WT/DS513/R/Add.1  
 
31 October 2018  
(18-6809) Page: 1/68 
  Original: English  
 
  
MOROCCO – ANTI -DUMPI NG MEASURES ON CERTA IN HOT -ROLLED  
STEEL FROM TURKEY  
REPORT OF THE PANEL  
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Addendum  
This addendum  contains Annexes A to C to the Report of the Panel to be found in document  
WT/DS513/R . 
 
 
_______________  
 
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  LIST OF ANNEXES  
ANNEX  A 
WORKING DOCUMENTS  OF THE PANEL  
Contents  Page  
Annex A -1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures on Business Confidential Information  9 
Annex A -3 Interim Review  11 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Turkey  20 
Annex  B-2 Integrated executive summary of the arguments of Morocco  42 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of the European Union  59 
Annex  C-2 Integrated executive summary of the arguments of Japan  61 
Annex  C-3 Integrated executive summary of the arguments of the United States  64 
 
 
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  ANNEX  A 
WORKING DOCUMENTS OF  THE PANEL  
Contents  Page  
Annex A -1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures on Business Confidential Information  9 
Annex A -3 Interim Review  11 
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  ANNEX A -1 
WORKING PROCEDURES O F THE PANEL  
Adopted on 22 August 2017  
 
 
1.  In its proceedings, the Panel shall follow the relevant provisions of the Understanding on Rules 
and Procedures Governing the Settlement of Disputes (DSU). In addition, the following Working 
Procedures shall apply.  
 
General  
 
2.  The deliberations of the Panel and the documents submitted to it shall be kept confidential. 
Nothing in the DSU or in these Working Procedures shall preclude a part y to the dispute (hereafter 
"party") from disclosing statements of its own positions to the public. Members shall treat as 
confidential information submitted to the Panel by another Member which the submitting Member 
has designated as confidential. Where a  party submits a confidential version of its written 
submissions to the Panel, it shall also, upon request of a Member, provide a non -confidential 
summary of the information contained in its submissions that could be disclosed to the public.  
 
3.  The part ies and Members having notified their interest in the dispute to the Dispute Settlement 
Body in accordance with Article 10 of the DSU (hereafter "third parties"), shall treat business 
confidential information in accordance with the procedures set forth in the Additional Working 
Procedures of the Panel Concerning Business Confidential Information adopted by the Panel.  
 
4.  The Panel shall meet in closed session. The parties and third parties shall be present at the 
meetings only when invited by the Panel to appear before it.  
 
5.  Each party and third party has the right to determine the composition of its own delegation when 
meeting with the Panel. Each party and third party shall have the responsibility for all members of 
its own delegation and shall ensure  that each member of such delegation acts in accordance with 
the DSU and these Working Procedures, particularly with regard to the confidentiality of the 
proceedings.  
 
Submissions  
 
6.  Before the first substantive meeting of the Panel with the parties, ea ch party shall submit a 
written submission in which its presents the facts of the case and its arguments, in accordance with 
the timetable adopted by the Panel. Each party shall also submit to the Panel, prior to the second 
substantive meeting of the Panel , a written rebuttal, in accordance with the timetable adopted by 
the Panel.  
 
7.  A party shall submit any request for a preliminary ruling at the earliest possible opportunity and 
in any event no later than in its first written submission to the Panel. I f Turkey requests such a 
ruling, Morocco shall submit its response to the request in its first written submission. If Morocco 
requests such a ruling, Turkey shall submit its response to the request prior to the first substantive 
meeting of the Panel, at a time to be determined by the Panel in light of the request. Exceptions to 
this procedure shall be granted upon a showing of good cause.  
 
8.  Each party shall submit all factual evidence to the Panel no later than during the first substantive 
meeting, excep t with respect to evidence necessary for purposes of rebuttal, answers to questions 
or comments on answers provided by the other party. Exceptions to this procedure shall be granted 
upon a showing of good cause. Where such exception has been granted, the P anel shall accord the 
other party a period of time for comment, as appropriate, on any new factual evidence submitted 
after the first substantive meeting.  
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  9.  Where the original language of exhibits is not a WTO working language, the submitting party or 
third party shall submit a translation into the WTO working language of the submission at the same 
time. The Panel may grant reasonable extensions of time for the translation of such exhibits upon a 
showing of good cause. Any objection as to the accuracy o f a translation should be raised promptly 
in writing, no later than the next filing or meeting (whichever occurs earlier) following the submission 
which contains the translation in question. Any objection shall be accompanied by a detailed 
explanation of t he grounds of objection and an alternative translation.  
 
10.  To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the course 
of the dispute, indicating the submitting Member and the number of each exhibit on its cover page. 
For example, exhibits submitted by Turkey could be numbered TUR -1, TUR -2, etc. If the last exhibit 
in connection with the first submission was numbered TUR -5, the  first exhibit of the next submission 
thus would be numbered TUR -6. 
 
Questions  
 
11.  The Panel may at any time pose questions to the parties and third parties, orally or in writing, 
including prior to each substantive meeting.  
 
Substantive meetings  
 
12.  Each party shall provide to the Panel the list of members of its delegation in advance of each 
meeting with the Panel and no later than 5.00  p.m. the previous working day .   
 
13.  The first substantive meeting of the Panel with the parties shall be co nducted as follows:  
 
a. The Panel shall invite Turkey to make an opening statement to present its case first. 
Subsequently, the Panel shall invite Morocco to present its point of view. Before each party 
takes the floor, it shall provide the Panel and other  participants at the meeting with a 
provisional written version of its statement. In the event that interpretation is needed, each 
party shall provide additional copies for the interpreters, through the Panel Secretary. Each 
party shall make available to t he Panel and the other party the final version of its opening 
statement as well as its closing statement, if any, preferably at the end of the meeting, and 
in any event no later than 5.00  p.m. on the first working day following the last day of the 
meeting.  
 
b. After the conclusion of the statements, the Panel shall give each party the opportunity 
to ask each other questions or make comments, through the Panel. Each party shall then have 
an opportunity to answer these questions orally. Each party shall send in writing, within a 
timeframe to be determined by the Panel, any questions to the other party to which it wishes 
to receive a response in writing. Each party shall be invited to respond in writing to the other 
party's written questions within a deadline t o be determined by the Panel.  
 
c. The Panel may subsequently pose questions to the parties. Each party shall then have 
an opportunity to answer these questions orally. The Panel shall send in writing, within a 
timeframe to be determined by it, any question s to the parties to which it wishes to receive a 
response in writing. Each party shall be invited to respond in writing to such questions within 
a deadline to be determined by the Panel.  
 
d. Once the questioning has concluded, the Panel shall afford each p arty an opportunity to 
present a brief closing statement, with Turkey presenting its statement first.  
 
14.  The second substantive meeting of the Panel with the parties shall be conducted as follows:  
 
a. The Panel shall ask Morocco if it wishes to avail i tself of the right to present its case 
first. If so, the Panel shall invite Morocco to present its opening statement, followed by Turkey. 
If Morocco chooses not to avail itself of that right, the Panel shall invite Turkey to present its 
opening statement f irst. Before each party takes the floor, it shall provide the Panel and other 
participants at the meeting with a provisional written version of its statement. In the event 
that interpretation is needed, each party shall provide additional copies for the in terpreters, 
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  the final version of its opening statement as well as its closing statement, if any, preferably 
at the end of the meeting, and in any event no later t han 5.00  p.m. of the first working day 
following the last day of the meeting.  
 
b. After the conclusion of the statements, the Panel shall give each party the opportunity 
to ask each other questions or make comments, through the Panel. Each party shall then  have 
an opportunity to answer these questions orally. Each party shall send in writing, within a 
timeframe to be determined by the Panel, any questions to the other party to which it wishes 
to receive a response in writing. Each party shall be invited to respond in writing to the other 
party's written questions within a deadline to be determined by the Panel.  
 
c. The Panel may subsequently pose questions to the parties. Each party shall then have 
an opportunity to answer these questions orally. The Panel s hall send in writing, within a 
timeframe to be determined by it, any questions to the parties to which it wishes to receive a 
response in writing. Each party shall be invited to respond in writing to such questions within 
a deadline to be determined by the  Panel.  
 
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with the party that presented its opening statement first, 
presenting its closing statement first.  
 
Third parties  
 
15.  The Panel shall invite each third party to transmit to the Panel a written submission prior to the 
first substantive meeting of the Panel with the parties, in accordance with the timetable adopted by 
the Panel.  
 
16.  Each third party shall also be in vited to present its views orally during a session of this first 
substantive meeting, set aside for that purpose. Each third party shall provide to the Panel the list 
of members of its delegation in advance of this session and no later than 5.00  p.m. the p revious 
working day.  
 
17.  The third -party session shall be conducted as follows:  
 
a. All third parties may be present during the entirety of this session.  
 
b. The Panel shall first hear the arguments of the third parties in alphabetical order. 
Third parties present at the third -party session and intending to present their views orally at 
that session, shall provide the Panel, the parties and other third -parties with provisional 
written versions of their statements before they take the floor. Third partie s shall make 
available to the Panel, the parties and other third parties the final versions of their statements, 
preferably at the end of the session, and in any event no later than 5.00  p.m. of the first 
working day following the session.  
 
c. After the t hird parties have made their statements, the parties may be given the 
opportunity, through the Panel, to ask the third parties questions for clarification on any 
matter raised in the third parties' submissions or statements. Each party shall send in writin g, 
within a timeframe to be determined by the Panel, any questions to a third party to which it 
wishes to receive a response in writing.  
 
d. The Panel may subsequently pose questions to the third parties. Each third party shall 
then have an opportunity to  answer these questions orally. The Panel shall send in writing, 
within a timeframe to be determined by it, any questions to the third parties to which it wishes 
to receive a response in writing. Each third party shall be invited to respond in writing to s uch 
questions within a deadline to be determined by the Panel.  
 
Descriptive part  
 
18.  The description of the arguments of the parties and third parties in the descriptive part of the 
Panel report shall consist of executive summaries provided by the partie s and third parties, which 
shall be annexed as addenda to the report. These executive summaries shall not in any way serve WT/DS513/R/Add.1  
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  as a substitute for the submissions of the parties and third parties in the Panel's examination of the 
case.  
 
19.  Each party shall submit an integrated executive summary of the facts and arguments as 
presented to the Panel in its written submissions, oral statements and, where relevant, responses 
to questions, in accordance with the timetable adopted by the Panel. Each integrated exec utive 
summary shall be limited to no more than 30 pages. The Panel will not summarize in the descriptive 
part of its report, or annex to its report, the parties' responses to questions.  
 
20.  Each third party shall submit an executive summary of its argume nts as presented in its written 
submission and statement in accordance with the timetable adopted by the Panel. This summary 
may also include a summary of responses to questions, where relevant. The executive summary to 
be provided by each third party shal l not exceed 6  pages.  
 
21.  The Panel reserves the right to request the parties and third parties to provide executive 
summaries of facts and arguments presented by a party or a third party in any other submissions 
to the Panel for which a deadline may no t be specified in the timetable.  
 
Interim review  
 
22.  Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request  such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
 
23.  In the event that no further meeting with the Panel is requested, each party may submit written 
comments on the other party's written request f or review, in accordance with the timetable adopted 
by the Panel. Such comments shall be limited to commenting on the other party's written request 
for review.  
 
24.  The interim report, as well as the final report prior to its official circulation, shall be kept strictly 
confidential and shall not be disclosed.  
 
Service of documents  
 
25.  The following procedures regarding service of documents shall apply:  
 
a. Each party and third party shall submit all documents to the Panel by filing them with 
the DS  Registry (office No. 2047).  
 
b. Each party and third party shall file 2 paper copies of all documents it submits to the 
Panel. Two paper copies of all exhibits shall be filed. If, instead, Exhibits are submitted on 
CD-ROM, DVD, or USB stick, 4 copies shall b e filed. The DS  Registrar shall stamp the 
documents with the date and time of the filing. The paper version shall constitute the official 
version for the purposes of the record of the dispute.  
 
c. Each party and third party shall also provide an electronic  copy of all documents it 
submits to the Panel at the same time as the paper versions, preferably in Microsoft Word 
format, either on a CD -ROM, a DVD, a USB stick, or as an e -mail attachment. If the electronic 
copy is provided by e -mail, it should be addre ssed to DSRegistry@wto.org, with a copy to 
XXX@wto.org  and XXX@wto.org  and such other WTO Secretariat staff notified to the parties 
and third parties in the course of the proceedings. If  a CD-ROM, DVD, or USB stick is provided, 
it shall be filed with the DS Registry. In addition, each party and third party is invited to submit 
all documents through the Digital Dispute Settlement Registry (DDSR) within 24 hours 
following the deadline for t he filing of the paper versions.  
 
d. Each party shall serve only electronic copies of any document submitted to the Panel 
directly on the other party. Each party shall, in addition, serve on all third parties, only 
electronic copies of its written submissi ons in advance of the substantive meeting with the 
Panel, unless a third party requests service of a paper copy. Each third party shall serve on 
all other parties and third parties only electronic copies of any document submitted to the 
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  shall confirm, in writing, that copies have been served as required at the time it provides each 
document to the Panel.  
 
e. Each party and third party shall file its documents with  the DS Registry and serve copies 
on the other party (and third parties where appropriate) by 5.00  p.m. (Geneva time) on the 
due dates established by the Panel. A party or third party may submit its documents to another 
party or third party in electronic f ormat only, subject to the recipient party or third party's 
prior written approval and provided that the Panel Secretary is notified.  
 
f. The Panel shall provide the parties with an electronic version of the descriptive part, the 
interim report and the fin al report, as well as of other documents as appropriate. When the 
Panel transmits to the parties or third parties both paper and electronic versions of a 
document, the paper version shall constitute the official version for the purposes of the record 
of the dispute.  
 
