WT/DS486/AB/R/Add.1  
 
16 May 2018 
(18-2910) Page: 1/23 
   
 
  
 
 
EUROPEAN UNION – COUNTERVAILING MEASU RES ON CERTAIN  
POLYETHYL ENE TEREPHTHALATE FR OM PAKISTAN  
AB-2017-5 
Report of the Appellate Body  
Addendum  
This Addendum contains Annexes A to D to the Report of the Appellate Body  circulated as  
document  WT/DS486/AB/R . 
 
The Notice s 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 th ird 
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 ad here 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.  
 
 
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 WT/DS486/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 European Union 's Notice of Appeal  4 
Annex  A-2 Pakistan 's Notice of Other Appeal  5 
ANNEX B  
ARGUMENTS OF THE PAR TICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of the European Union 's appellant's submission  7 
Annex  B-2 Executive summary of Pakistan 's other appellant's submission  8 
Annex  B-3 Executive summary of Pakistan 's appellee's submission  10 
Annex  B-4 Executive summary of the European Union 's appellee's submission  13 
ANNEX C  
ARGUMENTS OF THE THI RD PARTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of the United States ' third participant's submission  16 
ANNEX D  
PROCEDURAL RULINGS  
Contents  Page  
Annex  D-1 Procedural Ruling of 25 October 2017 regarding additional procedures to 
protect business confidential information (BCI)  19 
Annex  D-2 Procedural Ruling of 4 December 2017 regarding the joint request by the 
European Union and Pakistan to reschedule  the date of the oral  hearing  23 WT/DS486/AB/R/Add.1  
 
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  ANNEX  A 
NOTICES OF APPEAL  AND OTHER APPEAL  
Contents  Page  
Annex  A-1 European Union 's Notice of Appeal  4 
Annex  A-2 Pakistan 's Notice of Other Appeal  5 
 
 WT/DS486/AB/R/Add.1  
 
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  ANNEX  A-1 
EUROPEAN UNION 'S NOTICE OF APPEAL*  
Pursuant to Articles 16.4 and Article 17 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 
European Union – Countervailing Measures on Certain Polyethylene Terephthalate from Pakistan  
(WT/DS486). Pursuant to Rule 20(1) of the Working Procedures for Appellate Review, the 
European Union simultaneously files this Notice  of Appeal with the Appellate Body Secretariat.  
The European Union is restricting its appeal to those errors that it believes constitute serious 
errors of law and legal interpretation that need to be corrected. Non -appeal of an issue does not 
signify agree ment therewith.  
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 reverse the findings and conclusions 
of the Panel, with respect to the following errors  contai ned in the Panel Report:1 
 The Panel failed to comply with its tasks under Article 11 of the DSU, as informed by 
Article  3 of the DSU, when wrongly deciding to make findings on Pakistan's claims in this 
case.2 Since even Pakistan agreed that the countervail ing duties at issue had ceased to have 
legal effects when the Panel was in a position to commence its work, and absent any 
lingering effects and an imminent risk of re -imposing the same or a similar measure in the 
near future, the panel proceedings lost th eir purpose, i.e. there was no longer a need to 
adjudicate on the matter in order to "secure a positive solution to the dispute". Thus, the 
Panel issued a mere "advisory opinion". Therefore, the European Union requests the 
Appellate Body to reverse  the ent irety of the Panel's findings and conclusions in its report 
(as summarised in Section 8 of the Panel Report) and declare moot and with no legal effect 
any of the findings and legal interpretations contained therein.  
 If the Appellate Body does not grant th e relief requested in the preceding bullet point, the 
European Union respectfully submits that the Panel erred in the interpretation of 
Article  1(1)(a)(1)(ii), footnote 1, and Annexes I to III of the SCM Agreement with respect to 
the EU's determination reg arding the MBS.3 By finding that investigating authorities have 
the burden to determine, on the basis of the available evidence, the excess remission in 
case of duty drawback systems – even where the exporting Member has no proper 
monitoring system or proc edure in place and did not carry out a further examination based 
on the actual transactions involved – the Panel rendered the relevant provisions of the 
SCM Agreement, and in particular the elements included in Annexes II and III for duty 
drawback systems,  moot and without legal effect. As a result, the European Union requests 
the Appellate Body to reverse  the Panel's findings in paragraphs 7.33 –7.56 of its Report. 
Since the measures at issue were withdrawn a long time ago, and with a view to limiting the 
Appellate Body's review, the European Union does not request the Appellate Body to 
complete the analysis in the present case; rather, the European Union requests the 
Appellate Body to declare moot and with no legal effect the entirety of the Panel's finding s 
with respect to the MBS, since the Panel applied the wrong legal standard.4 
 
                                                
* This notification , dated 30 August 2017, was circulated to Members as document WT/DS486/6.  
 
1 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review  this Notice of 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 context of its 
appeal.  
2 Panel Report, para. 7.13 . 
3 Panel Report, paras. 7.33 -7.56. 
4 Panel Report, paras. 7.57 -7.60 and 8.1(b)(i) and 8.1(b)(ii).  WT/DS486/AB/R/Add.1  
 
