WT/DS479/AB/R/Add .1 
22 March 2018  
(18-1741) Page: 1/33 
  Original: English  
 
 
RUSSIA – ANTI -DUMPING DUTIES ON LI GHT COMMERCIAL VEHIC LES 
FROM GERMANY AND ITA LY 
AB-2017-3 
Report of the Appellate  Body 
Addendum  
This Addendum  contains Annexes A to D to the Report of the Appellate Body  circulated as  
document  WT/DS479/AB/R.  
 
The Notices of Appeal and Other Appeal  and the executive summaries of written submissions 
contained in this Addendum are attached as they were received from the participants and 
third participants. The content has not been revised or edited by the Appellate Body, except that 
paragraph and footnote numbers that did not start at one in the original may have been 
re-numbered to do so, and the text may have been formatted in order to adh ere to WTO style. The 
executive summaries do not serve as substitutes for the submissions of the participants and 
third participants in the Appellate Body's examination of the appeal.  
 
 
_______________  WT/DS479/AB/R/Add .1 
 
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 LIST OF ANNEXES  
ANNEX A  
NOTICE S OF APPEAL  AND OTHER APPEAL  
Contents  Page  
Annex  A-1 Russia 's Notice of Appeal  A-2 
Annex  A-2 European Union 's Notice of Other Appeal  A-5 
ANNEX B  
ARGUMENTS OF THE PARTI CIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Russia 's appellant's submission  B-2 
Annex  B-2 Executive summary of the European Union 's other appellant's submission  B-4 
Annex  B-3 Executive summary of the European Union' s appellee's submission  B-7 
Annex  B-4 Executive summary of Russia 's appellee's submission  B-10 
ANNEX C  
ARGUMENTS OF THE THI RD PA RTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of Brazil 's third participant's submission  C-2 
Annex  C-2 Executive summary of Japan 's third participant's submission  C-3 
Annex  C-3 Executive summary of Ukraine 's third participant's submission  C-4 
Annex C -4 Executive summary of the United States' third participant's submission  C-5 
ANNEX D  
PROCEDURAL RULING S 
Contents  Page  
Annex  D-1 Procedural Ruling of 4 March  2017 regarding modification of the dates for the 
filing of written submissions  D-2 
Annex  D-2 Procedural Ruling of 7 November 2017 regarding additional procedures for the 
protection of business confidential information  D-4 
 
 WT/DS479/AB/R/Add .1 
 
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 ANNEX A  
NOTICE OF APPEAL  AND OTHER APPEAL  
Contents  Page  
Annex  A-1 Russia 's Notice of Appeal  A-2 
Annex  A-2 European Union 's Notice of Other Appeal  A-5 
 WT/DS479/AB/R/Add .1 
 
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 ANNEX  A-1 
RUSSIA 'S NOTICE OF APPEAL 
1. Pursuant to Article 16.4 and Article 17.1 of the DSU , the Russian Federation hereby notifies 
to the Dispute Settlement Body its decision to appeal to the Appellate Body certain issues of law 
covered in the Panel Report and certain legal interpretations developed by the Panel in the dispute 
Russia – Anti-Dumpi ng Duties on Light Commercial Vehicles from Germany and Italy (WT/DS479) 
("Panel Report"). Pursuant to Rule 20(1) of the Working  Procedures for Appellate Review  
(WT/AB/WP/6, 16  August 2010) ("Working Procedures"), the Russian Federation simultaneously 
files this Notice of Appeal with the Appellate Body Secretariat.  
 
2. For the reasons further elaborated in its submissions to the Appellate Body, the 
Russian  Federation appeals, and requests  the Appellate Body to reverse or modify, certain issues 
of law covered i n the Panel Report and legal interpretations developed by the Panel in this dispute.  
3. Pursuant to Rule 20(2)(d)(iii) of the Working Procedures, the present Notice of Appeal 
provides an indicative list of the paragraphs of the Panel Report containing the al leged errors of 
law and legal interpretation, without prejudice to the ability of the Russian Federation to refer to 
other paragraphs of the Panel Report in the context of its appeal.  
I. Appeal of the Panel's legal interpretation of Article 4.1 of the Anti -Dumping 
Agreement  
4. The Russian Federation seeks review by the Appellate Body of the Panel's interpretation of 
Article 4.1 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs 
and Trade 1994 (the "Anti -Dumping Agreement").  
5. The Panel's interpretation is in error, inter alia , because:  
 the Panel erred in its legal interpretation of Article 4.1 of the Anti -Dumping Agreement 
by failing to take into account the requirement of "positive evidence" in the meaning of 
Article 3.1 of the Anti -Dumping Agreement;  
 the Panel erred in its legal interpretation of Article 4.1 of the Anti -Dumping Agreement 
by not adhering to the principles of harmonious and effective interpretation;  
 the Panel erred by finding the risk of material distortion in  the injury analysis on the 
basis of the "sequence of events" concerning the definition of the domestic industry;  
 the Panel 's findings of violation of Articles 4.1 and 3.1 of the Anti -Dumping Agreement 
are not in conformity with Article 17.6 (ii) of the An ti-Dumping Agreement.  
6. Accordingly, the Russian Federation requests the Appellate Body:  
 to reverse  or modify  the Panel's findings in paragraphs 7.21 (b), 7.21 (c) of its Report, 
as well as paragraph 7.15 (c) together with the footnote 85 and paragraphs 7.27  and 
7.26 (a) of its Report;  
 to reverse  the Panel's findings in paragraphs 7.15 (a) and 7.21 (d), 8.1 (a) of its Report.  
7. If the Appellate Body finds that the Panel erred in its conclusions regarding the 
interpretation of Article 4.1 of the Anti -Dumping Ag reement, the Russian Federation respectfully 
requests to reverse  the findings of the Panel in paragraphs 7.16, 7.22, 7.27 and 8.1 (b) of its 
Report that refer to consequential violation of Article 3.1 of the Anti -Dumping Agreement.  
                                                
 This notification, dated 20 February 2017, was circulated to Members as document WT/DS479/6  
 WT/DS479/AB/R/Add .1 
 
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 II. Appeal of the Panel 's error in interpreting and applying Articles 3.1 and 3.2 of the 
Anti-Dumping Agreement  
8. The Panel erred in concluding that the DIMD acted inconsistently with Articles 3.1 and 3.2 of 
the Anti -Dumping Agreement by failing to take into account the impact of the financial crisis in 
determining the appropriate rate of return in its consideration of price suppression because the 
Panel erred in its application of the legal standard under Articles 3.1 and 3.2 of the Anti -Dumping 
Agreement to the facts before it.  
9. Accordingly, the Russian Federation respectfully requests the Appellate Body to reverse  the 
Panel's findings in paragraphs 7.64 –7.67 and 8.1 (d)(i).  
10. If the Appellate Body finds that the Panel erred in its legal findings related to the 
determination by the D IMD of the rate of return for price su ppression analysis, the 
Russian  Federation respectfully requests to reverse  the findings of the Panel in paragraphs of 
7.181 -7.182 and 8.1 (f)(i) of its Report that refer to violation of Article 3.1 and Article 3.2 of the 
Anti-Dumping Agreement.  
III. Appeal of the Panel's legal interpretation of Articles 6.9 and 6.5 of the 
Anti-Dumping Agreement and their application to the facts of the case  
11. The Panel erred in the legal interpretation and application of Article 6.9 of the Anti -Dumping 
Agreement in conjunction with Article 6.5 of the Anti -Dumping Agreement by finding a 
consequential violation of Article 6.9 of the Anti -Dumping Agreement and failing to examine how 
the investigating authority disclosed the essential facts at issue.  
12. Accordingly, the Russian Federation requests the Appellate Body:  
 to modify  the Panel's legal findings with regard to the relationship between Article 6.9 
and Article 6.5 of the Anti -Dumping Agreement;1 
 to modify  the Panel's legal findings relatin g to the confidential treatment of the actual 
figures for the actual import volumes and the weighted average import price2 of LCVs 
produced by each German exporting producer3 and find that the DIMD did not act 
inconsistently with Article 6.9 of the Anti -Dumping Agreement by providing the 
interested parties with summaries of omitted actual figures4; 
 to find that the Panel erred when finding that the DIMD ac ted inconsistently with 
Article  6.9 by not providing the interested parties with (i)  the actual figures  for the 
actual import volumes and the weighted average import price of LCVs produced by each 
German exporting producer5; and (ii)  the actual figures that show the domestic 
consumption and production volumes of LCVs in the CU6;  
 to reverse  the Panel's find ings in paragraphs 7.268 -7.270, 7.278 and 8.1(h)(ii) of its 
Report.  
13. The Panel violated Article 15.2 of the DSU by adding in the final report a new legal finding in 
paragraph 7.270 that had not appeared in the Panel's interim report. In addition, the Panel 
violated Article 7 of the DSU by exceeding its terms of reference by making the legal finding in 
paragraph 7.270 of its Report because the conformity of confidential treatment of data from the 
electronic customs database was not specifically challenged by the European Union. The 
Russian  Federation respectfully requests the Appellate Body to reverse  this finding of the Panel.  
                                                
1 Panel Report, paras. 7.268 -7.270 and 7.278.  
2 As well as the weighted average export price for LCVs exported by each German exporting producer  
into the CU.  
3 Panel Report, paras. 7.270 and 7.278 (including information listed in items (d), (e), (f), (i), (j) of 
Table  12). 
4 Panel Report, para. 7.278 ( information listed in items (d) to (o) of Table 12).  
5 Ibid. 
6 Panel Report, paras. 7.269 and 7.278.  WT/DS479/AB/R/Add .1 
 
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 14. The Panel erred in finding that the actual import volumes and the weighted average import 
price of LCVs produced by Daimler AG and Volkswagen AG, respectively, were not properly treated 
as confidential because the Panel made an erroneous finding that the data from the electronic 
customs database were not properly treated as confidential.  
15. Accordingly, the Russian Federation respectfull y requests the Appellate Body:  
 to modify  the Panel's legal findings under Article 6.5 of the Anti -Dumping Agreement 
relating to the requirements to show "good cause" with respect to electronic customs 
database that was submitted to the DIMD under the natio nal law and the CU law and 
find that under Article 6.5 of the Anti -Dumping Agreement the requirement of the "good 
cause" shown by the national customs authorities is fulfilled through the reference to the 
legislation requiring to treat the information at i ssue as confidential;  
 to modify  the Panel's legal finding that the actual import volumes and the weighted 
average import price of LCVs produced by each German exporting producer7 were not 
properly treated as confidential under Article 6.5 of the Anti -Dumpi ng Agreement8; 
 to find that the Panel erred by not taking into account that the DIMD met the 
requirements of Article 6.9 of the Anti -Dumping Agreement by providing the interested 
parties with summaries of omitted actual figures for actual import volumes an d the 
weighted average import price of LCVs produced by each German exporting producer9; 
 to reverse  the Panel's findings in paragraphs 7.241 -7.247, insofar as these findings refer 
to disclosure of essential facts, paragraphs 7.269 -7.270, 7.278 and 8.1(h)(i i) of its 
Report.  
 