26.  The Panel reserves the right to modify these procedures as necessary, after consultation with 
the parties.  
 
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  ANNEX A -2 
ADDITIONAL WORKING P ROCEDURES ON BUSINES S  
CONFIDENTIAL INFORMA TION   
Adopted on 22 August 2017  
 
 
The following procedures apply to any business confidential information (BCI) submitted in the 
course of the Panel proceedings in DS 513. 
 
1. For the purposes of these Panel proceedings, BCI includes  
 
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 investigat ion 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 3 below .  
 
b. any other information designated as such by the party submitt ing 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 .    
 
2. Any information that is available in the public domain may not be designated as BCI. In 
addition, information previously treated as confidential by the investigating authority in the anti -
dumping investigation at issue in this dispute may not be designated as BCI if the person who 
provided the information in the course of that investi gation agrees in writing to make the information 
publicly available.  
 
3. If a party or third party considers that information submitte d by the other party or a third  party 
should have been designated as BCI and objects to its submission without such design ation, 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 thi rd 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 th e information .   
 
4. No person may have access to BCI except a member of the Secretariat assisting the Panel or 
the Panel, an employee of a party or third party, or an outside advisor to a party or third party for 
the purposes of this dispute .  
 
5. A party  or third party having access to BCI in these Panel proceedings shall not disclose that 
information other than to persons authorized to have access to it pursuant to these procedures . Any 
information designated as BCI under these procedures shall only be u sed for the purposes of this 
dispute . Each party and third party is responsible for ensuring that its employees and/or outside 
advisors comply with these procedures to protect BCI .  
 
6. An outside advisor of a party or third party is not permitted access t o BCI if that advisor is an 
officer or employee of an enterprise engaged in the production, sale, export, or import of the 
product(s) that was/were the subject of the investigation at issue in this dispute, or an officer or 
employee of an association of su ch enterprises . All third party access to BCI shall be subject to the 
terms of these working procedures.  
 
7. The party submitting BCI shall mark the cover and/or first page of the document containing 
BCI, and each page of the document, to indicate the pres ence of such information . The specific 
information in question shall be placed between double brackets, as follows: [[xx,xxx.xx]] . The first 
page or cover of the document shall state "Contains Business Confidential Information", and each WT/DS513 /R/Add.1  
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  page of the docume nt shall contain the notice "Contains Business Confidential Information" at the 
top of the page . In case of exhibits, the party submitting BCI in the form of an Exhibit shall mark it 
as (BCI) next to the exhibit number (e.g . Exhibit TUR -1 (BCI)) . Should the party submit specific BCI 
within a document which is considered to be public, the specific information in question shall be 
placed between double brackets, as follows: [[xx,xxx.xx]]".  
 
8. Any BCI that is submitted in binary -encoded form shall be clearl y marked with the statement 
"Business Confidential Information" on a label of the storage medium, and clearly marked with the 
statement "Business Confidential Information" in the binary -encoded files.  
 
9. In the case of an oral statement containing BCI, th e party or third party making such a 
statement shall inform the Panel before making it that the statement will contain BCI, and the Panel 
will ensure that only persons authorized to have access to BCI pursuant to these procedures are in 
the room to hear th at statement . The versions of such oral statements submitted to the Panel shall 
be marked as provided for in paragraph 7.  
 
10. Any person authorized to have access to BCI under the terms of these procedures shall store 
all documents containing BCI in such a manner as to prevent unauthorized access to such 
information.  
 
11. The Panel 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 Panel may, however, make statements of 
conclusion drawn from such information . Before the Panel circulates its final report to the Members, 
the Panel will give each party an opportunity to review the report to ensure that it does not contain 
any infor mation that the party has designated as BCI.  
 
12. Submissions containing BCI will be included in the record forwarded to the Appellate Body in 
the event of an appeal of the Panel's Report.  
 
 
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  ANNEX A -3 
INTERIM REVIEW  
1  INTRODUCTION  
1.1.  In accordance with Article  15.3 of the DSU, this section of the Panel Report sets out our 
response to the parties'  requests made at the Interim Review stage. Our assessment of the 
parties'  requests and comments is informed by the following considerations : 
a. The Interim Review stage is not an opportunity for parties to reargue the case or to 
"introduce new legal issues and evidence or to enter into a debate with the Panel".1 
b. The descriptions of the arguments of the parties in our Report are not meant t o and do 
not reflect the entirety of the parties'  arguments. Rather, they highlight the principal points 
of those arguments that we considered relevant to our resolution of the issues in dispute 
and addressed in our findings.2 Finally, we note that the exe cutive summaries of the 
arguments of the parties, set out in Annexes B1 -B2, were prepared by the parties 
themselves, and reflect, or should reflect, the judgement of each party as to its main 
arguments.  
c. A panel may develop its own reasoning in reaching its findings, provided that it does so 
consistently with the requirements of due process. A panel is not required to "test" its 
intended reasoning with the parties in advance.3 
1.2.  Where appropriate, we have modified aspects of the Report in the light of  the parties'  requests 
and comments. Due to changes as a result of our review, the numbering of paragraphs and footnotes 
in the Final Report has changed from the Interim Report. The text below refers to the numbers in 
the Interim Report, with the numbers i n the Final Report in parentheses for ease of reference, if 
different.  
1.3.  In addition to the modifications specified below, the Panel also corrected a number of 
typographical and other non -substantive errors throughout the Report, including some identif ied by 
the parties.  
2  TURKEY'S  SPECIFIC  REQUESTS FOR REVIEW  
2.1  Paragraph 7.64  
2.1.  Turkey asks the Panel to clarify that Morocco did not raise due process concerns with respect 
to Turkey's  claim under Article  VI:6(a) of the GATT 1994 and to add a new f ootnote in this regard.4 
Morocco opposes the request. Should the Panel accede to the request, Morocco asks the Panel to 
also add that Morocco argued throughout the proceedings that the Article  VI:6(a) claim is outside 
the Panel's  terms of reference.5 We de cline Turkey's  request. Paragraph  6 of our Working Procedures 
does not require that a party object to the late submission on due process grounds. The requested 
modification is therefore not necessary for our findings.  
                                                
1 Panel Report, India – Quantitative Restrictions , para.  4.2. 
2 A panel has "the discretion to address explicitly in [its] reasoning only the arguments and evidence [it] 
deem[s] necessary to resolve a particular claim and support the reasoning [it is] required to provide". (Panel  
Report, India – Agricultural Products , para.  6.7 (referring to Appellate Body Reports, EC – Poultry , para.  135; 
and US – COOL , para.  414)).  
3 Appellate Body Report, US – Tuna II (Mexico) (Article  21.5 – Mexico) , para.  177. 
4 Turkey's  request for interim r eview, para.  2.1. 
5 Morocco's  comments on Turkey's  request for interim review, para.  3. WT/DS513 /R/Add.1  
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  2.2  Paragraph 7.94 (7.96)  
2.2.  Turkey asks the Panel to clarify this paragraph and proposes two modifications.6 Turkey 
suggests referring to "a certain" instead of "an increasing" number of alleged differences. It also 
requests adding a reference to its explanations, made before u s, as to why those differences did not 
demonstrate that the documents at issue pertained to unreported export sales. Morocco disagrees 
with both requests.7 
2.3.  We made the linguistic change proposed by Turkey, but otherwise decline Turkey's  request. 
The paragraph at issue addresses Morocco's  arguments. We therefore do not see any need to also 
include a reference to Turkey's  arguments. In any event, we recall paragraph 1.1(b ) above. Any 
references to the arguments of the parties in our Report are not meant to and do not duplicate the 
parties'  executive summaries. Rather, it is for Turkey to include in its executive summary any 
arguments that it wishes the Panel Report to reflect.  
2.3  Paragraph 7.98 (7.100)  
2.4.  Turkey requests that the Panel clarify this paragraph and proposes a modification.8 Morocco 
does not consider the proposed change to be necessary and proposes an additional modification, 
should the Panel  accede to Turkey's  request.9 Turkey's  proposed language more clearly reflects our 
intent; we therefore modified the paragraph accordingly. We reject Morocco's  contingent request as 
it would effectively undo the clarification that Turkey seeks.  
2.4  Paragr aph 7.117 (7.119)  
2.5.  Turkey refers to the Panel's  reference to "a number of concerns" that Morocco's  assertion 
raised and invites the Panel to elaborate on these "concerns" in order to facilitate 
Morocco's  implementation.10 Morocco disagrees.11 We do not consider that our findings need further 
elaboration with a view to implementation. As we found, "in any event", the disclosure of the names 
at issue would not, in and of itself, have been sufficient for purposes of Morocco's  compliance with 
its Article  6.9 obligation.  
2.5  Footnote 217 (224) and paragraph 7.150 (7.152)  
2.6.  Turkey requests that the Panel add a few words to footnote 217 (224) to capture fully the basis 
for Turkey's  interpretation of the term "establishment" in footnote 9 to Article  3 of the  Anti-Dumping 
Agreement and Article  VI:6(a) of the GATT 1994.12 Morocco makes no comment on Turkey's  request. 
We have decided to accommodate Turkey's  request.  
2.7.  Turkey also requests the Panel to refer in footnote 217 (224) to the arguments that Turkey 
made in paragraph 8.27, rather than in paragraph 8.26, of its first written submission.13 Morocco 
makes no comment on Turkey's  request. We consider that Turkey's  arguments set out in both 
paragraph 8.26 and paragraph 8.27 of its first written submission are  relevant to the content of 
footnote 217 (224). We therefore accept Turkey's  request to add a reference to paragraph 8.26 in 
that footnote but decline Turkey's  request to delete the reference to paragraph 8.27.  
2.6  Paragraph 7.258 (7.260)  
2.8.  Turkey re quests the Panel to amend this paragraph by adding to it the basis for 
Turkey's  argument that "if the authority is not aware of other relevant factors affecting prices, it 
must say so explicitly in its published report". In particular, Turkey asks us to ad d a reference to the 
Panel Report in EC – Bed Linen (Article  21.5 – EC) that Turkey made in paragraph 9.10 of its first 
                                                
6 Turkey's  request for interim review, paras.  2.3-2.5. 
7 Morocco's  comments on Turkey's  request for interim review, paras.  4-7. 
8 Turkey's  request for interim review, p ara. 2.6 
9 Morocco's  comments on Turkey's  request for interim review, para.  8. 
10 Turkey's  request for interim review, para.  2.8. 
11 Morocco's  comments on Turkey's  request for interim review, para.  9. 
12 Turkey's  request for interim review, paras.  2.9-2.10.   
13 Turkey's  request for interim review, paras.  2.9-2.10.   WT/DS513/R/Add.1  
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  written submission.14 Morocco objects to Turkey's  request, arguing that Turkey's  citation to that 
case was not made in the context of its  claims regarding the relevant factors affecting prices under 
Article  3.4. Morocco contends that paragraph 9.10 of Turkey's  first written submission discusses not 
this issue but the requirement to assess all factors listed in Article  3.4 in general.15 
2.9.  We consider that this paragraph adequately reflects Turkey's  argument at issue, and therefore 
reject Turkey's  request.  
2.7  Paragraph 8.8  
2.10.   Turkey requests us to reconsider our decision to deny Turkey's  request to suggest to Morocco 
that it should r evoke its measure.16 In any event, Turkey requests the Panel to modify the first 
sentence of that paragraph to reflect more accurately the basis for its request.17 In addition, should 
the Panel maintain its decision to refrain from making a suggestion, Turke y asks the Panel to indicate 
the grounds for rejecting Turkey's  request. Morocco disagrees with Turkey's  requests.18 In its view, 
the Panel's  explanation of the discretionary nature of Article  19.1 of the DSU already sets out the 
reason for rejecting Turkey 's request. Moreover, it is for the implementing Member to choose the 
means of implementation and any suggestions would, in any case, not be binding.  
2.11.   We have modified the text of paragraph 8.8 to better reflect Turkey's  position. Nevertheless, 
we ma intain our decision to deny Turkey's  request for a suggestion, as elaborated further in 
paragraphs  8.8 and 8.9.  
3  MOROCCO'S  SPECIFI C REQUESTS FOR REVIE W 
3.1  Paragraph 7.21  
3.1.  Morocco asks the Panel to supplement its description of Morocco's  arguments.19 Turkey argues 
that these arguments were made too late in the proceedings but does not oppose the request.20 We 
recall paragraph   1.1(b ) above and on this basis de cline Morocco's  request.  
3.2  Paragraph 7.70  
3.2.  Morocco states that it has never used the word "aspirational" in its argumentation regarding 
Article  5.10, and requests the Panel to modify this paragraph to reflect the language used by 
Morocco.21 Turkey d oes not oppose Morocco's  request.22 We note that Morocco stated that the term 
"shall" in Article  5.10 can denote an intention or "aspiration" as opposed to a rigid obligation.23 We 
have, however, decided to accommodate Morocco's  request, and made a corresponding modification 
in paragraph 7.74 of the Report.  
3.3  Paragraph 7.76  
3.3.  Morocco requests the Panel to include in this paragraph certain additional arguments Morocco 
has m ade.24 Turkey does not oppose Morocco's  request.25 We consider that the arguments that 
Morocco asks us to include are not relevant to our evaluation and findings and therefore decline 
Morocco's  request.  
                                                