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  ANNEX A -2 
PAKISTAN 'S NOTICE OF OTHER A PPEAL*  
Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing the 
Settlement of Dispute s (DSU) and Rule 23(1) of the Working Procedures for Appellate Review, 
Pakistan hereby notifies the Dispute Settlement Body of its decision to appeal to the 
Appellate  Body certain issues of law and legal interpretation covered in the Panel Report entitled 
European  Union — Countervailing Measures on Certain Polyethylene Terephthalate from Pakistan 
(WT/DS486/R), which was circulated on 6 July 2017 (the "Panel Report"). Pursuant to Rule 23(1) 
of the Working Procedures for Appellate Review, Pakistan is simultan eously filing this notice of 
other appeal and its other appellant's submission with the Appellate Body Secretariat.  
For the reasons further elaborated in its submission to the Appellate Body, Pakistan appeals and 
requests the Appellate Body to reverse the  findings, conclusions, and recommendations of the 
Panel, with respect to the error contained in the Panel Report described below.1 
I. THE PANEL'S FINDING UNDER ARTICLE 15.5 O F THE AGREEMENT ON S UBSIDIES 
AND COUNTERVAILING M EASURES (SCM AGREEME NT)  
1. The Pan el erred in its interpretation and application of Article 15.5 of the SCM Agreement 
when rejecting Pakistan's claim that the European Commission's approach of finding a causal link 
between the subject imports and the observed injury and then inquiring whet her any injury 
attributable to other factors "breaks the causal link" previously found (the "breaking the causal 
link" approach) was inconsistent with Article 15.5.2 
2. In particular, and without prejudice to the arguments developed in Pakistan's other 
appell ant's submission, the Panel incorrectly interpreted and applied Article 15.5 of the 
SCM Agreement by finding that it did "not see how [the breaking the causal link] approach, in this 
case, led to the disregard of a relevant legal standard"3 under Article 1 5.5 of the SCM Agreement —
that is, whether the causal link between the subject imports and the observed injury constitutes 
"a genuine and substantial relationship of cause and effect".4  
II. REQUEST FOR FINDINGS  AND COMPLETION OF TH E ANALYSIS  
3. Pakistan respectfully requests the Appellate Body to reverse the Panel’s finding contained in 
paragraphs 7.120 and 8.1.d.i of the Panel Report, that Pakistan failed to establish that the 
European Commission's use of the "breaking the causal link" analytica l approach was inconsistent 
with Article 15.5 of the SCM Agreement.  
4. In addition, Pakistan requests the Appellate Body to complete the legal analysis and find 
that the European Commission acted inconsistently with Article 15.5 of the SCM Agreement by 
using  the "breaking the causal link" approach in its causation/non -attribution analysis. The factual 
findings contained in the Panel Report, as well as the undisputed facts on the record in the 
determinations of the European Commission, constitute a sufficient basis to find that the measures 
at issue were inconsistent with Article 15.5 of the SCM Agreement.  
 
 
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* This notification , dated 4 September 2017, was circulated to Members as document WT/DS486/7.  
 
1 Pursuant to Rule 23(2)(ii)(C) of the Working Procedures for Appellate Review, this Notice of Other 
Appeal includes an indicative list of the paragraphs of the Panel Report containing the alleged errors, without 
prejudice to Pakistan's right to refer to ot her paragraphs of the Panel Report in the context of its other appeal.  
2 Panel Report, paras. 7.117 -7.120 and 8.1.d.i.  
3 Panel Report, para. 7.119.  
4 Appellate Body Report, US – Wheat Gluten , para. 69.  WT/DS486/AB/R/Add.1  
 
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  ANNEX B  
ARGUMENTS OF THE PAR TICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of the European Union's appellant's submission  7 
Annex  B-2 Executive summary of Pakistan's other appellant's submission  8 
Annex  B-3 Executive summary of Pakistan's appellee's submission  10 
Annex  B-4 Executive summary of the European Union's appellee's submission  13 
 
 WT/DS486/AB/R/Add.1  
 
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  ANNEX  B-1 
EXECUTIVE SUMMARY OF  THE EUROPEAN UNION 'S APPELLANT'S SUBMI SSION1 
1. The European Union considers that, when making findings on Pakistan's claims in this case, 
the Panel failed to comply with its tasks under Article 11 of the DSU as informed by Article 3 
of the DSU. Indeed, the countervailing duties at issue had been termin ated five months before 
the Panel effectively began its work. Since even Pakistan agreed that the measures at issue 
ceased to have legal effects, the panel proceedings lost their purpose, i.e., there was no 
longer a need to adjudicate on the matter in orde r to "secure a positive solution to the 
dispute". Absent any lingering effects and an imminent risk of re -imposing the same or a 
similar measure in the near future, the Panel issued a mere "advisory opinion", even when the 
Appellate Body has already warned  panels to refrain from issuing such "advisory opinions". 
Therefore, the European Union requests the Appellate Body to reverse the entire Panel's 
findings and conclusions in its report (as summarised in Section 8 of the Panel Report) and 
declare them moot and with no legal effect.  
2. Subsidiarily, in case the Appellate Body were to reject the first ground of the EU's appeal, the 
European Union considers that the legal interpretation made by the Panel when examining the 
EU's determination in relation to the MB S was incorrect. The Panel's interpretation of, 
especially footnote 1 of the SCM Agreement, left the  relevant provisions of the 
SCM Agreement, and in particular the elements included in Annexes II and III, largely moot 
and without effect. Following the Pan el's interpretation, exporting Members could disregard at 
will – and without any negative consequence – the elements contained in Annexes II and III 
in the context of alleged duty drawback systems because, in the Panel's view, investigating 
authorities wou ld in any event bear the burden to determine, on the basis of the available 
evidence, the excess remission – even where the exporting Member has no proper monitoring 
system whatsoever and/or refuses to conduct a further examination based on actual 
transact ions. The exporting Members could save themselves the administrative burden and let 
the investigating authority do the work for them, in full knowledge that the investigating 
authority may at most countervail the actual excess remissions which may be even lower than 
if a monitoring system would be in place since the evidence may be insufficient for the 
investigating authority to establish the actual (higher) excess remissions. It is therefore 
imperative that if an exporting Member neither establishes a moni toring system nor carries 
out an examination based on the actual transactions involve d as provided in Annexes II 
and III, the entire amount of remissions can be countervailed by the investigating authority as 
the exporting Member no longer benefits from th e special disciplines crafted for proper duty 
drawback schemes. Simply put, if the conditions in Annex II and III are not complied with, 
any remission of import duties upon the exportation of the product at issue amounts to a 
prohibited export subsidy. Thu s, the European Union requests the Appellate Body to reverse 
the legal interpretations of the relevant provisions made by the Panel, and declare moot and 
with no legal effect the entirety of the Panel's findings with respect to the MBS, since the 
Panel app lied the incorrect legal standard.  
 