 
 
 
                                                
7 As well as the weighted average export price for LCVs exported by each German exporting producer  
into the CU.  
8 Including information listed in items (d), (e), (j) of Table 12.  
9 Panel Report, para. 7.278.  WT/DS479/AB/R/Add .1 
 
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 ANNEX A -2 
EUROPEAN U NION 'S NOTICE OF OTHER APPEA L 
Pursuant to Article 16.4 and Article 17.1 of the DSU, the European Union hereby notifies to the 
Dispute Settlement Body its decision to appeal to the Appellate Body certain issues of law covered 
in the Panel Report and certain legal interpretations developed by the Panel in the dispute Russia – 
Anti-Dumping  Duties on Light Commercial Vehicles from Germany and Italy (WT/DS479) . Pursuant 
to Rule 23(1) of the Working Procedures for Appellate Review , the European Union simultaneously 
files this Notice of Other Appeal with the Appellate Body Secretariat.  
 
For the  reasons to be further elaborated in its submissions to t he Appellate Body, the 
European  Union appeals, and requests the Appellate Body to re verse or declare moot and of 
no legal effect the findings and conclusions of the Panel with respect to the errors o f law and legal 
interpretations contained in the Panel Report described below, and where indicated to complete 
the analysis on the basis of the Panel's findings and uncontested facts on the record .1 
 
I. ERRORS RELATING TO T HE PANEL'S FINDINGS ON THE DIMD 'S INJURY 
DETERMINATION  
The European Union submits that the legal findings and conclusions of the Panel concerning the 
DIMD 's injury analysis are legally erroneous and requests that the Appellate Body reverse them, 
specifically with respect to the following : 
1. The Panel failed to make an objective assessment of the matter before it in accordance with 
Article 11 of the DSU and failed to determine whether the DIMD's establishment of the facts was 
proper and whether its evaluation of those facts was unbiased and objective as provided by 
Article  17.6 of the AD Agreement, by basing its assessment of the EU's claims under Article 3.1 
and 3.4 of the AD Agreement relating to three mandatory injury factors (return on investments, 
actual and potential effects on cash flo w, and the ability to raise capital or investments) on the 
alleged confidential version of DIMD's Final Report. As a consequence, the Panel's finding that the 
EU had not established that the DIMD acted inconsistently wit h Article 3.1 and 3.4 of the 
AD Agreement with respect to these three injury factors is also in error. Thus, the European Union 
requests the Appellate Body to reverse paragraphs 7.165 -7.172, 7.173(i) and 8.1(e)(x) , complete 
the analysis on the basis of the Panel's findings and uncontested fa cts on the record and find that 
the DIMD acted inconsistently with Articles 3.1 and 3.4 of the AD Agreement by failing to examine 
those three mandatory injury factors.  
2. The Panel failed to make an objective assessment of the matter before it in accordance w ith 
Article 11 of the DSU, by finding that the DIMD properly considered (i) whether the price 
suppression was the effect of dumped imports ("explanatory force"), as well as (ii) whether the 
price suppression was "to a significant degree", when the Panel ha d already found that the 
DIMD's  selection of the very basis of its price suppression analysis – the 2009 rate of return 
without any adjustments – was inconsistent with Articles 3.1 and 3.2 of the AD Agreement. Thus, 
the European Union requests the Appellat e Body to reverse paragraphs 7.77 -7.81, footnote 197, 
paragraphs 7.104 -7.107, and paragraphs 8.1(d)(iii) and 8.1(d)(iv) of the Panel Report and declare 
the Panel's findings and conclusions on the "explanatory force" of subject imports and the 
"significant degree" of the price suppression moot and of no legal effect.  
3. Should the Appellate Body consider that the Panel did not make a reversible error under 
Article 11 of the DSU as described in the previous paragraph, the European Union submits that the 
Panel fa iled to properly interpret and apply Articles 3.1 and 3.2 of the AD Agreement, when finding 
that the DIMD's methodology for establishing price suppression – which compares the actual 
domestic prices to the target domestic prices – will necessarily and auto matically show that the 
dumped imports have "explanatory force" for the suppression of domestic prices. Thus, the 
                                                
 This notification, dated 27 February 2017, was circulated to Members as document WT/DS479/7  
1 Pursuant to Rule 23(2)(c)(ii)(C) of the Working Procedures for Ap pellate Review  this Notice of Other 
Appeal includes an indicative list of the paragraphs of the Panel Report containing the alleged errors, without 
prejudice to the ability of the European Union to refer to other paragraphs of the Panel Report in the conte xt of 
its appeal.  WT/DS479/AB/R/Add .1 
 
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 European Union requests the Appellate Body to reverse the Panel's findings and conclusions in 
paragraphs 7.77 -7.78 and 8.1(d)(iii) and complet e the analysis on the basis of the Panel's findings 
and uncontested facts on the record by finding that the DIMD acted inconsistently with Articles 3.1 
and 3.2 of the AD Agreement when failing to consider whether the subject imports have 
"explanatory force " for the occurrence of significant price suppression.  
4. The Panel erred in the interpretation and consequent application of Articles 3.1 and 3.2 of 
the AD Agreement when rejecting the European Union's argument that the DIMD failed to examine 
whether the mar ket would accept any additional domestic price increases on the basis of a 
requirement that interested parties must have explicitly questioned the ability of the market to 
absorb additional price increases, even if there was evidence before the investigati ng authority of 
significant price increases in the past as well as significant increases in costs of production. Thus, 
the European Union requests the Appellate Body to reverse the Panel's findings and conclusions in 
paragraphs 7.87 -7.91 and 8.1(d)(iii) an d complete the analysis on the basis of the Panel's findings 
and uncontested facts on the record by finding that the DIMD acted inconsistently with Articles 3.1 
and 3.2 of the AD Agreement by failing to examine whether the market would accept additional 
domestic price increases.  
5. The Panel erred in the interpretation and application of  Articles 3.1 and 3.4 of the 
AD Agreement by finding that the DIMD was not required to examine the information about stocks 
provided by Turin Auto (Sollers' related trader) as  part of the mandatory factors belonging to the 
state of the domestic industry.2 The European Union requests the Appellate Body to reverse the 
Panel's findings in paragraphs 7.122, 7.123, 7.173(b) and 8.1(e)(ii) and declare them moot and 
with no legal effe ct.  
II. ERRORS RELATING TO T HE PANEL'S FINDINGS ON THE EU'S CLAIM UN DER 
ARTICLE 6.9 OF THE A D AGREEMENT  
The European Union submits that the legal findings and conclusions of the Panel concerning the 
disclosure of essential facts by the DIMD listed below are legally erroneous and requests that the 
Appellate Body reverse them, specifically with respect to the following:  
1. The Panel incorrectly interpreted Article 6.9 by finding, in general terms, that a 
"methodology " is not a fact, or an essential fact.3 
2. The Panel incorrectly interpreted Article 6.9 by finding that "not every "essential fact " 
is required to be disclosed ", but rather that Article 6.9 applies only to those essential 
facts which are additionally shown to be "under consideration ".4 
3. The Panel incor rectly interpreted and applied Article 6.9 by finding that the source of 
data cannot be an essential fact under consideration, and/or that the source of the 
data concerning import volumes and values on which the DIMD 's dumping and injury 
analyses were base d is not an essential fact under consideration.5 
With respect to these errors, the European Union requests the Appellate Body to reverse these 
findings, complete the analysis on the basis of the Panel's findings and uncontested facts on the 
record and find  that, by failing to disclose the source of information concerning import volumes 
and values in the context of its dumping and injury analyses, the DIMD acted inconsistently with 
Article 6.9 of the AD Agreement.  
 
_______________  
 
 
 
 
 
                                                
2 Panel Report, paras. 7.122, 7.123, 7.173(b) and 8.1(e)(ii).  
3 Panel Report, para. 7.256.  
4 Panel Report, para. 7.256.  
5 Panel Report, paras. 6.42, 7.256 -7.257, 7.278 and 8.1(h).  WT/DS479/AB/R/Add .1 
 
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 ANNEX B  
ARGUMENTS OF THE PARTICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Russia 's appellant's submission  B-2 
Annex  B-2 Executive summary of the European Union 's other appellant's submission  B-4 
Annex  B-3 Executive summary of the European Union' s appellee's submission  B-7 
Annex  B-4 Executive summary of Russia 's appellee's submission  B-10 
 WT/DS479/AB/R/Add .1 
 
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 ANNEX B -1 
EXECUTIVE SUMMARY OF  RUSSIA'S APPELLANT S UBMISSION1 
 
1. With regard to the definition of the domestic industry, the Russian Federation seeks review 
of paragraphs 7.15 (a), 7.15 (c) and footnote 85, paragraphs 7.16, 7.21(b), 7.21 (c), 
7.21(d), 7.22, 7.26(a), 7.27, 8.1(a), 8.1(b) of the Panel Report.  
2. The Russian Federation is of the view  that Article 4.1 of the Anti -Dumping Agreement, when 
read to gether with Article 3.1 of the Anti -Dumping Agreement, should be interpreted 
pursuant to customary rules of interpretation of public international law as allowing the 
investigating authority to redefine the domestic industry based on considerations of 
"objective examination " and "positive evidence " under Article 3.1 of the Anti -Dumping 
Agreement.   
3. The Russian Federation considers that the Panel's interpretation, contrary to the principle of 
harmonious interpretation, generates a conflict between the obli gation to properly define the 
domestic industry and to base the injury determination on "positive evidence " in the 
meaning of Article 3.1 of the Anti -Dumping Agreement. The Panel's interpretation also 
contradicts  the principle of effective interpretation, as it appears to reduce the concept of 
"major proportion of total domestic production " to inutility.  
4. The Russian Federation appeal s the finding of the risk of  material distortion in the injury 
analysis on the basis of the "sequence of events ". First, the Anti-Dumping Agreement does 
not specify the precise time period when the domestic industry should be defined and when 
the investigating authority should make a specific determination of the domestic industry. 
Second, the Panel appears to ignore the fact that there was no alternative to such 
"sequence  of events ". Third, the Panel appears to focus on the fact of data review and 
ignore that it is impossible to "ensure a particular outcome ", if the data in question is 
manifestly incorrect and deficient.  
5. The Ru ssian Federation is also of the view that the Panel's findings of violation of Articles 4.1 
and 3.1 of the Anti -Dumping Agreement are not in conformity with Article 17.6(ii) of the 
Anti-Dumping Agreement.  
6. With regard to price suppression analysis, the Russ ian Federation submits that the Panel's 
finding in paragraphs 7.64 –7.67, 7.181 -7.182, 8.1 (d)(i) and 8.1  (f)(i) of the Panel Report 
should be reversed on the grounds that the Panel erred in its l egal interpretation of 
Articles  3.1 and 3.2 of the Anti -Dumpi ng Agreement. The Panel concluded that the DIMD 
should have considered the financial crisis factor in determining the rate of return in the 
consideration of price suppression . According to the Panel's reading of  Articles 3.1 and 3.2 of 
the Anti -Dumping Agr eement , evidence bring ing into question whether the rate of return 
used for constructing a counterfactual target price could be achieved in the absence of 
dumped imports may not be ignored by an objective and unbiased investigating authority.  
7. The Russian F ederation is convinced that an investigating authority does not have the 
obligation to consider such evidence. Absent any  requirements in the Anti -Dumping 
Agreement to examin e any factors in the price suppression analysis the focus on one or 
several factors in the determination of the counterfactual  rate of return for the price 
suppression analysis creates the risk of biased and, consequently, non -objective analysis in 
breach o f Article 3.1 of the Anti -Dumping Agreement. The Russian Federation believes that 
the rate of return for constructing counterfactual target prices should be the one that the 
domestic industry could have reasonably expect ed in the absence of the dumped impo rts, 
which should be estimated  taking into account the level of profitability in the sector of the 
product and the economic conditions of the country rather than through the analysis of 
particular factors.  
                                                