14 Turkey's  request for interim review, para.  2.11. 
15 Morocco's  comments on Turkey's  request for interim review, para.  10. 
16 Turkey's  request for interim review, para.  2.13. 
17 Turkey's  request for interim review, para.  2.14. 
18 Morocco's  comments on Turkey's  request for interim review, paras.  12-17. 
19 Morocco's  request for interim review, para.  3. 
20 Turkey's  comments on Morocco's  request for interim review, paras.  2.1-2.2. 
21 Morocco's  request for interim review, para.  5. 
22 Turkey's  comments on Morocco's  request for interim review, para.  2.3. 
23 Morocco's  first written submission, paras.  42-43.  
24 Morocco's  request for interim review, para.  4. 
25 Turkey's  comments on Morocco's  request for interim review, paras.  2.4-2.5. WT/DS513 /R/Add.1  
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  3.4  Paragraph 7.80  
3.4.  Morocco requests us to supple ment the factual description by adding that in the preliminary 
determination the MDCCE (i) had noticed a discrepancy of 10,000 tonnes between the sales reported 
by the Turkish producers and the official import statistics, (ii) considered that these missing  sales 
could originate from non -participating Turkish producers, and (iii) thus established an "all others" 
anti-dumping rate on Turkish producers other than Erdemir Group and Colagoklu.26 Turkey opposes 
Morocco's  request.27 
3.5.  We decline Morocco's  request. In the preliminary determination, the MDCCE simply listed 
29,028 tonnes of import volume from Turkey for 2012 and established an "all others" rate for 
exporters from the European Union and Turkey.28 The preliminary determination does not 
demonstrate that the MDCCE specifically "noticed" the discrepancy at issue, linked it to unknown 
Turkish producers and "therefore" imposed an "all others" rate on them. Rather, apart from merely 
listing the total import volume, the preliminary determinatio n is silent on the issue of the 
discrepancy, its origin and the reason for generally imposing an "all others" rate on Turkish and 
European Union producers.  
3.5  Paragraph 7.83  
3.6.  Morocco requests the Panel to also refer to the MDCCE's  visit to the Moroc can Customs 
authority to investigate the issue of unreported sales during the investigation.29 Turkey opposes 
Morocco's  request.30 As Turkey observes, in paragraph  7.83 we specifically refer to the MDCCE's  lack 
of engagement with the Turkish producers. We ha ve, nonetheless, added a footnote to reflect the 
MDCCE's  description of the conduct of the investigation.  
3.6  Paragraph 7.84  
3.7.  Morocco requests the Panel to correct the date of the issuance of the draft final determination 
from 21 June 2014 to 20 June  2014.31 It refers to Exhibit MAR -3 that contains emails indicating that 
the disclosure was sent to several interested parties on 20  June 2014. Turkey refers to 
Exhibit  TUR-27 and observes that the disclosure was sent to another recipient on 21 June 2014.32 
The MDCCE therefore sent the disclosure to different interested parties on different dates. Turkey 
suggests that the Panel clarify this point, or at least refer to both dates.  
3.8.  We are not persuaded by Turkey's  arguments. In our view, Exhibit MAR -3 dem onstrates that 
the MDCCE made the disclosure on 20  June 2014 to four interested parties, including to the CIB 
(through its external legal advisors)33, through four separate emails. Exhibit TUR -27 contains an 
email to the same external legal advisor s of the CIB, dated 21 June 2014 . Its text is identical to the 
email of the previous day with the exception that it does not indicate any attachment. We are not 
convinced that the email of 21 June 2014 constituted any disclosure, much less one to a different 
intere sted party. We have therefore made the change requested by Morocco, as well as 
consequential changes in the table of "exhibits referred to in this report" and paragraphs 7.58 
and 7.93. 
3.7  Paragraph 7.91  
3.9.  In respect of the Panel's  finding that the MD CCE did not affirmatively determine that the 
Turkish producers had failed to report the allegedly missing export sales at issue, Morocco requests 
us to essentially reverse our findings.34 Morocco argues that we "misinterpret[] both the 
MDCCE's  statement in the final determination and Morocco's  arguments in these proceedings" as to 
                                                
26 Morocco's  request for interim review, para.  6. 
27 Turkey's  comments on Morocco's  request for interim review, paras.  2.6-2.9. 
28 Preliminary determination, (Exhibit TUR -6), tables 4 and 17 -18. 
29 Morocco's  request f or interim review, para.  6. 
30 Turkey's  comments on Morocco's  request for interim review, paras.  2.10-2.14. 
31 Morocco's  request for interim review, para.  8. 
32 Turkey's  comments on Morocco's  request for interim review, para.  2.15. 
33 The recipients of tha t email are [[***]] and [[*** ]], the subject line reads "Détermination final -ADP 
tôles lamin ées à chaud ([[*** ]]/CIB)" and as attachment it indicates "Rapport final -tôles-VNC.pdf".  
34 Morocco's  request for interim review, paras.  9-11. WT/DS513/R/Add.1  
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  whether or not the MDCCE affirmatively found that the Turkish producers had failed to report these 
sales at issue.35 Turkey opposes Morocco's  request.36 
3.10.   As Morocco argues in i ts request for interim review, and as already reflected in our findings 
in paragraph 7.91, the MDCCE made an affirmative finding that the producers had failed to report 
the export sales at issue in its draft final determination. The MDCCE repeated that sta tement in 
paragraph 58 of the final determination, but in paragraph 59 went on to address the Turkish 
producers'  explanations and evidence provided in response to the draft final determination.  
3.11.   On this basis, the MDCCE concluded in paragraphs 60 and  61 of its final determination:  
Concernant cet aspect et au vu des renseignements dont il dispose, le MDCCE estime 
que les renseignements fournis par les exportateurs turcs ne permettent pas de 
démontrer clairement  si ces transactions correspondent bien à celles déclarées par les 
exportateurs turcs ou s'il s'agit d'opérations d'exportation vers le Maroc distinctes par 
rapport à celles rapportées dans leurs réponses aux questionnaires d'enquête.  
Face à cette situation de doute et d'incertitude sur cette ques tion, le MDCCE maintient 
sa décision d'établir ses conclusions sur la base des meilleurs renseignements 
disponibles.37 
3.12.   We disagree with Morocco that the MDCCE's  statements at paragraphs 60 and 61 of its final 
determination are " not to be read to mean that there was uncertainty as to whether the MDCCE 
considered that the Turkish producers had reported all their sales or not".38 The MDCCE's  "doubt 
and uncertainty" did not concern the "evidence", or its "credibility and relevance", as M orocco 
appears to suggest.39 The MDCCE's  determination cannot be clearer: The "doubt and uncertainty" 
concerned the " question " whether the export sales at issue had been reported or not. Given its 
"doubt and uncertainty" in this regard, the MDCCE decided to  continue resorting to facts available. 
We therefore decline Morocco's  invitation to read the MDCCE's  determination in any other way than 
according to its express terms.  
3.13.   Morocco also considers that our findings misinterpret its arguments in these pr oceedings as 
to whether the MDCCE had made the affirmative determination in question. Morocco relies on its 
statements that the MDCCE "was unable to conclude" that certain sales had been made, that the 
explanations given by the producers "did not explain a way the discrepancy", that "the MDCCE could 
not conclude" that Erdemir Group and Colakoglu had in fact "reported all of their sales to Morocco", 
that "the evidence before the MDCCE supported the conclusion that they had not" done so, and that 
"the MDCCE pr operly considered that the Turkish producers had not cooperated".40 None of these 
statements, however, demonstrates that Morocco had in fact argued that the MDCCE had 
affirmatively determined  that the producers had failed to report the export sales at issue . On this 
basis, we therefore consider our finding that Morocco did not argue "that the MDCCE made any such 
determination" to be factually correct. This notwithstanding, we have slightly modified the sentence 
at issue.  
3.8  Paragraph 7.93  
3.14.   Morocco ob serves that its arguments in respect of the verifications are not reflected in our 
description or analysis and asks us to include certain of its arguments in this regard.41 Turkey 
disagrees with Morocco's  request.42 On reflection, we have decided to address Morocco's  arguments 
concerning the issue of verifications, adding paragraphs 7.94 and 7.95 in the Final Report.  
                                                
35 Morocco's  request for in terim review, para.  9. 
36 Turkey's  comments on Morocco's  request for interim review, paras.  2.16-2.20. 
37 Final determination, (Exhibit TUR -11), paras.  60-61. (emphasis added)  
38 Morocco's  request for interim review, para.  9. (emphasis added)  
39 Morocco's  request for interim review, para.  9. 
40 Morocco's  request for interim review, para.  10. 
41 Morocco's  request for interim review, para.  12. 
42 Turkey's  comments on Morocco's  request for interim review, paras.  2.21-2.25. WT/DS513 /R/Add.1  
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  3.9  Paragraph 7.99 (7.101)  
3.15.   Morocco requests the Panel to make a factual correction.43 Turkey agrees with 
Morocco's  request.44 We have made  the requested change.  
3.10  Paragraph 7.100 (7.102)  
3.16.   Morocco requests the Panel to supplement additional factual information and a reference to 
the "understanding" that the MDCCE, in Morocco's  view, derived from the CIB's  submissions during 
the inve stigation.45 Turkey does not object to the first but to the second part of the request.46 We 
decline to make any of the proposed changes, as they are not necessary for our findings. The latter 
part of this request in any event concerns additional arguments o f Morocco; in this regard, we recall 
paragraph 1.1(b ) above.  
3.11  Paragraph 7.116 (7.118)  
3.17.   Morocco asks us to add the term "draft" when referring to the "fin al determination" in the first 
sentence of that paragraph.47 Morocco submits that it relied on the final determination in its 
arguments to us "only to explain the MDCCE's  views on the disclosure comments and … its decision 
to continue relying on facts avail able", rather than to suggest that the final determination itself (also) 
disclosed the essential facts at issue.48 Turkey disagrees with Morocco's  request.49  
3.18.   We are not persuaded by Morocco's  characterization of its arguments. Morocco expressly and 
repeatedly relied on the final determination  in arguing that it had disclosed the essential facts at 
issue, for example – and as referenced in footnote 169 (1 76) of our report – in paragraphs 137 -139 
of its first written submission50 and in paragraphs 102 -105 of its second written submission.51 Other 
parts in its first and second written submission further confirm our understanding that Morocco 
referred to the dr aft final determination and the final determination  as the means through which the 
MDCCE had allegedly disclosed the essential facts.52 We therefore decline Morocco's  request and do 
not modify the text as indeed we mean to address Morocco's  arguments pertai ning to the 
MDCCE's  final determination. We have, however, underlined certain words to clarify which 
arguments of Morocco we address.  
3.12  Footnote 206 (213) to paragraph 7.146 (7.148)  
3.19.   Morocco requests that the Panel move the text in this footnote to the main body of the Report 
as Morocco considers that text to form an important part of the Panel's  reasoning.53 Turkey disagrees 
                                                