                                                
1 Total number of words (including footnotes but exclu ding executive summary) = 14 973; total number 
of words of the executive summary = 565.  WT/DS486/AB/R/Add.1  
 
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  ANNEX B -2 
EXECUTIVE SUMMARY OF  PAKISTAN 'S OTHER APPELLANT'S  SUBMISSION  
1  INTRODUCTION1 
1.1.  Pakistan appeals the Panel's finding that the European Union (EU) did not act inconsistently 
with Article 15.5 of th e SCM Agreement by using the "breaking the causal link" approach in its 
causation/non -attribution analysis.  
1.2.  In its investigation, the European Commission (Commission) found certain countervailable 
subsidies programmes in Pakistan. The Commission found inj ury based on six economic factors 
showing negative performance and found a causal link between the subject imports and the 
observed injury.  
1.3.  The Commission then assessed whether each of the ten known non -attribution factors was 
able, individually, to "brea k the causal link" between the subject imports and the observed injury. 
The Commission acknowledged that at least four of these factors contributed to the injury but that 
none of them, individually, did so to such an extent as to "break the causal link". T he Commission 
thus concluded that "the imports from the countries concerned have caused material injury to the 
Union industry".  
2  THE ISSUE BEFORE THE  PANEL  
2.1.  Pakistan argued that the "breaking the causal link" approach was inconsistent with the 
causation stan dard in Article 15.5 of the SCM Agreement because it was logically untenable. Under 
this test, once the Commission found a causal link between injury and the subject imports, it 
would be impossible for other factors to "break" that link: if the injuries ca used by those factors 
were sufficient to "break" the link, the link should not have been found to exist in the first place.  
2.2.  The Commission also examined whether each of the non -attribution factors "broke" the 
causal link between the subject imports and the  injury, rather than whether the effects of these 
factors attenuated that causal link to the point of rendering it "too distant, remote or 
insubstantial".  
2.3.  The EU responded that authorities have discretion under Article 15.5 to choose their 
causation metho dology. The EU also argued that its approach enabled the Commission to conclude 
that the other factors "broke the causal link" if such other factors were "the true cause of injury".  
3  THE PANEL'S ANALYSIS  
3.1.  The Panel considered that, by finding an initial causal link between the subject imports and 
the injury, and then inquiring whether other factors broke the causal link, the Commission allowed 
for the possibility that its non -attribution analysis "negated" its initial consideration that a causal 
link exis ted. The Panel considered that this approach enabled the Commission properly to separate 
and distinguish the injurious effects of the other factors from those of the subject imports. The 
Panel concluded that the "breaking the causal link" approach was not inconsistent with 
Article  15.5. 
4  THE LEGAL STANDARD U NDER ARTICLE 15.5  
4.1.  The Appellate Body has held that the "primary objective" of a causation analysis is to 
determine whether there exists a "genuine and causal relationship of cause and effects" between 
the subject imports and the injury. An investigating authority must separate and distinguish the 
injurious effects of other known factors from those of the subject imports. Only then will the 
                                                
1 This executive summary contains a total of 1,077 words. Pakistan's other appellant's submission 
contains a total of 10,684 words (including footnotes).  WT/DS486/AB/R/Add.1  
 
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  authority be able to evaluate whether the effects of these other fa ctors "attenuated" or "diluted" 
the causal link between the subject imports and the observed injury to the point of not being a  
"genuine and substantial relationship of cause and effect".  
5   THE PANEL ERRED IN U PHOLDING THE "BREAKI NG THE CAUSAL LINK" APPROA CH  
5.1.  The "breaking the causal link" approach is inconsistent with Article 15.5 because the 
Commission considered other factors to be relevant only if they were sufficiently strong to break 
the link between the subject imports and the injury. In contrast, th e correct legal standard under 
Article 15.5 requires that non -attribution factors be relevant in a causation analysis if their 
(properly separated and distinguished) effects attenuate  or dilute  the causal link "such that it is 
not possible to characterize that link as a genuine and substantial relationship of cause and effect".  
5.2.  First, logically, if factors other than the subject imports are capable of breaking the causal 
link, this causal link should never have existed in the first place. Otherwise, the in itial 
determination of the existence of a causal link would lack any basis. Following a question from the 
Panel, the EU was unable to point to any determinations where the Commission, using the 
"breaking the causal link" approach, first found a causal link  and then found that that causal link 
had been broken.  
5.3.  Second, the Commission assessed the effects of each factor one by one against the effects of 
the subject imports plus the effects of the remaining non -attribution factors. There was never a 
point at wh ich the Commission assessed the effects of the subject imports alone, without the 
presence of the effects of some other factors. Accordingly, in examining each non -attribution 
factor, the Commission misattributed the effects of the remaining factors to the  subject imports.  
5.4.  Third, the Commission considered a non -attribution factor to be relevant only if it was "the 
true cause" of the injury. However, for the Commission it was sufficient that the subject imports 
be a contributing factor in order to find a cau sal link. The "breaking the causal link" approach thus 
skewed the analysis by having a low causation threshold for subsidized imports (a contributing 
cause) and a much higher threshold for the other factors (the true cause). However, the 
Commission was req uired to assess the effects of both the subject imports and the other factors 
even-handedly with a view to ascertaining how subject imports and other factors played out in the 
six the economic factors showing negative performance.  
5.5.  Fourth, in applying the " breaking the causal link" approach, the Commission examined 
whether the four non -attribution factors that contributed to the injury were so strong as to break 
the causal link. However, the Commission failed to inquire whether the effects of these factors 
attenuated or diluted that link to the point of not being "genuine and substantial". Therefore, the 
Commission failed to apply the correct legal standard under Article 15.5.  
6  CONCLUSION AND REQUE ST FOR FINDINGS  
6.1.  Pakistan requests the Appellate Body to revers e the Panel's finding that the Commission's 
"breaking the causal link" approach is not inconsistent with Article 15.5. Pakistan requests the 
Appellate Body to complete the analysis and find that the Commission's "breaking the causal link" 
approach was inco nsistent with Article 15.5 of the SCM Agreement.  
 
