the uncooperative pa rty than the unknown missing information would be. 
735 See United States' first written submission, para. 190. We also note that the United States submits 
that "[t]here is no intended differe nce between the term 'adverse' and the term 'less favourable' referenced in 
Annex II of the AD Agreement." (United States' respon se to Panel question No. 69(d), fn. 74) See also 
United States' response to Panel question No. 76, para. 131. 
736 We note that Section 351.308(e) of the US regula tion establishes that the investigating authority 
"will not decline to consider information that is subm itted by an interested part y and is necessary to the 
determination but does not meet all the applicable requirements" if certain conditions are met. Pursuant to Section 782(e), these conditions are: (i) the information is submitted by the deadline established for its submission, (ii) the information can be verified, (iii) the in formation is not so incomplete  that it cannot serve as 
a reliable basis for reaching the app licable determination, (iv) the intere sted party has demonstrated that it 
acted to the best of its ability,  and (v) the information can be used without undue difficulties. 
737 Depending on the particular facts of the case, it may well be that an investigating authority acts 
inconsistently with Article 12.7 of the SCM Agreement in relying on "facts available". However, this would lead to an "as applied" inconsistency, and not an "as such" one. WT/DS436/R 
 
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  direction. Depending on the circumstances of the cases, we consider that an authority 
may be justified in drawing certain inferences, which may be adverse, from the failure to cooperate with the investigating authority. … 
We wish to add that we do not suggest that non-cooperation provides a blank cheque 
for simply basing a determination on speculative assumptions or on the worst 
information available. Ultimately, the determination has to be made on the basis of the available facts, and not on mere speculation. Therefore, and in the absence of 
such supporting facts, mere non-cooperation by itself does not suffice to justify a 
conclusion which is negative to the interested party that failed to cooperate with the investigating authority. 
… 
[W]e are of the view that facts available should not be used as a punishment, and that 
non-cooperation does not allow an investigating authority to simply use the information available which leads to the worst possible result for the interested party 
that failed to provide such information. Ultimately, the determination still has to be 
based on the facts that are available, not on mere inferences. But it is not because facts available should not be used in a punitive manner that the failure to cooperate 
becomes completely irrelevant in weighing and assessing the information before the 
authority.
738 
7.444.  Finally, we note India's reliance on the Panel Report in China – GOES  to argue that 
Article 12.7 of the SCM Agreement does not gran t the right to draw adverse inferences or 
consequences in all cases of non-cooperation.739 We recall that the panel in China – GOES  
concluded that "[w]hile non-cooperation triggers the use of facts available, non-cooperation does not justify the drawing of adverse inferences. Nor does non-cooperation justify determinations that 
are devoid of any factual foundation."
740 It is unclear to us how this conclusion supports India's 
claims. The expression "adverse inferences" in China – GOES  refers to determinations that were 
based on speculative "adverse inferences", and thus devoid of any factual foundation.741 This is 
entirely different from the "adverse inferences" envisaged in Sections 1677e(b) 
and 351.308(a)-(e), which properly rest on factual foundations. 
7.7.5.1.3  Conclusion 7.445.  In light of the above, the Panel concludes that India has failed to establish a prima facie  
case that Sections 1677e(b) and 351.308(a), (b) and (c) are "as such" inconsistent with 
Article 12.7 of the SCM Agreement.
742 
7.7.5.2  India's "as applied" claims of inconsistency with Article 12.7 of the 
SCM Agreement 
7.446.  India challenges 407 instances of applicat ion of "facts available" in the proceedings at 
issue. India claims that the United States' determinations under Sections 1677e(b) and 351.308 
were inconsistent with Article 12.7 of the SCM Agreement, because the USDOC used (i) "facts 
available" devoid of any factual foundation or (ii) adverse "facts available" to penalize allegedly 
                                               
738 Panel Report, EC – Countervailing Measures on DRAM Chips , paras. 7.60-7.61 and 7.80. See also 
para. 7.143. 
739 See India's first written submission, para. 165, quoting Panel Report, China – GOES , para. 7.302. 
740 Panel Report, China – GOES , para. 7.302 
741 The panel in China – GOES  examined a situation where the investigating authority drew speculative 
adverse inferences from the failure to cooperate, and the breadth of such inferences grew commensurate with 
the level of non-cooperation. 
742 Taking this view, we need not and do not address the United States' argument that the US provisions 
at issue are not mandatory in nature and thus cannot breach the United States' obligations under the WTO Agreements. (United States' first written submission, paras. 161-169)  WT/DS436/R 
 
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  non-cooperating interested parties, not employing the most fitting or most appropriate information 
available.743 We examine the challenged instances below. 
7.7.5.2.1  Use of the highest non- de minimis  subsidy rate 
7.447.  India has identified 230 instances where, as "facts available", the USDOC applied the 
highest non- de minimis  subsidy rate calculated in previous determinations. India asserts that the 
USDOC punished non-cooperation by assuming the worst possible consequence against the non-cooperating party, inconsistently with Article 12.7 of the SCM Agreement.
744 India's claims 
concern what it terms the "rule"745 applied by the USDOC in selecting a subsidy rate on the basis 
of "facts available". According to India, pursuant to this "rule", the USDOC relies on "facts available" to select a calculated subsidy rate in the following manner: 
 The USDOC first attempts to identify the highest non- de minimis  subsidy rate calculated 
for the identical  subsidy programme. 
 Where any such rate is unavailable, the USDOC expands its consideration to a broader 
group to identify the highest non- de minimis  subsidy rate calculated for a similar  subsidy 
programme. 
 Where any such rate is also unavailable, the USDOC further expands its consideration to 
identify the highest non- de minimis  subsidy rate calculated for any programme in any 
CVD proceeding involving the same country, as long as the industry at issue could have 
used the programme for which these rates were calculated.
746  
7.448.  Although India has presented these ar guments under its "as applied" claims, India 
effectively challenges the USDOC's "rule" "as such ". In our view, the US methodology on its face 
appears consistent with Article 12.7 of the SCM Agreement. The USDOC methodology explicitly 
requires that the investigating authority's determination have a factual foundation. First, it mandates that the investigating authority use subsidy rates previously calculated for a subsidy 
programme. Such rates, in our view, are by definiti on facts. Second, by requiring the investigating 
authority to use such subsidy rates in a progressive fashion – i.e. first using those calculated for the identical programme, then using those calculated for similar programmes, and only in the 
absence of either of these two using those calc ulated for any programme in any CVD proceeding 
involving the same country – we consider that the investigating authority is directed, in selecting "facts available", to use those facts which most reasonably replace the missing information, in light of all substantiated facts on record. In other words, pursuant to this alleged "rule", the USDOC is 
required to replace unknown facts with the most relevant known facts, and only move on to other 
known facts, in diminishing degrees of relevance, when more closely relevant facts are not available.  
7.449.  In our view, the question whether the highest non- de minimis  subsidy rate does not 
reasonably replace the missing information or constitutes a punitive use of "facts available" can only be determined on a case-by-case basis. However, in challenging the USDOC's use of the 
highest non- de minimis  subsidy rate calculated in a previous determination in specific instances, 
India has not explained how each specific use of that information does not, in each instance, reasonably replace the missing information, or is otherwise inconsistent with Article 12.7 of the 
                                               
743 India's first written submission, paras. 524-576. 
744 Ibid. paras. 526-528; opening statement at the firs t meeting of the Panel, paras. 46-47; and second 
written submission, para. 265. 
745 See India's first written submission, paras. 526-528. We note that the United States has not 
contested India's use of the term "rule" with respect to the USDOC's selection of subsidy rates on the basis of "facts available". In its fi rst written submission, the United States describes the USDOC's search for "proxies" 
to select subsidy rates in the proceedings at issue. (see United States' first written submission, paras. 218-222) In our findings, we refer to the term "rule", as used by India, for the sake of convenience. However, we wish to be clear that ou r use of this term is without any implications as to whether or not the 
USDOC's selection might be a measure of general a pplication that can be challenged in WTO dispute 
settlement. 
746 See India's first written submission, para. 526. See also United States' first written submission, 
paras. 218-221; and, for example, 2007 Issues and De cision Memorandum, Exhibit IND-38, p. 22 and, 
2006 Issues and Decision Memorandum, Exhibit IND-33, p. 6. WT/DS436/R 
 
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  SCM Agreement. Rather, India has generally referred to a large number of instances where the 
USDOC applied this alleged "rule".747 As stated above, however, we do not consider the "rule", on 
its face, inconsistent with Article 12.7. Thus, there is no basis to conclude that challenged application of that "rule" is inconsistent with that provision. 
7.450.  In light of the above, the Panel concludes that India has failed to establish a prima facie  
case that the USDOC's "rule", either in general or as applied in the 230 instances identified by India is inconsistent with Article 12.7 of the SCM Agreement. 
7.7.5.2.2  JSW's purchase of iron ore from NMDC 
7.451.  India challenges one instance of application of "facts available" in the USDOC's 
determination (in the context of the USDOC's examination of the sale of high-grade iron ore for less than adequate remuneration) that JSW purchase d iron ore from the NMDC at no charge during 
the period of review of the 2006 administrative revi ew. India claims that this application of "facts 
available" is inconsistent with Article 12.7 of the SCM Agreement because the USDOC's determination was devoid of any factual foundation and contradicted the "facts available" from 
the 2006 administrative review.
748 India submits that in its questionnaire response, "the GOI had 
specifically stated that JSW purchased iron ore from NMDC, inter alia , from its Donimalai mines 
and the response also contained information of the rates charged by NMDC to all domestic 
purchasers  of iron ore."749 In addition, India contends that "the facts available before the 
United States during the 2006 AR itself included information as to the prices at which Essar and ISPAT purchased iron ore from NMDC."
750  
7.452.  We consider that the record evidence re ferred to by India is sufficient to establish 
prima facie  that the USDOC's finding that NMDC did not provide iron ore to JSW at no charge 
lacked a factual foundation. To rebut this prima facie  case, the United States would have to 
identify record evidence sufficient to show that the USDOC's finding that NMDC actually provided 
iron ore to JSW at no charge had a factual foundation. The United States has failed to do so. 
Instead, the United States questions the relevance of the information submitted by the GOI relating to JSW. The United States contends that the single price point reported by the GOI was 
not a substantiated fact for JSW's actual pricing during the period of review.
751 The United States 
also submits that the following "facts availabl e" supported the USDOC's determination that JSW 
received iron ore from NMDC at no charge  during the period of time at issue: 
(1) the subsidy program was demonstrated to exist; (2) the program was found to 
provide a countervailable subsidy in the 2nd Administrative Review of the program …; 
(3) no new information was provided, or was otherwise on the record, that would indicate a change to the subsidy program since the conclusion of the 2
nd 
Administrative Review; (4) hot-rolled steel producers, Ispat and Essar, in the current 
                                               
747 India's first written submission, paras. 526-528; open ing statement at the first meeting of the Panel, 
paras. 46-47; and second written submission, para. 265. 
748 India's first written submission, paras. 529-534; and second written submission, paras. 267-270. 
749 India's first written submission, para. 530. (footnotes omitted, emphasis original) In its questionnaire 
response to USDOC, the GOI stated that "during the period under review (2006) NMDC supplied Iron ore to … M/s JSW Steel (JSW) from its Donimalai and Kumarswamy  mines. JSW was not supplied any quantity from 
Bailadila. … Since NMDC supplied iron ore to the respondents, mentioned above, at the same price at which the company exports iron ore to Japanese Steel Mills and no t at 'less than adequate re muneration' - the Standard 
Questionnaire and the Provision of Goods/Services Appe ndices are not applicable. … The NMDC iron ore lump 
and fines prices published in the Tex Report are f.o.b. in US $ per DLT (Dry long ton). For the purpose of 
supplies to domestic customers of NMDC including IIL and JSW, the FOB port prices  applicable as 1st Apr'05 
are converted for FOR (mine) prices in Rs. Per WMT (Wet  metric tonne) after taking into consideration the 
expenses on account of rail freight, po rt charges etc. The derived prices we re made applicable for supplies to 
the domestic buyers of NMDC form its Bailadila and Donimalai mines." In addition, the GOI included a table with the prices as published in the Tex Report for the fiscal years 2005-2006 and 2006-2007 in respect of NMDC iron ore on FOB basis. (Administrative review for the period 01/01/2006 to 31/12/2006, Government of India's response to USDOC's questionnaire, 23 April 2007 ("2007 Questionnaire Response from GOI for 2006 AR"), Exhibit IND-59, pp. 5-6, internal pages 40-41) (italics omitted) 
750 India's first written submission, para. 530. See 2006 Preliminary Results, Exhibit IND-32, p. 10, 
internal page 1587. 
751 See also United States' first written subm ission, para. 264; and 2006 Issues and Decision 
Memorandum, Exhibit IND 33, pp. 92-94. WT/DS436/R 
 