43 Morocco's  request for interim review, para . 13. 
44 Turkey's  comments on Morocco's  request for interim review, para.  2.27. 
45 Morocco's  request for interim review, para.  14. 
46 Turkey's  comments on Morocco's  request for interim review, paras.  2.28-2.30. 
47 Morocco's  request for interim review, paras.  15-17. 
48 Morocco's  request for interim review, para.  35. (emphasis omitted)  
49 Turkey's  comments on Morocco's  request for interim review, paras.  2.31-2.33. 
50 In paragraph 137 of its first written submission, Morocco argued that it had disclosed the p recise 
basis for its decision to resort to facts available in the draft final determination. In paragraph 138, Morocco 
then continued that "[t]he MDCCE further clarified its position in the Final Determination", citing paragraphs 60 
and 61 of the final det ermination, before concluding in the following paragraph that "[i]t is thus clear that the 
MDCCE disclosed the precise basis for its decision to resort to facts available".  
51 In paragraphs 102 -105 of its second written submission, Morocco argued that it di sclosed the 
essential facts through a summary. In this regard, Morocco quotes first from the draft final determination, then 
from the final determination and concludes that "[t]his disclosure provided a summary of the missing sales for 
purposes of Article  6.9". Referring to the same paragraphs, Morocco reiterated in paragraph 68 of its opening 
statement at the second meeting of the Panel: "[a]s Morocco explained, the Ministry provided such a summary 
of the missing sales in the Draft and Final Determination" . (fns omitted)  
52 In paragraph 141 of its first written submission, Morocco argued that "the MDCCE disclosed the 
essential facts which it used to replace the missing information. In the Final Determination, the MDCCE stated 
that …". (We did not include a r eference to paragraph 141 in the footnote 169 (176) of our Report, as this 
paragraph refers to a set of essential facts that was not at issue in Turkey's  claim.) Similarly, at paragraphs  97 
and 98 of its second written submission, Morocco relied on and quo tes from the final determination to argue 
that it "complied fully with the requirement of Article  6.9". 
53 Morocco's  request for interim review, para.  19. WT/DS513/R/Add.1  
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  arguing that Morocco's  requested change would disrupt the flow of the Panel's  analysis.54 We 
consider that as the footnote it self mentions, the issue described in the footnote is one that the 
Panel does not need to address in this dispute and is thus suitably placed in a footnote. We therefore 
reject Morocco's  request.  
3.13  Paragraph 7.158 (7.160)  
3.20.   Morocco requests that the Panel include in this paragraph certain additional arguments 
Morocco had made.55 Turkey partly objects to Morocco's  request.56 We do not consider it necessary 
to reflect these arguments in this paragraph as these arguments are not integral to our evaluat ion 
and findings. The parties are free to reflect their arguments in their executive summaries, annexed 
to the final Report, as they deem fit (see paragraph 1.1(b ) above). We therefore decline to make 
the additions proposed by Morocco.  
3.14  Paragraph 7.182 (7.184)  
3.21.   Morocco requests the Panel to delete the following sentence in this paragraph: "[w]e agree 
with Turkey, however, that nothing in the MDCCE's  record  demonstrates that Maghreb Steel's  failure 
to meet its break -even threshold meant that the company's  sales incurred losses." According to 
Morocco, this sentence is contradicted by the MDCCE's  finding that "Maghreb Steel's  production in 
2012 amounts to bare ly 63% of its break -even point under normal market conditions, which leaves 
the company a long way from a level of production where it would at least not be making a loss".57 
Turkey strongly objects to Morocco's  request asserting that the alleged contradict ion to which 
Morocco alludes does not exist. Turkey argues that the Panel took account of the statement that, in 
2012, Maghreb Steel did not reach the break -even point but considered that the record did not 
contain any elements to support it. Further, the first sentence of paragraph  7.182 (7.184) informs 
the remainder of that paragraph, which states that the MDCCE did not explain, either in its 
determination or elsewhere in the record, how it arrived at Maghreb Steel's  break -even point.58 
3.22.   As paragraph  7.182 of our Report explains, we consider that without information in the record 
of the underlying investigation on how Maghreb Steel arrived at its break -even threshold, we have 
no basis to conclude that Maghreb Steel's  failure to meet the break -even thr eshold meant that the 
company had incurred losses. We therefore reject Morocco's  request to modify this paragraph.  
3.15  Paragraph 7.183 (7.185)  
3.23.   Morocco requests the Panel to delete the following sentence in this paragraph: "[h] owever, in 
Maghreb St eel's case, the MDCCE had found that at least part of the company's  production of 
hot-rolled steel did not bring revenue because it was transferred to the captive market free of 
charge" . Morocco argues that the MDCCE did not make a finding that Maghreb Ste el's production of 
hot-rolled steel "did not bring revenue".59 Turkey objects to Morocco's  request. Turkey argues that 
certain statements made by the MDCCE in its determination and arguments made by Morocco before 
the Panel make it clear that there was no p rice, no sale and no invoice with respect to the internal 
transfers. Moreover, there was no evidence that any revenue was attributed to these transfers in 
Maghreb Steel's  books. Turkey contends that this can only mean that "hot -rolled steel did not bring 
revenue" to Maghreb Steel in relation to those transfers.60 
3.24.   While we do not consider it necessary to delete the sentence that Morocco refers to, we have 
decided to accommodate Morocco's  request by modifying that sentence and its footnote.  
                                                
54 Turkey's  comments on Morocco's  request for interim review, paras.  2.35-2.36. 
55 Morocco's  request for  interim review, para.  20. 
56 Turkey's  comments on Morocco's  request for interim review, paras.  2.38-2.39. 
57 Morocco's  request for interim review, para.  21 (referring to Preliminary determination, 
(Exhibit  TUR-6), para.  87). The MDCCE's  original statement i n French is as follows: "[l]a production réalisée 
par MAGHREB STEEL au cours de l’année 2012 représente à peine les 63% de son seuil de rentabilité dans une 
conjoncture normale de marché, ce qui laisse l’entreprise loin d’un niveau de production où au moin s elle ne 
réaliserait pas de perte." (Preliminary determination, (Exhibit TUR -6), para.  87). 
58 Turkey's  comments on Morocco's  request for interim review, paras.  2.45-2.47. 
59 Morocco's  request for interim review, para.  22. 
60 Turkey's  comments on Morocco's  request for interim review, paras.  2.49-2.51. WT/DS513 /R/Add.1  
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  3.16  Paragr aph 7.197 (7.199)  
3.25.   Morocco requests the Panel to amend a sentence in this paragraph to make it clearer that 
Maghreb Steel's  production had increased "from 2010 to 2012".61 Turkey does not object to 
Morocco's  request provided that the Panel makes clear  that it was not conducting an 
end-point-to-end-point analysis.62 We have modified the sentence in question and have added a 
footnote to the sentence to address Turkey's  concerns.  
3.17  Paragraph 7.248 (7.250)  
3.26.   Morocco requests the Panel to amend this  paragraph by adding certain arguments that 
Morocco had made.63 Tukey argues that these arguments were made too late in the proceedings but 
does not oppose the request.64 We decline Morocco's  request. The arguments that Morocco requests 
us to include are adequately reflected in paragraphs 7.244 and 7.246 of the Report.  
3.18  Paragraph 7.251 (7.253)  
3.27.   Morocco requests the Panel to modify this paragraph to more accurat ely reflect the 
MDCCE's  statement.65 Turkey agrees that Morocco's  suggested change would more accurately 
reflect the MDCCE's  statement but asks the Panel to reflect in the Report that the MDCCE failed to 
substantiate this statement.66 We have revised the sen tence that Morocco asks us to amend.  
_______________  
 
 
 
 
 
 
 
 
                                                
61 Morocco's  request for interim review, para.  23. 
62 Turkey's  comments on Morocco's  request for interim review, para.  2.54. 
63 Morocco's  request for interim review, para.  24. 
64 Turkey's  comments on Morocco's  reque st for interim review, paras.  2.1-2.2. 
65 Morocco's  request for interim review, para.  25. 
66 Turkey's  comments on Morocco's  request for interim review, para.  2.55. WT/DS513/ R/Add.1  
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  ANNEX B  
ARGUMENTS OF THE PAR TIES 
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Turkey  20 
Annex  B-2 Integrated executive summary of the arguments of Morocco  42 
 WT/DS513 /R/Add.1  
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  ANNEX B -1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF TURKEY   
1  INTRODUCTION  
 
1.1.  This integrated executive summary contains the arguments presented by the Republic of 
Turkey (Turkey) in its written submissions, oral statements, res ponses to questions and comments 
thereto.  
 
1.2.  In this dispute, Turkey challenges certain anti -dumping measures imposed by the Kingdom of 
Morocco (Morocco) on hot -rolled steel plates from Turkey, which f all under HS codes 7208 
(except  7208.10 and 7208.40 ), 7211.13, 7211.14 and 7211.19.  
 
1.3.  Morocco's investigation and determinations underlying the anti -dumping duties at issue are 
beset by a series of inconsistencies with the Agreement on Implementation of Article VI of the 
General Agreement on Tariffs a nd Trade 1994 (Anti -Dumping Agreement).  
 
1.4.  First, the duration of Morocco's investigation exceeded the maximum time limit envisaged in 
Article 5.10 of the Anti -Dumping Agreement.  
 
1.5.  Second, Morocco acted inconsistently with Article 6.8 and Annex II to the Anti -Dumping 
Agreement by rejecting verified data submitted by the Turkish exporters and determining their 
dumping margins based on "facts available". The premise on which the verified data were rejected 
– that the Turkish exporters had underreported their export sales – lacked any factual basis in the 
record of the investigation. In addition, the use of "facts available" was fraught with numerous 
procedural deficiencies, which impaired the due process rights of the Turkish exporters.  
 
1.6.  Third, Morocco acted inconsistently with Article 6.9 of the Anti -Dumping Agreement by failing 
to disclose all "essential facts" with respect to its decision to use facts available to the Tur kish 
exporters in sufficient time for these parties to defend their interests.  
 
1.7.  Fourth, Morocco acted inconsistently with Article 3.1 and Footnote 9 to the Anti -Dumping 
Agreement in its determination that the Moroccan domestic industry (Maghreb Stee l) was not 
"established". In addition, Morocco's determination that the domestic industry had suffered injury in 
the form of material retardation is inconsistent with Articles 3.1 and 3.4 of the Anti -Dumping 
Agreement because the investigating authority fa iled to analyze all the relevant economic factors; 
did not properly analyse captive consumption (which accounted for half of the production) in its 
injury assessment; and did not provide a reasoned and adequate analysis of serious shortcomings 
in the repor t of a private consultant on which the Maghreb Steel based its projections.  
 
1.8.  Finally, Morocco acted inconsistently with Articles 6.9 and 6.5 of the Anti -Dumping Agreement 
by failing to disclose essential facts relating to its determination of materi al retardation and injury.  
 
1.9.  Turkey requests that the Panel recommend Morocco to bring its measures into conformity with 
WTO law. Given the nature and number of the violations at issue, Turkey requests the Panel to 
suggest that Morocco withdraws the m easure at issue, pursuant to Article 19.1 of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes (DSU).  
 
2  MOROCCO ACTED INC ONSISTENTLY WITH ART ICLE 5.10 OF THE ANT I-DUMPING 
AGREEMENT  
 
2.1.  The Moroccan authorities failed to conclude the investigation leading to the imposition of the 
definitive anti -dumping duties at issue within the deadlines contained in Article 5.10 of the Anti -
Dumping Agreement.  
 
2.2.  Under Article 5.10, investiga ting authorities must conclude the anti -dumping investigation 
within a timeframe of 12 months, and in any event no more than 18 months. An investigating 
authority must conclude the investigation and issue its decision on whether the conditions to impose 
an anti-dumping measure exist within these deadlines.1  
 
                                                
1 Turkey' s first written submission, paras. 5.3 -5.5. WT/DS513/ R/Add.1  
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  2.3.  This is a "strict"2 requirement. The panel in Mexico — Olive Oil  found that a similar provision in 
the Agreement on Subsidies and Countervailing Measures (SCM Agreement) was "clear and 
unequivoca l", and that there was "no basis in this provision … to prolong an investigation beyond 18 
months for any reason ".3 Moreover, the Appellate Body has made clear that, pursuant to Article  5.10, 
the investigation must normally be completed within 12 months an d, "in special circumstances", 
within 18 months.4 Thus, it must " in any event "5 not exceed 18 months.6  
 
2.4.  In previous disputes, the overall time limit imposed under Article 5.10 has been balanced 
against other obligations such as the due process oblig ation under Article 6.1.1 to provide the 
interested parties at least 30 days to reply to the questionnaires sent by the investigating authority. 
The Appellate Body found that the due process rights to which interested parties are entitled under 
Article 6 a re limited by the investigating authority's need to complete the investigation in a timely 
manner. In particular, the Appellate Body explained that the time limits to complete an investigation 
circumscribe the due process obligations under Article 6.1.7, 8 
 
2.5.  In the present dispute, the Moroccan investigating authority (MDCCE) initiated an investigation 
of imports of certain hot -rolled steel from the EU and Turkey on 21 January 2013 .9 Thus, according 
to the rule in Article 5.10 of the Anti -Dumping Agree ment, the investigation should have been 
concluded on 21 January 2014 (12 months after the initiation) an d in any event no later than 
21 July 2014 (18 months after the initiation).10 
 
2.6.  However, the MDCCE concluded its investigation on 12 August 2014 . On that date, the MDCCE 
published on its website a notice presenting the MDCCE's final conclusions and the Final 
Determination. This document states that "the anti -dumping investigation on imports of hot -rolled 
steel from the European Union and Turkey, init iated on 21 January 2013, is concluded by the 
publication of this notice".11, 12 
 
2.7.  This is six months and 22 days after the 12 -month timeframe had expired, and 22 days after 
the 18 -month timeframe had expired.13  
 
2.8.  It is clear, therefore, that the M DCCE failed to conclude its investigation within the deadline of 
12 months provided for in Article 5.10 because the investigation exceeded the 12 -month deadline 
by six months and 22 days. The MDCCE also failed to explain in its Final Determination whether 
"special circumstances" warranted the extension of this deadline. Moreover, even assuming that 
special circumstances existed, the MDCCE failed to conclude the investigation at issue within the 
strict 18 -month deadline contained under Article 5.10, because it exceeded that deadline by 
22 days.14 
 
2.9.  Morocco did not dispute that the investigation exceeded the 18 -month deadline.15 
 
2.10.   Rather, Morocco argues that the deadlines contained in Article 5.10 should not be interpreted 
as a rigid obligation, because the term "shall" can instead be interpreted as a "strong assertion or 
                                                
