WT/DS436/6  
 
15 August 2014  
(14-4711)  Page: 1/16  
  Original: English  
 
 UNITED STATES – COUNTERVAILING MEASURES ON CERTAIN HOT-ROLLED CARBON 
STEEL FLAT PRODUCTS FROM INDIA 
NOTIFICATION OF AN APPEAL BY INDIA 
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES 
AND PROCEDURES GOVERNING THE SE TTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW 
 The following notification, dated 8 August 201 4, from the Delegation of India, is being 
circulated to Members.  
_______________ 
 
 1. Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate 
Review (WT/AB/WP/6) ("Working Procedures"), India hereby notifies the Dispute Settlement Body 
of its decision to appeal certain issues of law and legal interpretation in the Panel Report in United 
States -  Countervailing Measures On Certain Hot-Rolled Carbon Steel Flat Products From 
India (WT/DS436) ("Panel Report"). 
 2. Pursuant to Rules 20(1) and 21(1) of the Work ing Procedures, India files this Notice of 
Appeal together  with its Appellant's Submission with the Appellate Body Secretariat. 
 3. Pursuant to Rule 20(2)(d)(iii) of the Working Pr ocedures, this Notice of Appeal provides an 
indicative  list of the paragraphs of the Panel Report co ntaining the alleged errors of law and legal 
interpretation by the Panel in its report, without prejudice to India's ability to rely on other paragraphs of the Panel Report in its appeal. 
 
4. India seeks review by the Appellate Body of th e errors of law and legal interpretation by 
the Panel in its Report and requests findin gs by the Appellate Body as noted below. 
 
I. The Panel has committed legal errors in Sect ions 7.2.3 – 7.2.5 of its Report and in 
connected findings in Section 7.3.3 of its Report  
5. The Panel erred in its interpretation and application of Article 14(d) of the SCM Agreement 
and/or failed to make an objective assessment pursuant to Article 11 of the DSU, and/or falsely exercised judicial economy, in so far as the Pa nel found that 19 CFR § 351.511(a)(2)(i)-(iii) is not 
"as such" inconsistent with Article 14(d) of the SCM Agreement. In particular, the Panel erred 
because:  
 it incorrectly interpreted Article 14(d) in finding that Article 14(d) does not require an 
assessment as to 'adequacy' of remuneration actually received by the 'government' 
provider of goods prior to determining the quantum of benefit
1; 
 
 it incorrectly interpreted Article 14(d) in finding that government transactions can be 
completely ignored by investigating authorities in assessing the "prevailing market conditions" under Article 14(d) and instead, can be presumptively rejected
2; 
 
                                               
1 Panel Report, para. 7.35. 
2 Ibid. paras. 7.39, 7.42, 7.44, 7.46 and 7.189. WT/DS436/6 
 
- 2 - 
 
   it incorrectly interpreted Article 14(d) in finding that investigating authorities can use 
out of country benchmarks without first finding that the market is distorted by governmental interference or influence
3; 
 
 it did not make an objective assessment of the matter before it by failing to evaluate 
India's claim that 19 CFR § 351.511(a)(2)(ii) is inconsistent with Article 14(d) for requiring the use of out-of-country benchmarks without first exhausting all possible 
source of in-country benchmarks
4; 
 
 it did not make an objective assessment of the matter before it by failing to provide a 
basic rationale as required under Article 12.7 of the DSU, as to the manner in which 
out of country benchmarks may be resorted to even in situations other than 
governmental influence in the market5; 
 
 it did not make an objective assessment of the matter before it, in finding that the 
method under 19 CFR § 351.511(a)(2)(ii) "must" relate to the prevailing market conditions in the country of provision merely because the parent legislation reproduces 
Article 14(d)
6, despite finding that the actual words used in 19 CFR § 351.511(a)(2)(ii) 
do not "necessarily provide[sic] the type of analysis of 'prevailing market conditions'..."
7; 
 
 it incorrectly applied Article 14(d) in finding that 19 CFR § 351.511(a)(2)(ii) must 
automatically reflect the prevailing market conditions in the country of provision merely because the parent United States' legislation 19 U.S.C. 1677(5)(E)(iv) 
reproduces Article 14(d)
8; 
 
 it did not make an objective assessment of the matter before it, by failing to evaluate 
and assess India's claim that 19 CFR § 351.511(a)(2)(i)-(iii) is inconsistent 'as such' 
with Article 14(d) for mandating an affirmative finding of benefit merely because the government's price in question is less than a benchmark price, without assessing whether the government price or the price difference, if any, is in accordance with 
'commercial considerations'
9; 
 
 it did not make an objective assessment of the matter before it, by failing to assess 
India's claim that 19 CFR § 351.511(a)(2)(i)-(iii) is inconsistent "as such" with 
Article 14(d) because a government price that is considered 'adequate' under a method consistent with Article 14(d), i.e. 19 CFR § 351.511(a)(2)(iii) [Tier III], would 
nonetheless be held inadequate under 19 CFR § 351.511(a)(2)(i)-(ii); 
 
6. For these reasons, India requests the Appellate  Body to reverse the Panel's finding that 
19 CFR § 351.511(a)(2)(i)-(iii) is not "as such" inconsistent with Article 14(d) of the 
SCM Agreement. 
 7. Further, the Appellate Body must, where necessary, complete the legal analysis and find 
that: 
 
 19 CFR § 351.511(a)(2)(i) to (iii) is inconsistent with the first sentence  of Article 14(d) 
as it fails to assess adequacy of remuneration to the government provider prior to 
determining the quantum of benefit;  
 19 CFR § 351.511(a)(2)(i) is inconsistent with the second sentence  of Article 14(d) for 
disregarding government prices not set in accordance with competitive bidding in 
assessing the "prevailing market conditions" in the country of provision;  
                                               
3 Ibid. paras. 7.47, 7.49-7.50. 
4 Panel Report, para. 7.52. 
5 Panel Report, para. 7.50. 
6 Ibid. para. 7.51.  
7 Ibid. para. 6.5. 
8 Ibid. para. 7.51. 
9 Ibid. paras. 6.57, 6.61 and footnote 195. WT/DS436/6 
 