 WT/DS486/AB/R/Add.1  
 
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  ANNEX B -3 
EXECUTIVE SUMMARY OF  PAKISTAN'S APPELLEE' S SUBMISSION  
1  THE EU'S APPEAL AGAI NST THE PANEL'S FIND ING ON THE MBS SHOUL D BE 
REJECTED1 
1.1.  The Panel's legal interpretation that Footnote 1 and Annex I(i) of the SCM Agreement define 
a subsidy under a duty drawback system as the amount of any "excess" drawback for all purposes 
is correct and should be upheld by the Appellate Body in its entirety.  
1.2.  The Commission determined that, because Pakistan's Manufacturing Bond Scheme (MBS) 
system did not have a satisfactory monitoring/verification mechanism, the "normal rule" for 
determining the subsidy as the "excess remission" did not apply and that therefor e the 
Commission could assume that the entirety of the duties remitted was the subsidy. The 
Commission also determined in the provisional determination  that the Government of Pakistan had 
failed to perform a "further investigation".  
1.3.  Before the Panel, Paki stan argued that as Footnote 1 and Annex I(i) of the SCM Agreement 
define a subsidy under a duty drawback system as an excess  duty drawback for all purposes , the 
Commission should have investigated the existence and amount of any excess remission. The 
Comm ission also failed to provide the Government of Pakistan with an opportunity to conduct the 
further investigation.  
1.4.  The Panel fully agreed with Pakistan's legal interpretation. Based exclusively on a rigorous 
Vienna Convention -based legal analysis, and with out the need to consider any factual issues, the 
Panel identified in a number of provisions what it called the "Excess Remission Principle". This 
principle stipulates that a duty drawback scheme could therefore give rise to a subsidy only and 
only if there  was an "excess" remission. Neither insufficient verification mechanisms nor any other 
situation would render this principle inapplicable.  
1.1  The EU's interpretation of the words "in accordance with" has been proven to be 
incorrect  
1.5.  Pakistan agrees with the P anel's analysis that the words "in accordance with" in Footnote 1 
do not create a condition for the definition of the subsidy as an "excess" remission to apply. 
Instead, the phrase means that the Excess Remissions Principle is in agreement with each of the  
provisions listed in Footnote 1. As the Panel stated, it is incongruous to say that a principle is in 
agreement with a provision when the provision potentially eliminates the principle. The Panel also 
correctly stated that there were no other instance in the SCM Agreement in which the term "in 
accordance with" had the EU's proposed meaning. The EU has failed to address any of these 
arguments.  
1.2  The "silence" of Annexes II and III on a narrow set of circumstances does not 
support the EU's reading  
1.6.  The EU argue s that Annexes II and III do not provide complete guidance on what happens 
when the "monitoring system in place was improper" and there is no "further verification by the 
exporting Member." But as the Panel stated, there is no reason why this "incomplete g uidance" 
should mean that the definition of the fundamental subsidy definition in Footnote 1 and Annex I(i) 
should be read out of the agreement.  
                                                
1 This execut ive summary contains a total of 1,778 words. Pakistan's appellee's submission contains a 
total of 18,683 words (including footnotes).  WT/DS486/AB/R/Add.1  
 
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  1.3  The EU's arguments that the Panel's interpretation relieves the exporting Member of 
its "duty" to maintain a monitoring system does not withstand scrutiny  
1.7.  The EU argues incorrectly that the Panel's interpretation provides an incentive for Members 
not to observe their duty to operate adequate monitoring mechanisms. But under Pakistan's and 
the Panel's interpretati on, exporting governments have every incentive to operate proper 
monitoring systems, so as to avoid multilateral and national actions against export subsidies. The 
reference to a functioning monitoring mechanism in Annexes II and III merely serves to creat e a 
presumption, or an analytical shortcut, that no excess exists.  
1.4  The EU is incorrect to characterize the need to calculate the excess remission as a 
"burden" on the investigating authority  
1.8.  Pakistan fails to understand the EU's assertion that a uniquely e xceptional "burden" should 
exist when investigating authorities investigate excess remissions under duty drawback systems. 
Also, the Panel correctly rejected the EU's "burden" argument. If necessary, the investigating 
authority can have recourse to facts a vailable.  
1.5  There are additional reasons why the EU's arguments are incorrect  
1.9.  The EU also ignores the historical background, including the genesis of Footnote 1 and 
Annexes II and III to the SCM Agreement, all of which confirm Pakistan's and the Panel's rea ding 
of the SCM Agreement.  
1.10.   The EU also invokes the "neutrality principle" in support of its views. But this principle, 
together with the destination principle, underpins the WTO legal concept of "border tax 
adjustment". Both for exports and imports, an "e xcess" adjustment can give rise to multilateral 
action or domestic measures; but the existence of an "excess" does not remove a WTO Member's 
fundamental right to make the adjustment.  
1.11.   The EU also does not address the argument that, when the drafters of the  SCM Agreement 
wished to permit the countervailing of an entire remission of taxes or duties, they did so explicitly, 
for instance in Annex I(e) and Annex III(II)(5).  
1.12.   The EU's proposed reading of Footnote 1 and Annexes II and III would also give rise to 
inconsistencies of logic. Annexes II and III apply only in a countervailing duty investigation . But 
the definition of a subsidy, including Footnote 1, must be the same for all circumstances in which 
the SCM Agreement applies.  As another example, the EU's ap proach would give rise to an 
unwarranted asymmetry in how the SCM Agreement treats (finished) products and the inputs for 
the production of those products, under Annex I(g), I(h) and I(i).  
2  THE APPELLATE BODY S HOULD REJECT THE EU' S APPEAL OF THE PANE L'S DE CISION 
TO EXERCISE JURISDIC TION  
2.1.  The Appellate Body should also reject in its entirety the EU's appeal against the Panel's 
exercise of jurisdiction over the measure at issue. The EU's arguments assume that a dispute 
disappears with the expiry or removal of  the measure after panel establishment. But the 
Appellate  Body has stated explicitly that one cannot equate the withdrawal or expiry of a measure 
with the termination of the dispute. Most recently, in EU – Fatty Alcohols (Indonesia) , the 
Appellate Body rej ected the proposition that the repeal of a measure necessarily constitutes, 
without more, a "satisfactory settlement of the matter", because benefits accruing to a Member 
may be impaired by measures whose legislative basis has expired.  
2.2.  In addition, if the EU were correct that expiry of a measure removes a dispute and no 
"matter" exists, all of the reports in which panels made findings on expired measures would be 
improper "advisory opinions", contrary to Article 11 of the DSU. Moreover, panels maintain 
jurisdiction on measures that expire after panel establishment because defending WTO Members 
must not be permitted to avoid multilateral scrutiny simply by withdrawing a challenged measure 
after initiation of a panel process.  WT/DS486/AB/R/Add.1  
 