2 Panel Report, US – Softwood Lumber V , para. 7.333.   
3 Panel Report, Mexico — Olive Oil , para. 7.121. (emphasis added)  
4 Appellate Body Report , EC – Fasteners (China) , para. 611.  
5 Appellate Body Report, US – Hot-Rolled Steel , para. 73. (emphasis added)  
6 Turkey 's first written submission, paras. 5.4, 5.7.  
7 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 282. See also Appellate  
Body Report, US – Oil Country Tubular Goods Sunset Reviews , paras. 241 and 242; Appellate Body  Report, 
US – Hot-Rolled Steel , para. 73; and Appellate Body Report, EC – Fasteners , para. 611.  
8 Turkey's first written submission, para. 5.8.  
9 See Public Notice 01/13 relating to the initiation of an  investigation, 22 January 2013, Exhibit TUR -1; 
WTO Committee on Anti -Dumping Practices , Semi-Annual Report under Article 16.4 of the Agreement, 
Morocco, G/ADP/N/2 44/MAR, 30 September 2013, p. 3.  
10 Turkey's first written submission, paras. 5.11 -5.12. 
11 Public Notice Number 16/14 delivering the final results of the investigation, 12 August 201 4, 
Exhibit  TUR-12, p. 3 (underlining added) . (In French: "L'enquête antidumping sur les importations de tôles 
d'acier laminées à chaud originaires de l 'Union Européenne et de la Turquie, initiée en date du 21 janvier 2013, 
est clôturée par la publication d u présent avis ") 
12 Turkey's first written submission, para. 5.13.  
13 Turkey's first written submission, para. 5.16.  
14 Turkey's first written submission, para. 5.19.  
15 Morocco's first written submission, para. 50.  WT/DS513 /R/Add.1  
BCI deleted, as indicated [[***]]  
- 22 - 
 
  intention".16 However, several panels and the Appellate  Body have consistently interpreted the term 
"shall" as conveying an obligation.17 Moreover, the panel in US – Softwood Lumber V  made clear 
that the deadline in Article 5.10 is a "strict" requirement and constitutes a "fundamental principle".18 
Previous pane ls and the Appellate Body have also confirmed the mandatory nature of the obligation 
in Article 5.10 by stating that it "mandates" certain time limits19 "requires" or "imposes" deadlines20 
and that the investigating authority "must" complete the investigatio n within those deadlines .21, 22 
 
2.11.   Morocco also argues that panels and the Appellate Body have regularly exceeded the 
deadlines contained in Articles 12.8, 12.9 and 17.5 of the DSU in issuing their reports. In Morocco's 
view, this means that the Panel should understand the deadlines in Article 5.10 in a flexible manner, 
because it is drafted similarly to these provisions of the DSU. However, Morocco's reliance on these 
DSU provisions is inapposite.23 The obligations in the DSU are very different than tho se in the Anti -
Dumping Agreement. They regulate disputes between Members subject to the supervision of the 
Dispute Settlement Body. In contrast, Article 5.10 of the Anti -Dumping Agreement imposes 
obligations on investigating authorities to protect the righ ts of other Members' exporters. How the 
rules on the settlement of disputes are interpreted and applied as between Members is simply 
irrelevant to the interpretation of a provision that sets out deadlines for Members' administrative 
bodies to complete anti -dumping investigations.24 
 
2.12.   Morocco submits that any delay in the investigation process was the result of requests from 
interested parties for additional time or additional meetings.25 However, the Appellate Body has 
explained that the strict deadline s in Article 5.10 circumscribe any extension accorded to interested 
parties by the investigating authority.26 In response to an argument similar to Morocco's argument, 
in the context of Article 11.11 of the SCM Agreement, the panel in Mexico – Olive Oil  clearly stated 
that there is "no basis … to prolong an investigation beyond 18 months for any reason, including 
requests from interested parties".27 Put differently, when granting an extension to interested parties 
may result in the investigation exceeding the  deadlines in Article 5.10, an investigating authority 
must refrain from granting such extension. In any event, Morocco has not explained why extensions 
of only several days resulted in excee ding the 12 -month deadline by 6  months and 22 days, and the 
18-month deadline by 22 days. Moreover, while it could be argued that requests for extensions from 
interested parties could qualify as special circumstances that would justify exceeding the 12 -month 
deadline, an investigating authority may in no case  exceed the  18-months deadline. In any event, 
the MDCCE did not explain why such requests constituted special circumstances that warranted 
exceeding the 12 months deadline.28 
 
2.13.   Morocco also argues that the investigating authority needed additional time to analys e 
information that was submitted by the interested parties in their comments on the Disclosure. To 
recall, the MDCCE published the Disclosure at a rather late stage in the investigation, only a month 
before the end of the 18 -month deadline. Therefore, the MDCCE  allowed itself only a month 
to receive comments, take into account those comments, and finalize the investigation within the 
18-month deadline. Since the exporters complied fully with the deadline to provide comments on 
the Disclosure29 it can hardly be said that any delay in the investigation was the result of the 
                                                
16 Morocco's first written submission, para. 43. 
17 See for example Appellate Body Report, EC – Fasteners (China) , para. 316.  
18 Panel Report, US – Softwood Lumber V , para. 7.333.  
19 Appellate Body Report, US – Hot-Rolled Steel , para. 73.  
20 Appellate Body Report, EC – Fasteners (China) , paras. 611, 6.13 .   
21 Panel Report, EC – Salmon (Norway) , para. 7.802; Panel Report, EU – Footwear (China) , para. 7.832; 
Panel Report, Ukraine – Passenger Cars , footnote 227.  
22 Turkey's opening statement at the first meeting with the Panel, para. 2.2; Turkey 's second writ ten 
submission, para . 3.3. 
23 See also European Union's third party submission, para. 10.  
24 Turkey's opening statement at the first meeting with the Panel, para. 2.3; Turkey 's second writte n 
submission, para . 3.4. 
25 Morocco's first written submission, paras . 49, 51 -52; Morocco 's opening statement at the 
first meeting of the Pa nel, para. 13.  
26 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 282. 
27 Panel Report, Mexico – Olive Oil , para. 7.121.  
28 Turkey's opening statement at the first mee ting with the Panel, para. 2.4; Turkey 's second written 
submission, paras. 3. 5-3.6. 
29 Exhibits TUR -29 (BCI) and TUK -30 (BCI); Exhibit TUR -27; Exhibit TUR -27. WT/DS513/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 23 - 
 
  interested parties' actions. Again, the burden is on the investigating authority to ensure that it 
complies with the deadlines in Article 5.10.30 
 
2.14.   In light of the foregoing, Morocco cl early acted inconsistently wi th its obligation under 
Article  5.10 of the Anti -Dumping Agreement. As a result, the anti -dumping duties imposed by 
Morocco lack any legal basis.  
 
3  MOROCCO ACTED INC ONSISTENTLY WITH ART ICLE 6.8 AND PARAGRA PHS 1, 3, 5, 6, 
AND 7 OF ANNEX II TO TH E ANTI -DUMPING AGREE MENT  
 
3.1  Introduction  
 
3.1.  In its Final Determination, the MDCCE decided to reject all sales data submitted by the two 
Turkish exporters under investigation, Erdemir Group and Colakoglu. Instead, the MDCCE 
determ ined the dumping margins for these exporters by relying solely on "facts available" within the 
meaning of Article 6.8 and Annex II to the Anti -Dumping Agreement (i.e. information provided by 
the petitioner). The MDCCE reached its decision based on the foll owing allegations in its Final 
Determination:  
 
• The MDCCE stated that, according to the sales data provided by Erdemir Group and 
Colakoglu, the exports of the subject product by these companies to Morocco in 2012 (PoI) 
amounted to 18'800 metric tons , whereas the official Moroccan import statistics for the 
subject product (provided by "l'Office des Changes") ("official statistics") allegedly indicated 
another figure of 29'000 metric tons . Thus, according to the MDCCE, there was a discrepancy 
of 10'200  metric tons  between the data provided in the official statistics  and the sales 
reported by the two exporters.  
 
• The MDCCE further claimed that the "missing sales" were executed by third companies 
(traders) that were not reported by the Turkish exporters.  
 
3.2.  On this basis, the MDCCE determined that the Turkish exporters had failed to cooperate in the 
investigation. Thus, the MDCCE determined a non -cooperation rate of 11% (the dumping margin 
alleged by the petitioner) for both Erdemir Group and Colakogl u, compared to 0% margin for Erdemir 
Group and de minimis  margin for Colakoglu in the preliminary determination.31 
 
3.3.  For the reasons explained in the following sections, Turkey submits that the MDCCE's use of 
facts available to determine dumping margin s for Erdemir Group and Colakoglu is inconsistent with 
Article 6.8 and paragraphs 1, 3, 5, 6, and 7 of Annex II to the Anti -Dumping Agreement.  
 
3.2  Morocco acted inconsistently with Article 6.8  
 
3.4.  Pursuant to Article 6.8 and Annex II to the Anti-Dumping Agreement, an investigating authority 
may use facts available only in circumstances in which an interested party: (i) refuses access to 
necessary information within a reasonable period; (ii) otherwise does not provide this information; 
or (iii ) significantly impedes the investigation.32 None of these circumstances was present in the 
investigation at issue.33  
 
3.5.  Based on the evidence before it, the MDCCE had no factual basis whatsoever for resorting to 
facts available as Erdemir Group and Col akoglu had cooperated fully with the investigating authority 
throughout the investigation, and reported all their domestic and export sales. The MDCCE verified 
the export sales and domestic sales data reported by the Turkish exporters during its on -site 
verification visits to these companies and did not find any discrepancies in these data. In particular, 
the MDCCE did not raise any further concerns regarding the manner in which the Turkish exporters 
identified sales to different markets, including Mor occo, or handled sales to third  parties.34 
 
                                                
30 Turkey's opening statement at the first meeting with the Panel, para. 2.5.  
31 See Final Determination, Exhibit TUR-11, paras. 52 -65. See also Preliminary Determination, 
Exhibit  TUR-6, Table 18, p. 31.  
32 Turkey 's first written submission, paras. 6.7 -6.14, 6.38.  
33 See, inter alia , Turkey 's first written submission, paras. 6.1 -6.5, 6.78 -6.79, 6.84; Turkey 's opening 
statement at the first meeting of the Panel with the parties, paras. 3.1 -3.12. 
34 Turkey's first written submission, paras. 6.3 -6.4. WT/DS513 /R/Add.1  
BCI deleted, as indicated [[***]]  
- 24 - 
 
  3.6.  Following the Disclosure of essential facts, the MDCCE provided sales/shipment documents (i.e. 
movement certificates and commercial invoices ) that it had obtained from the Moroccan Customs 
and relied upon in reac hing its finding of non -cooperation to the Turkish exporters. These purported 
to demonstrate the basis for approximately half of th e alleged discrepancy of 10'200  metric tons. 
No documents were provided pertaining to the remaining portion of the alleged di screpancy. In their 
comments on the Disclosure, Erdemir Group and Colakoglu explained fully to the MDCCE that they 
had duly reported the allegedly missing sales in their original questionnaire responses to the MDCCE. 
Furthermore, they presented a reconcili ation showing that all of the sales that the MDCCE relied 
upon in reaching its finding of non -cooperation and for which the MDCCE provided details had 
actually been included in the exporters' questionnaire  responses.35 A similar reconciliation was also 
provided by Turkey to the Panel in Exhibit TUR-24 (BCI) . Moreover, some of the transactions that 
the MDCCE alleged had not been reported had actually already been verified by the MDCCE and 
were included in the sample of "verified transactions", annexed to the Verification Report for Erdemir 
Group.36 Thus, based on the evidence available, there was no basis to suggest that any sales had 
been left unreported by the exporters.37 
 
3.7.  During the Panel proceedings, Turkey demonstrated that the MDCCE's finding of the alleged 
discrepancy was premised on its erroneous understanding that Erdemir Group and Colakoglu  
exported approximately 29'000 metric tons to Morocco during the PoI.38 There is no reasonable 
evidence to support either this alleged total volume of sales or the a lleged failure to report 
10'200  metric tons of sales. The MDCCE's finding was based entirely on: (i) its own summary of the 
allegedly unreported sales derived from Morocco's official import statistics, submitted to the Panel 
as Exhibit MAR -11 (BCI); (ii) the movement certificates and commercial invoices for less than half 
of the alleged discrepancy; and (iii) a letter submitted to the MDCCE by the Turkish Steel Expor ter's 
Association (CIB), which the MDCCE either misunderstood or represented inaccurately. These 
materials do not establish that any sales were not reported or link any of the allegedly unreported 
sales to the investigated Turkish exporters.39 
 
3.8.  Turkey  notes that the table in Exhibit MAR -11 (BCI) is not in itself a credible piece of evidence 
on which a diligent and objective investigating authority could rely in reaching its finding of non -
cooperation. This table is merely a summary of the information t hat the MDCCE allegedly obtained 
from the "Office des Changes". Without supporting documents, such as movement certificates and 
commercial invoices corresponding to each allegedly unreported transaction, this table does not 
shed any light on the sources of  the alleged discrepancy, and it certainly does not prove that the 
import statistics were accurate or that the allegedly unreported sales were produced by Erdemir 
Group and Colakoglu. The table does not show that the listed sales were not reported, as Moro cco 
did not provide a  complete list of the transactions that make up the alleged total imports of 29'000 
metric tons, or even a reconciliation to the sales in the movements certificates and commercial 
invoices on which the MDCCE had relied.40   
 
3.9.  Moreo ver, Turkey has demonstrated that most of the sales listed in the MDCCE's summary 
involved products that were outside the scope of the investigation and that were not even produced 
by Erdemir Group and Colakoglu.41 The remaining line items in the summary ar e documented in the 
movement certificates and commercial invoices that the MDCCE obtained from the Customs and had 
been duly reported in the Turkish exporters' questionnaire responses.42 Moreover, the total of the 
allegedly unreported sales in the MDCCE's s ummary does not even match the figure of 10'200 metric 
tons.43 
 
3.10.   Morocco further refers to the CIB's letter and alleges that "it is uncontested that the only 
Turkish producers that exported to Morocco during the period of investigation were Erdemir Gr oup 
                                                
35 Erdemir  Group' s comments on the D raft Final Determinati on, 10 July 2014, Exhibit TUR -19 (BCI); 
Colakoglu 's comments on the D raft Final Determination, 11 July 2014, Exhibit TUR-20 (BCI).  
36 MDCCE 's Verification Repo rt for Erdemir Group , Exhibit TUR-8 (BCI), pp. 3, 5.  
37 Turkey's first written submission, paras. 6.41 -6.84. 
38 Final Determination, Exhibit  TUR-11, paras. 52 -63. 
39 Turkey 's second written submission, paras. 4.5 -4.22; Turkey's opening statement at the 
second  meeting with the Panel, para.  3.2. 
40 Turkey requested this information in Question I.1 of Turkey 's questions to Morocco. See also Turkey's 
second written submission, paras. 4.11 -4.12. 
41 Turkey 's second written submission, para s. 4.18 -4.21; Exhibits TUR -57 (BCI) and TUR -58 (BCI) . 
42 Turkey 's second written submission, paras. 4.13 -4.17. 
43 Turkey 's opening statement at the second  meeting  of the Panel with the parties, para. 3.3.  WT/DS513/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 25 - 
 
  and Colakoglu".44 The MDCCE and Morocco have relied on this statement to argue that the entirety 
of the alleged 29'000 metric tons of imports from Turkey must have been produced by the 
investigated Turkish exporters.45 However, the CIB never stated that Erdemir Group and Colakoglu 
exported 29'000 metric tons to Morocco. To the contrary, the CIB made it clear that the total exports 
of the subject product by these companies to Morocco "amounted to approximately 19'000  tons in 
2012".46 There was no objective basis for the MDCCE to interpret this statement as implying that 
Erdemir Group and Colakoglu actually exported 29'000 metric tons.47 
 
3.11.   Morocco's strategy in this dispute has been twofold: first, Morocco tries to shi ft to the Turkish 
exporters the entire responsibility for the MDCCE's failure to investigate the discrepancy in a diligent 
and objective manner; and, second, it tries to convince the Panel that, in light of the alleged 
shortcomings in the information provi ded by the exporters, the MDCCE had no practical means to 
investigate the discrepancy until the very late phases of the investigation.  
 