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  review at issue were found to have received a benefit from this same subsidy program 
during the 2006 period of review; (5) JSW is a hot-rolled steel producer.752 
However, the United States has not referred to any evidence on the record that could establish a 
factual foundation for the USDOC's determination that JSW received iron ore from NMDC at no 
charge during the period covered by the 2006 administrative review. Thus, the Panel upholds 
India's claim that the application of "facts available"  at issue is inconsistent with Article 12.7 of the 
SCM Agreement because it is devoid of any factual foundation. 
7.7.5.2.3  VMPL's alleged benefit under ce rtain KIP subsidy programmes administered 
by the SGOK 
7.453.  India challenges four instances of application of "facts available" in the USDOC's 
determination, in the context of the 2006 administrative review, that VMPL received benefits under 
the 1993 KIP, the 1996 KIP, the 2001 KIP, and the 2006 KI P. India claims that the applications of 
"facts available" at issue are inconsistent with  Article 12.7 of the SCM Agreement, because the 
USDOC's determinations were devo id of any factual foundation.753 
7.454.  In the 2006 administrative review, the petitioner submitted new subsidy allegations 
against JSW, contending that JSW received benefits  from the SGOK by virtue of its ownership and 
control over VMPL.754 India asserts that, while the petitioner alleged that VMPL received certain 
subsidies from the SGOK, the petitioner did not allege that VMPL received benefits under the KIP 
subsidy programmes at issue.755 Nevertheless, the USDOC included these new subsidies against 
VMPL in the 2006 administrative review. Noting that the VMPL did not submit a response to its questionnaire
756, the USDOC applied "facts available" against VMPL "to address omissions for each 
type of assistance provided by the SGOK".757 
7.455.  The United States submits that the USDOC's determination at issue was not specifically 
detailed because "no party raised the specific issue of benefits to VMPL through the KIP subsidy 
programs for purposes of the final determination."758 Nevertheless, the United States contends 
that the following facts on the record allowed th e USDOC to "reasonabl[y] infer that VMPL used 
and benefitted from the KIP programs": 
(1) all subsidy programs under 1993 KIP, 1996 KIP, 2001 KIP, and 2006 KIP were 
demonstrated to exist; (2) VMPL received subsidies from the state government of 
                                               
752 United States' response to Panel question No. 108, para. 68. (footnotes omitted) In addition, the 
United States submits that "JSW's re fusal to provide the necessary information, taken together with the above 
factors, provides a reasonable basis fo r the inference relied upon in this case, consistent with Article 12.7 of 
the SCM Agreement. That is, had the price paid by JSW been at least as high as those reported in the Tex Report on the record, it would have had every reason  to cooperate and supply those prices. The refusal to 
cooperate permitted a reasonable inference that JSW benefitted to the maximum extent possible under the program." United States' response to Panel question  No. 108, para. 69. See also 2006 Preliminary Results, 
Exhibit IND-32, p. 10, internal page 1587; and 2006 I ssues and Decision Memorandum, Exhibit IND-33, pp. 16 
and 92-94. 
753 India's first written submission, para. 540; and second written submission, paras. 271 and 274. 
754 India's first written submission, para. 535; and New subsidy allegations, 23 May 2007 ("2007 New 
Subsidy Allegations (JSW) for 2006 AR"), Exhibit IND-25, pp. 20-30. 
755 India's first written submission, paras. 536-537; and second written submission, paras. 272-274. 
756 India contends that no separate questionnaire was provided to VMPL. (India's first written 
submission, para. 539) However, we note that the US DOC stated that in a "supplemental questionnaire 
covering the new subsidies, [the USDOC] asked VMPL, as iron ore supplier that is majority owned by JSW, to 
respond to the questions regarding its receipt of assistance under the 1993 KIP." (2006 Preliminary Results, Exhibit IND-32, p. 17, internal page 1594) In its resp onse to Panel question No. 108, the United States 
submits that the USDOC issued VMPL a questionnaire re garding the assistance it received from the SGOK, to 
which VMPL did not provide a response. (United Stat es' response to Panel question No. 108, para. 71) 
Referring to the fact that "India complains that the questionnaire was not directly delivered to VMPL, but was instead provided to JSW", the United States submits that India has not explained how this action is inconsistent with Article 12.7 of the SCM Agreement. (United States' first written submission, para. 268) In our view, India has not sufficiently explained whether it ta kes issue with the questionnaire delivery, including how 
this action could be inconsistent with Article 12.7. Thus, we do not address this matter in our Report. 
757 2006 Preliminary Results, Exhibit IND-32, p. 17, internal page 1594. See India's first written 
submission, paras. 538-539. 
758 United States' response to Panel question No. 108, para. 71. WT/DS436/R 
 
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  Karnataka through MML; (3) to the extent JSW provided any information on the KIP 
programs, it showed that JSW received bene fits under the programs for those in which 
it chose to respond [to questionnaires] (namely, the 1993 KIP tax incentives and VAT refunds programs), which shows that thes e subsidy programs are available to and 
have been used by JSW; (4) VMPL was operated as a vehicle for the state government 
of Karnataka to subsidize JSW; (5) JSW stated that eligibility for the KIP subsidies was limited to industries located within design ated regions of Karnataka, and VMPL was 
located in Karnataka; (6) VMPL did not provide any information specifically requested 
by Commerce concerning the KIP subsidy programs; and (7) the GOI did not provide any information concerning these subsidy programs, as requested by Commerce.
759 
7.456.  After carefully reviewing the United States' arguments and the evidence cited, we conclude 
that the United States has failed to identify an y evidence on the record that could establish a 
factual foundation for the USDOC's determinations  that VMPL used and benefited from the KIP 
subsidy programmes at issue.760 Therefore, the Panel upholds India's claims that the applications 
of "facts available" at issue are inconsistent wi th Article 12.7 of the SCM Agreement because they 
are devoid of any factual foundation. 
7.7.5.2.4  MML's alleged subsidies to JSW 
7.457.  India challenges two instances of application of "facts available" in which the USDOC 
allegedly assumed that (i) MML is a government or public body, and that (ii) the purchase of iron 
ore by MML was for more than adequate remunera tion, in order for the USDOC to determine, in 
the context of the 2006 administrative review, th at the alleged financial contribution by MML to 
JSW (through VMPL) is a subsidy within the meaning of Article 1.1 of the SCM Agreement.761 India 
claims that the alleged applications of "facts availa ble" at issue are inconsistent with Article 12.7 of 
the SCM Agreement, because the USDOC's determinations were devoid of any factual 
foundation.762 
7.458.  The United States submits that the USDOC did not rely upon or apply "facts available" in 
making its determination that MML is a government or public body.763 We agree that the USDOC's 
determination in this regard is based on evidence contained in the record and not on facts 
                                               
759 United States' response to Panel question No. 108, para. 71. (footnotes omitted) 
760 We note that the United States ' assertions that "VMPL received subsidies from the state government 
of Karnataka through MML" (which we examine below), an d that "VMPL was operated as a vehicle for the state 
government of Karnataka to subsidize JSW" refer to the petitioner's allega tions, which India contends did not 
allege that VMPL received benefits under the KIP su bsidy programmes at issue.  (India's first written 
submission, paras. 536-537; and 2007 New Subsidy Allega tions (JSW) for 2006 AR, Exhibit IND-25, pp. 20-30) 
We also note that, with respect to these assertions, the United States quotes the USDOC's memorandum on "JSW Steel Limited New Subsid y Allegations". However, the United States  refers to page 8 of this document, 
which was not included in the USDOC's memorandum rega rding new subsidy allegation s for JSW Steel Limited, 
27 September 2007 ("USDOC's memorandum on new subsidy allegations for JSW"), Exhibit USA-59. 
761 The United States requested the Panel to find that India's claim under Article 12.7 of the 
SCM Agreement relating to the treatment of MML as a pu blic body falls outside the Panel's terms of reference 
because India's panel request fails to comply with the requirements of Article 6.2 of the DSU. (United States' first written submission, para. 269) In our view, the Unit ed States' request is based on the understanding that 
India claimed that the USDOC acted inconsistently with Article 1.1(a)(1) of the SCM Agreement in treating MML as a public body. However, India's cl aims here refer to an alleged incons istency with Article 12.7, which was 
included in India's panel request. (WT/DS436/3) Theref ore, with respect to the alleged inconsistency with 
Article 12.7, we conclude that India's panel request comp lies with the requirements in Article 6.2 of the DSU. 
Consequently, India's arguments at issue relate to a cl aim that falls within the Pa nel's terms of reference. 
Therefore, we will consider these claim and arguments in our disposition of the issues in this case. 
762 India's first written submission, paras. 541-544. 
763 United States' response to Panel question No. 110, para. 74. WT/DS436/R 
 
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  available.764 As the USDOC did not apply "facts available" in making this determination, we see no 
factual basis for India's Article 12.7 claim.765 We reject that claim accordingly. 
7.459.  With respect to the alleged payment of more than adequate remuneration by MML for iron 
ore supplied by VMPL, India contends that "nothing on the record provided sufficient information or 
evidence for the United States to have assumed t h a t  t h e  p u rc h a s e  o f  i r o n  o r e  b y  M M L  w a s  f o r  
more than adequate remuneration."766 The United States submits that the information contained in 
the petitioner's allegation served as the factual foundation for the USDOC's "facts available" 
determination at issue.767 In examining the petitioner's allegations, the USDOC found that "there is 
sufficient evidence to believe or suspect that MML's  failure to enforce pre-existing agreements with 
VMPL that resulted in MML paying higher prices for iron ore constitutes a financial contribution … because MML purchased a good from VMPL at more than adequate remuneration."
768 India has not 
pointed to any record evidence demonstrating that  MML failed to enforce pre-existing agreements 
with VMPL. In light of this, and the United States' explanations, we conclude that the new subsidy allegations provided a sufficient factual foundation for USDOC's determination, and the information 
used by USDOC was a reasonable replacement for the missing information.
769 We therefore reject 
India's claim that the USDOC's determination that the purchase of iron ore by MML was for more 
than adequate remuneration is inconsistent with Article 12.7 of the SCM Agreement. 
7.7.5.2.5  Tata's alleged benefit from  programmes administered by the SGOJ 
7.460.  India challenges 13 instances of applic ation of "facts available" in the USDOC's 
determination, in the context of the 2008 administra tive review, that Tata used and benefited from 
certain subsidy programmes administered by the SGOJ.770 India claims that these applications of 
"facts available" are inconsistent with Article 12.7 of the SCM Agreement, because the USDOC's 
determinations were devoid of any factual foundation and contradicted the "facts available" from the 2006 administrative review.
771 
7.461.  With respect to the programmes, under the 2001 JSIP, on exemption of electricity duty, 
capital power generating subsidy, interest subsidy, and stamp duty and registration, India contends that Tata declared itself ineligible in the 2006 administrative review (with the eligibility 
criterion being reiterated by the GOI), because these programmes were only available to "new 
industrial units".
772 With respect to the programmes, under the 2001 JSIP, on capital investment 
                                               
764 We note that, in examining the petitioner's allegations, the USDOC "determined that the petitioner 
[by referencing the Report by the Comptroller and Audito r General of India] has supported its allegation that 
MML is a state-owned company and that VMPL is join tly owned by MML and JSW." USDOC's memorandum on 
new subsidy allegations for JSW, Exhibi t USA-59, p. 2, internal page 10. S ee also United States' response to 
Panel question No. 110, para. 74. 
765 We note that if India actually intended to challenge the USDOC's determination to consider MML as a 
government or public body, India would have brought a claim under Article 1.1(a)(1) of the SCM Agreement. 
766 India's first written submission, para. 543. 
767 United States' first written submission, para. 272. See also United States' response to Panel 
question No. 111, para. 75. 
768 USDOC's memorandum on new subsidy allegations fo r JSW, Exhibit USA-59, p.  2, internal page 10. 
769 We note that if India actually intended to challenge the USDOC's determination that MML paid more 
than adequate remuneration for iron ore supplied  by VMPL, India would have brought a claim under 
Articles 1.1(a)(1) and 14(d) of the SCM Agreement. 
770 These programmes included those under the 2001 JSIP ((i) exemption of electricity duty; (ii) offset 
of Jharkhand sales tax; (iii) capital investment incentive; (iv) capital power generating subsidy; (v) interest subsidy; (vi) stamp duty and registration; (vii) feasibility study and project report co st reimbursement; 
(viii) pollution control equipment subsidy; (ix) incentive for quality certification; and (x) employment incentives), and under the infrastructure subsidies to mega projects ((i) tax incentives; (ii) grants; and (iii) loans). (Issues and decision memorandum: final results and partial rescission of countervailing duty administrative review, 19 July 2010 ("2008 Issues and Decision Memorandum"), Exhibit IND-41, pp. 39-45; and 75 Fed. Reg.  1503-1518, 11 January 2010, Exhibit USA-40, pp. 14-16, internal pages 1516-1518) 
771 India's first written submission, para. 560.  
772 Ibid. paras. 547 and 550-552, second written submission, para. 275; and 2007 Supplemental 
Questionnaire Response from Tata for 2006 AR, Exhibit IND-65, pp. 7-8; and Administrative review for the period 01/01/2006 to 31/12/2006, questionnaire response from the Government of India regarding new subsidy allegations against Tata Steel Limited, 8 No vember 2007 ("2007 Questionnaire Response from the GOI 
re. Tata for 2006 AR"), Exhibit IND-60, pp. 8-9. India contends that these programmes had a cut-off date in 2005, and thus "[f]or obvious and logical reasons, if Tata was ineligible for these programs in 2006, this could not have changed in 2008." (India's second written submission, para. 275)  WT/DS436/R 
 