1 Word counts: Total word count of the executive summary ( including footnotes): 8 95. 
 WT/DS479/AB/R/Add .1 
 
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 8. With regard to essential facts, the Russian Federation appeals the Panel's findings regarding 
the disclosure of essential facts in paragraphs 7.268 —7.270, 7.278 , 
8.1(h)(ii) of the Panel Report.  
9. The Russian Federation submits that the Panel erred in its interpretation of Articles 6.9 
and 6.5 of the A nti-Dumping Agreement by finding a consequential violation of Article 6.9 of 
the Anti -Dumping Agreement and failing to examine how the investigating authority 
disclosed the essential facts at issue.  
10. The Russian Federation considers that the Panel violated  Article 15.2 of the DSU by adding 
in the final report a new legal finding in paragraph 7.270 that had not appeared in the 
Panel's interim report. The Russian Federation notes that the Panel extrapolated its legal 
finding made with regard to data contained  in Table 11 to data from the electronic customs 
database without specifically reviewing whether the "good cause " was shown with respect to 
information from the electronic customs database.  
11. In addition, the Panel exceeded its terms of reference by making the legal finding in 
paragraph 7.270 of its Report because the issue of conformity of confidential treatment of 
data from the electronic customs database was not specific ally challenged by the 
European  Union. In doing so, the Panel violated Article 7 of th e DSU.  
12. In any event, the Panel erred in finding that the actual import volumes and the weighted 
average import price of LCVs produced by Daimler AG and Volkswagen AG , respectively , 
were not properly treated as confidential because the Panel made an erroneo us finding that 
the data from the electronic customs database were not properly treated as confidential. 
Therefore, the Russian Federation seeks review of the Panel's findings in paragraphs 7.241 -
7.247, insofar as these findings refer to disclosure of esse ntial facts, paragraphs 7.269 -
7.270, 7.278 and 8.1 (h)(ii) of its Report.  
 
 WT/DS479/AB/R/Add .1 
 
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 ANNEX B -2 
EXECUTIVE SUMMARY OF  THE EUROPEAN UNION'S  OTHER APPELLANT'S SU BMISSION1 
1. The European Union submits that the Panel made several reversible errors when examining 
the EU's claims concerning the DIMD's injury analysis and the DIMD's failure to disclose 
certain essential facts.  
2. First, the Panel failed to make an objective assessment of the matter before it in acc ordance 
with Article 11 of the DSU and failed to determine whether the DIMD's establishment of the 
facts was proper and whether its evaluation of those facts was unbiased and objective as 
provided by  Article 17.6 of the AD Agreement, by  basing its assessme nt of the EU's claims 
under Article 3.1 and 3.4 of the AD  Agreement relating to three mandatory injury factors  
(return on investments, actual and potential effects on cash flow and the ability to raise 
capital or investments ) on the alleged confidential Final Report . As a consequence, the 
Panel's finding that the EU had not established that the DIMD acted inconsistently with 
Article 3.1 and 3.4 of the AD  Agreement with respect to its analysis of three mandatory 
injury factors is also in error.  
3. In Thailand - H-Beams  and EC – Pipe or Tube Fittings , the Appellate Body made clear that 
panels cannot simply accept the respondent's mere assertion that the entire content of 
confidential documents that emerged for the first time during WTO proceedings actually 
formed  part of the investigation record. They must assess, and require the submitting party 
to show,  whether that was indeed the case, through relevant explanations or evidence.  
4. In this case, it was for Russia as the asserting party to demonstrate that the confidential 
record contained an analysis of the missing injury factors. Nevertheless, even though it 
should not have been required to do so, the EU put forward to the Panel a prima facie  case 
that the analysis of the three injury factors may not have formed part of the investigation 
record. The Panel made no attempt to properly establish the facts regarding this issue. 
Instead, the Panel made clear that it would accept any docum ent submitted by a 
WTO respondent as having formed part of the investigation record, unless the complainant 
positively showed that the document is not genuine. In this way, the Panel ignored the 
Appellate Body's guidance that a panel's assessment can only be based on facts and 
reasoning that formed part of the investigation record , and it created an incentive for 
respondents to bolster their WTO cases with new facts and reasoning ex post . 
5. The E uropean Union therefore requests the Appellate Body to reverse t he Panel 's 
intermediate finding that it may base its assessment of the EU 's claims on the three injury 
factors on the alleged confidential Final Report, as well as its associated conclusion that the 
EU had not established that the DIMD acted inconsistently  with Articles 3.1 and 3.4, and to 
complete the analysis . 
6. Second, the EU appeals the Panel's findings (i) on whether the price suppression was the 
effect of dumpe d imports ("explanatory force") , as well as (ii) on whether the price 
suppression was "to a si gnificant degree", as inconsistent with the Panel's obligation in 
Article 11 of the DSU to make "an objective assessment of the facts of the case and 
conformity with the relevant covered agreements".  
7. The Panel's findings in this respect lack consistent and  coherent reasoning. Once the Panel 
had found that the DIMD had acted inconsistently with Articles 3.1 and 3.2 of the 
AD Agreement when wrongly taking the 2009 domestic industry's profit rate as the basis to 
establish the domestic target price without any adjustments, the Panel could not have 
concluded that the DIMD's following determinations about "the explanatory force of the 
effects of the dumped imports" and "the significant degree of price suppression" found were 
appropriate.  
                                                
1 Total number of words ( including footnotes but excluding executive summary) = 2 3 921 ; total number 
of words of the executive summary = 2 142 . WT/DS479/AB/R/Add .1 
 
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 8. The Panel accepted the DI MD's methodology in the price suppression analysis, which was 
based on the gap between the actual prices and the erroneously determined target prices of 
domestic goods. According to the Panel, when an investigating authority constructs a target 
price that otherwise would have occurred in the absence of dumped imports, "the 
methodology itself ensures that the failure of actual domestic prices to rise to the level of 
the target domestic price is an effect of dumped imports". However, the Panel erred in 
dismis sing the European Union's arguments regarding the DIMD's failure to consider 
evidence pertaining to other factors on the basis of a formula that does not take into 
account the existence of any other factors than the actual and constructed domestic prices. 
This is erroneous  because any application of such methodology is necessarily affected by the 
illegal profit rate chosen to construct the target domestic prices.  Furthermore, the Panel 
concluded that the DIMD objectively considered whether the price suppres sion was "to a 
significant degree", referring to Table 5.2.2 of the Investigation Report that sets out both 
the actual and target domestic prices. Without knowing the edges of the target price, 
however, it was not possible for the Panel to determine whethe r the gap between domestic 
prices and any targeted price was small or big enough for Sollers to actually sell its products 
at a non -injurious price in view of the specific market conditions.  
9. Therefore, the European Union respectfully asks the Appellate Bo dy to reverse these findings 
and conclusions and declare them moot and without any legal effect.  
10. Third, should the Appellate Body consider that the Panel did not make a reversible error 
under Article 11 of the DSU with respect to whether the price suppression w as the effect of 
dumped imports,  as well as whether the price suppression was "to a significant degree" , the 
EU appeals the Panel's interpretation and consequent application of Articles 3.1 and 3.2 of 
the AD Agreement when finding that the DIM D's methodology for establishing price 
suppression will necessarily show that the dumped imports have "explanatory" force for the 
suppression of domestic prices. The Panel wrongly interprets and applies Articles 3.1 and 3.2 
when approving a methodology tha t limits the comparison of actual domestic prices with 
calculated target domestic prices without any possible consideration of other factors, even 
though these provisions require investigating authorities to consider whether the subject 
imports have "expla natory force" for the price suppression. The Panel thus ignores the 
Appellate Body's guidance that a n investigating authority is required to consider whether 
subject imports  have explanatory force for significant suppression of domestic prices.   
11. The EU arg ued before the Panel that the fact that the prices of dumped imports were higher 
than domestic prices suggests that other factors, unrelated to the dumped imports, do not 
support the conclusion of price suppression. The DIMD should at least have examined 
whether such factors put into question the "explanatory force" of the imports. Instead, it 
rejected the EU's arguments merely on the basis that the DIMD's methodology of comparing 
the actual domestic prices with the calculated domestic prices would automati cally 
demonstrate that the imports have "explanatory force" for the domestic price effects. The 
European Union respectfully asks the Appellate Body to reverse  these findings and 
conclusions of the Panel and complete the analysis, finding that the DIMD fail ed to examine 
whether the dumped imports had "explanatory force".  
12. Fourth, the EU appeals the Panel's rejection of the EU's argument that the DIMD failed to 
examine whether the market would accept any additional domestic price increases, even if 
faced with evidence on the producer's very high cost of production.  
13. The Panel erred in the interpretation and consequent application of Articles 3.1 and 3.2 of 
the AD Agreement by reading into those provisions a requirement that the interested parties 
must have expl icitly questioned the ability of the market to absorb additional price 
increases. Such a requirement goes directly against the objective assessment based on 
positive evidence that an investigating authorities is required to undertake also in the 
context of  the price suppression analysis. When there is evidence on the record of significant 
price increases in the past as well as significant increases in the costs of production, the 
investigating authority, making an objective assessment of the facts before it , must consider 
whether the market will be willing to absorb further price increases. The term "evidence on 
the record" in this context is not limited to comments made by the interested parties. It 
refers to all evidence collected by the investigating auth ority from the exporting producers, 
the domestic producers and all other interested parties.  WT/DS479/AB/R/Add .1 
 