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  2.3.  The EU argues that this case pres ents "unique circumstances", because the measure at issue 
expired before the Panel began its work. However, the key jurisdictional bright line is the time of 
panel establishment, not the subsequent point in time when the panel begins its work. Moreover, 
the EU's approach in this dispute would create an incentive for WTO Members to avoid multilateral 
scrutiny by withdrawing a measure immediately after panel establishment.  
2.4.  In this dispute, the panel proceedings were effectively halted for over 11.5 months af ter 
panel establishment, due to a shortage of WTO Secretariat lawyers. The blame for this does not lie 
with Pakistan. Under normal circumstances, the Panel Report would have been circulated less than 
1.5 months after the expiry of the measure.  
2.5.  The EU disa grees with the Panel's finding that there is "reasonable possibility" that the 
EU could impose CVDs on Pakistani goods in a manner that may give rise to the same or materially 
similar WTO inconsistencies. But the EU fails to address the criteria on which t he Panel relied and 
puts forward other, unpersuasive criteria.  
2.6.  The EU also incorrectly characterizes existing case law on jurisdiction over expired measures. 
All previous panels faced with measures that expired after panel establishment exercised their 
jurisdiction and made findings. The EU is thus requesting the Appellate Body to reverse 20 years of 
consistent case law and suggest that a panel should have declined a complainant's request to 
exercise its validly -established jurisdiction over a measure that  expired after panel establishment.  
2.7.  The EU also fails to present the appropriate arguments required for an appeal under 
Article  11 of the DSU. The EU cannot merely disagree with individual elements  and the result  of 
the Panel's analysis. The EU also fails  to provide any "cogent reasons" for why the Panel should 
have departed from previous case law by relying on different criteria. Moreover, the Appellate 
Body has previously indicated that it agrees with the criteria previously developed by panels and 
has o ccasionally made explicit findings consistent with the existing panel case law.  
2.8.  The EU also argues that the Panel should have examined the "lingering effects" of the 
measure. This is incorrect and, even if required, there are "lingering effects" here. Pak istan 
continues to be affected by the EU's measures even after they have been withdrawn, as evidenced 
by CVD investigations conducted by the US and Canadian authorities.  
3  CONCLUSION AND REQUE ST FOR RULINGS  
3.1.  For these reasons, Pakistan respectfully requests that the Appellate Body reject t he 
EU's other appeal in its entirely.  
3.2.  The Appellate Body should affirm the Panel's finding in paragraphs 7.60 and 8.1(b)(i) 
and (ii) of its Report that the EU acted inconsistently with Articles 1.1(a)(1)(ii) and 3.1(a) of t he 
SCM Agreement. In the event that the Appellate Body were to reverse the Panel's legal standard 
and its finding of violation, Pakistan requests the Appellate Body to complete the Panel's legal 
analysis and provide detailed guidance on the proper legal st andard. Pakistan also requests the 
Appellate Body to complete the Panel's legal analysis by applying its legal standard and finding 
that the EU violated Articles 1.1(a)(1)(ii), 3.1(a), 10, 19.1, and 32, and Annexes I(i), II(I)(1), 
II(I)(2), II(II)(1), II(I I)(2), III(I), and III(II)(1), III(II)(2), III(II)(3) of the SCM Agreement, as 
well as Article VI:3 of the GATT 1994 because it failed to provide the Government of Pakistan with 
an opportunity to conduct the "further investigation" as required by Annex II( II)(2) and 
Annex  III(II)(3) and because it failed to make proper allowance for waste, as required by 
Annex  I(i) and Annex II(II)(4).  
3.3.  The Appellate Body should also reject the EU's appeal against the Panel's exercise of its 
jurisdiction under Article 11 of  the DSU and reject the EU's request to reverse the entirety of the 
Panel's findings and conclusions and declare them to be moot and of no legal effect.  
 