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  incentive, incentive for quality certification, and employment incentives, India contends that Tata 
declared itself ineligible in the 2006 administrative review (with the eligibility criteria being reiterated by the GOI), because these programmes were only available respectively to small or medium enterprises; small scale and ancillary in dustries; and Khadi and Village Industries, farm 
based industries and forest based industries.
773 With respect to the offset of Jharkhand sales tax, 
feasibility study and project report cost reim bursement, and the pollution control equipment 
subsidy, under the 2001 JSIP, and the tax incentive, grants and loans programmes, under the 
infrastructure subsidies to mega projects, India contends that Tata declared, in the 
2006 administrative review, that it had not benefited from these subsidies.774 
7.462.  The United States recalls that Tata did not provide any information in the 
2008 administrative review. The United States asserts that the USDOC could not have relied on 
the information submitted to the 2006 administrati ve review, because (i) the fact that a company 
did not receive benefits in a prior period does not mean that the company will never receive benefits under a programme in the future, and (ii) to rely on the information submitted for a past 
review would defeat the purpose of ha ving a review for the current period.
775  
7.463.  The United States submits that "[i]n the 2008 Administrative Review, the factual 
foundation relied upon by [the USDOC] to make its determination was the factual information that 
provided the basis for initiating the investigation into these programs."776 The United States also 
submits that "the factual description of each of the 13 programs is drawn from both the GOI's April 23, 2009 response and the petitioners' subsidy allegation."
777 In addition, the United States 
submits that the following "facts availabl e" supported the USDOC's determinations: 
(1) each subsidy program has been demonstrated to exist; (2) each subsidy program 
was found countervailable ( i.e., that it constituted a financial contribution, provided a 
benefit, and was specific); (3) each subsidy was available to steel producers in the 
state of Jharkhand; (4) Tata is a steel producer; and (5) Tata has facilities located in 
at least the state of Jharkhand; (6) the GO I provided a qualified statement that "GOI 
understands  that Tata did not avail any benefits under this program", but did not 
provide any documentation to support that statement, as Commerce requested; 
(7) with respect to Infrastructure Subsidies to Mega Projects, referred to in items l. and m. above, the GOI stated: "For the benefits if any availed by Tata, please see the response filed by Tata"; and (8) that Tata refused to provide a response, and thus did 
not provide any of the necessary information requested by Commerce, including any 
information pertaining to the Infrastructure Subsidies to Mega Projects referenced by the GOI in its April 23, 2009 response.
778 
7.464.  After examining the USDOC's new subsidy allegation memorandum of 
27 September 2007779, and the petition dated 23 May 2007 (on which the memorandum is 
based)780, we conclude that, as contended by the United States, the petition establishes a 
                                               
773 India's first written submission, paras. 549, 555 and 557, second written submission, para. 275; 
and 2007 Supplemental Questionnaire Response from Tata for 2006 AR, Exhibit IND-65, pp. 8-9; and 2007 
Questionnaire Response from the GOI re. Tata for 2006 AR, Exhibit IND-60, pp. 9-10. 
774 India's first written submission, paras. 548, 553-554 and 556, second written submission, para. 275; 
and 2007 Supplemental Questionnaire Response from Tata for 2006 AR, Exhibit IND-65, pp. 7-9. 
775 United States' first written submission, paras. 236 and 240-241. See also fn. 790 below for the 
United States' explanation of incorp orating record from prior segments of  the particular proceeding or other 
proceedings into the record of a current review. 
776 United States' first written submission, para. 241. 
777 United States' response to Panel question No. 112, para. 76. 
778 Ibid. para. 77. (footnotes omitted) 
779 USDOC's memorandum regarding new subsidy allegations for Tata Steel Limited, 27 September 2007 
("USDOC's memorandum on new subs idy allegations for Tata"), Exhibit IND-30. We note that this 
memorandum is referred to in the USDOC's preliminary determination for the 2008 administrative review with respect to certain subsidy programmes (see 75 Fed. Reg.  1503-1518, Exhibit USA-40). 
780 New subsidy allegations against Tata Steel Limited, 23 May 2007 ("2007 New Subsidy Allegations 
(Tata) for 2006 AR"), Exhibit IND-26. We note that al though both documents (Exhibits IND-26 and IND-30) 
refer to the 2006 administrative review, the United States  submits, and India has not contested, that they are 
on the administrative record of the 2008 administrati ve review. See United States' response to Panel 
question No. 112, para. 76. WT/DS436/R 
 
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  sufficient factual foundation for the USDOC's dete rminations relating to the following subsidy 
programmes: 
(a) with respect the 2001 JSIP: (i) exemption of electricity duty; (ii) offset of 
Jharkhand sales tax; (iii) capital power generating subsidy; (iv) interest subsidy; 
(v) stamp duty and registration; and (vi) pollution control equipment subsidy.781 
(b) with respect to the infrastructure subsidies to mega projects: (i) tax incentives; 
(ii) grants; and (iii) loans.782 
Based on this evidence, and in light of the United  States' explanations, we conclude that the new 
subsidy allegations provided a sufficient factual foundation for USDOC's determination, and the information used by USDOC was a reasonable replacement for the missing information. Thus, the Panel concludes that India has failed to establish that the USDOC's determinations with respect to 
these subsidy programmes are inconsistent with Article 12.7 of the SCM Agreement. 
7.465.  However, we note that the memorandum and the petition at issue do not refer to the 
following subsidy programmes under the 2001 JSIP: (i) capital investment incentive; (ii) feasibility 
study and project report cost reimbursement; (iii) incentive for quality certification; and 
(iv) employment incentives. The United States has not cited any other evidence on the record that could establish a factual foundation for the USDOC's determinations that Tata used and benefited 
from these 2001 JSIP subsidy programmes during the period covered by the 2008 administrative 
review. Thus, the Panel upholds India's claims that these applications of "facts available" at issue are inconsistent with Article 12.7 of the SCM Agreement because they are devoid of any factual foundation. 
7.7.5.2.6  Tata's alleged benefit from cert ain programmes administered by the SGOG, 
SGOM, SGOK, SGAP and SGOC 
7.466.  India challenges 55 instances of applic ation of "facts available" in the USDOC's 
determination, in the context of the 2008 administra tive review, that Tata used and benefited from 
(i) six programmes administered by the SGOG
783; (ii) eight programmes administered by the 
SGOM784; (iii) ten programmes administered by the SGAP785; (iv) nine programmes administered 
by the SGOC786; and (v) 22 programmes administered by the SGOK.787 India claims that these 
applications of "facts available" are inconsistent  with Article 12.7 of the SCM Agreement, because 
the USDOC's determinations were devoid of any factual foundation788 and, with respect to certain 
programmes, contradicted the "facts available" from the 2006 administered review.789 
                                               
781 2007 New Subsidy Allegations (Tata) for 2006 AR, Exhibit IND-26, pp. 14-15. See also USDOC's 
memorandum on new subsidy allegation s for Tata, Exhibit IND-30, pp. 4-5. 
782 2007 New Subsidy Allegations (Tata) for 2006 AR, Exhibit IND-26, pp. 20-22. See also USDOC's 
memorandum on new subsidy allegation s for Tata, Exhibit IND-30, pp. 5-6. 
783 2008 Preliminary Results, Exhibit IND-40, inte rnal pages 1507-1509; and 2008 Issues and Decision 
Memorandum, Exhibit IND-41, pp. 21-25. 
784 2008 Preliminary Results, Exhibit IND-40, inte rnal pages 1509-1511; and 2008 Issues and Decision 
Memorandum, Exhibit IND-41, pp. 25-29. 
785 2008 Preliminary Results, Exhibit IND-40, inte rnal pages 1511-1514; and 2008 Issues and Decision 
Memorandum, Exhibit IND-41, pp. 29-34. 
786 2008 Preliminary Results, Exhibit IND-40, inte rnal pages 1514-1519; and 2008 Issues and Decision 
Memorandum, Exhibit IND-41, pp. 34-39. 
787 2008 Preliminary Results, Exhibit IND-40, inte rnal pages 1519-1524; and 2008 Issues and Decision 
Memorandum, Exhibit IND-41, pp. 45-55. 
788 India's first written submission, para. 563. India contends that "[a] perusal of the new subsid[y] 
allegation petitions would reveal that only programs ad ministered by the SGOJ were alleged against Tata; no 
other programs administered by any other state governme nt were alleged against Tata." India's first written 
submission, para. 563. (footnote omitted) 
789 India submits that Tata had stated in the 2006 admi nistrative review that "it was not located in the 
SGOG and that its manufacturing facility for the subject product was not located in the SGOM." (India's first written submission, para. 565) India also contends that this information was corroborated by the questionnaire response submitted by the GOI, since Tata was not list ed as a party receiving any benefit from the SGOG and 
SGOM. (India's first written submission, para. 565) WT/DS436/R 
 
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  7.467.  The United States submits that the record of the 2006 administrative review is not 
automatically part of the record of the 2008 administrative review.790 In addition, the 
United States contends that, due to the collect ive refusal of the GOI and Tata to provide the 
requested information, the USDOC's determination "relied upon evidence provided by petitioners in 
previous reviews and on prior determinations" as available facts.791 The United States also submits 
that the following "facts available" supported the USDOC's determinations: 
(1) each subsidy program was demonstrated to exist; (2) each subsidy program is 
countervailable ( i.e., each was based on a financial contribution that provides a 
benefit, and each program was specific); (3) each subsidy is available to steel producers; (4) Tata is a steel producer; (5) Commerce specifically requested that the GOI "indicate the states in India in which Tata, the respondent company, had 
operations during the POR [period of review]" [to which] the GOI responded that "[n]o 
information is available with the Government of India in this regard" and that "USDOC may contact Tata Steel for a list of States in which they had operations during the 
POR."; (6) Commerce specifically requested that Tata state the nature and locations of 
its facilities during the 2008 period; and (7) Tata refused to participate in the review or provide any necessary information that Commerce requested to make its 
determination.
792 
7.468.  After carefully reviewing the United States' arguments and the evidence cited, we conclude 
that the United States has failed to identify any evidence on the record that establishes a factual foundation for the USDOC's determinations that Tata used and benefited from the subsidy 
programmes at issue during the period covered by the 2008 administrative review. Although the 
United States generally contends that the USDOC's determinations were based on evidence provided by petitioners in previous reviews and on prior determinations, the United States has not 
identified which petitioner allegations and prior determinations, or which specific facts, it relies 
upon in this regard.
793 Thus, the Panel upholds India's claims that the applications of "facts 
available" at issue are inconsistent with Arti cle 12.7 of the SCM Agreement because they are 
devoid of any factual foundation. 
7.7.5.2.7  Tata's alleged benefit from ce rtain programmes administered by the GOI 
7.469.  India challenges nine instances of app lication of "facts available" in the USDOC's 
determination, in the context of the 2008 administra tive review, that Tata used and benefited from 
certain subsidy programmes administered by the GOI. India claims that these applications of "facts 
available" are inconsistent with Article 12.7 of the SCM Agreement, because the USDOC's determinations ignored evidence produced by the GOI in the 2008 administrative review and were 
devoid of any factual foundation.
794 
7.7.5.2.7.1  Purchase of high -grade iron ore from NMDC 
7.470.  It is undisputed that, in the 2008 administrative review, the GOI provided a list of 
companies that purchased high-grade iron ore from  NMDC during the period of review, and that 
                                               
790 United States' first written submission, para. 242. The United States submits that when the USDOC 
relies on a prior determination, from the same or differe nt proceedings, as a fact available, such determination 
is incorporated into the record of the current review. However, this does not mean that the underlying record 
of such prior determination (including responses to qu estionnaires) is automatically incorporated into the 
record of the current revi ew, unless the concerned party submits such  information from the prior review onto 
the record of the current review. United States ' response to Panel question No. 144, para. 87. 
791 United States' response to Panel question No. 113,  para. 78. See also United States' first written 
submission, para. 245. 
792 United States' response to Panel question No. 113, para. 79. (footnotes omitted) 
793 In addition, we accept India's argument that pe titions in the 2006 administrative review could not 
have provided a factual foundation for the USDOC's determin ations at issue, since Indi a contends that none of 
the subsidy programmes at issue were alleged as new subsidies against Tata in the new subsidy allegation petitions for the 2006 and 2008 administrative reviews.  India's first written submission, para. 563, and 
second written submission, para. 276. 
794 India's first written submission, paras. 567-574; second written submission, paras. 278-279; and 
response to Panel question No. 115. WT/DS436/R 
 
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  Tata was not included on that list.795 However, as India provided no supporting documentation, the 
United States contends that "the list, standing alone, did not constitute complete and verifiable evidence" that Tata did not purchase high-grade iron ore from NMDC during the period of review.
796 The United States also submits that the following facts supported the USDOC's 
determination at issue: 
(1) the subsidy program was demonstrated to exist; (2) the program was found to 
provide a countervailable subsidy in the 2nd, 4th, and 5th Administrative Reviews of 
hot-rolled carbon steel flat products from India ( i.e., financial contribution, benefit, 
and specificity); (3) no new information was provided, or was otherwise on the record, that would indicate a change to the subsidy program since the conclusion of the 5th Administrative Review; (4) hot-rolled steel producers, Ispat and Essar, in the 
4th Administrative Review covering the 200 6 period of review were found to have 
received a benefit from this subsidy program; (5) Tata is a hot-rolled steel producer; (6) Commerce requested, and Tata was given the opportunity to provide, necessary 
information concerning any purchases of high-grade iron ore from NMDC; and 
(7) Tata refused to provide any information on this subsidy program, as requested by Commerce.
797 
7.471.  After carefully reviewing the United States' arguments and the evidence cited, we find that 
the United States has failed to identify any ev idence on the record that establishes a factual 
foundation for the USDOC's determination that Tata  used and benefited from the subsidy provided 
through the purchase of high-grade iron ore fr om NMDC during the period covered by the 2008 
administrative review. Thus, the Panel upholds In dia's claims that the application of "facts 
available" at issue is inconsistent with Article 12.7 of the SCM Agreement because it is devoid of 
any factual foundation. 
7.7.5.2.7.2  MDA and MAI Programmes  
7.472.  It is undisputed that, in the 2008 administrative review, the GOI stated that Tata did not 
benefit from the MDA and MAI subsidy programmes, and submitted certificates from the 
administering authority attesting to this fact.798 However, in the absence of Tata's cooperation, the 
USDOC considered that the GOI's submissions did no t constitute complete and verifiable evidence 
that Tata did not benefit from the subsidy programmes at issue.799 The United States submits that, 
in its application of "facts available", the USDOC relied on its examination of the subsidy 
                                               