- B-6 - 
 
 14. In any event, in the present case, without the need of this being raised specifically by 
interested parties during the investigation, there was ample evidence on t he record 
questioning the ability of the market to absorb further price increases. An investigating 
authority cannot assume, without more,  that domestic prices are able to rise to the same 
extent as the domestic costs. Consequently, the Panel should have c oncluded that the DIMD 
failed to examine whether the market could absorb a further increase in domestic prices, 
contrary to what is required under Articles 3.1 and 3.2 of the AD Agreement. By failing to do 
so, the Panel consequently erred in the applicatio n of Articles 3.1 and 3.2 of the 
AD Agreement.  
15. Therefore, the European Union respectfully asks the Appellate Body to reverse the se findings 
and conclusions and complete the analysis by finding that the DIMD acted inconsistently 
with Articles 3.1 and 3.2 of  the AD Agreement in failing to examine whether the market 
would accept additional domestic price increases.  
16. Fifth, the European Union submits that the Panel erred in the interpretation and application 
of Articles 3.1 and 3.4 of the AD Agreement by finding  that the DIMD was not required to 
examine the information about stocks provided by Turin Auto (Sollers' related trader) as 
part of the mandatory factors belonging to the state of the domestic industry. Indeed, the 
Panel adopted a very narrow interpretatio n of the meaning of the term "domestic industry" 
in Article 3.4 of the AD Agreement by excluding information relating to entities which belong 
to the same economic group and that had submitted the relevant Questionnaire Response. 
Disregarding data about th e domestic industry understood as a single economic entity may 
risk distorting the injury analysis. Thus, the  European Union requests the Appellate Body to 
reverse the Panel's findings in paragraphs 7.122, 7.123, 7.173(b) and 8.1(e)(ii) and declare 
them mo ot and with no legal effect.  
17. Sixth, the European Union submits that the Panel incorrectly interpreted and applied 
Article  6.9 of the AD Agreement, and that it incorrectly concluded that the source of data is 
not an essential fact under consideration (both as a general proposition and, in the specific 
circumstances of this dispute, with respect to the source of the information concerning 
import volumes and values on which the dumping and injury analyses were based ). 
18. The Panel incorrectly interpreted  Article 6.9 by finding, in general terms, that a 
"methodology " is not a fact, or an essential fact, as well as by finding that "not every 
"essential fact " is required to be "disclosed ", but rather that Article 6.9 applies only to those 
essential facts which are ad ditionally shown to be "under consideration ".  
19. Furthermore, the Panel incorrectly interpreted and applied Article 6.9 by considering that 
sources of data can never be essential facts under consideration , and by consequently failing 
to make specific finding s in respect of the sources of data referred to by the EU.  
20. The effective protection of interested parties' rights requires not only that they know the raw 
data that is used  to find dumping or injury, but also which  data was used, i.e. from which 
source. I f the source of data is not disclosed, it may be difficult or impossible for the 
interested parties to comment on, contest or correct that data.  In this case, Volkswagen AG 
and Daimler AG needed to know the source of data on import volumes and values in or der 
to assess the data's suitability and accuracy , especially since the record of the investigation 
indicates, and the parties agree, that interested parties raised concerns with respect to the 
source and scope of that data.  
21. The source of the data was an essential fact under consideration because it was a fact that 
"may be taken into account by an authority in reaching a decision as to whether or not to 
apply definitive anti -dumping and/or countervailing duties ". If the invest igating authority did 
not take the source of data into account, it could not objectively assess the data.  
22. The EU requests the Appellate Body to reverse these findings and conclusions of the Panel, 
and to complete the analysis by finding that, by failing to  disclose the source of information 
concerning import volumes and values in the context of its dumping and injury analyses, the 
DIMD acted inconsistently with Article 6.9 of the AD Agreement.  WT/DS479/AB/R/Add .1 
 
- B-7 - 
 
 ANNEX B -3 
EXECUTIVE SUMMARY OF  THE EUROPEAN U NION'S APPELLEE'S SU BMISSION1 
 
1. Russia appeals the Panel's findings that the DIMD acted inconsistently with Article 4.1 of 
the AD Agreement in its definition of "domestic industry" and, that, consequently, 
the DIMD acted inconsistently with Article 3.1 of the AD Agreement.  The European 
Union considers that Russia's appeal is without merit.  
2. Russia's appeal under Article 4.1 does not contest any findings of fact by the Panel. Yet, Russia 
appeals various legal interpretations made by the Panel that are based o n alternative factual 
findings and at times mixes the alternative findings of law and fact together as if the Panel's 
primary and alternative findings would be part of a single analysis. This makes responding to 
Russia's arguments particularly challenging.  
3. Although Russia presents four overlapping arguments to challenge the findings of the Panel, 
the key to Russia's appeal appears to be its argument that the requirement of "positive 
evidence" in Article 3.1 of the AD Agreement applies as such also under Art icle 4.1.  
4. The Panel correctly rejected Russia's "positive evidence" ar gument by reiterating that: 
(i) definition of domestic industry and the collection and use of data from that domestic 
industry are separate issues; (ii) data collection concerns cannot b e a consideration for 
determining which specific producers are included in the domestic industry and which are not 
(iii) data collection problems can always arise in the course of an investigation, but nothing 
justifies the use of data problems of the kind  identified by Rus sia as a basis for defining 
(or redefining) domestic industry; and (iv) assessing the data collected from domestic 
producers before  defining the domestic industry "in itself gives rise to a risk of material 
distortion in the ensuing injur y analysis".  
5. Russia's other arguments also fail. The Panel did not fail to apply the principle of effective 
interpretation because the Panel correctly applied the qualitative aspect in Article 4.1 of the 
AD Agreement taking into account that there were onl y two domestic producers. Defining or 
redefining the domestic industry to include only the petitioner after having seen the data from 
the other producer cannot be compatible with Article 4.1. Further, the Panel correctly found 
that the sequence of events i n the investigation brought about an appearance of selecting 
among the domestic producers based on their data and therefore there was an obvious risk of 
material distortion in the subsequent injury analysis. Finally, R ussia argument based on 
Article  17.6(ii) equally fails because Russia has failed to demonstrate that its interpretation is 
permissible.  
6. Russia appeals the Panel's conclusion that the DIMD acted inconsistently with Articles 3.1 
and 3.2 of the AD Agreement by relying on the 2009 profit rat e as a basis for its 
calculations when examining price suppression . If there is evidence before the 
investigating authority of market conditions during the selected year from which the profit rate 
is taken that bring into question whether that rate of retu rn could be achieved in subsequent 
years under normal conditions of competition and in the absence of dumped imports, the 
authority may not ignore such evidence. In this case, the DIMD relied on the 2009 profit rate, 
a year for which it had recognised that  the conditions of competition were affected by the 
financial crisis, during which consumers preferred the cheaper domestic light commercial 
vehicles.  
7. First, Russia argues that, under Articles 3.1 and 3.2, the authority is not obliged to consider 
any evide nce that questions the reasonableness of the profit rate on which it basis itself to 
construct the target prices.  
                                                
1 Total number of words (including footnotes but excluding executive summary) = 22 548; total number 
of words of the executive summary = 1 905.  WT/DS479/AB/R/Add .1 
 
- B-8 - 
 
 8. However, according to Articles 3.1 and 3.2, the investigating authority cannot make an 
objective examination of the price suppression effect, and conclude in an unbiased manner 
that there is price suppression, if the authority chose a profit rate that does not correspond to 
what a domestic producer can realistically and reasonably obtain the absence of dumped 
imports. During the financial crisis , there was essentially no competition in the market, which 
enabled Sollers to get the very high profit rate in 2009. These are not "normal conditions of 
competition". The DIMD could not base its price suppression analysis on a profit rate that was 
affecte d by such abnormal conditions without making any adjustments.  
9. Second, Russia argues that examining evidence relating to the reasonableness of the profit 
rate should not be part of the examination under Articles 3.1 and 3.2, but falls rather under 
Article 3 .5. 
10. However, the obligation for an investigating authority to give due account to evidence showing 
exceptional circumstances surrounding the high profit rate used to construct target prices does 
not concern alternative causes for the alleged injury. It con cerns the components of the 
constructed prices to assess price suppression itself. Moreover, the Appellate Body has already 
confirmed that an authority making an objective assessment of the facts may not disregard 
evidence that calls into question the exis tence of significant price suppression, as well as 
evidence questioning whether subject imports have "explanatory force" for the occurrence of 
significant suppression of domestic prices. Hence, when there is evidence before the authority 
that questions the  reasonableness of the components on which it bases itself to construct the 
target price, such a reasonable and objective investigating authority may not ignore such 
evidence and proceed without making any adjustments.  
11. Moving on to the disclosure of essent ial facts, the Panel found that, to the extent that the 
DIMD failed to disclose information that was not properly treated as confidential 
(and which amounted to essential facts), the DIMD acted inconsistently with 
Article  6.9. The central argument of Russi a's appeal is that there is no requirement of proper  
confidential treatment in Article 6.9. According to Russia, investigating authorities can withhold 
essential facts as confidential, even if no good cause is shown for confidentiality. Russia does 
not dis pute that the facts at issue are, indeed, "essential facts". Nor does it argue that the 
DIMD actually disclosed those facts.  
12. The Panel was correct to find that essential facts can only be withheld on confidentiality 
grounds if they were treated as confiden tial properly . The Panel did so by interpreting 
Articles  6.5 and 6.9 harmoniously, without stating that any breach of Article 6.5 will 
automatically entail a breach of Article 6.9. Rather, if confidential treatment cannot properly 
be extended to an essenti al fact, then that fact must be disclosed. As the Appellate Body has 
already found, investigating authorities' reliance on confidentiality to limit the scope of their 
disclosure obligations is circumscribed by the requirements of proper confidential treatm ent, 
including good cause as well as meaningful non -confidential summaries.  
13. The Panel did not err by referring to its previous findings under Article 6.5 when finding that 
the DIMD acted inconsistently with Article 6.9. Another permissible way for a panel to proceed 
would be to make the factual finding that no good cause was shown when applying Article 6.9 
itself, without explicitly referring back to a finding under Article 6.5.  
14. Russia also argues that the Panel erred by failing to cons ider the summaries of  
"redacted  actual figures" that were allegedly provided by the DIMD. The Panel did not need to 
make specific findings on this issue, since the absence of good cause means that there is no 
legal basis to properly treat essential facts confidentially. In any  event, Russia's appellant 
submission fails to identify a single part of the Draft Report where the DIMD is supposed to 
have provided a meaningful summary. Moreover, the Panel implicitly found that 
non-confidential summaries were not provided (e.g. finding  that "many of the explanations 
linking confidential information to alleged "summaries" in the Investigation Report were set 
out in the Russian Federation's submissions to the Panel, rather than having been in the 
submitted documents or found elsewhere in the record of the investigation"), and it is also 
clear on the face of the Draft Report that summaries are either totally absent or not 
meaningful. With respect to import volumes, weighted average import prices, domestic 
consumption and production values, Russia's argument that the facts at issue are confidential 
is irrelevant, because the Panel's findings are based on the failure to show good cause.  WT/DS479/AB/R/Add .1 
 