- 3 - 
 
   19 CFR § 351.511(a)(2)(ii) is inconsistent with Article 14(d) as it mandates 
investigating authorities to apply out of country benchmarks to calculate benefit without first determining that the market is distorted by governmental interference or influence; 
 
 19 CFR § 351.511(a)(2)(ii) is inconsistent with Article 14(d) as it mandates 
investigating authorities to apply out of country benchmarks without first exhausting 
all possible sources of in-country benchmarks 
 
 19 CFR § 351.511(a)(2)(ii) is inconsistent with Article 14(d) as it fails to prescribe any 
mechanism to adjust world market prices to the prevailing market conditions in the 
country of provision of goods; 
 
 19 CFR § 351.511(a)(2)(i) to (ii) is inconsistent with the second sentence of 
Article 14(d) as it mandates an affirmative finding of benefit merely because the 
government price is less than a benchmark price, without assessing whether the government price is in accordance with 'commercial considerations' or whether the 
price difference, if any, is otherwise justified by 'commercial considerations'; 
 
 19 CFR § 351.511(a)(2)(i) to (iii) is inconsistent with Article 14(d) as a government 
price consistent with 19 CFR § 351.511(a)(2)(iii) will be rejected if a benchmark is 
available under 19 CFR § 351.511(a)(2)(i) or (ii), as the case may be; 
 
8. Consequently, the Appellate Body must also find that all determinations by the United States 
in the underlying investigation are inconsistent with Article 14(d) since all the determinations apply 
19 CFR § 351.511(a)(2)(i)-(iii).  
II. The Panel has committed legal errors in Section 7.2.6 of its Report 
 
9. The Panel erred in its interpretation and application of Article 14(d) of the SCM Agreement 
and/or failed to make an objective assessment pursuant to Article 11 of the DSU, and/or falsely 
exercised judicial economy in so far as the Panel found that 19 CFR § 351.511(a)(2)(iv) is not "as 
such" inconsistent with Article 14(d) of the SCM Agreement. In particular, the Panel erred because: 
 
 it did not make an objective assessment of the matter before it by narrowing India's 
actual claim against 19 CFR § 351.511(a)(2)(iv)
10; 
 
 having interpreted Article 14(d) of the SCM Agreement as mandating an assessment of 
the "general conditions of the relevant market, in the context of which the market operators engage in sale transactions"
11, it failed to apply its own standard to assess 
whether 19 CFR § 351.511(a)(2)(iv) falls short of this mandate; 
 
 it incorrectly interpreted and applied Article 14(d) of the SCM Agreement in finding 
that contractual terms of government transactions can ipso facto  be excluded in 
assessing the "prevailing market conditions"12; 
 
 it failed to make an objective assessment of the matter before it by incorrectly 
assessing India's claim that 19 CFR § 351.511(a)(2)(iv) of the United States' law is " as 
such" inconsistent with Article 14(d) on the basis of existence of import transactions in 
a given  investigation13; 
 
                                               
10 Panel Report, paras. 6.80, 6.84 and 7.60. 
11 Ibid. para. 7.60. 
12 Ibid. para. 7.61. 
13 Ibid. para. 7.62. WT/DS436/6 
 
- 4 - 
 
   it incorrectly interpreted and applied Article 14(d) of the SCM Agreement in finding 
that the mere presence of one or more import transactions into the country of provision justifies the calculation of benefit at delivered prices level in all cases
14 
without a qualitative assessment of the entire market comprising both imports and 
domestic transactions. 
 
 it failed to make an objective assessment of the matter before it by not providing a 
basic rationale as required under Article 12.7 of the DSU, to justify the rejection of 
India's "as such" claim against 19 CFR § 351.511(a)(2)(iv)15; 
 
10. For these reasons, India requests the Appellate  Body to reverse the Panel's finding that 
19 CFR § 351.511(a)(2)(iv) is not "as such" inconsistent with Article 14(d) of the SCM Agreement. 
 11. Further, the Appellate Body must, where necessary, complete the legal analysis and find 
that:  
 19 CFR § 351.511(a)(2)(iv) is inconsistent with Article 14(d) as it mandatorily requires 
benefit calculation at delivered prices level in all cases even where the "prevailing 
market conditions" is not sales at delivered levels; 
 19 CFR § 351.511(a)(2)(iv) is inconsistent with Article 14(d) as it affirmatively find 
'benefit' in every case where out of country benchmarks are used simply because of the difference in freight; 
 19 CFR § 351.11(a)(2)(iv) is inconsistent with Article 14(d) because it countervails 
comparative advantages where out of country benchmarks are used. 
12. Consequently, the Appellate Body must also find that all determinations by the United States 
in the underlying investigation since 2004 are inconsistent with Article 14(d) as all such 
determinations apply 19 CFR § 351.511(a)(2)(iv).  
III. The Panel has committed legal errors in Section 7.7.5.1 of its Report 
 
13. The Panel erred in its interpretation and application of Article 12.7 of the SCM Agreement 
and/or failed to make an objective assessment pursuant to Article 11 of the DSU, and/or falsely 
exercised judicial economy in so far as the Panel found that 19 USC § 1677e(b) and 
19 CFR § 351.308 ("AFA provisions") are not "as such" inconsistent with Article 12.7 of the 
SCM Agreement. In particular, the Panel erred because: 
 
 it incorrectly interpreted Article 12.7 of the SCM Agreement in finding that an 
investigating authority need not engage in a comparative evaluation of all the available 
evidence to select the most fitting or most appropriate information
16. 
 
 it erred in its interpretation and application of Article 12.7 of the SCM Agreement in 
rejecting India's claim17 that the AFA provisions are "as such" inconsistent with 
Article 12.7 of the SCM Agreement as they require  drawing the worst possible 
inference (including the imposition of the highest possible duty margin) against a non-cooperating party in all cases of non-cooperation; 
 
 it did not make an objective assessment of the matter before it in finding that "any 
adverse inference drawn by the USDOC will in fact be based on the facts available" and 
that "nothing in the US provisions at issue suggest that the USDOC is not required to 
take into account all substantiated facts on record or to apply 'facts available' that do not reasonably replace the missing information"
18 because it limited itself to the text of 
the AFA provisions and consequently, disregarding "other domestic interpretative 
tools" placed on record by India; 
                                               
14 Panel Report, para. 7.62. 
15 Ibid. 
16 Ibid. paras. 7.438-439, 7.440-441. 
17 Ibid. paras. 7.440-444.  
18 Ibid. paras. 7.440-442 & 7.444. WT/DS436/6 
 
- 5 - 
 
   
14. For these reasons, India requests the Appellate Body to reverse the Panel's finding that the 
AFA provisions are not "as such" inconsistent with Article 12.7 of the SCM Agreement.  
 