795 Administrative review for the period 01/01/2008 to 31/12/2008, questionnaire response from the 
Government of India, 23 April 2009 ("2009 Questionnaire Response from the GOI for 2008 AR"), Exhibit USA-32a, p. 43; Administrative review for the period 01/01/2008 to 31/12/2008, supplemental questionnaire response from the Government of In dia, 10 August 2009 ("2009 Su pplemental Questionnaire 
Response from the GOI for 2008 AR"), Exhibit USA-34, p. 5; 2008 Preliminary Results, Exhibit IND-40, p. 8, 
internal page 1503; United States' response to Panel question No. 113, para. 81; and India's first written 
submission, para. 567, second written submission, para . 278, and response to Panel question No. 107. 
796 United States' response to Panel question No. 114, para. 81. See also 2008 Issues and Decision 
Memorandum, Exhibit IND-41, p. 13; and 2008 Preliminary Results, Exhibit IND-40, p. 8, internal page 1503 (including the USDOC's statement that "it cannot rely solely upon the government's statements to make a determination of non-use"); and United States' first written submission, para. 251. 
797 United States' response to Panel question No. 114, para. 80. (footnotes omitted) See also 
United States' response to Panel question No. 114, para. 88. 
798 2009 Questionnaire Response from the GOI for 2008 AR, Exhibit USA-32a, pp. 59 and 67; 
Administrative review for the period 01/01/2008 to 31/12/2008, supplemental questionnaire response from the Government of India, 4 September 2009 ("2009 Other Supplemental Questionnaire Response from the GOI for 2008 AR"), Exhibit USA-36, pp. 6 and 11-12 (with copy of the certificates); 2008 Preliminary Results, Exhibit IND-40, pp. 8-9, internal pages 1503-1504; 2008 Issues and Decision Memorandum, Exhibit IND-41, pp. 14-15; India's first written submission, para. 568, and second written submission, para. 278; and United States' first written submission, paras. 248-250.  
799 2008 Issues and Decision Memorandum, Exhibit IND-41, pp. 14-15; 2008 Preliminary Results, 
Exhibit IND-40, p. 9, internal page 1504 (including the USDOC's statement that "it cannot rely solely upon the government's statements to make a determination of non-use"); United States' first written submission, para. 251, and response to India's question No. 14, para. 30. WT/DS436/R 
 
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  programmes at issue in two prior determinations, relating to other proceedings, to determine that 
such programmes provided countervailable export subsidies.800 
7.473.  We note that the United States accepts that "it is not clear from the record why [the 
USDOC] examined these particular subsidy pr ograms [with respect to Tata] in the 2008 
administrative review."801 Examining the USDOC's determinations at issue, we are unable to find 
any indication by the USDOC to the effect that it was relying on prior determinations that Tata had benefited from the subsidy programmes at issue.
802 We therefore conclude that the United States 
has not referred to any evidence on the record  that establishes a factual foundation for the 
USDOC's determinations that Tata used and benefited from the subsidy programmes at issue during the period covered by the 2008 administ rative review. Thus, the Panel upholds India's 
claims that the applications of "facts available" at issue are inconsistent with Article 12.7 of the 
SCM Agreement because they are de void of any factual foundation. 
7.7.5.2.7.3  Six sub-programmes of the SEZ Act 7.474.  It is undisputed that, in the 2008 administrative review, the GOI stated that Tata did not 
benefit from the six sub-programmes of the SEZ Act
803 at issue.804 However, in the absence of 
cooperation by Tata, and in view of the lack of any supporting documentation from the GOI, the USDOC considered that the GOI's submission did not constitute complete and verifiable evidence 
that Tata did not benefit from the subsidy programmes at issue.
805 The United States contends 
that the following facts supported the USDOC's determinations at issue: 
(1) each sub-program was demonstrated to exist; (2) the program was found to be a 
countervailable subsidy in the 5th Administrative Review ( i.e., financial contribution, 
benefit, and specificity); (3) no new information was provided, or was otherwise on 
the record, that would indicate a change to the subsidy program since the conclusion of the 5th Administrative Review; (4) these sub-programs were available to 
companies with SEZ units, including hot-rolled steel producers; (5) Tata is a hot-rolled 
steel producer; (6) Commerce requested, and Tata was given the opportunity to 
                                               
800 In its examination of the MDA programme and th e MAI programme, the USDOC respectively relied 
on the administrative review on Iron -Metal Casting from India, and the administrative review on Lined Paper 
Products from India. See 2008 Issues and Decision Memorandum, Exhibit IND-41, pp. 14-15; 2008 Preliminary Results, Exhibit IND-40, pp. 8-9, internal pages 1503-1504; United States' first written submission, para. 251, and response to Panel question No. 114, paras. 82-83. 
801 United States' response to Panel question No. 114, para. 89. 
802 Although the USDOC refers respectively to the administrative review on  Iron-Metal Casting from 
India, and the administrative review on Lined Paper Prod ucts from India in its determinations, it does not seem 
to us that such references relate to the USDOC's applications of "facts available" at issue. See 2008 Issues and Decision Memorandum, Exhibit IND-41, pp. 14-15; and 2008 Preliminary Results, Exhibit IND-40, pp. 8-9, internal pages 1503-1504. 
803 The six sub-programmes of the SEZ Act are: (i) duty free import/d omestic procurement of goods and 
services for development, operation,  and maintenance of SEZ Units Programme; (ii) exemption from excise 
duties on goods machinery and capital goods brought from the domestic tariff area for use by an enterprise in 
the SEZ; (iii) drawback on goods brought or services provided from the domestic tariff area into a SEZ, or 
services provided in a SEZ by services providers located outside India; (iv) 100 per cent exemption from income taxes on export income from the first 5 years of  operation, 50 per cent fo r the next 5 years, and a 
further 50 per cent exemption on export income reinvested in India fo r an additional 5 years; (v) exemption 
from the central sales tax (CST); and (vi) exemption from the national service tax. See 2008 Issues and Decision Memorandum, Exhibit IND-41, pp. 15-19; and 2008 Preliminary Results, Exhibit IND-40, pp. 9-11, internal pages 1504-1506. Although India occasionally refe rred to five sub-programmes of the SEZ Act in its 
submissions (India's first written submission, paras. 567-568; and second written submission, para. 278), India clarified that its clai ms refer to all six sub-programmes of th e SEZ Act. (India's response to Panel 
question No. 106) 
804 2009 Questionnaire Response from the GOI for 2008 AR, Exhibit USA-32a, p. 68; 2008 Preliminary 
Results, Exhibit IND-40, pp. 9-11, internal pages 1504-1506, and 2008 Issues and Decision Memorandum, Exhibit IND-41, pp. 15-18; India's first written submission, para. 568, and second written submission, para. 278; and United States' first written submission , para. 248, and response to Panel question No. 114, 
para. 86. 
805 2008 Preliminary Results, Exhibit IND-40, pp. 9-11, internal pages 1504-1506 (including the 
USDOC's statement that "it cannot rely solely upon the government's statements to make a determination of non-use"), and 2008 Issues and Decision Memorandum, Ex hibit IND-41, pp. 15-18; United States' first written 
submission, para. 251, and response to  Panel question No. 114, para. 86. WT/DS436/R 
 
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  provide, necessary information pertaining to these sub-programs; and (7) Tata 
refused to provide any information on this subsidy program as requested by Commerce.
806 
7.475.  After carefully reviewing the United States' arguments and the evidence cited, we conclude 
that the United States has failed to identify any evidence on the record that establishes a factual 
foundation for the USDOC's determinations that Tata used and benefited from the subsidy programmes at issue during the period covered by the 2008 administrative review. Thus, the Panel 
upholds India's claims that the applications of "facts available" at issue are inconsistent with 
Article 12.7 of the SCM Agreement because they are devoid of any factual foundation. 
7.7.5.2.8  SDF loans as a "potential" direct transfer of funds 7.476.  India challenges one instance of application of "facts available" in the USDOC's 
determination, in the 2008 administrative review, that the SDF loans provide a financial 
contribution in the form of a potential direct transf er of funds. India claims that this application of 
"facts available" is inconsistent with Article 12.7 of the SCM Agreement, because it is contrary to 
facts on the record.
807 
7.477.  We recall our finding that the USDOC applied facts available in order to confirm  its earlier 
determinations that SDF loans constitute "direct transfers of funds" in the meaning of 
Article 1.1(a)(1)(i).808 Thus, there was no determination by the USDOC in the 2008 administrative 
review that SDF loans constitute "potential direct transfers of funds". Since there is therefore no factual basis for India's Article 12.7 claim, we reject that claim accordingly. 
7.7.5.2.9  2013 sunset review determination 
7.478.  India challenges 92 instances of application of "facts available" against Essar, ISPAT, SAIL 
and Tata in the USDOC's determinations, in the 2013 sunset review, that these companies benefited from a number of subsidy programmes. India claims that these applications of "facts 
available" are inconsistent with Article 12.7 of  the SCM Agreement, because the USDOC assumed 
facts and applied "facts available" in a punitive fashion.
809 
7.479.  We note that the presentation of India's Article 12.7 claims relating to these 92 instances 
of alleged improper application of facts available is limited to a single paragraph in its first written 
submission, with no further development of any substantive argument in subsequent submissions. Moreover, India did not adduce any evidence in support of its claims in its first written submission, or subsequently. India did not even specify the instances of alleged application of "facts available" 
or the particular subsidy programmes at issue. As a result, we are unable to evaluate India's 
claims, or to assess the consistency with Article 12.7 of any use of facts available by USDOC in the context of the 2013 sunset review.
810 
7.480.  Thus, the Panel concludes that India has failed to establish a prima facie  case that the 
USDOC's determinations, in the 2013 sunset review , that Essar, ISPAT, SAIL and Tata benefited 
from a number of subsidy programmes are inconsistent with Article 12.7 of the SCM Agreement. 
                                               
806 United States' response to Panel question No. 114, para. 85. (footnotes omitted) See also 
United States' response to Panel question No. 114, para. 88. 
807 India's first written submission, para. 575. 
808 See para. 7.301 above. 
809 India's first written submission, para. 576. 
810 We note that, in its first written submission, the United States submitted a request for preliminary 
ruling that the Panel find that India's claims of inconsistency with Article 12.7 of the SCM Agreement relating to the 2013 sunset review determination fall outside the Pane l's terms of reference. (United States' first written 
submission, paras. 274-283) However, we recall that in our preliminary ruling (see paras. 1.39-1.42 above), the Panel concluded that the 2013 sunset review claims are within the Panel's terms of reference. Thus, we 
were prepared to consider the substance of those cl aims, but India has failed to present evidence and 
arguments that would allow us to do so. WT/DS436/R 
 
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  7.8  Whether new subsidy allegations may be examined in administrative reviews 
7.481.  India claims that the examination by th e United States of new subsidy allegations in 
administrative reviews related to the imports at issue was inconsistent with Articles 11.1, 11.2, 
11.9, 13.1, 21.1, 21.2, 22.1, and 22.2 of the SCM Agreement.811 The expression "new subsidy" is 
used by India to refer to subsidy programmes not formally examined in the original investigation, 
but included and examined in subsequent reviews. 
7.8.1  Relevant WTO provisions 
7.482.  Article 11.1 of the SCM Agreement provides: 
Except as provided in paragraph 6, an investigation to determine the existence, 
degree and effect of any alleged subsidy shall be initiated upon a written application by or on behalf of the domestic industry. 
7.483.  Article 11.2 of the SCM Agreement provides in relevant part: 
An application under paragraph 1 shall include sufficient evidence of the existence of 
(a) a subsidy and, if possible, its amount, (b) injury within the meaning of Article VI of 
GATT 1994 as interpreted by this Agreement, and (c) a causal link between the 
subsidized imports and the alleged injury. Simple assertion, unsubstantiated by relevant evidence, cannot be considered sufficient to meet the requirements of this 
paragraph. The application shall contain such information as is reasonably available to 
the applicant on the following: 
… (iii) evidence with regard to the existenc e, amount and nature of the subsidy in 
question; 
7.484.  Article 11.9 of the SCM Agreement provides: 
An application under paragraph 1 shall be rejected and an investigation shall be 
terminated promptly as soon as the authorities concerned are satisfied that there is 
not sufficient evidence of either subsidization or of injury to justify proceeding with the 
case. There shall be immediate termination in cases where the amount of a subsidy is 
de minimis , or where the volume of subsidized imports, actual or potential, or the 
injury, is negligible. For the purpose of this paragraph, the amount of the subsidy shall be considered to be de minimis  if the subsidy is less than 1 per cent ad valorem. 
7.485.  Article 13.1 of the SCM Agreement provides: 
As soon as possible after an application under Article 11 is accepted, and in any event 
before the initiation of any investigation, Members the products of which may be subject to such investigation shall be invited for consultations with the aim of 
clarifying the situation as to the matters referred to in paragraph 2 of Article 11 and 
arriving at a mutually agreed solution. 
7.486.  Article 21.1 of the SCM Agreement provides: 
A countervailing duty shall remain in force only as long as and to the extent necessary 
to counteract subsidization which is causing injury. 
7.487.  Article 21.2 of the SCM Agreement provides: 
The authorities shall review the need for th e continued imposition of the duty, where 
warranted, on their own initiative or, provided that a reasonable period of time has 
                                               