- B-9 - 
 
 15. The European Union considers Russia's appeal with respect to disclosure to be without merit. 
Nevertheless, w ere the Appellate Body to agree with Russia that the Panel made a reversible 
error by finding that proper confidential treatment (including good cause) is a condition for 
relying on confidentiality in order not to disclose essential facts, the European Uni on 
conditionally requests the Appellate Body to complete the analysis and find a violation of 
Article 6.9 of the AD Agreement by basing itself on the absence of meaningful non -confidential 
summaries of the essential facts at issue.  
16. With respect to Russia's  appeal under Article 7.1 of the DSU, the European Union fails to see 
why its Article 6.9 claim against information originating in the customs database would 
somehow not be a part of the matter before the Panel. Even if there were flaws in the Panel's 
reasoning or assessment of the facts, quod non , this could not have the effect of removing the 
EU's claim against this information from the Panel's terms of reference.  
17. Russia further claims that the Panel violated Article 15.2 of the DSU by inserting a paragr aph 
that Russia itself requested in interim review. This already shows why the Appellate Body 
should dispense with this claim. Article 15.2 does not allow Russia to undo its interim review 
request, and it does not prevent a panel from modifying certain asp ects of its reasoning or of 
its findings when requested to do so by a party (rather, it requires it to do so ).  
18. In any event, there is nothing objectionable with paragraph 7.270 of the Report, in which the 
Panel makes the straightforward finding that, with  respect to the information at issue, there is 
no showing of good cause for confidentiality anywhere on the record, leading ultimately to an 
inconsistency with Article 6.9 in failing to disclose it. This information was clearly covered by 
the European Unio n's Article 6.9 claim and open for the Panel to consider.  
19. Finally, Russia "seeks review", without invoking any particular provision of the covered 
agreements, of the Panel's finding that certain information originating in customs databases 
was not properl y treated as confidential. This appeal fails to s atisfy the requirements of 
Rule 20(2)(d)(ii) and Rule 21(2)(b)(i) of the Working Procedures for Appellate Review, and the 
European Union requests the Appellate Body to find that it is not properly before it.  In the 
alternative, even if the Appellate Body were to examine Russia's arguments at all, it would see 
that this is, in all but name, an appeal under Article 11 of the DSU. Given that Russia failed to 
refer to Article 11 of the DSU either in its Notice of  Appeal or in its Appellant Submission, the 
Appellate Body should refuse to rule on this part of Russia's appeal.  
20. In any event, even if there was a valid appeal under Article 11, Russia has failed to show any 
lack of an objective assessment by the Panel. F irst, whether or not undisclosed essential facts 
at issue were confidential and why was irrelevant to the Panel's findings. Second, 
Russia' s explanations on good cause fail to specify where the Panel (or the interested parties) 
could have found "references  to legislation" on the record; before the Panel, Russia similarly 
only sought to provide ex post  explanations; and Russia has not shown that the so -called 
additional disclosure letter provides good cause for confidentiality.  
 
 WT/DS479/AB/R/Add .1 
 
- B-10 - 
 
 ANNEX B -4 
EXECUTIVE SUMMARY OF  RUSSIA'S APPELLEE'S SUBMISSION1 
A. ARTICLE 11 OF THE DS U AND ARTICLE 17.6 O F THE ANTI -DUMPING AGREEMENT  
 1. The Panel did not violate Article 11 of the D SU and Article 17.6 of the 
Anti-Dumping Agreement by relying on the confidential Report with respect 
to the DIMD's analysis of three mandatory injury factors  
1. The Russian Federation submits that the Panel did not violate Article 11 of the DSU and 
Article  17.6 of the Anti -Dumping Agreement by relying on the confidential version of the 
Report with respect to the DIMD's analysis of the three mandatory injury factors.  
2. First, the European Union misrepresents its arguments during the Panel proceedings. In light 
of the arguments actually made by the European Union before the Panel, the threshol d issue 
to be examined by the Panel was whether the absence of indications in the published Report 
that a certain analysis was made could preclude the Panel from considering certain parts of 
the confidential version of the Report in its analysis of the Eur opean Union's claims under 
Articles 3.1 and 3.4 of the Anti -Dumping Agreement.  
3. Second, since Article 3.1 contains a substantive  requirement and there are specific 
provisions of the Anti -Dumping Agreement designed to address the concerns regarding the 
absen ce of certain indications in the published report, the Panel was correct to conclude that 
there was no basis for the proposition that it may not base  its assessment of the 
European  Union's claim under Articles 3.1 and 3.4 of the Anti -Dumping Agreement on t he 
confidential version of the Report.  
4. Third, the European Union is wrong in arguing that in EC — Tube or Pipe Fittings  the 
Appellate Body set a standard as to how WTO panels must proceed in cases where 
respondents submit confidential documents as part of the investigation record during the 
panel proceedings.  
5. Fourth, it was at the discretion of the Panel whether t o ask questions to the 
Russian  Federation in respect of the confidential version of the Report. In light of the 
arguments put forward by the parti es and the discussion that took place during the Panel 
proceedings, there were no reasons for the Panel to seek clarifications from the 
Russian  Federation.  
6. As regards the European Union's request for completion of the analysis, the undisputed facts 
on the panel record, even if considered sufficient to complete the analysis, provide no basis 
to question whether the confidential version of the Report formed part of the investigation 
record.  
2. The Panel did not violate Article 11 of the DSU in its findings re garding price 
suppression analysis  
7. The Russian Federation is convinced that the Panel did not violate Article 11 of the DSU in its 
findings regarding the "explanatory force" of the dumped imports for price suppression, and 
the "significant degree" of price  suppression. The Panel decided that the European Union did 
not establish  that: a) the DIMD's consideration of whether the subject imports have 
"explanatory force" for the occurrence of price suppression of domestic prices was 
inconsistent with Articles 3. 1 and 3.2 of the Anti -Dumping Agreement and b) the DIMD did 
not demonstrate that the alleged price suppression was "to a significant degree" because the 
DIMD did not compare the estimated prices and the actual prices for the domestic like 
product. Therefor e, the European Union did not comply with the standard of the burden of 
proof which is on the complaining party. The European Union did not show in its 
Other  Appellant Submission why and where the assessment of facts by the Panel was not 
                                                
1 Word counts: Total word count of the executive summary (including footnotes): 1670. WT/DS479/AB/R/Add .1 
 
- B-11 - 
 
 objective and, con sequently, why, in its own view and contrary to the Panel's findings, the 
European Union did establish  that the DIMD was inconsistent with Articles 3.1 and 3.2 of the 
Anti-Dumping Agreement in its consideration of explanatory force and significance of pric e 
suppression. The arguments of the European Union are based on the wrong interpretation of 
the Panel's finding with regard to the determination of appropriate rate of return for the 
price suppression analysis because, first, the Panel did not decide that 2009 rate of return is 
WTO-inconsistent and should be rejected as a benchmark for the target domestic prices and, 
second, the reasoning of the Panel did not rely on the target domestic prices calculated by 
the DIMD.  
B. THE PANEL DID NOT ER R IN ITS INTERPRE TATION AND APPLICATI ON OF 
ARTICLES 3.1 AND 3.2  OF THE ANTI -DUMPING AGREEMENT  
8. The Russian Federation believes that the Panel did not err in its legal interpretation and 
application of Article s 3.1 and 3.2 of the Anti -Dumping Agreement by finding that price 
undercutting does not preclude the finding of the price suppression and that in accordance 
with Article 3.2 of the Anti -Dumping Agreement an investigating authority should at least 
consider whether the market would accept price increases in the absence of dumped 
imports, when faced with relevant evidence suggesting it would not. The European Union 
gives misleading interpretation of the Panel 's findings by stating that, according to the 
Panel, there is no further need to examine whether the su bject imports h ave 
"explanatory  force" for the price suppression because the methodology of the DIMD itself 
establishes that the price suppression is the effect of the dumped imports.  
9. The Russian Federation maintains that the Panel did not err in its legal interpretation  and 
application of Article 3.1 and Article 3.2 of the Anti -Dumping Agreement by finding that an 
investigating authority should at least consider whether the market would accept price 
increases in the absence of dumped imports, when faced with relevant evi dence suggesting 
it would not. The European Union provides perverse interpretation of the Panel 's findings by 
stating that the Panel rejected the European Union 's arguments on the basis of a 
requirement that interested parties would have had to explicitly question the ability of the 
market to absorb additional price increases and that the Panel ignored the evidence before 
the investigating authority of significant price increases in the past as well as significant 
increases in costs of production.  
C. THE PA NEL DID NOT ERR IN I TS INTERPRETATION AN D APPLICATION OF 
ARTICLES 3.1 AND 3.4  OF THE ANTI -DUMPING AGREEMENT  
10. The Russian Federation submits that the Panel did not err in its legal interpretation and 
application of Article 3.4 of the Anti -Dumping Agreement s ince it correctly interpreted the 
obligations of the investigating authority under Articles 3.1 and 3.4 of the Anti -Dumping 
Agreement in accordance with the customary rules of interpretation of public international 
law. The ordinary meaning of the terms co nstituting A rticles 3.1 and 3.4 of the 
Anti-Dumping Agreement in their context demonstrates that the domestic industry refers 
only to "domestic producers of the like product" that "bring into existence the like product".2 
Indeed, Article 3 of the Anti -Dump ing Agreement explicitly limits the injury determination to 
the domestic industry, as defined. Therefore, nothing in Article 3 of the Anti -Dumping 
Agreement may support a proposition of the European Union that the investigating authority 
is generally requi red under Articles 3.1 and 3.4 of the Anti -Dumping Agreement to analyse 
data of entities that do not "bring into existence the like product" and, consequently, cannot 
form part of the domestic industry, as defined under Article 4.1 of the Anti -Dumping 
Agreement.  
11. In addition, the Panel's interpretation cannot be considered as a narrow interpretation that 
excludes the possibility of examination of inventories pertaining to a related trader. Rather, 
the Panel indicated that "in certain circumstances, evidence pertaining to such a related 
trader may constitute evidence pertaining to "a relevant economic factor[]" having a bearing 
on the state of the industry such that an investigating authority is required to evaluate it".3 
                                                
2 See Panel Report, Mexico — Olive Oil , para. 7.192.  
3 Panel Report, para. 7.122.  WT/DS479/AB/R/Add .1 
 
- B-12 - 
 
 D. THE PANEL DID NOT ER R IN ITS INTERP RETA TION AND APPLICATION  OF 
ARTICLE  6.9 OF THE ANTI -DUMPING AGREEMENT  
12. With regard to essential facts, the Russian Federation considers that the Appellate Body 
should uphold the Panel's finding that the source of the information concerning import 
volumes a nd values  is not an essential fact under consideration and it must not be disclosed 
to interested parties in accordance with Article 6.9 of the Anti -Dumping Agreement.  
13. The Russian Federation notes that arguments raised by the European Union in its 
Other  Appellant Submission are beyond the scope of the appellate review  under Article 6.9  
because they were not made before the Panel. The Russian Federation states that in order 
to assess new arguments of the European Union, the Appellate Body would have to solic it, 
receive and review new facts and evidence  from the parties . 
14. In the Russian Federation's view, the Panel's interpretation of Article 6.9 does not contradict 
to the Appellate Body's interpretation in China — GOES  because the Panel stated that the 
source of data was  a fact under consideration, but was not an essential fact  under 
consideration. The Russian Federation considers that, in itself, the source of data in the 
present case (i) does not form the basis for the decision to apply definitive measure and  is 
not salient for a contrary outcome, (ii) does not ensure the ability of interested parties to 
defend their interest and (iii) was not an obstacle for an interested party to comment on the 
completeness and correctness of the investigating authorities' c onclusions.  
15. The Russian Federation underlines that the European Union mischaracterizes the Panel's 
finding under Article 6.9 concerning methodologies. In the Russian Federation's view, the 
Panel did not find that a methodology can in no case constitute an essential fact under 
consideration. Therefore, the European Union's claim that the Panel erred in its 
interpretation of Article 6.9 of the Anti -Dumping Agreement lacks merit.  
E. CONCLUSION  
16. The Russian Federation submits that the European Union has failed t o establish that the 
Panel violated Article 11 of the DSU and erred in its interpretation and application of the 
Anti-Dumping Agreement, as challenged by the European Union.  
17. In light of the preceding observations, the Russian Federation requests the Appell ate Body 
to reject in their entirety the European Union's claims in its Other Appellant Submission and 
Notification of an Other Appeal and uphold the Panel's f indings covered by the 
European  Union's claims.  
 