3.12.   For example, Morocco argues that, during its verification visits to the Turkish exporters, "the 
MDCCE only looked  into the sales and other information the producers had reported, which does not 
mean that it did not consider there to be unreported sales".48 This does not make sense, as one of 
the primary purposes of a verification visit is to verify the completeness of an exporter's sales 
reporting. Moreover, this argument is an impermissible ex post  rationalisation of the MDCCE's 
finding, which is, in any event, contradicted by the record evidence.49 The Verification Reports for 
both Erdemir Group and Colakoglu state th at the MDCCE examined the completeness of the sales 
data ("exhaustivité des données"). The word "exhaustivité" means in French: "that exhausts a 
subject, a matter", or "that includes all the possible elements of a list, that deals completely with a 
subject ". Thus, the MDCCE's use of this word makes it clear that it examined the completeness of 
the sales data, and not some portion of the data. The tests used by the MDCCE and the documents 
analysed in this regard also show that, contrary to Morocco's explanat ion, this examination 
concerned all sales , and not only the sales that were reported.50  
 
3.13.   Morocco suggests that, during its verification visits,  it was impossible for the MDCCE to 
identify the data that were not reported, as this "would unreasonably expand the scope of verification 
to essentially proving any negative". This is incorrect. Whether some of the sales were indeed 
unreported could easily have been determined by checking the reported sales quantities and values 
against the companies' account ing documents. This is not an open -ended exercise. Instead, it is the 
first and most basic step in verifying an exporter's database.51 
 
3.14.   In addition, Morocco contends that the reconciliations presented by the Turkish exporters in 
their comments on the  Disclosure showing that all of the allegedly unreported sales had in fact been 
reported were rejected because they contained deficiencies. Morocco states that the Turkish 
exporters attached to their comments the movement certificates and commercial invoic es that were 
different from those the MDCCE had obtained from the Moroccan Customs.52 However, as a matter 
of fact, nothing in the Final Determination suggests that the exporters' reconciliations contained 
deficiencies, let alone that these alleged deficien cies were the real reason for the MDCCE's decision 
to disregard the exporters' comments. Morocco's ex post  rationalisation must, therefore, be rejected. 
Moreover, Turkey has shown that these reconciliations demonstrated beyond any reasonable doubt 
that the  sales at issue had been properly reported.53  
 
3.15.   The fact that the MDCCE had two different versions of a movement certificate does not in 
itself mean that these certificates documented different transactions, or that the information in these 
documents  was not reported in the exporters' responses to questionnaires. What matters is whether 
the sales recorded in these documents can be linked to the sales reported in the investigated 
                                                
44 See Morocco 's second written submission, para. 65 (referring to Final Determination, Exhibit TUR -11, 
para. 54, which, in turn, cites the CIB 's letter); Morocco 's answer to Panel question 2.5.f(iii), para. 77 (se e also 
paras. 40, 41 and 42).  
45 Morocco 's second written submission, para. 65.  
46 Letter by Turkish Steel, 6 March 2014, Exhibit TUR -28 (BCI), p. 1 , emphasis added . 
47 See Turkey's comment on Morocco's response to Panel's question 7.1.  
48 Morocco 's second wri tten submission, para. 66.  
49 Turkey 's opening statement at the second  meeting of t he Panel with the parties, para. 3.6.  
50 Turkey's comment on Morocco's response to Panel's question 7.5.  
51 Turkey's comment on Morocco's response to Panel's question 7.5.  
52 Morocco 's second written submission, paras. 67 -71; Morocco 's answer to Panel question 2.3.  
53 Turkey 's second writt en submission, paras. 4.31 -4.37; Turkey 's opening statement at the 
second  meeting of t he Panel with the parties, para. 3.7.  WT/DS513 /R/Add.1  
BCI deleted, as indicated [[***]]  
- 26 - 
 
  exporter's questionnaire responses. Similarly, the same transaction may b e reflected in two different 
commercial invoices, recording sales and resales of the same goods between different entities, such 
as a Turkish producer and its customer, and then the customer and a third -party trading company. 
The MDCCE's Final Determinatio n does not contain any analysis of whether the sales listed in the 
movement certificates and commercial invoices at issue relate to the sales in Erdemir Group's and 
Colakoglu's questionnaire responses.54 
 
3.16.   Morocco further claims that the MDCCE took certain steps to obtain information about the 
missing sales allegedly executed by certain third -party traders directly from those companies, but 
that these efforts were unsuccessful. For example,  Morocco argues that, in its public notice on the 
initiation of the investigation, "the MDCCE invited all unknown exporters of the subject product to 
participate".55 The MDCCE's public notice on the initiation of the investigation, however, contained 
very basic information about the investigation and could not inform  properly the third -party traders 
in question of the specific information that the MDCCE required regarding the missing sales. In 
particular, neither the public notice, nor the MDCCE's website contained a link to the exporter 
questionnaire. As the initiati on notice makes clear, this questionnaire was sent only to exporters that 
were known .56 Thus, contrary to Morocco's allegations, there is no record evidence suggesting that 
the MDCCE took any steps to request information regarding export sales from Turkey t o Morocco 
directly from third -party traders. However, even assuming for the sake of argument that the MDCCE 
asked those traders, either directly or through its public notice, for information about the allegedly 
missing sales, Turkey fails to see how the fa ilure of these companies to provide information would 
justify the MDCCE's use of facts available to determine dumping margins for Erdemir Group and 
Colakoglu . Turkey recalls that these companies are required only to provide information about the 
sales they  know to have been made to Morocco. They cannot be responsible for knowing whether 
unrelated trading companies would make resales.57  
 
3.17.   Finally, Morocco faults the Turkish exporters for not making any effort to contact unrelated 
third parties, even th ough the MDCCE itself took no steps to obtain the information it required from 
those parties directly. Moreover, the MDCCE did not even disclose to the Turkish exporters and the 
Government of Turkey the summary of Morocco's import s tatistics, submitted as Exhibit  MAR-11 
(BCI). Without that summary, the Turkish exporters had no knowledge of the specific transactions 
that the MDCCE considered as being left unreported.58 
 
3.18.   In US – Hot-Rolled Steel , the Appellate Body explained that the "adverse facts avai lable" can 
be resorted to only in limited circumstances in which an exporter fails to cooperate to the best of its 
ability . The Appellate Body found that the USDOC applied adverse facts available in a manner 
inconsistent with Article 6.8 and Annex II, beca use it insisted on an exporter furnishing information 
that that party did not possess and could not obtain without significant difficulties, ignored that 
party's explanations of these difficulties, and itself took no steps to secure the required informatio n.59 
That is exactly what happened in this case.60 
 
3.19.   In light of the foregoing, there was no basis for the MDCCE to use facts available to determine 
dumping margins for Erdemir Group and Colakoglu. In these circumstances, the MDCCE, when 
applying facts  available, acted inconsistently with Article 6.8 and Annex II to the Anti -Dumping 
Agreement.  
 
3.3  Morocco acted inconsistently with Annex II  
 
3.20.   At each step of its analysis of the alleged discrepancy, the MDCCE failed to follow the 
procedural steps required in order to use facts available under Article 6.8 and Annex II to the Anti -
Dumping Agreement. The MDCCE failed to observe the following req uirements set out in 
paragraphs  1, 3, 5, 6 and 7 of Annex II: (i) it failed to specify in detail, and as soo n as possible, the 
information it required from the Turkish exporters; (ii) there was no parallel between the scope of 
                                                
54 Turkey's comment on Morocco's response to Panel's question 7.3.  
55 Morocco 's second written submission, para. 75.  
56 Public Notice No. 01/13 relating to the initiation of an investigation, 22 January 2013, Exhibit TUR -1, 
p. 2. 
57 Turkey 's opening statement a t the second  meeting of t he Panel with the parties, paras. 3.8 -3.10. 
58 Turkey 's opening statement at the second  meeting of t he Panel with the parties, paras. 3.13 -3.14. 
59 Appellate Body Report, US – Hot-Rolled Steel , para s. 105-110. 
60 Turkey 's opening stat ement at the first meeting of t he Panel with the parties, para. 3.11; Turkey 's 
opening statement at the second  meeting of t he Panel with the parties, para. 3.12.  WT/DS513/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 27 - 
 
  the information the MDCCE requested and that was allegedly not provided by the Turkish exporters 
and the scope of facts available used by  the MDCCE; (iii) the MDCCE failed to take into account all 
information provided by the Turkish exporter s that was: (a) verifiable, (b)  appropriately submitted, 
and (c) supplied in a timely fashion; (iv) the MDCCE made no active efforts to use the informat ion 
submitted by the Turkish exporters, even though it considered that the information was not "ideal"; 
(v) in rejecting the exporters' information, the MDCCE failed to (a) inform the Turkish exporters of 
the reasons that the information they supplied was not accepted, (b) give to these parties an 
opportunity to provide further explanations, and (c) give, in the Final Determination, the reasons for 
the rejection of the information; and (vi) the MDCCE did not use "special circumspection" in selecting 
the "be st" evidence on the record to replace the allegedly missing information. The MDCCE's failure 
to observe these additional requirements further confirms that it had no basis in both Article 6.8 and 
Annex II to use facts available.61  
 
3.21.   With respect to Turkey's claim under Annex II, paragraph 1 , the MDCCE failed to specify, in 
sufficient detail and in a timely manner, the information it required of Erdemir Group and Colakoglu, 
including information about unrelated "third -party trading companies", mentione d in the MDCCE's 
email to Erdemir Group, dated 31 December 2013.62 According to Morocco, the MDCCE "specified 
the information required [of the Turkish exporters] in the email sent to ERDEMIR GROUP in 
December 2013".63 Morocco, however, further acknowledged t hat an email with the same 
information request was not sent to Colakoglu.64 Thus, the MDCCE never requested this information 
from this company, contrary to the clear requirements of Annex II, paragraph 1.65 
 
3.22.   Morocco states that "Colakoglu was less act ive throughout the proceedings than Erdemir 
Group".66 First, this assertion is incorrect. As demonstrated by record evidence, Colakoglu took 
active part in all phases of the investigation, providing comprehensive and timely responses to the 
MDCCE's question s and commenting on the Disclosure. Thus, Morocco's suggestion that Colakoglu 
was "less active" is not substantiated by the facts. In any event, this characterization does not 
exonerate the investigating authority from its obligations under Annex II, parag raph 1.67 
 
3.23.   Furthermore, it is also clear that the MDCCE did not explain to the Turkish exporters the 
specific sales that it considered were not reported. In other words, the MDCCE's requests for 
information pertaining to the allegedly missing sales, such as its 31 December email, were vague 
and unspecific. According to Morocco, the MDCCE prepared a table summarising transactions that 
the MDCCE considered were not reported (Exhibit MAR -11 (BCI)), after the public hearing, held on 
4 February 2014.68 There was no reason for the MDCCE not to disclose this table to the Turkish 
exporters and the Government of Turkey at that time with a view to clarifying which of the sales 
listed in the table were reported. To recall, the Turkish exporters learnt about the sa les that, 
according to the MDCCE, made up merely a half of the alleged discrepancy only at the very end of 
the investigation, following the issuance of the Disclosure. In these circumstances, Turkey submits 
that the MDCCE's failed to "specify in detail" an d "[a]s soon as possible" the information it required 
from the Turkish exporters within the meaning of Annex II, paragraph 1.69 
 
3.24.   Turkey made two additional claims under Annex II, paragraph 1, in particular that the MDCCE 
failed to use facts available : (i) in the limited circumstances specified in Article 6.8 ( inter alia , when 
an interested party refuses access to the required information); and (ii)  with a limited purpose of 
replacing the information that, in the MDCCE's view, was not provided.70 Moroc co's general response 
to both of these claims is that they fall outside t he scope of Annex II, paragraph  1, as this provision 
does not regulate circumstances in which an authority may use facts available, and does not 
prescribe how investigating authoritie s should treat the information provided by the interested 
parties.71   
                                                