 WT/DS486/AB/R/Add.1  
 
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  ANNEX B -4 
EXECUTIVE SUMMARY OF  THE EUROPEAN UNION'S  APPELLEE'S SUBMISSIO N1 
1. The Pan el was correct to reject outright Pakistan's claims against the Commission's "breaking 
the causal link" analysis in the present case. According to well established case law there 
must be "a genuine and substantial relationship of cause and effect" between the subsidized 
imports and the observed injury.2 Importantly, the subsidized imports must neither be the 
sole cause of injury nor the only substantial cause of injury.3 Investigating authorities must 
also "separate and distinguish" the injurious effects of  other known factors from those of the 
alleged subsidized imports.4 Investigating authorities must not attribute injurious effects of 
other factors to the subsidized imports.5 There is no prescribed method for assessing 
causation.6  
2. In the determinations i n dispute, the Commission first established injury of the Union industry 
and then assessed whether, on a preliminary basis, the subsidized imports constituted a 
causal link for this injury. It then assessed for each other known factor whether it broke (or 
attenuated, diluted, negated etc.) that causal link to the effect that the subsidized imports 
would not be a genuine and substantial causal link for injury. Only then did the Commission 
conclude on causation. This approach is fully in line with the legal r equirements.  
3. Pakistan claims that the European Union's "breaking the causal link" method is illogical 
because a causal link that is broken should never have existed in the first place. This 
argument is of a purely semantic nature. A causal link that is broken is not ne cessarily 
inexistent but fails to meet the "genuine and substantial" standard required under the case 
law. And even if an initial causal link would be found to be inexistent because of other factors, 
this would not be illogical but simply a consequence of the Commission's order of analysis 
whereby a causal link is first established, on a preliminary basis , and then other known factors 
are assessed which may reverse that result. This is precisely the reason why the 
Commission's method would have been perfect ly capable of coming to a different conclusion 
as regards causation in the present case, if the factual circumstances would have been 
different. The European Union notes that the Commission's order of analysis is the same that 
the panel  (as confirmed by th e Appellate  Body) followed in US – Upland Cotton , a case which 
Pakistan cites in support of its position. In US – Upland Cotton , the panel first assessed the 
existence of a causal link – on a preliminary basis  – and only subsequently examined if other 
factors would attenuate that causal link (or if they would render not "significant" the effect of 
the subsidy). The only difference between the Commission's and the Panel's method is that 
the Panel used the term "attenuating" the causal link instead of "breaki ng" the causal link. 
Pakistan's appeal should therefore be rejected.  
4. Pakistan also argues that the Commission at no point assessed the effects of the subsidized 
imports alone but only together with the effects of some other known factors. This is simply 
factually incorrect. The Commission assessed the effects of the subsidized imports in a 
separate section in paragraphs 242 to 245 of the provisional determination – prior to and 
independent of the assessment of any other known factor.  
5. There is also no lega l basis for the standard of "even -handedness" purported by Pakistan nor 
is it correct that the Commission applied a higher standard of causation for the other known 
factors than for the establishment of a causal link. Similarly, there is no legal basis for  
Pakistan's proposition to require that the Commission should have assessed the impact of 
each other known factor with regard to those economic factors or indices that showed a 
negative performance.  
                                                
1 Total number of words (including footnotes but excluding executive summary) = 7684; total number 
of words of the executi ve summary = 758.  
2 Appellate Body Report, US – Lamb , para. 179.  
3 Appellate Body Report, US – Large Civil Aircraft (2 nd complaint) , para. 914.  
4 Appellate Body Report, US – Line Pipes, para. 215.  
5 Article 15.5, 3rd sentence SCM Agreement.  
6 Appellate Body Report, US – Hot-Rolled Steel , para. 224.  WT/DS486/AB/R/Add.1  
 
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  6. Lastly, Pakistan's argument that the "breaking the causa l link" method would prevent the 
Commission from properly distinguishing and separating the effects of the non -attribution 
factors is entirely speculative and unsupported by any facts.  
7. The European Union also notes that compliance of the European Union's method with the 
requirements of Article 15.5 SCM Agreement was already confirmed by previous panels as the 
Panel correctly noted.7  
8. The European Union therefore requests the Appellate Body to reject Pakistan's claim.  
 
 
_______________  
                                                
7 Panel Report, para. 7.119 with references.  WT/DS486/AB/R/Add.1  
 
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  ANNEX C  
ARGUMENTS OF THE THI RD PARTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of the United States ' third participant's submission  16 
 
 WT/DS486/AB/R/Add.1  
 
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  ANNEX  C-1 
EXECUTIVE SUMMARY OF  THE UNITED STATES ' THIRD PARTICIPANT' S SUBMISSION  
I. THE EUROPEAN UNION'S CLA IM THAT THE PANEL ER RED IN CONSIDERING 
EXPIRED MEASURES  
1. The expiration of a measure after panel establishment is not relevant to the Panel's analysis 
of WTO consistency, nor to its obligation under the DSU to make recommendations with r espect to 
any measures found to be inconsistent with a Member's obligations.  
2. Under the DSU, the task of a panel is to determine whether the measure at issue is 
consistent with the relevant obligations " at the time of establishment of the Panel. " It is thu s the 
challenged measures, as they existed at the time of the panel's establishment, when the "matter" 
was referred to the panel, that are properly within the panel's terms of reference and on which the 
panel should make findings.  
3. Therefore, the panel in this dispute was authorized and charged by the DSU to make a 
finding with respect to the measures within its terms of reference found to be WTO -inconsistent, 
i.e., the challenged measures, as they existed at the time of the Panel's establishment. The 
expiration or withdrawal of one of the legal instruments identified in Pakistan's panel request does 
not alter the scope of the Panel's terms of reference, nor the Panel's mandate under the DSU. The 
United States thus agrees with Pakistan that the Panel acted i n accordance with its obligations 
under the DSU by making findings with respect to the EU's measure, notwithstanding the expiry of 
that measure.  
4. Having found an inconsistency, however, the United States considers that the Panel was 
obligated under Article 19.1 of the DSU also to issue a recommendation with respect to the WTO -
inconsistent measure. Therefore, if the Appellate Body finds the EU measure to be inconsistent 
with the SCM Agreement, it must recommend that the EU bring its measure into compliance, a s 
required under Article 19.1, unless the parties agree that not issuing a recommendation will assist 
them in securing a positive resolution to this dispute.  
II. THE EUROPEAN UNION'S  CLAIMS OF ERROR WITH  REGARD TO THE 
SCM AGREEMENT  
5. Footnote 1 to the SCM A greement and the Ad Note to Article XVI of the GATT 1994 
contemplate that a duty drawback scheme "shall not be deemed to be a subsidy" so long as there 
is no "excess" remission of duties or taxes from those which have accrued. Consequently, if a duty 
drawb ack system were to provide for exemption or remission of duties or taxes in amounts that 
exceed the amounts of "duties or taxes that have accrued," then such a system may be "deemed 
to be a subsidy" under the terms of Article 1.1.  
6. Importantly, footnote 1 also notes that this standard is "[i]n accordance with the provisions 
of Article XVI of GATT 1994 (Note to Article XVI) and the provisions of Annexes I through III of 
this Agreement."  
7. Annex  II(II) is key to interpreting footnote 1; Annex I, item (i); and A nnex II(I). This is 
because a determination of what inputs are consumed directly informs the analysis of whether 
there is any excess remission of import duties in connection with those inputs.  
8. Annex II(II)(1) -(2) contemplates a system that in itself can d emonstrate that there is no 
excess remission on the part of the exporting Member. In that respect, the United States agrees 
with the EU that "[l]imiting classification as a 'subsidy' solely to the excess remitted or refunded" 
in all circumstances " presuppo ses that the system for remission or exemption of import duties is 
compatible with the Annexes I to III, since in those cases exporters are indeed 'entitled' to 
drawback in respect of duties on the inputs used in the exported products."  WT/DS486/AB/R/Add.1  
 