_______________  
 
 
 WT/DS479/AB/R/Add .1 
 
- C-1 - 
 
 ANNEX C  
ARGUMENTS OF THE THIRD  PARTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of Brazil's third participant's submission  C-2 
Annex  C-2 Executive summary of Japan's third participant's submission  C-3 
Annex  C-3 Executive summary of Ukraine's third participant's submission  C-4 
Annex C -4 Executive summary of the United States' third participant's submission  C-5 
 
 WT/DS479/AB/R/Add .1 
 
- C-2 - 
 
 ANNEX C -1 
EXECUTIVE SUMMARY OF  BRAZIL'S THIRD PARTI CIPANT'S SUBMISSION1 
Brazil will focus on two specific findings of the Panel Report relate d to the following aspects: 
(i) price suppression under Article 3.2 of the Anti -dumping Agreement; and (ii) the definition of 
domestic industry.  
I. With regard to the first issue, Brazil  would like first to address the Panel 's decision regarding 
the requirements set forth in Articles 3.1 and 3.2 of the AD Agreement, concerning the 
methodology for establishing whether subject imports have "explanatory force" for the occurrence 
of significa nt price suppression of domestic prices. An authority shall not restrict its consideration 
to the comparison between actual domestic price and target domestic price, therefore, an 
investigating authority is exempt from the responsibility to derive an under standing of the impact 
of subject imports on the domestic prices when considering the occurrence of price suppression 
under Article  3.2.  
II. With regard to the second, Brazil would like to express its concern regarding manner in 
which an investigating aut hority defines its domestic industry will have a profound impact in the 
injury analysis set forth by Article 3. Brazil understands that an investigating authority needs to 
inspect questionnaire replies in order to ensure that it can work with such data in terms of formal 
aspects, completeness and accuracy. The requirement that the domestic industry data be reliable 
and trustworthy can only be met after assessing the questionnaire. Therefore, this practice cannot 
be considered to be biased by this sole reaso n. 
 
                                                
1 Word count: 235 words.  WT/DS479/AB/R/Add .1 
 
- C-3 - 
 
 ANNEX C -2 
EXECUTIVE SUMMARY OF  JAPAN'S THIRD PARTIC IPANT'S SUBMISSION1 
1. As indicated by the phrases "the effect of the dumped imports " and "which otherwise would 
have occurred"  in Article 3.2, and pursuant to the obligation to objective ly examine injury 
under Article 3.1, an  investigating authority must examine  factors other than subject imports 
that may explain the observed  price suppression for considering  whether the dumped imports 
have "explanatory force" for the price suppr ession . 
2. The phrase "a major proportion" in Article 4.1 requires that the producers include d in the 
domestic industry definition "substantially reflect[] the total domestic production", so that the 
injury determination is not distorted or skewed. Moreover, an investigating authority must not 
cherry -pick evidence in  defining  the domestic industry, in light of its obligation to  objective ly 
exam ine injury under Article 3.1. In a case where there are only two known domestic 
producers of the like product, an inve stigating authority should be very careful in  defining the 
domestic industry as consisting of only one of them, because it  may give rise to a material risk 
of distortion . 
3. A panel's examination of an investigating authority's  conclusions "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 ". Thus, should there be a question as to whether a 
particular document submitted during the panel proceedings formed pa rt of the investigation 
record , the panel must take steps to ensure the validity of evidence under Article 11 of the 
DSU and Article  17.6 of the AD Agreement.  
 
 
                                                
1 Total number of words = 250 wo rds. WT/DS479/AB/R/Add .1 
 
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 ANNEX C -3 
EXECUTIVE SUMMARY OF  UKRAINE'S THIRD PART ICIPANT'S SUBMISSION  
1. Ukraine focused its participation in these proceedings on main aspects considered in its 
Third Party Submission and therefore appreciates the opportunity to provide its views on the facts 
and arguments as a third party in this dispute.  
2. The findings referred in  the Panel report in this dispute will have important impact for the 
proper way in which the Agreement on Implementation of Article VI of the General Agreement on 
Tariffs and Trade 1994 (hereinafter "the Anti -Dumping Agreement") is interpreted and applied in 
further disputes. Thus, in Ukraine 's written submissions, we addressed certain issues of systemic 
concern regarding the interpretation and application of the Anti -Dumping Agreement.  
3. Ukraine considers that one of the main issues stressed in this dispute is the correct 
interpretation of definition of the domestic industry under Articles 3.1 and 4.1 of the Anti -Dumping 
Agreement.  
4. Therefore, the interpretation of definition of the domestic industry must be in the way that it 
enables the authority to make an objective examination of the impact of the dumped imports as 
either the domestic producers as a whole of the like products or domestic producers whose 
collective output constitutes a major proportion of the total domestic production of those products.  
5. Obligations of Article 3.1 shall include the analysis of the domestic industry under 
Article  4.1. Therefore Article 3.1 should be read in conjunction with Article 4.1  of the Anti -Dumping 
Agreement.  
6. Ukraine agreed with conclusion referred in the Panel report th at when an investigating 
authority makes injury and causation determination on the basis of information related to an 
improperly defined domestic industry, it acts inconsistently with various provisions of Article 3  of 
the Anti -Dumping Agreement.  
7. We apprec iate attention of the Appellate body and look forward to further resolve of this 
dispute.  WT/DS479/AB/R/Add .1 
 
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 ANNEX C -4 
EXECUTIVE SUMMARY OF  THE UNITED STATES TH IRD PARTICIPANT'S SU BMISSION  
1  ARTICLES 4.1 AND 3.1  OF THE AD AGREEMENT1  
1. Article 4.1 is subject to only two exceptions. There is no basis for inferring an additional 
exception to Article 4.1 based on the quality of the data submitted by certain producers. Article  3.1 
does not support the exclusion of producers from the domestic industry based on such  
deficiencies. Article 3.1 sets forth two overarching obligations that apply to multiple aspects of an 
authority's injury determination. Article 4.1 should be read in context with Article 3.1, but 
Article  3.1 does not set out an exception to Article 4.1.  
2. Nor does Article 3.1 suggest that the definition of the domestic industry hinges on the 
quality of the evidence submitted by domestic producers. If a producer submits deficient data, the 
authority could disregard the data in its injury analysis, on the bas is that the data does not 
constitute positive evidence.  
3. Neither Article 4.1 nor Article 3.1 of the AD Agreement mandates the precise order of 
analysis suggested by the Panel. Article 3.1 does not address timing and sequencing with respect 
to the definitio n of the domestic industry. In establishing the timing and sequencing of the 
investigation, an authority must not compromise the objectivity of the injury determination.  
4.  In some cases, an authority's decision to collect and assess evidence before  definin g the 
domestic industry may be relevant in determining whether the authority complied with Article  3.1. 
But the United States is not persuaded that collecting and reviewing data before defining the 
domestic industry is per se  contrary to Article 3.1. Likew ise, an authority may "redefine" the 
domestic industry after collecting and analyzing evidence.  
2  ARTICLE 3.2 OF THE A D AGREEMENT  
5. Article 3.2 must be considered in conjunction with the overarching obligations of Article  3.1. 
Article 3.2 requires that an auth ority "consider" the volume and price effects of the relevant 
imports. Article 3.2 does not prescribe a particular methodology or set of factors that must apply 
in a price effects analysis. In some cases, constructing a hypothetical target price may be a u seful 
analytic tool. But the text of Articles 3.2 and 3.1 does not suggest that authorities are required to 
construct hypothetical prices in every case.  
6. The United States does not view the Panel as having conflated the price effects analysis 
under Article  3.2 with the causation inquiry under Article 3.5. In conducting its determination 
under Article 3, an authority may find that certain facts or events are relevant at multiple stages of 
the injury analysis.  
3  ARTICLE 3.4 OF THE A D AGREEMENT  
7.  The inquiry und er Article 3.4 is not limited to an evaluation of factors such as "inventories" 
that are expressly enumerated. The list of enumerated factors is not exhaustive, and no one factor 
is necessarily decisive. In an appropriate case, an authority may need to eva luate additional 
factors in its analysis under Article 3.4. Such factors could include information pertaining to 
entities that are related to producers within the domestic industry. The manner in which an 
authority chooses to articulate the evaluation of t hese economic factors may vary.  
                                                
1 Pursuant to the Guidelines in Respect of Executive Summaries of Written Submissions , WT/AB/23 
(March 11, 2015), the United States indicates that this executive summary contains a total of 833 words 
(including footnotes) , and the U.S. Third Participant Submission contains 8,346 words (including footnotes).  
 WT/DS479/AB/R/Add .1 
 
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 4  ARTICLES 6.5 AND 6.9  OF THE AD AGREEMENT  
8. The Panel's apparent attempt to distinguish "essential facts" from "essential facts under 
consideration" misconstrues the nature of the inquiry under Article 6.9. The term "essential " 
implies that a subset of the facts before the investigating authority needs to be disclosed under 
Article 6.9. The term "essential facts under consideration" is properly understood in relation to the 
other terms of Article 6.9.  
9. The Panel erred in finding  that a source of data cannot constitute an "essential fact" for 
purposes of Article 6.9. The assessment of what qualifies for disclosure depends on the facts of a 
given case. Without a full disclosure of the essential facts under consideration, it would n ot be 
possible for a party to identify mathematical or clerical errors or even whether the investigating 
authority collected probative evidence. In a given case, the source of data may be an important 
fact that a party needs to defend its interests.  
10. Articles 6.5 and 6.9 are distinct obligations. Article 6 of the AD Agreement balances the 
protection of confidential information with the right of parties to be given a full and fair opportunity 
to see relevant information and defend their interests. Artic le 6.5 requires that investigating 
authorities ensure the confidential treatment of information. By contrast, Article  6.9 imposes a 
disclosure obligation. Articles 6.5 and 6.9 have a different scope of application, such that failure to 
comply with the requ irements of Article 6.5 need not always trigger a breach of Article 6.9.  
 