15. Further, the Appellate Body must, where necessary, complete the legal analysis and find 
that:  
 
 Article 12.7 of the SCM Agreement requires investigating authorities to engage in a 
comparative evaluation of all the available evidence to select the most fitting or most appropriate information;   
 Article 12.7 does not permit investigating authorities to draw adverse inferences 
(including the imposition of highest possible duty margin) in all cases  of 
non-cooperation;  
 
 the AFA provisions are "as such" inconsistent with Article 12.7 of the SCM Agreement 
as it fails to require  USDOC to engage in a comparative evaluation of all the available 
evidence to select the most fitting or most appropriate information; and 
 
 the AFA provisions are "as such" inconsistent with Article 12.7 of the SCM Agreement 
as it requires  adverse inferences (including in the form of highest possible subsidy 
margins), to be drawn in all cases  of non-cooperation. 
 
16. Consequently, the Appellate Body must also find that all determinations by the United States 
in the underlying investigation applying the AFA provisions are inconsistent with Article 12.7 of the 
SCM Agreement.  
IV. The Panel has committed legal errors in Section 7.3.1 of its Report  
 
17. The Panel erred in its interpretation and application of Article 1.1(a)(1) of the 
SCM Agreement and/or failed to make an objective assessment pursuant to Article 11 of the DSU, 
and/or falsely exercised judicial economy in so far as the Panel upheld the United States' 
determination that NMDC is a 'public body'. In particular, the Panel erred because:  
 it did not make an objective assessment of the matter before it by failing to evaluate 
the implications of the United States' admission before the Panel in US – Antidumping 
and Countervailing Duties (China)  that in the underlying investigation in this dispute, 
NMDC was held to be public body merely on the basis of GOI shareholding
19; 
 
 it did not make an objective assessment of the matter before it by failing to consider 
the totality of the evidence and / or did not treat all evidence in an even-handed 
manner in finding that the USDOC considered factors beyond GOI shareholding in 
NMDC while concluding NMDC to be a public body, despite the USDOC expressly stating in its determination that such consideration is not required as a matter of its 
domestic law
20; 
 
 it did not make an objective assessment of the matter before it by considering the 
USDOC's determination in the 2007 AR to be relevant in assessing the USDOC's 
determination in the 2004 and 2006 AR21; 
 
 it did not make an objective assessment of the matter before it by accepting the 
United States' ex post facto  explanation that the reference to NMDC being "governed 
by" the GOI in the 2004 AR determination, implied that the USDOC considered factors other than GOI shareholding while determining NMDC to be a "public body"
22; 
 
                                               
19 Panel Report, para. 6.90. 
20 Ibid. paras. 6.96, 7.81 and footnote 244. 
21 Ibid. para. 7.83. 
22 Panel Report, paras. 6.93, 7.82 and footnote 245. WT/DS436/6 
 
- 6 - 
 
   it did not make an objective assessment of the matter before it and exceeded its 
authority by suo moto  providing "additional support" to the USDOC's finding that 
NMDC is a 'public body' for being under the "administrative control" of the GOI, despite the express acknowledgement of the United States that the USDOC's  determination 
did not refer to the "administrative control" of NMDC
23;   
 
 it exceeded its authority by giving a finding on the implication of 'Miniratna' or 
'Navaratna' status of NMDC24 rather than limiting itself to an assessment as to whether 
the USDOC ought to have considered 'Miniratna' or 'Navaratna' status of NMDC as being relevant evidence;  
 it incorrectly applied Article 1.1(a)(1) of the SCM Agreement in finding that the alleged 
involvement of GOI in the appointment of NMDC's directors is more 'substantive' and meaningful than GOI's shareholding in NMDC
25; 
 
 it incorrectly applied Article 1.1(a)(1) of the SCM Agreement in finding that nomination 
of directors can be equated with appointment of chief executive officers and that there 
is no distinction between nomination  of directors by government and appointment  of 
directors by the government, in assessing whether the GOI had "meaningful control" over the NMDC
26; 
 
 it incorrectly applied Article 1.1(a)(1) in finding that involvement in NMDC's Board of 
Directors along with GOI's shareholding was sufficient to fulfill the requirement of "meaningful control"
27 as was referred to by the Appellate Body in US – Antidumping 
and Countervailing Duties (China) . 
 
 it incorrectly interpreted Article 1.1(a)(1) of the SCM Agreement in finding that 
"meaningful control" of NMDC by the GOI would be sufficient to determine that NMDC 
is a public body28. 
 
18. For these reasons, India requests the Appella te Body to reverse the Panel's finding in 
affirming USDOC's determination that NMDC is a public body within the meaning of 
Article 1.1(a)(1) of the SCM Agreement.   
19. Further, the Appellate Body must, where necessary, complete the legal analysis and find 
that:  
 "meaningful control" of an entity by a government will not be sufficient to conclude 
such entity as a 'public body' within the meaning of Article 1.1(a)(1) of the 
SCM Agreement in all cases.  
 shareholding by government and appoin tment of directors by the government, de hors  
other factors, is not sufficient to conclude that an entity is "meaningfully controlled" by 
the government for the purposes of Article 1.1(a)(1) of the SCM Agreement in all 
cases; and 
 the USDOC determination that NMDC is a public body within the meaning of 
Article 1.1(a)(1) of the SCM Agreement, is incorrect; 
20. Consequently, the Appellate Body must also fi nd that the imposition of CVD based on the 
NMDC program since 2004 is inconsistent with Article 1.1(a)(1) of the SCM Agreement. 
 