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  9. For this reason, where a purported remission of duties does not satisfy the requirements 
found in the Annexes, an investigating authority is permitted to examine that measure as a 
financial contribution under Article 1.1 as it would any other measure, and, if appropriate, to 
countervail the full amount of the financial contribution.  
 
 
_______________  
 WT/DS486/AB/R/Add.1  
 
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  ANNEX D  
PROCEDURAL RULING S 
Contents  Page  
Annex  D-1 Procedural Ruling of 25 October 2017 regarding additional procedures to 
protect business confidential information (BCI)  19 
Annex  D-2 Procedural Ruling of 4 December 2017 regarding the joint request by the 
European Union and Pakistan to reschedule the date of the oral  hearing  23 
 
 
 WT/DS486/AB/R/Add.1  
 
- 19 - 
 
  ANNEX D -1 
PROCEDURAL RULING OF  25 OCTOBER 2017  
1.1.  On 17 October  2017, Pakistan and the European  Union jointly addressed a letter 
("joint  request") to the Director of the Appellate Body Secretariat requesting that the 
Appellate  Body adopt additional procedures for the protection of business confidential 
informat ion (BCI) in these appellate proceedings.  
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 its 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 inclusio n, 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.  
1.3.  On 17 October  2017, the Appellate Body Division hearing this appeal invited the 
third participants to comment on the joint request. China did not comment on the joint request. By 
letter dated 19  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 th e Appellate Body's mandate to consider issues of law and legal 
interpretation.  
1.4.  We recall that the provisions of Articles  17.10 and 18.2 of the 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 information submitted, or 
received, in an Appellate Body proceeding.1 However, 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 nature of the information provided requires more detailed 
arrangements to protect adequately the confidentiality of that information.2  
1.5.  While it is for the participants to request and  justify the need for additional protection of 
confidential information, pursuant to Article  17.9 of the DSU and Rule  16(1) of the 
Working  Procedures, it is for the Appellate  Body, relying upon objective criteria, to determine 
whether the information submi tted by the participants deserves additional protection, as well as 
the degree of protection that is warranted.3 As the Appellate Body explained in EU – Fatty Alcohols 
(Indonesia) , any additional procedures adopted by the Appellate Body to protect sensitiv e 
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.4 Furthermore, a relationship of proportionality  must exist 
between the risks associated 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 
                                                
1 Appellate Body Reports, Brazil – Aircraft , para.  123; Canada – Aircraft , para. 145.  
2 Appellate  Body Reports, EU – Fatty Alcohols (Indonesia) , Annex  D-1, Procedural Ruling of 
13 June 2017, para. 3.1; 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. 
3 Appellate Body Reports, EU – Fatty Alcohols (Indonesia) , Annex D-1, Procedural Ruling of  
13 June 2017, para. 3.2; 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.  
4 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. WT/DS486/AB/R/Add.1  
 
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  disclosure.5 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 participation rights of thi rd participants, and the rights and systemic interests of the 
WTO membership at large, on the other hand.6  
1.6.  Importantly, when additional procedures to protect BCI are adopted, the Appellate Body must 
adjudicate any disagreement or dispute that may arise un der those procedures regarding the 
designation  or the treatment of information as business confidential.7 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.8 Hence, whether information submitted 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  adjudicator.  
1.7.  Turning to the case before us, we note that on 14  April 2016, following consultations with the 
parties, the Panel adopted Additional Working Procedures Concerning Business Confidential 
Information (Panel's BCI  Procedures).9 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 countervailing duty 
investigation at issue in this dispute 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  310 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.11 
1.8.  The Panel's BCI procedures set out a number of modalities concerning how the parties, 
third parties, and the Panel would treat BCI in th e course of the Panel proceedings. Pursuant to 
those procedures, the Panel redacted certain BCI from the version of its Report that was circulated 
to WTO Members on 6  July 2017.  
1.9.  On 30  August 2017, the European  Union appealed certain issues of law and legal  
interpretation covered in the Panel Report. On 4  September 2017, Pakistan filed a Notice of Other 
                                                