_______________  
 
 
 
 WT/DS479/AB/R/Add .1 
 
- D-1 - 
 
 ANNEX D  
PROCEDURAL RULING S 
Contents  Page  
Annex  D-1 Procedural Ruling  of 4 March 2017  regarding modification of the dates for the 
filing of written submissions  D-2 
Annex  D-2 Procedural Ruling  of 7 November 2017 regarding additional procedures for the 
protection of business confidential information  D-4 
 
 WT/DS479/AB/R/Add .1 
 
- D-2 - 
 
 ANNEX D -1 
PROCEDURAL RULING  OF 4 MARCH 2017  
(corrected)  
 
1. On Friday, 24 February 2017 , the Chair of the Appellate  Body received a communication 
from the United  States requesting that the Division hear ing this appeal modify the deadline for the 
filing of third participants' submission s in this appeal . In its letter,  the United  States noted that the 
Working Schedule set the date for the submission of appellees' submissions as Friday, 
10 March  2017, and the date for the filing of the third  particip ants' submissions as Monday, 
13 March 2017. The United States highlighted that this allowed third  participants only one working 
day to consider and react to the appellees' submissions in their third  participants' submissions. 
The United States requested the Division to extend the deadl ine for the filing of the 
third participants' submissions to 15 March 2017, and thus to provide third  participants with three 
full working days following the deadline for submission of the appellees' submissions.  
2. On 27 February 2017 , and on behalf of the Division hearing this appeal, the Chair of the 
Appellate Body invited Russia and the third participants in this dispute to comment in writing on 
the communication from the United States by 12:00 noon on Wednesday, 1 March 2017. 
The European Union and Brazi l indicated that they did not object to United States' request.  
3. On 1 March 2017, the Appellate Body received a communication from Russia requesting that 
the Division hear ing this appeal extend the deadline of Friday, 10 March 2017 for the filing of the 
appellees ' submissions in this appeal. In its letter, Russia requested that the Division provide the 
appellees an extra day to file their submissions, given that Wednesday, 8 March 2017 is a public 
holiday and therefore a non -working day in Russia. Russia added that, because the deadline f ell on 
a Friday, the deadline should be extended until the following working day, i.e.  Monday, 13 March 
2017. In its letter, Russia further indicate d that it d id not object to the United States' request of 
24 February 2017  requesting an extension o f the deadline for filing third  participants' submissions. 
Russia suggest ed that, if its request were to be granted, the Division could  also extend the 
deadline for filing third participan ts' submissions to Thursday, 16  March 2017 .  
4. On 1 March  2017, and on behalf of the Division hearing this appeal, the Chair of the 
Appellate Body invited the European Union  and the third participants in this dispute to comment in 
writing on the communication from Russia  by 12:00 noon on Friday , 3 March 2017.  
5. On 3 March 2017, the Appellate Body received a letter from the European Union 
commenting on Russia's request. Referring to Rule 16(2) of the Working Procedures for 
Appellate  Review (the Working Procedures), the European Union expressed difficult y 
understanding " how a single public holiday " could constitute an  "'exceptional circumstance ", such 
that " strict adherence to [the deadline specified in the Working Procedures]  would result in a 
manifest unfairness ", within the meaning of Rule 16(2). The E uropean Union considered this to be 
all the more so given that Russia had itself created the circumstance in question by filing its appeal 
on a date that, through the operation of the Working Procedures, "necessarily leads to" the period 
for the preparatio n of its appellee's submission covering the relevant public holiday. 
Notwithstanding these comments, the European Union made its own request to extend the 
deadline for the filing of the appellees' submissions to Tuesday, 14 March 2017. In support of this 
request, the European  Union highlighted constraints in preparing its own appellee's submission 
"due to significant overlaps between the timetables in several pending cases where members of 
the EU's  legal team are involved".1 The European Union further sugge sted a "consequential 
extension" of the deadline for the filing of the third participants' submissions from Monday, 
13 March 2017 to 17 March 2017 .  
6. On 3 March 2017, the Chair of the Appellate  Body received a communication from the 
United  States  indicating that the United States had no objection to either the request by Russia or 
                                                
1 The European Union referred, in particular, to its participation in the oral hearing in the appeal in US – 
Anti-Dumping Methodologies (China) (DS471) , and in the sec ond panel meeting in EU – Energy Package  
(DS476), as well as to the meetings of the panel with the third parties and the deadlines for the filing of 
third party submissions in the panel proceedings in Korea – Pneumatic Valves (DS504) and US – 
Supercalender ed Paper (DS505).  WT/DS479/AB/R/Add .1 
 
- D-3 - 
 
 the request by the European Union. Referring to Rule 16(2) of the Working Procedures, the 
United  States expressed the view that " extending a deadline that otherwise fall s on a public 
holiday or over a period that is exceptionally busy for a party would justify modifying a time period 
in order to avoid manifest unfairness". The United States further noted that no date had yet been 
set for the oral hearing in this appeal, a nd that the Appellate Body has informed Members that it 
expects delays in the issuance of its reports for current and upcoming appeals. Pointing to the 
90-day limit specified in Article 17.5 of the DSU, the United States expressed the view that 
exceptional  circumstances would exist if the Appellate Body were to consider that it would not be 
able to issue its report within that deadline. The United States added that, conversely, if granting 
the extensions sought by Russia and the European Union were to resul t in the Appellate Body not 
being able to comply with the 90 -day deadline, then this would provide a basis for declining such 
requests.  
7. We are thus faced with three separate requests for extension of the time -periods set out in 
the Working Schedule for th is appeal. The factors identified as warranting these requests are: 
(i) the need for the United States, as third participant, to have three full working days in order to 
consider and react to the positions presented in the appellees' submissions in its thi rd particpant's 
submission; (ii) the fact that 8 March, two days before the deadline for the filing of the 
appellees'  submissions, is a public holiday and non -working day in Russia; and (iii) significant 
overlaps in a number of panel and appeal proceedings  involving the European Union. In reaching 
our ruling, we take account of these factors, the need for due process, and the interests of orderly 
procedures in appeal proceedings. We are mindful of Members' need for sufficient time to review 
other submission s received in an appeal and to take due account of such submissions in preparing 
their own written submissions, as well as of the burdens associated with involvement in multiple 
dispute settlement proceedings with overlapping timetables. We take note of th e fact that the 
various requests received are not at odds with each other, and that no explicit objection has been 
raised to any of the three requests. Lastly, we are of the view that the extensions requested by 
the United States, Russia, and the European Union are unlikely to have a meaningful impact on the 
scheduling of the oral hearing in, or the overall duration of, these appeal proceedings .  
8. In light of the above considerations,  the Division takes the following decision pursuant to 
Rule 16(2) of the Wo rking Procedures. The Division decides to extend the time -period for Russia 
and the European Union to file their  appellees' submissions, under Rule  23(4) of the 
Working  Procedures, to Tuesday, 14 March 2017. The Division further decides to extend the 
deadl ine for filing third participant's submissions and notifications under Ru le 24(1) and (2) of the 
Working  Procedures to Friday, 17 March 2017 . The revised Working Schedule is attached to this 
Ruling.  
 WT/DS479/AB/R/Add .1 
 
- D-4 - 
 
 ANNEX D -2 
PROCEDURAL RULING  OF 7 NOVE MBER 2017  
1.1.  By letter dated 23  October  2017, the Russian Federation (Russia) and the European  Union 
jointly requested that the Appellate Body adopt additional procedures for the protection of 
business confidential information  (BCI) in these appellate proceed ings. 
1.2.  In their joint request, the participants sought BCI protection for any information that was 
submitted by the participants as BCI in the context of the Panel proceedings, as well as any 
information that was treated as such by the Panel, including in i ts Report. The participants 
explained that their submissions to the Panel, as well as the Panel Report, contain sensitive 
commercial data, such as sales and production data, financial information, and expenses for the 
individual companies. According to the  participants, any disclosure of such data could reasonably 
be expected to have an adverse impact on the competitive interests of the companies that 
submitted the information. The participants also suggested the inclusion, in the additional 
procedures, of a provision concerning the resolution of any potential disagreement between the 
participants as regards the BCI designation of any information.1 
1.3.  On 25  October  2017, the Appellate Body Division hearing this appeal invited the third 
participants to comment o n the joint request. By letter dated 27 October 2017, the United States 
commented on the suggested  provision regarding  the resolution of any disagreement on the BCI 
designation of information. The United  States asserted that such a provision would have no 
practical value and, if applied, would only serve to delay these appellate proceedings.  The 
United  States also expressed doubts as to the consistency of such a  provision with the 
Appellate  Body's mandate to consider issues of law and legal interpretation . The United States 
noted that there is no appeal of any treatment of BCI by the Panel and no new evidence may be 
submitted to the Appellate Body. Finally, the United States explained that a n interested party may 
agree to provide BCI to a Member for submissi on in a WTO panel proceeding based on the 
understanding that this information would be accorded BCI protection. If the Appellate Body were 
to disagree with a panel's previous BCI designation, and the information were later disclosed, this 
would , in the Uni ted States' view, prejudice the interests of both the interested party that provided 
the information and the Member . No other third participant commented on the joint request.  
1.4.  We recall that the provisions of Articles  17.10 and 18.2 of the  Understanding o n Rules and 
Procedures Governing the Settlement of Disputes  (DSU), as well as those set out in 
paragraph  VII:1 of the Rules of Conduct for the DSU, apply to all Members of the WTO, and oblige 
them to maintain the confidentiality of any submissions or infor mation submitted, or received, in 
an Appellate Body proceeding.2 Nonetheless, as the Appellate Body has observed, these 
confidentiality requirements are stated at a high level of generality that may need to be 
particularized in situations in which the natu re of the information provided requires more detailed 
arrangements to protect adequately the confidentiality of that information.3  
1.5.  While it is for the participants to request and justify the need for additional protection of 
confidential information, it i s for the Appellate  Body, pursuant to Article  17.9 of the DSU and 
Rule 16(1) of the Working  Procedures for Appellate Review4 (Working Procedures) , to determine  
on the basis of objective criteria whether the information submitted by the participants deserve s 
                                                
1 The joint request proposed the following wording for this provision:  
In the event that any participant or the Appellate Body ex officio  disagrees with the designation 
as BCI of any information qualified as such by any participant (either before or during the 
appellate proceedings), the Appellate Body shall decide on whether such information should be 
treated as BCI after hearing their vie ws. 
2 Appellate Body Reports, Brazil – Aircraft , para.  123; Canada – Aircraft , para. 145.  
3 Appellate  Body Reports, EU – Fatty Alcohols (Indonesia) , Annex  D-1, Procedural Ruling of 
13 June 2017, para.  3.1; China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.315; EC and certain 
member States – Large Civil Aircraft , Annex  III, Procedural Ruling of 10 August 2010, para.  8. 
4 WT/AB/WP/6 , 16 August 2010.  WT/DS479/AB/R/Add .1 
 