                                               
23 Ibid. para. 7.82, 7.87 and 6.100. 
24 Ibid. para. 7.88. 
25 Ibid. para. 7.85. 
26 Ibid. 
27 Ibid. paras. 7.80-7.89. 
28 Ibid. paras. 7.81, 7.85-7.86 and 7.89. WT/DS436/6 
 
- 7 - 
 
  V. The Panel has committed legal errors in Section 7.3.2 of its Report  
 
21. The Panel erred in its interpretation and application of Articles 1.2 and 2 of the 
SCM Agreement and/or failed to make an objective assessment pursuant to Article 11 of the DSU, 
and/or falsely exercised judicial economy in so far as the Panel upheld the United States' 
determination that sale of iron ore by NMDC was de facto  specific. In particular, the Panel erred 
because: 
 
 it incorrectly interpreted and applied Article 2.1 of the SCM Agreement in finding that a 
program can be held to be de facto  specific even without establishing that the program 
in question 'discriminates' between the similarly-situated entities29; 
 
 it incorrectly interpreted and applied the te rm of "use of a subsidy programme by a 
limited number of certain enterprises as it appears in Article 2.1(c) of the 
SCM Agreement30; 
 
 it did not make an objective assessment of the matter before it by limiting the 
circumstances in which negotiating history can be relied upon to interpret a treaty31;   
 
 it did not make an objective assessment of the matter before it by specifically relying 
upon the findings of the Panel in US – Softwood Lumber IV32, without recording and 
assessing the "cogent reasons" offered by India for not following said findings for 
subsidies covered under Article 1.1(a)(1)(iii) of the SCM Agreement;  
 it incorrectly interpreted Article 2.1(c) in finding that an alleged subsidy under 
Article 1.1(a)(iii) can be de facto  specific merely based on limitations inherent in the 
nature of the goods allegedly provided or purchased by the government
33. 
 
22. For these reasons, India requests the Appellate Body to reverse the Panel's finding that the 
United States did not act inconsistently with Articles  1.2 and 2.1 in concluding that the sale of iron 
ore by NMDC was de facto  specific.  
 
23. Further, the Appellate Body must, where necessary, complete the legal analysis and find 
that:  
 
 a program can be de facto  specific under Article 2.1(c) of the SCM Agreement only if 
there is governmental action that 'discriminates' between similarly-situated entities; 
 
 a program can be de facto  specific under Article 2.1(c) of the SCM Agreement on the 
basis that it is "use[d] by" a "limited number of certain enterprises", only when the 
subsidy in question is used by a smaller set within the larger set of "certain 
enterprises"; 
 
 A program pertaining to provision of goods, cannot be de facto specific under Article 
2.1(c) of the SCM Agreement if the determination of de facto  specificity is solely based 
on the inherent characteristics of goods in question; and  
 the United States acted inconsistently with Articles 1.2, 2.1(c) and 2.4 of the 
SCM Agreement in finding that the sale of iron ore by NMDC is de facto  specific. 
 
24. Consequently, the Appellate Body must also fi nd that the imposition of CVD based on the 
NMDC program since 2004 is inconsistent with Articles 1.2, 2.1 and 2.4 of the SCM Agreement. 
 
                                               
29 Panel Report, para. 7.121-7.124. 
30 Ibid. 7.135. 
31 Ibid. para. 7.130.  
32 Ibid. para. 7.131. 
33 Ibid. para. 7.127-7.133. WT/DS436/6 
 
- 8 - 
 
  VI. The Panel has committed legal errors in Section 7.3.3 of its Report and in 
connected findings in Section 7.4.6.2 of its Report  
 
25. The Panel failed to make an objective assessment of the matter before it pursuant to 
Article 11 of the DSU in so far as the Panel has given findings on the ex post facto  justifications of 
the United States for rejecting certain domestic sales information as relevant benchmarks34, 
despite expressly recognizing such justifications as ex post facto35. Accordingly, India requests the 
Appellate Body to reverse the Panel's finding36 to address the ex post facto  justifications of the 
United States and render moot the Panel's findings and observations37 on the United States' 
ex post facto  justifications. 
 
26. In the alternative, conditional upon the Appella te Body rejecting the aforesaid requests of 
India, India submits that the Panel erred in its interpretation and application of Articles 12.1, 12.4, 12.7 and 14 of the SCM Agreement and/or failed to make an objective assessment pursuant to 
Article 11 of the DSU in so far as the Panel upheld the United States' ex post facto  justification that 
the domestic sales information can be rejected as relevant benchmarks. In particular, the Panel erred because:  
 
 it incorrectly interpreted Article 14(d) of the SCM Agreement to find that government 
prices can ipso facto  be rejected without first finding that the market is distorted by 
governmental interference or influence
38; 
 
 it incorrectly interpreted and applied Articles 12.1 and 14(d) of the SCM Agreement in 
finding that an investigating authority has sufficient discretion to disregard pricing 
information merely because such information does not pertain to 'actual 
transactions'39; 
 
 it incorrectly applied Articles 12.1, 12.7 and 14 of the SCM Agreement in finding that 
the United States can completely  reject the price quote of a private party merely 
because it did not specify the exact iron ore content, even though it indicated the grade of iron ore
40;  
 
 it incorrectly applied Articles 12.1, 12.7 and 14 of the SCM Agreement by finding that 
the United States could reject information relating to possible in-country benchmarks 
based on certain alleged defects in the pr ice without ever highlighting and seeking 
clarifications on such defects during the course of the investigation41; 
 
 it incorrectly applied Articles 12.1, 12.4 and 14 of the SCM Agreement by finding that 
the United States could reject the allegedly confidential private party quote supplied by Tata as a relevant benchmark even for Tata
42. 
 