5 Appellate  Body Report s, 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. 
6 Appellate Body Reports, EU – Fatty Alc ohols (Indonesia) , Annex  D-1, Procedural Ruling of  
13 June 2017, para. 3.3; 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, para. 15. 
7 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 (EU) , 
para. 5.311.  
8 Appellate Body Report, EU – Fatty Alcohols (I ndonesia) , Annex  D-1, Procedural Ruling of  
13 June 2017, para. 3.10. 
9 Panel Report, para.  1.9. The Panel's BCI Procedures are attached, as Annex A -2, to its Report.  
10 Paragraph  3 of the Panel's BCI Procedures provided that:  
If a party or third party cons iders 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, whe re 
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 thes e 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.  
11 The Panel's BCI Procedures are contained in Annex A -2 of the Addendum to the Panel Rep ort. WT/DS486/AB/R/Add.1  
 
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  Appeal and an other appellant's submission. On 18  September 2017, Pakistan and the 
European  Union each filed an appellee's submission. On 20  September 2017, the United  States 
filed its third participant's submission. We observe that none of the participants or 
third participants has indicated that any of their submissions contain information that was treated 
by the Panel as BCI. Nonetheless, we are cognisant t hat this does not preclude the participants or 
third participants from referring to the information treated by the Panel as BCI in any further 
communication, including at the oral hearing.  
1.10.   The participants justify their joint request on the grounds that th e 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 c ompanies concerned. The Appellate Body has identified 
"the degree of potential harm in the event of disclosure", as an objective criterion that may be 
examined in determining whether the information submitted by participants deserves additional 
protection.12 In this regard, we consider it significant that the participants agree that the disclosure 
of the information in question could harm the competitive interests of the companies that 
submitted the information. Likewise, we consider it relevant that the inf ormation covered by the 
joint request was treated as BCI in the Panel proceedings, and was previously treated as 
confidential by the European  Commission in the underlying countervailing duty investigation.  
1.11.   With respect to the due process rights of the thir d participants, 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 understanda ble.13 Any 
procedures to protect the confidentiality of the sensitive information in this dispute should be 
compatible with this right and should go no further than necessary to guard against the potential 
risk of harm identified by the participants.14 
1.12.   For the above 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 reco rd. The 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 infor mation 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 thi s dispute to a participant or third participant. 
However, 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 countervailing duty 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 procedures. 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.  
                                                
12 Appellate Body Reports, EU – Fatty Alcohols (Indonesia) , Annex  D-1, Procedural Ruling of  
13 June 2017, para. 3.3 (referring to Appellate  Body Report, EC and certain member States – Large Civil 
Aircraft , Annex  III, Procedural Ruling of 10 August 201 0, para. 15). 
13 Appellate Body Reports, EU – Fatty Alcohols (Indonesia) , Annex  D-1, Procedural Ruling of  
13 June 2017, para. 3.8; Japan – DRAMS (Korea) , para.  279. 
14 Appellate Body Reports, EU – Fatty Alcohols (Indonesia) , Annex  D-1, Procedural Ruling of  
13 June 2017, para. 3.9; China – HP-SSST (EU) , para. 5.311.  WT/DS486/AB/R/Add.1  
 
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  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. Submissions filed prior to the adoption of these 
BCI procedures will not be marked retroactively. The participant or third participant shall 
mark the cover and/or first page of the document containing BCI, and each subsequent 
page of the document, to indicate the presence of such information. The specific 
information in question shall be placed within double brackets, as follows: [[…]].  
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 have 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 B ody may, 
however, make statements of conclusion drawn from that information.  
f. Before circulating its Report to the Members, the Appellate Body will decide whether to 
adopt further modalities, for example to verify the designation of certain information as 
BCI, and to ensure both the non -disclosure of BCI in the Report to be circulated and that 
the analysis and findings set out in that Report can be readily understood 
notwithstanding the redaction of any BCI.  
 WT/DS486/AB/R/Add.1  
 
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  ANNEX D -2 
PROCEDURAL RULING OF  4 DECEMBER 2017  
1. On 14 November 2017, the Appellate Body Division hearing this appeal informed the 
participants and third participants that the oral hearing in this appeal was scheduled to take place 
on 12 and 13  February 2018.  
2. On 28  November 2017, Pakista n and the European  Union (the participants) jointly addressed 
a letter to the Director of the Appellate Body Secretariat requesting that the Division reschedule 
the date of the hearing. The participants explained that they both faced difficulties regarding  the 
availability of key staff, including legal counsel, during the week of 12  February 2018 due to 
conflicting commitments and travel arrangements already made for that period. The participants 
indicated that their efforts to find alternative solutions to  accommodate the suggested dates for 
the hearing had not been fruitful. For these reasons, the participants requested that the hearing 
take place during the week of 5  February 2018, or any other date suitable for the Division after 
19 February 2018. The pa rticipants further requested that, if the Division chose a date after 
19 February, the resulting delay be minimized so as not to extend further the present appellate 
proceedings.  
3. On 29  November 2017, the Division invited the third participants to comment o n the joint 
request by the participants by 1  December 2017. None of the third participants commented on the 
joint request.  
4. The Division considers the reasons identified by the participants to be relevant to our 
assessment of the joint request. The Division  also takes into account the fact that none of the third 
participants has raised any concern with respect to the proposed change to the hearing dates. The 
Division bears in mind the significant workload of the Appellate Body, the overlaps in the 
compositio n of the various Divisions hearing concurrent appeals, and the resultant impact on the 
availability of the Members of the Division hearing this appeal. In addition, the Division is 
cognisant of the logistical and administrative implications of changing the  hearing dates, and is 
keen to minimize any inconveniences resulting therefrom.  
5. Taking into account all of the foregoing, and in accordance with Rule  16 of the 
Working  Procedures for Appellate Review, the Division has decided to reschedule the date of the 
hearing. The oral hearing in this appeal will commence on the morning of Thursday, 8  February 
2018 at 9.30 a.m. and continue on Friday, 9  February 2018  at the Centre William Rappard, 
Geneva. Further details regarding the hearing will be sent to participant s in due course.  
 
 
__________