61 Turkey 's first written submissio n, paras. 6.16 -6.39, 6.92 -6.129; Turkey 's second  written sub mission, 
para. 4.2.  
62 Turkey 's first written submission, paras. 6.92 -6.97. 
63 Morocco 's first written submission, para. 95.  
64 Morocco 's answer to Panel question 2.4.  
65 Turkey 's second  written submission , para. 4.43.  
66 Morocco 's answer to Panel question 2.4.  
67 Turkey 's second  written submission , para. 4.45.  
68 See Morocco 's answer to Panel question 2.1, para. 39.  
69 See also Turkey 's opening statement at the second  meeting of t he Panel with the parties, 
paras.  3.16-3.18. 
70 Turkey 's first written submission, par as. 6.98 -6.108.  
71 Morocco 's first written submission, paras. 99 -102. WT/DS513 /R/Add.1  
BCI deleted, as indicated [[***]]  
- 28 - 
 
  3.25.   In US – Hot-Rolled Steel , the Appellate Body stated that "[a]lthough … paragraph [1] is 
specifically concerned with ensuring that respondents receive proper notice of the rights o f the 
investigating authorities to use facts available, it underscores that resort may be had to facts 
available only 'if information is not supplied within a reasonable time '".72 Furthermore, in China – 
Autos (US) , the panel found that China's investigating authority acte d inconsistently with 
paragraph  1 of Annex II, because "the scope of facts available used by [the authority] was much 
wider than the scope of the information [the authority] requested".73 Thus, Morocco's allegations 
are unfounded .74 
 
3.26.   With respect to the second claim, Morocco admits that "[t]he  MDCCE relied on facts available 
with regard to the entirety of the Turkish producers export sales data".75 Morocco alleges that the 
discrepancy was substantial "as the unreported sales constituted 50% of those reported and 30% 
of total sales".76 Thus, in Morocco's view, " [t]he MDCCE was … justified in questioning the reliability 
of the whole dataset  submitted by the Turkish producers".77 Turkey does not dispute that, in certain 
factual cir cumstances, a large amount of unreported sales may taint the reliability of the reported 
data. However, the MDCCE had failed to show that any of the sales of the Turkish exporters were 
left unreported. Furthermore, even assuming for the sake of argument th at certain sales were 
missing, consistent with Annex II, paragraph 6, and the applicable standard of review, the MDCCE 
had an obligation to explain in a reasoned and adequate manner how exactly the discrepancy at 
issue made all of the sales reported by Erd emir Group and Colakoglu unreliable, and why it decided 
to replace all these sales. The MDCCE failed to provide this explanation.78 
 
3.27.   With respect to Turkey's claims under Annex II, paragraph 3 , the MDCCE, when reaching its 
conclusion on non -cooperati on, did not provide a reasoned and adequate explanation for rejecting 
all of the data furnished by the Turkish exporters. In particular, the MDCCE did not explain whether 
any, or all, of the criteria set out in Annex II(3) – i.e. the information must be (i ) verifiable; (ii) 
appropriately submitted; and (iii) supplied in a timely fashion – had not been met. If, in the MDCCE's 
view, one or all of these criteria were not met, the MDCCE should have provided its reasoning for 
reaching this finding, which it fail ed to do.79  
 
3.28.   Turkey has also claimed that the MDCCE acted inconsistently with Annex II, paragraph 5 , for 
the following reasons: (i) it imposed an unreasonable burden upon the Turkish exporters to provide 
information on third -party sales, which was i n the possession of unaffiliated third -party 
intermediaries; (ii) the MDCCE made no active efforts to contact these third parties directly or to 
obtain the information it required through other means ( inter alia , by requesting the assistance of 
the Governm ent of Turkey); and (iii) it failed to use the information submitted by the Turkish 
producers, which acted to the best of their ability, even though the MDCCE did not explain in a 
reasoned and adequate manner why that information did not satisfy the criter ia in Annex II, 
paragraph 3.80  
 
3.29.   Morocco's main response to these claims is that the volume of the allegedly unreported sales 
was substantial, which justified the MDCCE's decision to reject the entirety of the exporters' 
information.81 However, as explained, the MDCCE never substantiated the figure of 10'200 metric 
tons of the alleged discrepancy. In addition, nowhere in its Final Determination did the MDCCE set 
out reasons for replacing the entirety  of the Turkish producers' reported d ata, because of that alleged 
deficiency in reporting the export sales. Thus, Morocco's responses are impermissible ex post 
rationalisations of the MDCCE's decision.82 
                                                
72 Appellate Body Report, US – Hot-Rolled Steel , para. 79.  
73 Panel Report, China – Autos (US) , para. 7.136.  
74 Turkey's second written submission, para . 4.48. 
75 In fact, the MDCCE replaced all data provided by the Turkish exporters (on both domestic and exports 
sales) with facts available. Morocco 's answer to Panel question 2.8, para. 92.  
76 Morocco 's answer to Panel question 2.7, para. 90.  
77 Morocco 's answer to Panel question 2.7, para. 90, emphasis added.  
78 Turkey's second written submission, paras . 4.49-4.50; Turkey's comment on Morocco's response to 
Panel's question 7.6.  
79 Turkey 's first written submission, paras. 6.110 -6.111 ; Turkey's second written submission, 
paras . 4.51-4.55. 
80 Turkey 's first written submission, paras. 6.112 -6.117; Turkey 's opening statement at the first 
meeting of the Panel with the parties, paras. 3.9 -3.11; Turkey 's second  written submission, para.  4.56. 
81 Morocco emphasises this point in Morocco 's first written submi ssion, paras. 112 and 115. See also 
Morocco 's answer to Panel question 2.7, para. 90.  
82 Turkey 's second  written submission, para.  4.57. WT/DS513/ R/Add.1  
BCI deleted, as indicated [[***]]  
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  3.30.   Turkey made two claims under Annex II, paragraph 6, first and second sentences . Turkey's 
first claim is that the MDCCE failed to provide a meaningful opportunity to the Turkish companies to 
give "further explanations within a reasonable period" in the sense of Annex II, paragraph 6 (first 
sentence), because (i) the Turkish exporters were  in effect give n a very limited period (i.e. 5  working 
days) to comment on the MDCCE's Disclosure, and, in any event, (ii) the opportunity to comment 
on the Disclosure was a mere formality rather than a substantive opportunity to engage with the 
MDCCE. Tur key's second claim is that, contrary to the requirements of Annex II, paragraph 6 (second 
sentence), the MDCCE failed to provide reasons for the rejection of evidence and information 
provided by the Turkish exporters, including in their comments on the Dis closure.83 
 
3.31.   With respect to the first claim, under Annex II, paragraph 6 (first sentence), Morocco 
maintains that, the MDCCE gave the Turkish exporters a short time -period for submitting comments, 
because, following the issuance of the Disclosure, th e MDCCE had very little time to complete the 
investigation, and, at that stage, therefore, "there was not much time to provide for comments".84 
However, the fact that the MDCCE issued the Disclosure at a very late stage of the investigation 
does not, and ca nnot, release it from obligations under Annex II, paragraph 6, or any other provision 
of the Anti -Dumping Agreement, such as Article 5.10. Neither the MDCCE, nor Morocco in its 
submissions, explained reasons for issuing the Disclosure at such a late stage of the investigation. 
Indeed, the Disclosure was issued on 20 June 2014, 17 months  after the date of the initiation of the 
investigation, on 21 January 2013, and 1 month  before the end of the compulsory 18 -months 
deadline under Article 5.10. It must also b e recalled, that the only opportunity that the MDCCE gave 
to the Turkish exporters to comment on its use of facts available was after the MDCCE's 7 July emails 
to these companies, in which it disclosed for the first time some supporting documents for 
appro ximately half of the alleged discrepancy of 10'200 metric tons. It was thus crucial for the 
Turkish exporters to have a reasonable period, and not merely 5 days, for comments on the 
Disclosure.85 Furthermore, the MDCCE's summary dismissal of the comments pr ovided by the 
Turkish companies, without reasoned and adequate explanation, reveals that the so -called 
opportunity to give "further explanations" was a mere formality, which could not have affected the 
MDCCE's decision to use facts available.86 
 
3.32.   With respect to Turkey's claim under Annex II, paragraph 6 (second sentence), Morocco states 
that " the reason for rejecting the exporters' information was that it did not fulfill the criteria for 
'verifiable information' and did not satisfactorily explain the discrepancy in the sales data ".87 This is 
an impermissible ex post rationalization, which is not supported by the record evidence. The 
MDCCE's Final Determination neither states clearly that the information submitted was not 
"verifiable", nor explains the r easons for this alleged finding.88 
 
3.33.   Finally, the MDCCE's use of facts available is inconsistent with Annex II, paragraph 7 , because 
the MDCCE failed to explain in a reasoned and adequate manner: (i) how it cross -checked the 
accuracy of the non -cooperation rate of 11% proposed by the petitioner; and (ii) why it was 
appropriate to reject all of the data provided by the Turkish exporters, even though these data were 
verified as accurate.89  
 
3.34.   Morocco refers to the "Report on the initiation of an investigation" (Exhibit TUR -2), which, in 
its view, explains how the MDCCE cross -checked the accuracy of the 11% rate.90 Turkey cons iders 
that the MDCCE's explanation in Exhibit TUR -2 falls short of the standard of a reasoned and adequate 
explanation. For example, in its response to Panel question 3.1, Turkey explained that the MDCCE 
failed to disclose the initial "C&F -based prices" th at the petitioner had derived from various 
specialized sources to calculate the Turkish exporters' export price, nor did it disclose the specific 
adjustments made  in this calculation, including the underlying data. Without this information, one 
cannot asse ss whether the MDCCE actually cross -checked the accuracy of the information provided 
                                                
83 Turkey 's first written submission, paras. 6.118 -6.123.  
84 Morocco 's first written submission, para. 120.  
85 Turkey 's second written submission, paras . 4.61-4.62. 
86 Turkey 's first written submission, para . 6.121.  
87 Morocco 's first written submission, para. 121 (quoting Final Determination, Exhibit TUR -11, paras. 58 -
61). 
88 Turkey 's second written submission, para. 4.65.  
89 Turkey 's first written submission, para .6.124 -6.128; Turkey 's second written submission, para. 4.66.  
90 Morocco 's first written submission, paras. 128-129. WT/DS513 /R/Add.1  
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  by the petitioner, and whether this cross -checking amounted to the "special circumspection" required 
under Annex II, paragraph 7.91 
 
3.35.   Similarly, the MDCCE failed to e xplain why it was appropriate to reject all of the data provided 
by the Turkish exporters, even though these data were verified as accurate. Indeed, the MDCCE 
could have used facts available to replace only the data that it considered had not been provided .92 
In these circumstances, the MDCCE acted inconsistently with Annex II, paragraph 7 .  
 
3.4  Conclusion  
 
3.36.   In light of the foregoing, the MDCCE's use of facts available is inconsistent with Article 6.8 
and paragraphs 1, 3, 5, 6, and 7 of Annex II to t he Anti -Dumping Agreement. As demonstrated, 
Erdemir Group and Colakoglu duly reported all of their export sales to Morocco, and the MDCCE, 
therefore, had no basis to use facts available to determine dumping margins for these companies. 
Moreover, the MDCCE' s investigation of the allegedly "missing sales" was fraught with many 
procedural deficiencies. These deficiencies undermine further the MDCCE's finding of the lack of 
cooperation on the part of the Turkish exporters.  
 