811 India's first written submission, paras. 585-623. WT/DS436/R 
 
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  elapsed since the imposition of the definiti ve countervailing duty, upon request by any 
interested party which submits positive information substantiating the need for a review. Interested parties shall have the right to request the authorities to examine whether the continued imposition of the duty is necessary to offset subsidization, 
whether the injury would be likely to continue or recur if the duty were removed or 
varied, or both. If, as a result of the review under this paragraph, the authorities determine that the countervailing duty is no longer warranted, it shall be terminated 
immediately. 
7.488.  Article 22.1 of the SCM Agreement provides: 
When the authorities are satisfied that there is sufficient evidence to justify the 
initiation of an investigation pursuant to Article 11, the Member or Members the 
products of which are subject to such investigation and other interested parties known 
to the investigating authorities to have an interest therein shall be notified and a public notice shall be given. 
7.489.  Article 22.2 of the SCM Agreement provides in relevant part: 
A public notice of the initiation of an investigation shall contain, or otherwise make 
available through a separate report[], adequate information on the following: 
(i) the name of the exporting country or countries and the product involved; 
(ii) the date of initiation of the investigation; (iii) a description of the subsidy practice or practices to be investigated; (iv) a summary of the factors on which the allegation of injury is based; 
(v) the address to which representations by interested Members and interested 
parties should be directed; and  
(vi) the time-limits allowed to interested Members and interested parties for making 
their views known. 
7.8.2  Main arguments of the parties 7.8.2.1  India 
7.490.  India submits two sets of arguments seeking to demonstrate that, in investigating a 
number of new subsidy programmes in annual ad ministrative reviews, the United States 
circumvented the obligations of Articles 11, 13 and 22 of the SCM Agreement, and inappropriately 
expanded the scope of a review proceeding under Article 21 of the SCM Agreement.
812 
7.491.  First, India argues that new subsidy allegations relating to the imports at issue could not 
have been examined by the United States in admi nistrative reviews because (i) the United States 
did not receive a written application pursuant to Articles 11.1, 11.2 and 11.9 of the 
SCM Agreement813; (ii) India was not invited for consultations with the aim of clarifying the 
existence, amount and nature of the newly alleged subsidies pursuant to Article 13.1 of the SCM Agreement
814; (iii) the United States did not "initiate" an investigation into the new subsidy 
allegations under Article 11.1 of the SCM Agreement815; and (iv) the United States did not issue a 
                                               
812 India's first written submission, paras. 596-597 and 623. 
813 Ibid. paras. 585-595, and 599-604. 
814 Ibid. paras. 585, 593, 595 and 605-607. 
815 Ibid. paras. 588-590, 595, and 608-615. WT/DS436/R 
 
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  "public notice" covering the new subsidy allegations pursuant to Articles 22.1 and 22.2 of the 
SCM Agreement.816 
7.492.  Second, India argues that reviews unde r Article 21 of the SCM Agreement are aimed at 
correcting or re-examining determinations relating to subsidization and injury that already exist; 
they concern the duration of countervailing me asures once they have been imposed. India 
contends that a review "cannot be for something that was not in existence at all" at the time the measure being reviewed was imposed.
817 According to India, Article 21 is not intended to govern 
the imposition of duties per se , and does not cover a new examination into the existence, degree 
and effect of newly alleged subsidies. India emph asizes that "[t]he scheme of the SCM Agreement 
clearly suggests that different set[s] of procedural and substantive rules have been made for reviews and original investigations considering the inherent differences between these two 
proceedings."
818 Conflating original proceedings under Article 11 and review proceedings under 
Article 21 would "dilut[e] the contextual separation made in the SCM Agreement between both proceedings and upset[] the delicate balance of rights and obligations agreed upon by the 
Members."
819 Thus, India submits that the United States is not permitted to expand the scope of a 
review under Articles 21.1 and 21.2 so as to in itiate new investigations against new subsidies.820 
7.8.2.2  United States 
7.493.  The United States argues that India's claims rely on the erroneous proposition that an 
investigating authority may not levy countervailing duties pursuant to administrative reviews on 
subsidy programmes that were not examined in the original investigation. According to the United States, India's interpretation of the SC M Agreement "would create an absurd result, 
whereby multiple investigations, reviews and duty determinations would exist simultaneously with 
respect to a single product."
821 
7.494.  The United States submits that the USDO C only examined newly identified subsidies for 
which domestic parties submitted reasonably available evidence demonstrating that there is a 
financial contribution by a government or pub lic body, conferring a benefit. The USDOC also 
required domestic parties to provide reasonably available evidence demonstrating that the alleged 
subsidy was specific.822 The United States argues that Article 21 of the SCM Agreement neither 
requires that reviews be limited to the specific subsidy programmes in place at the time of the original investigation, nor imports into reviews the requirements of Article 11 of the SCM Agreement, which govern the initiation of an original investigation.
823 The United States 
recalls that the purpose of subsequent reviews is  to examine whether the continued imposition of 
a duty is necessary to offset subsidization which is causing injury. With this purpose in mind, it is necessary to examine allegations of additional subsidization programmes with respect to the same 
products and the same companies at issue in the original investigation.
824 
7.495.  The United States contends that the text of each relevant provision and the overall 
structure of the SCM Agreement suggest that an investigation  and a subsequent review  of duties 
imposed pursuant to an investigation are "two separate and distinct processes, governed by 
separate provisions of the SCM Agreement."825 The United States argues that were the rules of 
another provision of the SCM Agreement to be inco rporated into Article 21, those rules would be 
expressly incorporated by cross-reference, as in the case with respect to the evidentiary rules in 
Article 12, which are incorporated by cross-reference into Article 21.4.826 Moreover, the 
United States argues that the text of Articles 11, 13 and 22 of the SCM Agreement expressly limits 
their application to the original investigation.827 Finally, the United States refers to findings of 
                                               
816 India's first written submission, paras. 594-595 and 616-619. 
817 Ibid. para. 621. 
818 Ibid. para. 622. 
819 Ibid. para. 622. 
820 Ibid. para. 623. 
821 United States' first written submission, paras. 578-579 and 604-607. 
822 Ibid. para. 582. 
823 Ibid. paras. 588 and 608. 
824 Ibid. para. 608. 
825 Ibid. para. 584. 
826 Ibid. para. 589. 
827 Ibid. paras. 590-597. WT/DS436/R 
 
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  panels and the Appellate Body confirming that "requirements found in provisions applicable to a 
countervailing duty or anti-dumping investigation  will not automatically be read into those 
provisions expressly applying to proceedings that take place after the conclusion of an original investigation, such as administrative or sunset reviews ."
828 
7.8.3  Main arguments of the third parties 
7.8.3.1  Canada 7.496.  Canada disagrees with India's argument that, where the same subsidized good is 
concerned, every new subsidy allegation requires initiation of a new investigation under Article 11 
of the SCM Agreement. According to Canada, new subsidy allegations should be permitted during review proceedings where appropriate protection of  due process rights is provided to interested 
parties.
829 
7.8.3.2  European Union 
7.497.  The European Union notes that the United States' administrative reviews combine both a 
prospective element, i.e. the rate of duty to be applied going forward, and a retrospective 
element, i.e. the amount of duty to be finally collected with respect to the past.830 
7.498.  The European Union submits that the pros pective element is subject to Article 21 of the 
SCM Agreement. The European Union does no t agree with India that Article 11 of the 
SCM Agreement applies to reviews initiated purs uant to Article 21.2 of the SCM Agreement. 
However, the European Union does not agree with the United States that the SCM Agreement is based on an absolute definitional distinction between the term "investigation" and the term "review".
831 The European Union notes that Article 21. 1 of the SCM Agreement provides for the 
duty to remain in force only as long as necessary to counteract injurious subsidization. While the 
term "recur" in Article 21.2 captures the concept of subsidization  that recurs or may recur, which 
supports the view that the review may relate to a new subsidy, the same term also suggests an 
element of commonality between what occurred previously and what occurred or may occur 
subsequently.832 The European Union also notes that the general term "subsidization" used in 
Articles 21.1, 21.2 and 21.3 does not refer to individual subsidies or subsidy programmes. Finally, 
the European Union submits that the right of an investigating authority to initiate reviews under 
Article 21.2 is not unfettered, since such a review may only be initiated where it is "warranted" or if an interested party submits "positive evidence substantiating the need for a review". According to the European Union, whether or not the evidence of the alleged new subsidies amounted to 
positive evidence warranting the initiation of the review is for panels to decide on a case-by-case 
basis.
833 
7.499.  Turning to the retrospective element, th e European Union notes that the SCM Agreement 
does not contain a provision equivalent to Article 9.3 of the AD Agreement, which deals with final 
assessment proceedings. Thus, the European Union submits that the retrospective element is subject to the relevant disciplines of Article 19.3 of the SCM Agreement. Nevertheless, the 
European Union contends that WTO Members are entitled to operate final assessment proceedings 
of the type used by the United States. Finally, according to the European Union, whether or not 
new subsidies may be included in such final assessment proceedings depends on the facts of particular cases.
834 
7.8.4  Evaluation 
7.500.  The US measures at issue are administrative review determinations and the underlying 
proceedings, which the United States accepts were conducted under Article 21 of the 
                                               
828 United States' first written submission, paras. 598-602. 
829 Canada's third-party statement, para. 9. 
830 European Union's third-pa rty statement,  para. 1. 
831 Ibid. paras. 1, 4 and 5. 
832 Ibid. paras. 6 and 7. 
833 Ibid. paras. 7-14. 
834 Ibid. paras. 1, 18 and 19. WT/DS436/R 
 
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  SCM Agreement.835 It is undisputed that the examination of the new subsidy allegations involved 
the same product at issue in the original investigation. India points to no obligation in the text of Article 21 that was breached by the USDOC in it s examination of the new subsidy allegations in 
administrative reviews.
836 Rather, India contends that the new subsidy allegations should have 
been examined under Articles 11.1837, 13.1, 22.1 and 22.2 of the SCM Agreement, and that failure 
to do so was inconsistent with these latter provisions.838 
7.501.  Thus, the issue before the Panel is whether the USDOC was entitled, under Articles 21.1 
and 21.2 of the SCM Agreement, to consider new subsidy allegations – i.e. subsidy programmes 
not formally examined in the original investigation – in the administrative reviews at issue, or whether, as India argues, new subsidy allegations could only be considered in the context of an investigation initiated under Article 11.1 of the SCM Agreement, and undertaken consistently with 
Articles 13.1, 22.1, and 22.2 of the SCM Agreement. In other words, we must decide whether the 
scope of USDOC's administrative reviews was necessarily circumscribed and limited to the particular subsidy programmes that had been formally examined in the original investigation. If 
the USDOC was authorized to examine new subsidy allegations under Articles 21.1 and 21.2, we 
need not further consider India's claims. Conversely, if we find that the USDOC was not authorized to consider new subsidy allegations in administrative reviews, we would have to go on to examine 
whether the USDOC acted consistently with Articles 11.1, 13.1, 22.1 and 22.2 in the investigation 
and reviews at issue. We understand that this is the first time a panel has been faced with this specific question.  
7.502.  Article 21.1 provides in pertinent part that "[a] countervailing duty shall remain in force 
only as long as and to the extent necessary to counteract subsidization which is causing injury." 
Article 21.2 of the SCM Agreement refers to the "r eview" of the "need for the continued imposition 
of the duty" on the initiative of the investigating authority, where warranted, or upon a 
substantiated request by an interested party. Article 21.2 also sets out that interested parties have 
the right to request an examination of whether "the  continued imposition of the duty is necessary 
to offset subsidization, whether the injury would be likely to continue or recur if the duty were 
removed or varied, or both." Article 21.2 does not provide for a particular methodology with 
respect to the substantive determinations to be made in this type of review. 
7.503.  There is nothing in the text of Article 21.1 that could be understood to necessarily relate 
the term "subsidization" in this provision to specific programmes or limit the meaning of this term 
to previously examined  subsidization, i.e. subsidization under programmes formally examined and 
found to constitute countervailable subsidies in the original investigation. In our view, nothing in Article 21.1 suggests that the term "subsidization" may not cover newly alleged subsidy 
programmes as well. Similarly, nothing in the text of Article 21.2 limits the review of the need for 
continued imposition of the duty to consideration of already examined  subsidization. In our view, 
consideration of the need for the continued imposition of the duty may refer to both consideration 
in light of subsidy programmes formally examined in the original investigation, and consideration 
in light of subsidy programmes identified in new allegations in the context of a review. For us, new subsidy allegations are clearly relevant to the investigating authority's consideration of the need for continued imposition of the duty with respect to  the particular subsidized imports, as continued 
imposition of the duty may be necessary in light of new subsidization, even if previously examined 
subsidization has expired. 
7.504.  Our reasoning is consistent with the understanding of the panel in US – Carbon Steel . In 
the context of sunset reviews, that panel found that Article 21.3 of the SCM Agreement requires an 
investigating authority to engage in an inherently prospective analysis of whether subsidisation is 
                                               