- D-5 - 
 
 additional protection, as well as the degree of protection that is warranted.5 As the Appellate  Body 
stated in EU – Fatty Alcohols (Indonesia) , any additional procedures adopted by the 
Appellate  Body to protect sensitive information must conform to the requirement in Rule  16(1) of 
the Working Procedures that such procedures not be inconsistent with the DSU, the other covered 
agreements, or the Working  Procedures themselves.6 Furthermore, a relationship of proportionality 
must exist between the risks asso ciated with disclosure and the measures adopted. The measures 
should go no further than required to guard against a determined risk of harm that could result 
from disclosure.7 Moreover, the Appellate  Body must ensure that an appropriate balance is struck 
between the need to guard against the risk of harm that could result from the disclosure of 
particularly sensitive information, on the one hand, and the integrity of the adjudicative process, 
the participants' due process rights, the participation rights of  third participants, and the rights and 
systemic interests of the WTO  membership at large, on the other hand.8 In addition, whether 
information treated as confidential pursuant to Article  6.5 of the Anti -Dumping Agreement, and 
submitted by a party to a WTO  panel under the confidentiality requirements generally applicable in 
WTO dispute settlement, should receive additional confidential treatment as BCI is to be 
determined in each case by the WTO panel.9 Similarly, whether such information should be 
accorded  BCI treatment on appeal is to be determined by the Appellate Body.  
1.6.  When additional procedures to protect BCI are adopted, the Appellate Body has to adjudicate 
any dispute that may arise under those procedures regarding the treatment of information as 
business confidential.10 In this regard, we recall the Appellate Body's observation that the question 
of whether information warrants BCI  protection may evolve over the course of dispute settlement 
proceedings. Thus, while the fact that a domestic investigating  authority and a panel granted BCI 
protection to the information at issue is relevant, it is not dispositive as to whether that 
information still warrants BCI  protection at the appellate review stage.11 Hence, whether 
information submitted under the confide ntiality requirements generally applicable in WTO dispute 
settlement should receive additional confidential treatment as BCI is to be determined in each case 
by the WTO  adjudicator. The assessment of whether any information warrants additional 
protection i s an issue of legal characterization.  
1.7.  Turning to the case before us, we note that on 14  January 2016, following consultations with 
the parties, the Panel adopted Additional Working Procedures Concerning Business Confidential 
Information (Panel's BCI  Proced ures).12 The first paragraph of those procedures defined BCI as:  
a. any information designated as such by the party submitting it that was previously 
treated as confidential by the investigating authority in the anti -dumping investigation at 
issue in this dispute unless the Panel decides it should not be treated as BCI for  
                                                
5 Appellate Body Reports, EU – Fatty Alcohols (Indonesia) , Annex  D-1, Procedural Ruling of 
13 June 2017, para.  3.2; China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.311; US – Tuna II 
(Mexico) (Article  21.5 – Mexico) , para.  5.3; EC and certain member States – Large Civil Aircraft , Annex  III, 
Procedural Ruling of 10  August  2010, paras.  10 and 15.  
6 Appellate Body Reports, EU – Fatty Alcohols (Indonesia) , Annex  D-1, Procedural Ruling of 
13 June 2017, para.  3.3; EC and certain member States – Large Civil Aircraft , Annex  III, Procedural Ruling of 
10 August 2010, para. 8. 
7 Appellate  Body Reports, EU – Fatty Alcohols (Indonesia) , Annex  D-1, Procedural Ruling of 
13 June 2017, para.  3.3; EC and certain member States – Large Civil Aircraft , Annex  III, Procedural Ruling of 
10 August 2010, para. 9. 
8 Appellate Body Reports, EC and certain member  States – Large Civil Aircraft , Annex  III, 
Procedural  Ruling of 10 August 2010, para. 15; EU – Fatty Alcohols (Indonesia) , Annex  D-1, Procedural Ruling 
of 13 June 2017, para.  3.3; US – Tuna II (Mexico) (Article  21.5 – Mexico) , para.  5.3. 
9 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.316.  
10 Appellate Body Reports, EU – Fatty Alcohols (Indonesia) , Annex  D-1, Procedural Ruling of 
13 June 2017, para.  3.3; US – Tuna II (Mexico) (Article  21.5 – Mexico) , para.  5.3; China – HP-SSST (Japan) / 
China – HP-SSST (EU) , para.  5.311.  
11 Appellate Body Report, EU – Fatty Alcohols (Indonesia) , Annex  D-1, Procedural Ruling of 
13 June 2017, para.  3.10. 
12 Panel Report, para.  1.8.c. The Panel's BCI Procedures are contained in Annex A -2 of the Addendum to 
the Panel Report.  WT/DS479/AB/R/Add .1 
 
- D-6 - 
 
 purposes of these Panel proceedings based on an objection by a party pursuant to 
paragraph  313 below.  
b. any other information designated as such by the party submitting it, unless the Panel 
decides it should not be treated as BCI for purposes of these Panel proceedings based on 
an objection by a party pursuant to paragraph  3 below.14 
1.8.  The Panel's BCI procedures set out how the parties, third  parties, and the Panel would treat 
BCI in the course of the Panel proceedings. Pursuant to those procedures, the Panel re dacted 
certain BCI from the version of its Report that was circulated to WTO Members on 27 January 
2017.  
1.9.  On 20 February 2017, Russia appealed certain issues of law and legal interpretations covered 
in the Panel Report. On 27 February 2017, the European Uni on filed the Notice of Other Appeal 
and other appellant's submission. On 14 March 2017, the European  Union and Russia each filed an 
appellee's submission. On 17 March 2017, Brazil, Japan, Ukraine, and  the United  States each filed 
a third participant's subm ission. We observe that the European Union refers to information that 
was treated by the Panel as BCI in its other appellant's submission and Russia's appellant's and 
appellee's submissions refer to Panel exhibits that contain BCI. We are also cognisant th at the 
participants or third participants may refer to the information treated by the Panel as BCI in any 
further communication, including at the hearing. We note that the participants' joint request is 
limited to extending the treatment accorded by the Pa nel to BCI to the appellate stage.  
1.10.   The participants justify their joint request on the grounds that the information in respect of 
which they seek additional protection concerns sensitive commercial data from individual 
companies and that any disclosure of such data could reasonably be expected to have an adverse 
impact on the competitive interests of the companies submitting the information. The 
Appellate  Body has identified "the degree of potential harm in the event of disclosure", as an 
objective criterio n that may be examined in determining whether the information submitted by 
participants deserves additional protection.15 In this regard, we consider it significant that the 
participants agree that the disclosure of the information in question could harm th e competitive 
interests of the companies that submitted the information. Likewise, we consider it relevant that 
the information covered by the joint request was treated as BCI in the Panel proceedings.  
1.11.   With respect to the due process rights of the third pa rticipants, we note that the procedures 
proposed by the participants contemplate providing the third participants with access to all the 
confidential information. Thus, according additional protection to the information in question would 
not undermine the rights of the third participants. As regards the systemic interests of the 
WTO Membership at large, we recognise that all Members have a right to access reasoning that 
discloses the basis for our findings and conclusions in a manner that is understandable.16 Any 
procedures to protect the confidentiality of the sensitive information in this dispute should be 
                                                
13 Paragraph  3 of the Panel's BCI Procedures provided that:  
If a party or third party considers that information submitted by the other party or a third party 
should have been designated as BCI and objects to its submission without such designation, it 
shall forthwith bring this objection to the attention of the Panel, the other party, and, where 
relevant, the third parties, together with the reasons for the objection. Similarly, if a party or 
third party considers that the other party or  a third party designated information as BCI which 
should not be so designated, it shall forthwith bring this objection to the attention of the Panel, 
the other party, and, where relevant, the third parties, together with the reasons for the 
objection. The  Panel, in deciding whether information subject to an objection should be treated 
as BCI for purposes of these Panel proceedings, will consider whether disclosure of the 
information in question could cause serious harm to the interests of the originator(s)  of the 
information.  
14 The Panel's BCI Procedures are contained in Annex A -2 of the Addendum to the Panel Report.  
15 Appellate Body Reports, EU – Fatty Alcohols (Indonesia) , Annex  D-1, Procedural Ruling of 
13 June 2017, para.  3.2 (referring to Appellate  Body Report, EC and certain member States – Large Civil 
Aircraft , Annex  III, Procedural Ruling of 10 August 2010, para.  15). 
16 Appellate Body Reports, EU – Fatty Alcohols (Indonesia) , Annex  D-1, Procedural Ruling of 
13 June 2017, para.  3.8; Japan – DRAMS (Kor ea), para.  279. WT/DS479/AB/R/Add .1 
 
- D-7 - 
 
 compatible with this right and should go no further than necessary to guard against the potential 
risk of harm identified by the participants.17 
1.12.   For the a bove reasons, and in light of the previous rulings by the Appellate Body on the 
issue of additional protection of BCI, we have decided to accord additional protection to the 
information that the Panel treated as BCI in its Report and in the Panel record. T he additional 
protection for BCI in these appellate proceedings is provided according to the following terms, 
bearing in mind that the participants and third  participants have already filed their written 
submissions:  
a. No person may have access to informatio n that qualifies as BCI for purposes of these 
appellate proceedings, except a member of the Appellate Body or the staff of the 
Appellate Body Secretariat, an employee of a participant or third participant, or an 
outside advisor for the purposes of this dis pute to a participant or third participant. 
Nonetheless, an outside advisor is not permitted access to BCI if that advisor is an 
officer or employee of an enterprise engaged in the production, export, or import of the 
products that were the subject of the underlying anti -dumping investigation in this 
dispute.  
b. A participant or third participant having access to BCI shall treat it as confidential, and 
shall not disclose that information other than to those persons authorized to receive it 
pursuant to these p rocedures. Each participant and third participant shall have 
responsibility in this regard for its employees as well as for any outside advisors 
employed for the purposes of this dispute. BCI obtained under these procedures may be 
used only for the purpose  of providing information and argumentation in this dispute and 
for no other purpose.  
c. A participant or third participant that submits a document containing BCI to the 
Appellate Body after the adoption of these BCI procedures shall clearly identify such 
information in the document filed, placing the BCI within double brackets, as follows: 
[[…]].The participant or third participant shall also mark the cover and/or first page of 
the document containing BCI. Submissions filed prior to the adoption of these 
BCI procedures will not be marked retroactively.  
d. A participant or third participant that intends to make an oral statement at the hearing 
containing BCI shall inform the Division in advance, such that the Division can ensure 
that only persons authorized to ha ve access to BCI pursuant to these procedures are in 
the room to hear that statement. At the hearing, the participant or third participant shall 
clearly identify the elements of such oral statement that constitute BCI.  
e. The Appellate Body will not disclose BCI, in its Report or in any other way, to persons 
not authorized under these procedures to have access to BCI. The Appellate Body may, 
however, make statements of conclusion drawn from that information.  
f. Before circulating its Report to the Members, the Ap pellate Body will decide whether to 
adopt further modalities, for example to verify the treatment of certain information as 
BCI, and to ensure that both the non -disclosure of BCI in the Report to be circulated and 
the analysis and findings set out in that Report can be readily understood 
notwithstanding the redaction of any BCI.  
__________  
                                                
17 Appellate Body Reports, EU – Fatty Alcohols (Indonesia) , Annex  D-1, Procedural Ruling of 
13 June 2017, para.  3.9; China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.311.