27. The Appellate Body is requested to reverse the Panel's findings and observations on the 
United States' ex post facto  justifications for rejecting certain domestic sales information as 
relevant benchmarks and instead, find that: 
 
 an investigating authority cannot disregard domestic pricing information merely 
because such information does not pertain to 'actual transactions'; 
 
 the alleged rejection of in-country benchmarks by the United States merely because 
those benchmarks related to government transactions, is inconsistent with Article 14(d); 
 
                                               
34 Panel Report, paras. 7.159-7.165. 
35 Ibid. paras. 7.154-7.156. 
36 Ibid. para. 7.159. 
37 Ibid. paras. 7.159-165. 
38 Ibid. para. 7.160. 
39 Ibid. para. 7.162. 
40 Panel Report, para. 7.163. 
41 Ibid. para. 7.164. 
42 Ibid. para. 7.165. WT/DS436/6 
 
- 9 - 
 
   the alleged rejection of in-country benchmarks by the United States merely because it 
did not specify the exact iron content, even  though it did indicate "low grade" and 
"high grade" is inconsistent with Articl es 12.1, 12.7 and 14 of the SCM Agreement; 
 
 the alleged rejection of in-country benchmar ks by the United States, based on certain 
alleged defects in the price without ever high lighting and seeking clarifications on such 
defects during the course of the investigation, is inconsistent with Articles 12.1, 12.7 
and 14 of the SCM Agreement; and 
 
 the failure by the United States to apply the allegedly confidential private party quote 
supplied by Tata as a relevant benchmark even for Tata is inconsistent with Articles 
12.1, 12.4 and 14 of the SCM Agreement. 
 
28. Further, the Panel erred in its interpretation and application of Articles 14 of the 
SCM Agreement and/or failed to make an objective assessment pursuant to Article 11 of the DSU, 
and/or falsely exercised judicial economy in so far as the Panel upheld the United States' determination that sale of iron ore by NMDC co nferred a benefit. In particular, the Panel erred 
because: 
 
 it failed to consider the totality of the evidence and / or did not treat all evidence in an 
even-handed manner in finding the Brazilian and Australian prices of iron ore, inclusive 
all charges for delivery to steel producers in India, as relevant benchmarks on the 
basis that NMDC allegedly sets its domestic prices in light of what iron purchasers are willing to pay to import
43; 
 
 it incorrectly interpreted and applied Article 14(d) of the SCM Agreement incorrectly in 
finding that the existence of an import transaction of iron ore from Brazil into India 
must necessarily mean that the price of iron ore from Brazil, inclusive of all charges for 
delivery to steel producers in India, will reflect 'prevailing market conditions' for iron ore in India
44, without a qualitative assessment of the entire market comprising both 
import and domestic transactions for iron ore; 
 
 it incorrectly interpreted and applied Article 14(d) of the SCM Agreement in finding 
that inclusion of charges associated with international transit in the benchmark price 
does not nullify and countervail India's comparative advantage45; 
 
 it incorrectly applied Article 14(d) of the SCM Agreement in finding that export prices 
of the government provider in question can ipso facto  b e  r e j e c t e d  a s  a  r e l e v a n t  
benchmark46; 
 
 it did not make an objective assessment of the matter before it in upholding the 
USDOC determinations under challenge by referring to record evidence which was 
never relied upon by the USDOC itself in its determination47; 
 
 it did not make an objective assessment of the matter before it, by failing to assess 
whether the USDOC 'adequate[ly]' explained its inconsistent treatment of NMDC's export prices as a relevant benchmark, as required under the chapeau to Article 14 of 
the SCM Agreement; 
 
 it did not make an objective assessment of the matter before it, by failing to assess 
whether the USDOC has transparently and adequately explained why NMDC export 
prices are not 'world market prices' within the meaning  
of United States' national implementing regulations, viz. 19 CFR § 351.511(a)(2)(ii)
48. 
 
                                               
43 Ibid. para. 7.182. 
44 Panel Report, para. 7.181-7.183. 
45 Ibid. para. 7.185. 
46 Ibid. para. 7.189. 
47 Ibid. para. 7.182. 
48 Ibid. para. 7.189-192. WT/DS436/6 
 
- 10 - 
 
  29. For these reasons, India requests the Appellate Body to reverse the Panel's finding that the 
United States did not act inconsistently with Article 14 of the SCM Agreement in concluding that 
the sale of iron ore by NMDC conferred a benefit.   
30. To the extent the Panel's findings in relation to the NMDC program are reiterated in the 
context of grant of mining rights for iron ore and coal
49, India requests the Appellate Body to 
reverse the same as well. 
 31. Further, the Appellate Body must, where necessary, complete the legal analysis and find 
that, in relation to the sale of iron ore by NMDC and the grant of mining rights for iron ore by the 
GOI: 
 
 the United States acted inconsistently wi th Article 14(d) of the SCM Agreement by 
presumptively rejecting NMDC export prices as a relevant benchmark to determine the 
existence and quantity of 'benefit'; 
 
 the United States acted inconsistently wi th Article 14(d) of the SCM Agreement by 
using prices of iron ore from Brazil, inclusive of all charges for delivery to steel 
producers in India, as the benchmark price to determine the existence and quantity of 
'benefit';  
 the United States acted inconsistently wi th Article 14(d) of the SCM Agreement by 
using prices of iron ore from Australia, artificially adjusted to include all charges for delivery to steel producers in India, as the benchmark price to determine the existence 
and quantity of 'benefit'; and 
 
 the United States acted inconsistently with the chapeau to Article 14 of the 
SCM Agreement by failing to transparently and adequately explain why NMDC export 
prices are not 'world market prices' within the meaning of United States' national implementing regulations, viz. 19 CFR § 351.511(a)(2)(ii).  
32. Consequently, the Appellate Body must also find that:  
 
 the United States acted inconsistently wi th Article 14(d) of the SCM Agreement by 
using a benchmark price inclusive of all charges for delivery to steel producers in India, 
as the benchmark price to determine the exis tence and quantity of 'benefit' in respect 
of the Captive Mining of Iron Ore program; 
 
 the United States acted inconsistently wi th Article 14(d) of the SCM Agreement by 
using a benchmark price inclusive of all charges for delivery to a steel producer in India, as the benchmark price to determine the existence and quantity of 'benefit' in 
respect of the Captive Mining of Coal program. 
 