835 United States' first written submission, para. 582; and response to Panel question No. 66, para. 88. 
836 India does not raise any issue relating to whether the new subsidy allegations involved a financial 
contribution, which confers a benefit and is considered to be specific. 
837 The reference to Article 11.1 of the SCM Agreemen t here only relates to India's claim under this 
provision regarding the alleged failure to initiate an investigation into new subsidies. We recall that the Panel found in its preliminary rulings that India's claims relating to the initiation of an investigation despite the insufficiency of evidence under Articles 11.1, 11.2 an d 11.9 of the SCM Agreement fall outside the Panel's 
terms of reference. (see paras. 1.29-1.38 and 1.42-1.43 above) 
838 See United States' response to Panel question No . 66, para. 87; and India's first written submission, 
paras. 621-623. WT/DS436/R 
 
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  likely to continue or recur should the countervailing duty be revoked. That panel found that such 
analysis must have an adequate factual basis.  In this context, that panel stated that:  
[I]n assessing the likelihood of subsidisation in the event of revocation of the CVD, an 
investigating authority in a sunset review may well consider, inter alia , the original 
level of subsidisation, any changes in the original subsidy programmes, any new 
subsidy programmes introduced after the imposition of the original CVD , any 
changes in governmental policy, and any changes in relevant socio-economic and 
political circumstances.839 
7.505.  India suggests that "reviews under Article 21 are aimed at correcting or re-examining 
determinations relating to subsidization and injury that already exist."840 India argues that a 
"[r]eview or continuation cannot be for something that was not in existence at all."841 We find 
India's argument unclear. India's argument appears to rest on the view that the focus of the 
review under Article 21 is the original determination. However, Article 21.2 clearly establishes what is to be reviewed – not the original determination, but "the need for the continued imposition 
of the duty". The investigating authority's review under Article 21.2 concerns the continued 
imposition of a countervailing duty, which is a measure clearly "in existence" at the time of the review. The question to be answered in the revi ew is whether the continued existence of that 
measure is justified. There is nothing in the te xt of Articles 21.1 or 21.2 that would limit an 
investigating authority to considering only whether the original basis for the measure is sufficient to justify its continued existence. 
7.506.  We consider that once a countervailing duty measure has been imposed, an investigating 
authority may review the correct amount of duty as well as the need for the continued imposition 
of such duty. To us, this is clear from the fact that Article 21.2 refers to consideration of possible 
continued imposition of the duty if it were varied, that is, if the amount of duty were changed. 
Therefore, if a subsidy programme, found in the original investigation to be countervailable, is 
decreased (in terms of the benefit) or is terminated, interested exporting parties may request that the countervailing duty imposed on the basis of th at programme be reduced or terminated. In our 
view, it seems only logical and fair that, if there is an allegation that new subsidy programmes 
benefit the product that is the subject of th e countervailing duty and are countervailable, 
interested domestic parties may request that the duty level be amended, and possibly increased, to take such subsidies into account. In order to do so, it will, of course, be necessary for the 
investigating authority to determine that such programmes are in fact countervailable subsidies 
benefitting imports of the same product, as well as the amount of such subsidies. As we understand it, that is precisely what the USDOC undertook to do with respect to the new subsidy 
allegations at issue here.
842 
7.507.  Thus, we conclude that USDOC was entitled, under Articles 21.1 and 21.2 of the 
SCM Agreement, to examine new subsidy allegations in the administrative reviews at issue. 
Consequently, as mentioned above, we need not further consider India's claims under 
Articles 11.1, 13.1, 22.1 and 22.2 of the SCM Agreement. 
7.508.  Therefore, in light of the above, the Pane l rejects India's claims that the examination by 
the United States of new subsidy allegations in administrative reviews related to the imports at 
issue was inconsistent with Articles 11.1, 13.1, 21.1, 21.2, 22.1 and 22.2 of the SCM Agreement. 
                                               
839 Panel Report, US – Carbon Steel , para. 8.96. (bold added) In its report, the Appellate Body quoted 
this passage, but st ated that it "is not called upon, in [the] particular  appeal, to review the Panel's [] 
interpretation  of Article 21.3 and the obligations it sets forth with respect to the determination to be made in a 
sunset review." (Appe llate Body Report, US – Carbon Steel , para. 138)) 
840 India's first written submission, para. 621. 
841 Ibid. 
842 We note that, pursuant to Article 21.4 of the SCM Agreement, the evidentiary and procedural 
requirements of Article 12 of the SCM Agreement ap ply to reviews carried out under Article 21 of the 
SCM Agreement. India has not raised any claim under Article 12 in the context of the examination of new 
subsidy allegations in administrative reviews. WT/DS436/R 
 
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  7.9  Alleged inconsistencies with respect to the USDOC's public notice: Article 22.5 
7.509.  India pursues a number of claims under Article 22.5 of the SCM Agreement. This provision 
requires investigating authorities to issue public notices explaining the legal and factual basis for their final determinations imposing countervailing duties. In the present case, USDOC gave public 
notice of its determination by publishing its final determination. India challenges the adequacy of 
USDOC's final determination. The United States asks the Panel to reject India's claims. 
7.9.1  Relevant WTO provision 
7.510.  Article 22.5 of the SCM Agreement provides in relevant part: 
A public notice of conclusion or suspension of an investigation in the case of an 
affirmative determination providing for the imposition of a definitive duty or the acceptance of an undertaking shall contain, or otherwise make available through a 
separate report, all relevant information on the matters of fact and law and reasons 
which have led to the imposition of final measures or the acceptance of an undertaking, due regard being paid to the requirement for the protection of 
confidential information. In particular, the notice or report shall contain the 
information described in paragraph 4, as well as the reasons for the acceptance or rejection of relevant arguments or claims made by interested Members and by the 
exporters and importers.  
7.511.  Article 22.4, which is referred to in Article 22.5, provides: 
A public notice of the imposition of provisional measures shall set forth, or otherwise 
make available through a separate report, sufficiently detailed explanations for the 
preliminary determinations on the existence of a subsidy and injury and shall refer to 
the matters of fact and law which have led to arguments being accepted or rejected. 
Such a notice or report shall, due regard being paid to the requirement for the 
protection of confidential information, contain in particular: 
(i) the names of the suppliers or, when this is impracticable, the supplying 
countries involved; 
(ii) a description of the product which is sufficient for customs purposes; 
(iii) the amount of subsidy established and the basis on which the existence of a 
subsidy has been determined; 
(iv) considerations relevant to the injury determination as set out in Article 15; 
(v) the main reasons leading to the determination. 
7.512.  As explained below, we also consider it relevant that the second sentence of Article 22.3, 
which requires public notice of any preliminary or final determination, provides that such notice 
shall set forth "in sufficient detail the findings and conclusions reached on all issues of fact and law 
considered material by the investigating authorities". 
7.9.2  Main arguments of the parties 
7.9.2.1  India 
7.513.  India claims that the USDOC's public notice failed to properly explain its findings: (i) that 
the SDF Loan Programme is financed by mandatory consumer levies, rather than voluntary contributions by steel producers; that certain in-country price benchmarks should not have been 
used to assess benefit conferred by NMDC's sales of iron ore; (ii) that the GOI provided captive 
mining rights for coal to Tata; that the Captive Mining for Iron Ore Programme is de facto  specific; 
and (iii) that NMDC export prices should have been used as a price benchmark. WT/DS436/R 
 
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  7.9.2.1.1  In relation to the SDF programme 
7.514.  India submits that, during the original in vestigation, exporters argued that the SDF Loan 
Programme was similar to the ECSC programme. Ex p o r t e r s  m a d e  t h i s  a r g u m e n t  b e c a u s e ,  i n  a  
separate proceeding, the USDOC had found that financial pools created under the ECSC out of 
producer's own funds were not countervailable.843 India notes that the USDOC rejected this 
argument because under the SDF programme "steel consumers were compelled by the GOI to pay a levy, the proceeds of which were channeled back to a select group of steel producers."
844 The 
USDOC concluded that the SDF levies "are analogous to tax revenues collected from consumers as 
mandated by the GOI."845  
7.515.  India submits that USDOC's explanation is inadequate for the purpose of Article 22.5, 
because it fails to adequately clarify the reasons for the rejection of the argument raised by the 
interested parties, and ignores material facts on the record regarding the similarities between the 
ECSC and the SDF Loan Programmes. According to India, the exporters' argument was rejected 
merely on the basis that unlike the ECSC programme, the SDF programme was compulsory and 
akin to a taxation programme. India contends that the USDOC failed to provide the material facts 
that led it to differentiate the SDF Loan Programme from the ECSC programme.846 India submits 
that the USDOC ignored numerous similarities be tween the ECSC and the SDF Loan programmes. 
7.9.2.1.2  In relation to the USDOC's reject ion of certain in-country benchmarks when 
assessing benefit conferred by  NMDC's sales of iron ore 
7.516.  This claim pertains to the facts surrounding India's Article 14(d) claim that the USDOC 
improperly rejected certain in-country price data, and improperly refused to determine price 
benchmarks for Essar and JSW on the basis of a co nfidential price quote provided by ISPAT. India 
submits that the availability of in-country benchmarks is a relevant and material fact that ought to have been taken into account by the USDOC as part of its findings, and should therefore have 
been reflected in its final determination.
847 India contends that USDOC's failure to do so is in 
breach of Article 22.5. 
7.9.2.1.3  In relation to USDOC's determin ation that GOI granted captive coal mining 
rights to Tata 
7.517.  This claim pertains to India's claim that the USDOC violated Article 1.1(a)(1) by finding 
that GOI had provided goods to Tata in the form of rights to (captively) mine coal. India contends that the USDOC failed to explain in sufficient detail the matters of fact and law leading to USDOC's 
conclusion that the GOI granted captive mining rights to Tata. India also contends that the USDOC 
failed to respond to the argument that GOI did not grant any mining rights to Tata.
848 
7.9.2.1.4  In relation to the de facto  specificity of the Captive Mining of Iron Ore 
Programme 
7.518.  India also submits that the USDOC failed to properly consider Tata's arguments that the 
Captive Mining of Iron Ore Programme was not de facto  specific to the four steel producers 
identified by the USDOC.849 India contends that the USDOC provided no basis or reasons for its 
factual determination regarding the existence of a separate governing regulation for mining rights for captive mining of iron ore.
850 
                                               
843 See, Final Affirmative Countervailing Duty Determination: Steel Wi re Rod From Germany, 
62 FR 54990, 54993 (October 22, 1997) as cited in 2001 Issues and Decision Memorandum, Exhibit IND-7,  
Comment 1. 
844 2001 Issues and Decision Memorandum, Exhibit IND-7,  Comment 1. 
845 Ibid. 
846 India's first written submission, para. 630. 
847 Ibid. para. 631. 
848 Ibid. para. 633. 
849 Ibid. para. 635. 
850 Ibid. para. 637. WT/DS436/R 
 
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  7.9.2.1.5  In relation to NMDC's export prices 
7.519.  India submits851 that the USDOC failed to explain why it rejected Essar's argument, during 
the 2007 administrative review, that an NMDC price to a foreign buyer could be considered as an appropriate Tier II benchmark since the NMDC would not be interested in subsidizing foreign 
buyers.
852 India contends that the USDOC determined that such a price is inappropriate because 
the issue of transnational subsidization is moot853, and because the price is set by the government 
provider of the financial contributions under investigation.854 According to India, USDOC failed to 
properly explain its rejection of the argument, as  required by Article 22.5 of the SCM Agreement. 
7.9.2.2  United States 7.9.2.2.1  In relation to the SDF Loan Programme 7.520.  The United States submits that the USDOC explained in detail its reasons for rejecting 
exporters' argument that the SDF Loan Progra mme was similar to the ECSC Programme because 
SDF loans were allegedly funded from voluntary steel producer levies.
855 Referring to the USDOC's 
final determination856, the United States contends that the USDOC clearly explained its reasons for 
finding that the SDF levies operated differently than the funds collected under the ECSC 
programme. The United States refers in this rega rd to the USDOC's finding that, unlike the ECSC 
funds, the SDF funds were collected from cons umers, through mandatory price increases on 
certain steel products.  
7.521.  The United States notes India's reference to alleged similarities between the two 
programmes, such as the fact that both the SDF and ECSC programmes were initiated pursuant to 
government action, and that the High Authority of the ECSC was authorized to place levies on the 
production of steel and coal.857 According to the United States, neither of these alleged facts 
rebuts USDOC's explanation that unlike the ECSC levies imposed on producers, the SDF levies were the equivalent of a GOI-mandated tax imposed on and paid by consumers. The United States 
contends that India's argument (in the context of  its Article 22.5 claim) that the SDF funds cannot 
be characterized as a tax because "the JPC was not controlled by the GOI"
858 demonstrates that 
India's disagreement is not with the adequacy of Commerce's explanation for its decision, in 
accordance with Article 22.5 of the SCM Agreement,  but rather with the substance of the decision 
itself. 
7.9.2.2.2  In relation to the USDOC's reject ion of certain in-country benchmarks when 
assessing benefit conferred by NMDC's sales of iron ore  
7.522.  The United States refers to its arguments regarding the substance of India's Article 14(b) 
claim to rebut India's Article 22.5 claim that the USDOC failed to take into account material factual information.
859 
7.9.2.2.3  In relation to USDOC's determin ation that GOI granted captive coal mining 
rights to Tata 
7.523.  The United States refers to its arguments regarding the substance of India's Article 1.1(b) 
and 14(b) claims to rebut India's Article 22.5 claim that the USDOC failed to explain its 
determinations with regard to the GOI's grant of mining rights to Tata.860 
                                               
851 India's first written submission, para. 638. 
852 2007 Issues and Decision Memorandum, Exhibit IND-38, Comment 11. 
853 Ibid. 
854 Ibid. 
855 United States' first written submission, paras. 614-616. 
856 2001 Issues and Decision Memorandum, Exhibit IND-7, Comment 1. 
857 India's first written submission, para. 629. (citations omitted) 
858 Ibid. para. 630. 
859 United States' first written submission, para. 617. 
860 Ibid. para. 618. WT/DS436/R 
 
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  7.9.2.2.4  In relation to the de facto  specificity of the Captive Mining of Iron Ore 
Programme 
7.524.  The United States refers to its arguments regarding the substance of India's Article 2.1(c) 
claim to rebut India's Article 22.5 claim that the USDOC failed to take into account material factual 
information.861 
7.9.2.2.5  In relation to NMDC's export prices 7.525.  The United States refers
862 to its arguments regarding the substance of India's 
Article 1.1(b) claim to rebut India's Article 22.5 claim that the USDOC failed to explain why it 
rejected Essar's argument, during the 2007 administrative review, that an NMDC price to a foreign buyer could be considered as an appropriate Tier II benchmark since the NMDC would not be interested in subsidizing foreign buyers. 
7.9.3  Evaluation 
7.526.  Article 22.5 of the SCM Agreement is virtually identical to Article 12.2.2 of the 
AD Agreement, which was recently addressed by the panel in China – X-ray Equipment , with 
reference to the reports of the panels in EU – Footwear (China)  and EC – Tube or Pipe Fittings , in 
the following terms: 
In interpreting the scope of the obligation set forth in the first sentence of 
Article 12.2.2, we note that the text of Article 12.2.2 refers to Article 12.2.1. 
Accordingly, the information described in Article 12.2.1 must be included in public notices issued pursuant to Article 12.2.2. We consider that it is also appropriate to have regard to the contextual guidance a fforded by Article 12.2, which applies to 
public notices of both preliminary and fina l determinations. Article 12.2 provides that 
such public notices shall set forth "in sufficient detail the findings and conclusions reached on all issues of fact and law considered material by the investigating 
authorities". In considering the contextual guidance afforded by Article 12.2, we have 
regard to the following[] findings made by the panels in EU – Footwear (China)  and EC 
– Tube or Pipe Fittings : 
The chapeau of Article 12.2.2, Article 12.2, requires the publication of 
"findings and conclusions on all issues of fact and law considered material by the investigating authorities " (emphasis added). In our view, this is 
relevant context for a proper understanding of Article 12.2.2, and thus 
informs our understanding of what must be included in a public notice 
under that provision. China suggests that whether information and reasons for the acceptance or rejection of arguments must be provided in 
such a notice should be judged from the perspective of the interested 
parties. We do not agree. We consider that while an investigating authority must make innumerable decisions during the course of an 
anti-dumping investigation, with respect to procedural matters, 
investigating methods, factual considerations, and legal analysis, which may be of importance to individual interested parties, not all of these are "material" within the meaning of Ar ticle 12.2.2. In our view, what is 
"material" in this respect refers to an issue which must be resolved in the 
course of the investigation in order for the investigating authority to reach its determination whether to impose a definitive anti-dumping duty. We 
note in this regard the views of the panel in EC – Tube or Pipe Fittings : 
Article 12.2 provides that the findings and conclusions on 
issues of fact and law which are to be included in the public 
notices, or separate report, are those considered "material" 
                                               
861 United States' first written submission, para. 617. 
862 See fn. 887 to the United States' first written submission, which refers to paras. 638-639 of India's 
first written submission. These paras. contain India's Article 22.5 claim regarding the USDOC's response to 
Essar's attempted reliance on NM DC prices to foreign buyers. WT/DS436/R 
 
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  by the investigating authority. The ordinary meaning of the 
term of "material" is "important, essential, relevant".  
We understand a "material" issue to be an issue that has 
arisen in the course of the investigation that must necessarily 
be resolved in order for the investigating authorities to be 
able to reach their determination. We observe that the list of topics in Article 12.2.1 is limited to matters associated with 
the determinations of dumping and injury, while Article 12.2.2 
is more generally phrased ("all relevant information on matters of fact and law and reasons which have led to the imposition of final measures, or the acceptance of a price 
undertaking"). Nevertheless, the phrase "have led to", implies 
those matters on which a factual or legal determination must necessarily be made in connection with the decision to impose 
a definitive anti-dumping duty. … contextual considerations 
also support this interpretation since, the only matters referred to "in particular" in subparagraph 12.2.2 are, in 
addition to the information described in subparagraph 2.1, 
the reasons for acceptance or rejection of relevant arguments or claims, and the basis for certain decisions. 
We cannot conclude that every single decision of an investigating 
authority in the course of an investigation can be considered as having 
"led to" the imposition of the final measures, such that it must be described, together with the "information" relevant to the decision, in the 
published notice of the final determination. Not every question or issue 
which arises during an investigation, and which is resolved by the investigating authority, is necessarily considered material by the 
investigating authorities, and may be said to have "led to" the imposition 
of the anti-dumping duty, even though it may be of interest or significant 
to one or more interested parties. In our view, the notions of "material" and "relevant" in Article 12.2.2 must be judged primarily from the 
perspective of the actual final determination of which notice is being 
given, and not the entirety of the investigative process. Other provisions of the Dumping Agreement, notably Articles 6.1.2, 6.2, 6.4, and 6.9 
address the obligations of the investigating authority to make information 
available to parties, disclose information, and provide opportunities for parties to defend their interests. In our view, Article 12.2.2 does not 
replicate these provisions, but rather, requires the investigating authority 
to explain its final determination, providing sufficient background and reasons for that determination, such that its reasons for concluding as it did can be discerned and are understood. 
We are in broad agreement with these findings. Consistent therewith , we consider that 
the first sentence of Article 12.2.2 requires an investigating authority to include in its public notice a description of its findings an d conclusions on the issues of fact and law 
that it considered material to its decision to impose final measures. That description 
must include "sufficient detail". While the sufficiency of the detail of the description may depend on the precise nature of the findings made by the investigating authority, 
it should in any event be sufficient to ensure that the investigating authority's reasons 
for concluding as it did can be discerned and understood by the public. The ability of the public to understand the findings and conclusions of the investigating authority is important, for the concept of "public" is broad: it includes "interested parties" within 
the meaning of Article 6.11 of the Anti -Dumping Agreement and, for example, 
consumer organizations that might be expected  to have an interest in the imposition 
of anti-dumping measures. Article 13 of the Anti-Dumping Agreement provides for 
judicial review of the final determinations referred to in Article 12.2.2. In our view, the 
level of detail of the description of the authority's findings and conclusions must be sufficient to allow the abovementioned entities to assess the conformity of those 
findings and conclusions with domestic law, and avail themselves of the Article 13 
judicial review mechanism where they consider it necessary. In a similar vein, we also WT/DS436/R 
 
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  consider that the level of detail should be sufficient to allow the relevant exporting 
Member to ascertain the conformity of the findings and conclusions with the provisions of the WTO Agreement, and to avail itself  of the WTO dispute settlement procedures 
where it considers it necessary. Our approach is consistent with the following findings 
recently made by the Appellate Body in China – GOES : 
Article[] 12.2.2 […] capture[s] the principle that those parties whose 
interests are affected by the imposition of final anti-dumping and 
countervailing duties are entitled to know, as a matter of fairness and due 
process, the facts, law and reasons that have led to the imposition of such duties. The obligation of disclosure under Article[] 12.2.2 … is framed by the requirement of "relevan ce", which entails the disclosure of 
the matrix of facts, law and reasons that logically fit together to render 
the decision to impose final measures. By requiring the disclosure of "all relevant information" regarding these categories of information, 
Article[] 12.2.2 … seek[s] to guarantee that interested parties are able to 
pursue judicial review of a final determination as provided in Article 13 of the Anti-Dumping Agreement  … 
… 
The second sentence of Article 12.2.2 requires the inclusion in the public notice of "the 
reasons for the acceptance or rejection of relevant arguments or claims made by the exporters and importers". In light of our interpretation of the first sentence of 
Article 12.2.2, we consider that "relevant" arguments or claims are those that relate 
to the issues of fact and law considered material by the investigating authority. Since this provision concerns the arguments and claims made by exporters and importers, 
whose interests will be adversely affected by an affirmative determination, it is 
particularly important that the "reasons" for rejecting or accepting such arguments should be set forth in sufficient detail to allow those exporters and importers to 
understand why their arguments or claims were treated as they were, and to assess 
whether or not the investigating authority's treatment of the relevant issue was consistent with domestic law and/or the WTO Agreement.
863 
7.527.  We agree with these views and shall be gu ided by them in examining India's Article 22.5 
claims. 
7.9.3.1  The USDOC's explanation of its treatment of SDF levies 
7.528.  Concerning India's claim that the USDOC failed to adequately clarify the reasons for the 
rejection of an argument raised by interested parties, we note the argument made by Indian 
respondents in the investigation that the USDOC's treatment of SDF loans as countervailable "contradict[s] the Department's precedent in other cases in which it found that loans from a pool 
of funds administered by an industry association, including those with government involvement, do 
not constitute countervailable subsidies".
864 In this regard, the respondents referred to the 
USDOC's finding that "benefits received by producers from financial pools created from contributions of the producers' own funds under the [ECSC] program are not countervailable".  
7.529.  In response, the USDOC stated:  
we do not agree with respondents' contention  that the SDF levies, much like the ECSC 
program, represented the integrated steel producers' own money and, thus, cannot 
constitute a government financial contribution. Under the ECSC program, producers 
make voluntary contributions to a pool of money using their own funds. Under the SDF program steel consumers were compelled by the GOI to pay a levy, the proceeds 
of which were channeled back to a select group of steel producers. Thus, rather than 
                                               
863 Panel Report, China – X-ray Equipment , paras. 7.458, 7.459 and 7.472. 
864 2001 Issues and Decision Memorandum, Exhibit IND-7, p. 8. WT/DS436/R 
 
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  constituting the steel producers' own funds,  the SDF levies, as noted by petitioners, 
are analogous to tax revenues collected from consumers as mandated by the GOI.865 
7.530.  We consider that the USDOC's statement adequately addressed the respondents' argument 
that SDF levies were derived from producers' ow n funds. The USDOC's statement was sufficient for 
respondents to understand why their argument had been rejected, and to assess whether the 
USDOC's approach was consistent with domestic la w and/or the WTO Agreement. We reject India's 
claim accordingly. 
7.531.  We also observe that India's claim seems to be more concerned with the substance of the 
USDOC's determination than the explanation thereof. In this regard, we note India's contention that "[t]he aforesaid determination of United States is misplaced"
866, and that the USDOC "ignored 
the material facts on record" in making its determination.867 Since Article 22.5 does not have any 
bearing on the substance of an investigating authority's determination, we decline to apply 
Article 22.5 in respect of such substantive matters.  
7.9.3.2  In relation to the USDOC's reject ion of certain in-country benchmarks when 
assessing benefit conferred by  NMDC's sales of iron ore 
7.532.  We recall our finding that, despite the absence of any explanation provided by the USDOC, 
the United States sought to justify the USDOC's treatment of the relevant domestic price 
information, using ex post  rationalizations. As explained above868, private domestic prices are the 
"primary benchmark" for assessing benefit under Article 14(d) of the SCM Agreement.869 The 
assessment of domestic price information submitted for possible use as price benchmarks is therefore material to a determination imposing final measures. Since the USDOC failed to provide 
any explanation of any consideration of the relevant domestic price information, the USDOC 
necessarily failed to provide adequate public notice  of its findings on this matter, contrary to the 
requirements of Article 22.5 of the SCM Agreement. 
7.9.3.3  In relation to USDOC's determinat ion that GOI granted captive coal mining 
rights to Tata 
7.533.  We recall that we have upheld India's Article 1.1(a)(i) claim that the USDOC improperly 
determined that Tata had been provided goods by  the GOI in the form of a captive coal mining 
lease. In light of that finding, we see no need to address India's claim regarding the USDOC's treatment of that issue in its public notice. We therefore exercise judicial economy in respect of 
this claim. 
7.9.3.4  In relation to the de facto  specificity of the Captive Mining of Iron Ore 
Programme 
7.534.  Based on our finding that the USDOC's determination of the existence of a Captive Mining 
of Iron Ore Programme is inconsistent with Article 12.5, we see no need to address India's claim 
regarding the USDOC's treatment of that issue in its public notice. We therefore exercise judicial economy in respect of this claim. 
7.9.3.5  In relation to NMDC export prices 
7.535.  This claim concerns Essar's argument that the USDOC should use NMDC export prices as a 
price benchmark because NMDC would not subsidize foreign purchasers. In its Issues and Decision Memorandum, the USDOC explained that it would not use NMDC price quotes as either Tier I or 
Tier II benchmarks "[b]ecause these price quotes pertain to the very government provider of the 
goods at issue".
870 The USDOC also explained that, as a result of its decision not to use any NMDC 
price as a Tier I or II benchmark, the issue of whether or not NMDC would subsidize its export 
                                               
865 2001 Issues and Decision Memorandum, Exhibit IND-7, p. 10. 
866 India's first written submission, para. 629. 
867 Ibid. para. 630. 
868 See para. 7.158 above. 
869 Appellate Body Report, US – Softwood Lumber IV , para. 90. 
870 2007 Issues and Decision Memorandum, Exhibit IND-38, p. 50 of 58, Comment 11. WT/DS436/R 
 