33. Consequently, the Appellate Body must also fi nd that the imposition of CVD for the NMDC 
program since 2004, and the imposition of CVD for the Captive Mining of Iron Ore and Coal 
programs, is inconsistent with Article 14(d) and the chapeau to Article 14 of the SCM Agreement.  
VII.  The Panel has committed legal errors in Section 7.4.3 of its Report  
 
34. The Panel erred in its interpretation and application of Article 1.1(a)(1)(iii) of the 
SCM Agreement and/or failed to make an objective assessment pursuant to Article 11 of the DSU, 
and/or falsely exercised judicial economy in so far as the Panel upheld the United States' 
determination that the grant of mining rights amounts to the 'provision' of the mined minerals. In particular, the Panel erred because: 
 
 it disregarded material evidence necessary to make an objective assessment of the 
matter before it, by finding as irrelevant, the fact that the royalty paid to the GOI by 
miners contributes an insignificant 9.03 % of the final cost of the mined mineral
50; 
 
                                               
49 Ibid. para. 7.263-265. 
50 Panel Report, para. 6.133. WT/DS436/6 
 
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   it incorrectly applied Article 1.1(a)(iii) of the SCM Agreement in finding that "allow[ing] 
the beneficiary to extract government-owned minerals from the ground, and then us[ing] those minerals for [the beneficiary's] own purpose" 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"
51. 
 
35. For these reasons, India requests the Appellate Body to reverse the Panel's finding that the 
United States did not act inconsistent with Articl e 1.1(a)(iii) of the SCM Agreement in concluding 
that the grant of mining rights amounts to 'provision' of the mined mineral.  36. Further, the Appellate Body must, where necessary, complete the legal analysis and find 
that: 
 
 the United States acted inconsistently with Article 1.1(a)(iii) of the SCM Agreement in 
finding that grant of mining rights to iron ore and coal, amounts to 'provision' of iron 
ore and coal.  
37. Consequently, the Appellate Body must also fi nd that the imposition of CVD based on the 
Captive Mining of Iron ore programme and the Captive Mining of coal program is inconsistent with Article 1.1(a)(1)(iii) of the SCM Agreement.  
VIII.  The Panel has committed legal errors in Section 7.4.2 of its Report  
 
38. The requests contained in this part are made conditional upon the United States filing an 
appeal against the Panel decision in Section 7.4.1 of the Panel Report and the Appellate Body 
reversing the Panel's finding in Section 7.4.1.3 of the Panel Report.  
39. The Panel failed to fulfill its duty under Article 11 of the DSU and/or falsely exercised 
judicial economy in so far as the Panel did not assess
52 India's claim under Article 2.1 of the 
SCM Agreement against the USDOC's determination that the grant of mining rights for iron ore is de facto  specific. India requests the Appellate Body to find that the Panel erred in exercising 
judicial economy in this case. 
 40. Further, the Appellate Body must complete the legal analysis and find that:  
 
 the United States acted inconsistently with Articles 1.2, 2.1 and 2.4 of the 
SCM Agreement in finding that grant of mining rights to iron ore was de facto  specific. 
 
41. Consequently, the Appellate Body must also fi nd that the imposition of CVD based on the 
Captive Mining of Iron ore programme is inconsistent with Articles 1.2, 2.1 and 2.4 of the SCM Agreement. 
 
IX. The Panel has committed legal errors in Section 7.4.6 of its Report  
 
42. Further, the Panel erred in its interpretation and application of Articles 14 of the 
SCM Agreement and/or failed to make an objective assessment pursuant to Article 11 of the DSU, and/or falsely exercised judicial economy in so far as the Panel upheld the United States' 
determination the GOI conferred a benefit in granting mining rights for iron ore and coal. In 
particular, the Panel erred because:  
 it incorrectly interpreted and applied Article 14(d) of the SCM Agreement in finding 
that a term 'remuneration' need not be the actual recompense received by the GOI for 
the grant of mining rights, but can also be notional
53; 
 
 it incorrectly interpreted and applied Article 14(d) of the SCM Agreement in finding 
that the USDOC was permitted to calculate quantum of benefit on the basis of a fictional constructed price of extracted iron ore (inclusive of the miner's costs and 
reasonable profits)
54; 
                                               
51 Ibid. paras. 7.237-7.238. 
52 Panel Report, para. 8.4.a.  
53 Panel Report, para. 7.260. 
54 Ibid. WT/DS436/6 
 
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   it did not make an objective assessment of the matter before it by determining that 
India's claim pertaining to "good faith" interpretation is outside the Panel's terms of reference
55.   
 
43. For these reasons, India requests the Appellate Body to reverse the Panel's finding that the 
United States did not act inconsistently with Article 14 of the SCM Agreement in concluding that 
the GOI conferred a benefit in granting mining rights for iron ore and coal.  
 
44. Further, the Appellate Body must, where necessary, complete the legal analysis and find 
that:  
 
 the 'remuneration', the adequacy of which is  to be assessed under Article 14(d) of the 
SCM Agreement, can only be the actual recompense received by the GOI and cannot be fictional / notional;  
 
 the costs incurred and profits earned by a miner cannot be considered as part of 
'remuneration', the adequacy of which is to be assessed under Article 14(d) of the 
SCM Agreement; 
 
 the United States acted inconsistently with Article 14(d) of the SCM Agreement in 
finding that the GOI conferred a benefit in granting mining rights for iron ore and coal; 
and  
 
 the United States acted inconsistently wi th Article 14(d) of the SCM Agreement by 
using prices of coal from Australia, inclusive all charges for delivery to the steel 
producer in India, as the benchmark price to determine the existence and quantity of 
'benefit'. 
 
45. Consequently, the Appellate Body must also find that the imposition of CVD based on the 
Captive Mining of Iron ore programme and the Captive Mining of coal program is inconsistent with Article 14(d) of the SCM Agreement. 
 