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  customers was "moot". We consider that this explanation by the USDOC is sufficient for the 
purpose of Article 22.5 of the SCM Agreement. The USDOC's statement makes it clear that the USDOC did not use the NMDC export price quotes as a benchmark because they pertain to the very government provider under investigation. Interested parties could reasonably understand 
from this that the USDOC would not engage in price comparisons that would necessarily be 
circular. Interested parties could also reason ably understand that, because of the USDOC's 
decision not to engage in circular price comp arisons using government price benchmarks, there 
was no need to consider whether or not a government would subsidize its export sales. We reject 
India's Article 22.5 claim accordingly. 
7.10  Consequential claims under Articl es 10, 19.3, 19.4, 32.1 and 32.5 of the 
SCM Agreement, Article VI of the GATT 1994 and Article XVI:4 of the WTO Agreement 
7.536.  India notes that Articles 19.3 and 19.4 of  the SCM Agreement mandate that countervailing 
duty in respect of any product shall be levied in  the appropriate amount and not in excess of the 
amount of subsidy found to exist. In addition, India notes that Article 32.5 of the SCM Agreement 
and Article XVI:4 of the WTO Agreement require that each WTO Member bring its laws, regulations 
and administrative procedures into conformity wi th the SCM Agreement. India submits that, to the 
extent the Panel finds that the determinations made by the United States in the underlying 
proceedings are in breach of Articles 1, 2 and 14 of the SCM Agreement or that the United States 
has failed to ensure conformity of its laws, regulations and administrative procedures identified by India with the SCM Agreement, the Panel shou ld also find, respectively, that the said 
determinations result in the imposition of countervailing duty in inappropriate amount and in 
excess of the amount of subsidy found to exist, contrary to Articles 19.3 and 19.4, and that the 
United States has acted inconsistently with Article 32.5 of the SCM Agreement and Article XVI:4 of the WTO Agreement. India also submits that to the extent the imposition of the countervailing 
duties at issue is not in accordance with the SCM Agreement, such imposition is ipso facto  in 
breach of Articles 10 and 32.1 of the SCM Agreement and Article VI of the GATT 1994. 
7.537.  We note that India's claims under Articles 10, 19.3, 19.4, 32.1 and 32.5 of the 
SCM Agreement, Article VI of the GATT 1994, an d Article XVI:4 of the WTO Agreement are purely 
consequential, in the sense that they depend on  the outcome of other claims pursued by India 
under other provisions of the SCM Agreement. Since we have already resolved those claims, we see no need to address India's consequential claims under Articles 10, 19.3, 19.4, 32.1 and 32.5 
of the SCM Agreement, Article VI of the GATT 1 994, and Article XVI:4 of the WTO Agreement. We 
therefore exercise judicial economy in respect of those claims.  
8  CONCLUSIONS AND RECOMMENDATION 
8.1  Conclusions 
8.1.  Having considered the United States' request for preliminary rulings regarding the scope of 
these proceedings, we conclude that: 
a. the 2013 sunset review is within the Panel's terms of reference; 
b. India's claim that the United States acted inconsistently with Article 11.1 of the 
SCM Agreement by failing to "initiate" an investigation into new subsidies is within the Panel's terms of reference; and 
c. India's claims that the United States acted inconsistently with Articles 11.1, 11.2 
and 11.9 of the SCM Agreement in connectio n with the alleged initiation of an 
investigation, despite the insufficiency of evidence in the domestic industry's written 
application, fall outside the Panel's terms of reference. 
8.2.  In light of the findings set forth in this Report, the Panel concludes that the United States 
acted inconsistently with: 
a. in connection with the provision of high grade iron ore by the NMDC: WT/DS436/R 
 
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  i. Article 2.1(c) of the SCM Agreement by failing to take account of all the mandatory 
factors in its determination of de facto  specificity regarding NMDC; and 
ii. Article 14(d) of the SCM Agreement by failing  to consider the relevant domestic price 
information for use as Tier I benchmarks, in respect of which the United States 
sought to rely on ex post  rationalization;  
b. in connection with the Captive Mining of Iron Ore Programme and the Captive Mining of 
Coal Programme: 
i. Article 12.5 of the SCM Agreement by faili ng to determine the existence of the 
Captive Mining of Iron Ore Programme on the basis of accurate information;  
ii. Article 1.1(a)(1)(iii) of the SCM Agreement by determining without sufficient 
evidentiary basis that GOI granted Tata a financial contribution in the form of a 
captive coal mining lease under the Captive Mining of Coal Programme/Coal Mining 
Nationalization Act; and 
iii. Article 14(d) of the SCM Agreement in connection with the USDOC's rejection of 
certain domestic price information when assessing benefit in respect of mining rights 
for iron ore; 
c. Article 15.3 of the SCM Agreement, with respect to Section 1677(7)(G) "as such" and 
"as applied" in the original investigation at issue, in connection with the 
"cross-cumulation" of the effects of imports that are subject to a CVD investigation with the effects of imports that are not subject to simultaneous CVD investigations; 
d. Articles 15.1, 15.2, 15.4 and 15.5 of the SCM Agreement, with respect to 
Section 1677(7)(G) "as such" and "as applied" in the original investigation at issue, in 
connection with injury assessments based on inter alia  the volume, effects and impact of 
non-subsidized, dumped imports; 
e. Article 12.7 of the SCM Agreement by applying "facts available" devoid of any factual 
foundation in connection with the following determinations: 
i. J S W  r e c e i v e d  i r o n  o r e  f r o m  N M D C  a t  n o  c h a r g e  d u r i n g  t h e  p e r i o d  c o v e r e d  b y  t h e  
2006 administrative review; 
ii. VMPL used and benefited from the 1993 KIP, 1996 KIP, 2001 KIP and 2006 KIP 
subsidy programmes; 
iii. Tata used and benefited, during the period covered by the 2008 administrative 
review, from the following subsidy programmes under the 2001 JSIP: 
(1) capital investment incentive; 
(2) feasibility study and project report cost reimbursement;  
(3) incentive for quality certification; and  
(4) employment incentives; 
iv. Tata used and benefited, during the period covered by the 2008 administrative 
review, from the following subsidy programmes: 
(1) 6 programmes at issue administered by the SGOG; 
(2) 8 programmes at issue administered by the SGOM; (3) 10 programmes at issue administered by the SGAP; 
(4) 9 programmes at issue administered by the SGOC; and 
(5) 22 programmes at issue administered by the SGOK; WT/DS436/R 
 
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  v. Tata used and benefited from the subsidy provided through the purchase of high-
grade iron ore from NMDC during the period covered by the 2008 administrative review; 
vi. Tata used and benefited from the MDA and MAI subsidy programmes during the 
period covered by the 2008 administrative review; and 
vii. Tata used and benefited from the six sub- programmes of the SEZ Act at issue during 
the period covered by the 2008 administrative review; 
f. Article 22.5 of the SCM Agreement by failing to provide adequate notice of the USDOC's 
consideration of certain in-country benchmarks when assessing benefit conferred by NMDC's sales of iron ore. 
8.3.  In light of the findings set forth in this Report, the Panel rejects India's claims that the 
United States acted inconsistently with: 
a. Article 14(d) of the SCM Agreement with respect to Section 351.511(a)(2)(i) to (iii) "as 
such"; 
b. Articles 14(d), 19.3 and 19.4 of the SCM Agreement with respect to 
Section 351.511(a)(2)(iv) "as such"; 
c. in connection with the provision of high grade iron ore by the NMDC: 
i. Article 1.1(a)(1) of the SCM Agreement in connection with the USDOC's 
determination that NMDC is a public body; 
ii. Article 2.4 of the SCM Agreement by determining de facto  specificity without positive 
evidence; 
iii. Articles 1.1(b) and 14(d) of the SCM Agreement by: 
(1) failing to determine whether the price charged by NMDC was adequate for NMDC 
itself, prior to applying the Tier I and II benchmarks to determine benefit to the 
recipient, in connection with Sections 351.511(a)(2)(i) to (iii) "as applied"; 
(2) failing to apply the ISPAT Tier I benchmark price to assess sales of iron ore by 
NMDC to Essar and JSW in the 2006 administrative review; 
(3) using benchmark prices adjusted for delivery charges; and 
(4) failing to use NMDC's export prices to determine Tier II benchmark prices in the 
2006, 2007 and 2008 administrative reviews; 
iv. the chapeau of Article 14 of the SCM Agreemen t by failing to explain why it excluded 
NMDC's export prices from the 2006, 2007 and 2008 reviews; 
d. in connection with the Captive Mining of Iron Ore Programme and the Captive Mining of 
Coal Programme: 
i. Article 1.1(a)(1)(iii) of the SCM Agreement by determining that the GOI provided 
goods through the grant of mining rights for iron ore and coal; 
ii. Articles 1.1(b) and 14(d) of the SCM Agreement in connection with the USDOC's 
notional price methodology for purposes of assessing benefit; and 
iii. Article 14(d) of the SCM Agreement in connection with the USDOC's use of delivered 
prices to determine benefit in re spect of mining rights for coal; WT/DS436/R 
 
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  e. in connection with SDF: 
i. Article 1.1(a)(1) of the SCM Agreement in connection with the USDOC's 
determination that the SDF Managing Committee constitutes a public body; 
ii. Article 1.1(a)(1)(i) of the SCM Agreement in connection with: 
(1) the USDOC's determination that the SDF Managing Committee provided direct 
transfers of funds; and 
(2) the USDOC's reference to SDF loans as "pot ential direct transfers of funds" in the 
2008 administrative review; 
iii. Article 1.1(b), the chapeau of Article 14 an d Article 14(b) of the SCM Agreement in 
connection with the USDOC's determination of  benefit conferred by SDF loans in the 
2006 and 2008 administrative reviews; 
f. Articles 15.1, 15.2, 15.3, 15.4 and 15.5 of the SCM Agreement in connection with 
Sections 1675a(a)(7) and 1675b(e)(2) "as such", and in connection with Section 1675a(a)(7) "as applied" in the sunset review at issue; 
g. Articles 15.1 and 15.4 of the SCM Agreement in connection with USITC's evaluation of 
certain economic factors in its injury determination;  
h. Article 12.7 of the SCM Agreement in connection with Sections 1677e(b) and 
351.308(a), (b) and (c) "as such"; 
i. Article 12.7 of the SCM Agreement in connection with the application of "facts available" 
concerning: 
i. the USDOC's "rule" to use the highest non- de minimis  subsidy rate; and 
ii. the USDOC's determinations that: 
(1) MML is a government or public body, in the context of the 2006 administrative 
review; 
(2) the purchase of iron ore by MML was for more than adequate remuneration, in 
the context of the 2006 administrative review; 
(3) Tata used and benefited, during the period covered by the 2008 administrative 
review, from the following subsidy programmes under the 2001 JSIP: (a) exemption 
of electricity duty; (b) offset of Jharkhand sales tax; (c) capital power generating subsidy; (d) interest subsidy; (e) stamp duty and registration; and (f) pollution control equipment subsidy; 
(4) Tata used and benefited, during the period covered by the 2008 administrative 
review, from the following subsidy programmes under the infrastructure subsidies to mega projects: (a) tax incentives; (b) grants; and (c) loans; 
(5) SDF loans provide a financial contribution in the form of a "potential direct 
transfer of funds", in the context of 2008 administrative review; and 
(6) Essar, ISPAT, SAIL and Tata benefited from a number of subsidy programmes, in 
the context of the 2013 sunset review; 
j. Articles 11.1, 13.1, 21.1, 21.2, 22.1 and 22.2 of the SCM Agreement in connection with 
the examination of new subsidy allegations in the administrative reviews at issue; and WT/DS436/R 
 
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  k. Article 22.5 of the SCM Agreement by failing to  properly explain in the public notices the 
reasons for rejecting: 
i. the interested parties' argument relating to the treatment of SDF levies; and  
ii. the use of NMDC export prices as a price benchmark. 
8.4.  In light of the findings set forth in paragr aphs 8.2 and 8.3 of this Report, the Panel exercises 
judicial economy in respect of India's claims under: 
a. Articles 2.1(c) and 2.4 of the SCM Agreement in connection with the USDOC's 
determination that the Captive Mining of Iron Ore Programme is de facto specific;  
b. Articles 2.1(a) and (b) of the SCM Agreement in connection with the USDOC's 
determination that the Captive Mining of Coal Programme/Coal Mining Nationalization Act is de jure  specific; 
c. Article 22.5 of the SCM Agreement in connection with the USDOC's public notice 
concerning: 
i. the GOI's grant of captive coal mining rights to Tata; and 
ii. the de facto  specificity of the Captive Mining of Iron Ore Programme. 
d. Articles 10, 19.3, 19.4, 32.1 and 32.5 of the SCM Agreement, Article VI of the 
GATT 1994, and Article XVI:4 of the WTO Agreement in connection with India's 
consequential claims. 
8.2  Recommendation 8.5.  Pursuant to Article 3.8 of the DSU, in ca ses where there is 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 th at agreement. Accordingly, to the extent the 
United States has acted inconsistently with certain provisions of the SCM Agreement, we conclude that the United States has nullified or impaired benefits accruing to India under that Agreement. 
8.6.  Pursuant to Article 19.1 of the DSU, having found that the United States acted inconsistently 
with certain provisions of the SCM Agreement,  we recommend the United States bring its 
measures into conformity with its obligations under that Agreement. The second sentence of 
Article 19.1 provides the Panel with the discretion to suggest ways in which the United States 
might implement this recommendation. In this regard, India has proposed specific suggestions for us to make.
871 Given the complexities to which implementation may give rise, we decline to 
exercise our discretion under the second sentence of  Article 19.1 in the manner proposed by India. 
__________  
                                               
871 India's first written submission, para. 642.