X. The Panel has committed legal errors in Section 7.5.1 of its Report  
 
46. Further, the Panel erred in its interpretation and application of Articles 1.1(a)(1) of the 
SCM Agreement and/or failed to make an objective assessment pursuant to Article 11 of the DSU, and/or falsely exercised judicial economy in so far as the Panel upheld the United States' 
determination that the SDF program was a subsidy within the meaning of Article 1.1(a)(1) of the 
SCM Agreement. In particular, the Panel erred because:  
 it did not make an objective assessment of the matter before it, by assuming a 
meaning for the phrase ' direct ' 'transfer ' of funds as it appears in Article 1.1(a)(1)(i) of 
the SCM Agreement, without ever interpreting it in accordance with customary rules of interpretation
56; 
 
 it did not make an objective assessment of the matter before it, by assuming a 
meaning for the term ' transfer  of funds' as it appears in Article 1.1(a)(1)(i) of the 
SCM Agreement, without ever interpreting the term in accordance with customary 
rules of interpretation57; 
 
 it incorrectly interpreted and applied Article 1.1(a)(1)(i) of the SCM Agreement in 
finding that the USDOC could have reasonably determined the SDF Managing 
Committee to have ' direct[ly] ' transferred SDF loans merely on the basis that the SDF 
Managing Committee decides on the issuance, terms and waivers of the SDF loans58 
after finding that the actual transfer is done  by an intermediary or intervening private 
party, i.e. the JPC;  
                                               
55 Ibid. para. 7.261. 
56 Panel Report, paras. 7.292-293. 
57 Ibid. paras. 7.295-296. 
58 Ibid. paras. 7.292-293. WT/DS436/6 
 
- 13 - 
 
   it incorrectly interpreted and applied Article 1.1(a)(1)(i) of the SCM Agreement in 
finding that the 'transfer' of funds need not involve the government having title to the funds in question and / or resulting in a charge on the public account
59. 
 
47.  For these reasons, India requests the Appellate Body to reverse the Panel's finding that the 
United States did not act inconsistently with Arti cle 1.1(a)(1) of the SCM Agreement in concluding 
that the SDF loans constituted a subsidy. 
 
48. Further, the Appellate Body must, where necessary, complete the legal analysis and find 
that: 
 
 'direct  transfer of funds' under Article 1.1(a)(1)(i) of the SCM Agreement excludes 
government  transferring funds to the beneficiary through an intermediate private 
body;  
 
 'direct transfer  of funds' under Article 1.1(a)(1)(i) of the SCM Agreement only covers 
situations where the funds so transferre d are owned by the government and / or 
results in a charge on the public account; 
 
 the United States acted inconsistently with Article 1.1(a)(1) of the SCM Agreement in 
determining that the SDF program is a "direc t transfer of funds" by the SDF Managing 
Committee. 
 
49. Consequently, the Appellate Body must also find that the imposition of CVD based on the 
SDF program is inconsistent with Article 1.1(a)(1) of the SCM Agreement. 
 XI. The Panel has committed legal errors in Section 7.5.2 of its Report  
 
50. Further, the Panel erred in its interpretation and application of Article 14 of the 
SCM Agreement and/or failed to make an objective assessment pursuant to Article 11 of the DSU, and/or falsely exercised judicial economy in so far as the Panel failed to appreciate that the 
benchmark used under Article 14(d) must be 'comparable' to the terms of the loan program itself. 
In particular, the Panel erred because:  
 it did not objectively assess the matter before it in finding that the SDF funds are not 
producer funds as the funds were sourced from a levy on the consumers and the levy was always destined only towards the SDF funds
60; 
 
 it incorrectly interpreted Article 14(b) and 1.1(b) in finding that the USDOC did not 
have to account for the entry deposits made to the SDF program by the beneficiaries, while determining that the SDF program conferred a 'benefit'
61. 
 
51. For these reasons, India requests the Appellate Body to reverse the Panel's finding that the 
United States did not act inconsistently with Article 14 of the SCM Agreement in concluding that 
the SDF loans conferred a benefit.  
 52. Further, the Appellate Body must, where necessary, complete the legal analysis and find 
that the USDOC violated Articles 14(b) and 1.1(b) in determining that the SDF program conferred 
a benefit without accounting for the entry deposits made to the SDF program by the beneficiaries.  XII.  The Panel has committed legal errors in Section 7.7.5.2.1 of its Report  
 
53. Further, the Panel erred in its interpretation and application of Article 12.7 of the 
SCM Agreement and/or failed to make an objective assessment pursuant to Article 11 of the DSU, 
and/or falsely exercised judicial economy in so fa r as the Panel found that the United States did 
not act inconsistently with Article 12.7 of the SCM Agreement when applying the highest non- de 
minimis  subsidy margin in 230 instances in the underlying investigation
62. In particular, the Panel 
erred in its interpretation of Article 12.7 of th e SCM Agreement and applied the incorrect standard 
                                               
59 Ibid. paras. 7.294-296. 
60 Panel Report, para. 7.311 and footnote 526. 
61 Ibid. paras. 311-312. 
62 Ibid. paras. 7.448-7.449. WT/DS436/6 
 
- 14 - 
 
  to assess the claim63. Further, even when applying its erroneous interpretation of Article 12.7, the 
Panel incorrectly applied its own standard in rejecting India's claim and imposed an unnecessary burden on India
64. 
 
54. Therefore, India requests the Appellate Body to reverse the Panel's finding that the 230 
instances in the underlying investigation of applying the highest  non- de minimis  subsidy margin 
pursuant to the AFA provisions is inconsistent with Article 12.7 of the SCM Agreement. Further, the 
Appellate Body must, where necessary, complete the legal analysis and find that the United States 
acted inconsistently with Article 12.7 of the SCM Agreement by applying the highest  non- de 
minimis  subsidy margin in the 230 instances highlighted by India. 
 
55. Further, India would like to reiterate its earlier request that the Appellate Body also find that 
the AFA provisions are "as such" inconsistent with Article 12.7 of the SCM Agreement as it requires adverse inferences (including the imposition of highest possible subsidy margins) to be drawn in all 
cases  of non-cooperation.  
 XIII.  The Panel has committed legal errors in Section 7.7.5.2.9 of its Report  
 
56. The Panel failed to make an objective assessment pursuant to Article 11 of the DSU by 
failing to consider India's submissions in totality , when concluding that India had not made out a 
prima facie  case in respect of the 2013 Sunset Review of the USDOC against Essar, ISPAT, SAIL 
and Tata
65. Therefore, India requests the Appellate Body to reverse the Panel's finding.  
 
57. Further, the Appellate Body must, if necessary, complete the legal analysis and find that all 
of the US DOC's determinations in the 2013 Sunset Review against Essar, ISPAT, SAIL and Tata, 
are inconsistent with Article 12.7 of the SCM Agreement.   
58. In the alternative, the Appellate Body must find that, at a minimum, the USDOC's 
determinations in the 2013 sunset review are inconsistent with Article 12.7 of the SCM Agreement to the extent they repeat those instances from th e previous ARs that have already been found to 
be inconsistent with Article 12.7 of the SCM Agreement. 
 
XIV.  The Panel has committed legal errors in Section 7.8.4 of its Report  
 
59. The Panel failed to make an objective assessment pursuant to Article 11 and/or falsely 
exercised judicial economy, in so far as the Panel failed to assess India's claims that the investigation into new subsidies in the course of administrative reviews by the United States in the 
underlying investigation is inconsistent with Articles 11.1, 13.1, 22.1 and 22.2 of the 
SCM Agreement
66. In particular, the Panel erred because: 
 
 it did not objectively assess the matter before it by failing to asses India's claims under 
Articles 11.1, 13.1, 22.1-22.2 of the SCM Agreement merely because new subsidies 
were examined under Article 2167 and by failing to provide a "basic rationale" as 
required under Article 12.7 of the DSU in this respect; 
 
 it incorrectly interpreted Articles 11 that Article 11 is inapplicable to Article 21 
proceedings ignoring the textual meaning that Article 11 would apply anytime where a 
Member studies the existence, degree or effect of a subsidy, irrespective of how the 
proceeding is designated under the domestic law;  
 it incorrectly interpreted Articles 11 and 21 in assuming that the applicability of Article 
21 ipso facto  excludes applicability of Articles 11, 13.1, 22.1-22.2
68. 
 
                                               
63 Ibid. 
64 Ibid. Para. 449. 
65 Panel Report, paras. 7.479-7.481. 
66 Ibid. para. 7.501. 
67 Ibid. paras. 7.501, 7.507, 7.508, 7.168. 
68 Ibid. WT/DS436/6 
 
- 15 - 
 
  60. Therefore, India requests the Appellate Body to reverse the aforesaid findings of the Panel.  
 
61. Further, the Appellate Body must, if necessary, complete the legal analysis and find that 
the United States acted inconsistently with Articles 11.1, 13.1, 22.1 and 22.2 of the 
SCM Agreement by investigating new subsidies in the course of administrative reviews in the 
underlying investigation.  
XV. The Panel has committed legal er rors in its preliminary ruling  
 
62. Conditional upon the Appellate Body rejecting al l the requests made by India in sections IV 
and V above, the Appellate Body is requested to assess India's appeal in this part. In other words, 
in the event the Appellate Body finds that the United States did not violate Article 1.1(a)(1) or 
Articles 2 and 1.4 of the SCM Agreement, the Appe llate Body is requested to assess India's appeal 
in this part, relating to the Panel's ruling on the United States' preliminary request contained in 
section 1.3.3 of the Panel Report. 
 63. The Panel erred in its application of Articles 4.6 and 6.2 of the DSU and/or failed to make 
an objective assessment pursuant to Article 11 of the DSU, in so far as the Panel found that India's 
claim under Section XII.C.1 and Section XII.C.2 of  India's First Written Submissions are outside 
the Panel's terms of reference. In particular, the Panel erred because:  
 it did not make an objective assessment of the matter before it in accordance with 
Article 11 and 3.2 of the DSU by failing to record and follow, without offering cogent 
reasons, the previously adopted findings in Korea - Dairy  that the respondent bears the 
initial burden to prove it was actually prejudiced by the allegedly incomplete Panel Request 
of the complainant;  
 it did not make an objective assessment of the matter before it in accordance with 
Article 11 and 3.2 of the DSU by failing to record and follow, without offering cogent 
reasons, the previously adopted finding of the Panel in US – Lamb , that the questions 
circulated by India during consultations is one of the relevant "attendant circumstances" in 
assessing India's Panel Request
69. 
 
 it did not make an objective assessment of the matter before it in accordance with 
Article 11 and 3.2 of the DSU by failing to ex amine the legal basis of India's submission 
that a reference to the term 'initiated' in India's Panel Request must be understood in the light of footnote 37 to the SCM Agreement
70. 
 
 it incorrectly applied Article 6.2 of the DSU in finding that India's Panel Request excludes 
claims under Article 11 relating to the "alleged initiation of an investigation or the manner in which an investigation was conducted"
71; 
 
64. For these reasons, India requests the Appellate  Body to reverse the Panel's finding that 
India's claims under Section XII.C.1 and Section XII.C.2 of India's First Written Submissions are 
not within the Panel's terms of reference.  
 65. Further, the Appellate Body must, where necessary, complete the legal analysis to find that:  
 
 in assessing a Member's Panel Request under Article 6.2 of the DSU, questions circulated 
by the Parties during the course of consultation s held under Article 4 of the DSU, is one of 
the relevant "attendant circumstances" to be considered. 
 
 with respect to an objection raised under Arti cle 6.2 of the DSU, the respondent bears the 
initial burden to prove it was actually prejudiced by the allegedly incomplete Panel Request 
of the complainant. 
 
 India's claims in Section XII.C.1 and Section XII.C.2 of India's First Written Submissions 
are within the Panel's terms of reference; and 
                                               
69 Panel Report, para. 1.37. 
70 Ibid. footnote 39. 
71 Ibid. paras. 1.34 and 1.38. WT/DS436/6 
 
- 16 - 
 
   
 the United States violated Articles 11.1-11. 2, 11.9 of the SCM Agreement by initiating 
investigations into NMDC and TPS programs in the 2004 AR without sufficient evidence as to the existence, amount and nature of said subsidies. 
 
 
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