4  MOROCCO ACTED INC ONSISTENTLY WITH ARTICLE 6.9 OF THE A NTI-DUMPING 
AGREEMENT  
 
4.1.  Turkey made two claims under Article 6.9 (first and second sentences) with respect to the 
MDCCE's disclosure of "essential facts" underlying its decision to use facts available to determine 
dumping margins f or Erdemir Group and Colakoglu. With regard to its first claim under Article 6.9 
(first sentence) , Turkey explained that the MDCCE failed to disclose the following "essential facts": 
(i) the facts underlying the MDCCE's finding of the alleged discrepancy in reported sales, amounting 
to approximately 10'200 metric tons; and (ii) the facts showing how precisely the MDCCE cross -
checked the accuracy of the non -cooperation rate of 11%.93  
 
4.2.  Turkey provided the following examples of the first set of "essenti al facts" that the MDCCE 
failed to disclose: (i) the precise transactions that, in the MDCCE's view, belonged to the Turkish 
exporters and had not been reported; (ii) the movement certificates and commercial invoices listing 
the 10'200 metric tons of missi ng sales; and (iii) the names of third parties that had executed the 
allegedly unreported sales. Without these documents and facts, the Turkish exporters were deprived 
of the ability to provide any meaningful comments on the MDCCE's finding of an alleged d iscrepancy 
and, in this way, to defend their interests within the meaning of the second sentence of Article 6.9.94  
 
4.3.  As to the second set of "essential facts", the MDCCE did not explain sufficiently either the 
methodology it employed to cross -check th e accuracy of the non -cooperation rate of 11%, 
determined for Erdemir Group and Colakoglu , or the data it used for this cross -check. For example, 
the MDCCE should have disclosed the following data: (i) the "C&F -based prices" that the petitioner 
collected f rom intermediaries operating in the steel sector and a specialized magazine in the steel 
sector to construct the export price of the Turkish exporters; (ii) the data the petitioner used to net 
these prices back to the ex -factory level in Turkey; and (iii) the data the MDCCE used to cross -check 
the petitioner's data on export prices, including the values of specific transactions in Morocco's 
import statistics that were allegedly used for this purpose.95 
 
4.4.  In response to Turkey's first claim, Morocco, ref erring to vague and conclusory statements in 
the Disclosure, the Final Determination and the "Report on the initiation of an investigation" , alleges 
that the MDCCE disclosed all of the "essential facts" pertaining to its decision to use facts available, 
as well as the facts that the MDCCE had used to replace the allegedly missing information.96 
However, based on these conclusory statements alone, and without the supporting information 
explained earlier – e.g. the movement certificates / commercial invoices l isting the 10'200 metric 
                                                
91 Turkey 's second written submission, paras. 4.67 -4.68. 
92 Turkey 's opening statement at the first meeting of the Panel with the parties, para . 3.19.  
93 See Turkey 's first written submission, paras. 7.12 -7.17; Turkey 's answer to Panel question 3.1(a) ; 
Turkey's second written submission, paras. 5.1 -5.6. 
94 Turkey 's first written submission, para. 7.13; Tur key's answer to Panel question 3.1(a), para. 56.  
95 Turkey 's first written submission, para. 7.16; Turkey 's answers to Panel question 3.1(a), para. 59, 
and Panel question 3.3, para. 71.  
96 Morocco 's first written submission, paras. 137 -142, 147 (quoting Draft Final Determination, 
Exhibit  TUR-10, paras. 51, 55 -56; and Final Determination, Exhibit TUR -11, paras. 60 -61). WT/DS513/ R/Add.1  
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  tons of missing sales, and the precise data and methodology the MDCCE used to cross -check the 
accuracy of the 11% rate – one cannot verify their accuracy.97 
 
4.5.  In addition, Morocco stated that the movement certificates and commercial invoices that were 
not disclosed, documenting the remaining portion of the alleged discrepancy, constituted confidential 
information within the meaning of Article 6.5 of the Anti -Dumping Agreement.98 Morocco alleges 
that the MDCCE provided a non -confidential summary of this information in the Disclosure, 
consistent with Article 6.5.99 Turkey has explained that for information to be treated as confidential 
under Article 6.5, there must be: (i) a showing of good cause; (ii) a non -confidential summary  of 
the information submitted in confidence that permits a reasonable understanding of the substance 
of that information; or (iii), in exceptional circumstances, a statement of reasons why the 
summarisation of that information is not possible.100 Even assumi ng that the documents at issue fall 
within the scope of Article 6.5, the plain reading of the Disclosure shows that the MDCCE failed to 
meet any of these requirements.101 Moreover, Morocco's argument is not substantially different from 
those made in China – GOES  and China – Broiler Products , which the panels and the Appellate Body 
squarely rejected.102  
 
4.6.  Turkey's second claim under Article 6.9 (second sentence)  is that the MDCCE's Disclosure did 
not take place in sufficient time for the Turkish companies to defend their interests. The "essential 
facts" that were disclosed too late are the movement certificates and commercial invoices covering 
a portion of the allegedly u nreported sales. In Turkey's view, the fact that the investigation at issue 
exceeded the deadlines set out in Article 5.10, and that the MDCCE did not assess in a meaningful 
manner the comments of the Turkish exporters on the Disclosure shows clearly that the MDCCE's 
Disclosure did not take place in sufficient time  for the Turkish companies to defend themselves. 
Moreover, the extremely limited deadline of 5 working days that the Turkish exporters were 
effectively given to comment on the Disclosure was much shorter than the 21 -days period 
established under Morocco's domestic law.103  
 
4.7.  In response to this claim, Morocco refers to the fact that the Turkish exporters were able to 
comment on the Disclosure as proof that this document was issued "in sufficient  time" for the 
exporters to defend their interests.104 However, Turkey recalls that the underlying purpose of the 
Disclosure was to allow the interested parties, including the Turkish exporters, to defend their 
interests by, inter alia , commenting on the com pleteness and correctness of the facts being 
considered by the MDCCE.105 This means in practice that the Disclosure should have been issued 
sufficiently early in the investigation to permit the MDCCE to receive comments, take them into 
account, and to finali se the investigation within the timeframes in Article 5.10. The MDCCE failed to 
fulfill any of these tasks.106 
 
4.8.  In light of the foregoing, the MDCCE's disclosure of "essential fact s" is inconsistent with 
Article  6.9, first and second sentences.  
 
5  THE MDCCE'S INJURY ANAL YSIS IS INCONSISTENT  WITH ARTICLE VI:6(A ) OF THE 
GATT 1994, AND ARTIC LES 3.1, 3.4 AND FOO TNOTE 9 OF THE ANTI -DUMPING AGREEMENT  
 
5.1  Morocco's terms of reference objections should fail  
 
5.1.  In its consultations request, Turkey added under the title "injury/causation determination", the 
claims under Articles 3.1, 3.2, 3.4 and 3.5 of the Anti -Dumping Agreement.107 In its panel request, 
                                                
97 Turkey's second  written submission, para s. 5.7-5.8. 
98 Morocco 's second written submission, paras. 102 -108. 
99 Morocco 's second written submission, para. 103 (referring to the Dra ft Final Determination, 
Exhibit  TUR-10, paras. 51 and 55).  
100 Turkey 's first written submission, para. 10.3; Turkey 's second written submission, paras. 8.4 -8.12. 
101 Turkey 's opening statement at the second  meeting o f the Panel with the parties, paras.  3.26-3.27. 
102 Turkey 's opening statement at the second  meeting of the Panel with the parties, paras.  3.28-3.29 
(referring to Appellate Body Report, China – GOES , para. 247; Panel Report,  China – GOES , paras. 7.399, 
7.410 , 7.562, 7.571;  and Panel Report,  China – Broiler Products, paras. 7.288, 7.321 ). 
103 Turkey 's first written submission, paras. 7.18 -7.19; Turkey 's answer to Panel question 3.1.b, 
paras.  67-69; Turkey 's second  written submission, paras.  3.33-3.35. 
104 Morocco 's second written submission, para . 121.  
105 Appellate Body Report,  China – GOES , footnote 390.  
106 Turkey 's opening statement at the second  meeting of the Panel with the parties, paras.  3.33-3.34. 
107 WT/DS513/1.  WT/DS513 /R/Add.1  
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  Turkey made claims with respect to the "injury determination" under Articles 3.1, 3.4, 6.5, 6.5.1 
and 6. 9 of the same agreement, and Article VI:6(a) of the General Agreement on Tariffs and Trade 
1994 (GATT 1994).108 Morocco raises four objections to the Panel's terms of reference.  
 
5.2.  First, Morocco argues that the reference in the consultations request to  Articles 3.1, 3.2, 3.4 
and 3.5 of the Anti -Dumping Agreement "does not indicate the legal basis for the complaint".109 
Obviously, the consultations request clearly indicated the legal basis: Articles 3.1, 3.2, 3.4 and 3.5 
of the Anti -Dumping Agreement. Moro cco is incorrect in suggesting that the consultations request 
should have been more precise or provided further explanations.  
 
5.3.  Article 4.4 of the DSU requires that a consultations request provide "an indication of the legal 
basis of the complaint". Turkey plainly did so by referring to Articles 3.1 and 3.4 of the Anti -Dumping 
Agreement. Morocco suggests that, in addition, Turkey was required to submit its "arguments" as 
to why the MDCCE's injury analysis is inconsistent with Articles 3.1 and 3.4 of t he Anti -Dumping 
Agreement. But "arguments" are not required to be set out in a cons ultations request under 
Article  4.4 of the DSU or even in panel requests under Article 6.2 of the DSU.110 Thus, Morocco's 
objection is at odds with the correct legal standard under Article 4.4 of the DSU.  
 
5.4.  Moreover, WTO panels have consistently ruled that the term "indication" of the legal basis in 
Article 4.4 of the DSU is "something less than a summar y sufficient to present the problem clearly" 
as required in Article 6.2 of the DSU.111 Thus, it is inappropriate for Morocco to suggest that the 
Panel should import the stricter and more precise legal standard for Article 6.2 into Article 4.4 of the 
DSU.  
 
5.5.  In any event, in its request for consultations Turkey complained about the MDCCE's injury 
analysis. In the challenged investigation, there was only one injury analysis – i.e. whether the 
establishment of the domestic industry was retarded. Thus, by re ferring to "injury", Turkey 
unequivocally referred to the only injury analysis conducted by the MDCCE – that of material 
retardation. T he Panel's terms of reference are established in the panel request, which makes clear 
that Turkey made claims under Artic les 3.1 and 3.4 regarding the determination whether the 
domestic industry was "established" and whether its establishment was materially "retarded".  
 
5.6.  Second, Morocco claims that Turkey's consultations request does not contain a reference to 
Footnote 9 to Article 3 of the Anti -Dumping Agreement. However, Footnote 9 defines the term 
"injury" and thus informs the remainder of Article 3. By referring t o several paragraphs of Article  3, 
the consultations request included, by implication, Footnote 9. Accord ingly, Morocco's objection 
regarding Footnote 9 is without merit.  
 
5.7.  Third, regarding the objection to Turkey's claim under Article VI:6(a) of the GATT 1994, 
Morocco recognizes that there were a number of references to Article VI in Turkey's consultati ons 
request.112 It contends, however, that these were not made in connection with the injury analysis. 
This objection should fail. Article VI is the relevant provision in the GATT 1994 concerning anti -
dumping duties. Article 1 of the Anti -Dumping Agreement r ecognizes that the provisions of this 
Agreement "govern the application of Article  VI of GATT  1994". Thus, the reference to Article 3.1 
and 3.4 of the Anti -Dumping Agreement in Turkey's consultations request entails a reference to 
Article VI:6(a) of the GA TT 1994. In fact, Morocco does not – and cannot  – argue that the claim 
under Article VI:6(a) expanded the scope, or change the essence, of Turkey's injury claims.  
 
5.8.  Fourth, regarding the objection to Turkey's claims under Articles 6.5 and 6.5.1, Morocco argues 
that these provisions do not relate to the "Injury/Causation Determination" referred to in the 
consultations request. This argument is incorrect because the consultations request took issue with 
the MDCCE's failure to "provide a reasoned and  adequate explanation" of its injury analysis. It is 
undisputed that the MDCCE accorded great significance to the (redacted) break -even threshold in 
critical parts of its "establishment" analysis.113 How could the MDCCE have provided "a reasoned 
and adequate  explanation" for the "establishment" analysis if it unduly redacted critical information 
                                                
108 WT/DS513/2.  
109 Morocco' s first written submission, para . 32. 
110 See, fo r instance, Appellate Body Report, EC – Selected Customs Matters , para. 153.  
111 Panel Report, US – Poultry (China) , para. 7.45.  
112 Morocco 's secon d written submission, para. 24. 
113 Preliminary Determination, Exhibit TUR -6, para.  83; and Morocco 's second written submission, 
para. 148. WT/DS513/ R/Add.1  
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  on the break -even threshold? Accordingly, the claims under Articles 6.5 and 6.5.1 concerning the 
analysis of the break –even threshold were a natural evolution of Turk ey's consultations request, 
which explicitly took issue with the MDCCE's failure to "provide a reasoned and adequate 
explanation" for the injury analysis. Moreover, the claims under Article 6.5 and 6.5.1 did not expand 
the scope or change the essence of the dispute.  
 
5.9.  Fifth, regarding the objection to Turkey's claim under Article 6.9 of the Anti -Dumping 
Agreement, Turkey's consultations request took issue with the fact that the MDCCE  failed to provide 
a "reasoned and adequate explanation" of its inju ry finding. Specifically, the MDCCE failed to give 
proper account of the facts that it considered essential to find that the domestic industry was 
"unestablished". The appropriate document in which to explain those facts was the disclosure letter 
governed by Article 6.9. Thus, the claim under Article 6.9 was a natural evolution of Turkey's 
complaint and this claim did not expand the scope or change the essence of the dispute.  
 
5.10.   Sixth, regarding the objection to Turkey's "good cause" argument under Art icle 6.5 of the 
Anti-Dumping Agreement, Turkey recalls that both Article 6.5 and 6.5.1 form a balance between, on 
the one hand, confidentiality, and on the other hand, transparency and due process. As Turkey has 
stated in its submissions, Article 6.5 conta ins a single obligation with respect to the first leg of the 
balance relating to confidentiality. This obligation consists in treating certain information as 
confidential and not to disclose it without the permission of the party claiming confidentiality. As 
Article 6.5 contains one single obligation regarding confidentiality, Turkey was not required to state 
its argument that Maghreb Steel failed to provide "good cause" for seeking confidential treatment 
for its information on the break -even point. This "a rgument" had to be included in Turkey's 
submissions to the Panel – not in the panel request.114 
 
5.2  The MDCCE 's analysis of "establishment " of the domestic industry is inconsistent with 
Article 3.1 and Footnote 9 of the Anti -Dumping Agreement and Article V I:6(a) of the 
GATT  1994  
 
5.11.   Turning to Turkey's claims regarding the analysis of "establishment" of an industry, Morocco 
argues that there was "no obligation to assess whether the domestic industry was established in the 
investigation at issue".115 This is incorrect. Under Article VI:6(a) of the GATT 1994 and Footnote 9 
of the Anti -Dumping Agreement, the determination of whether an industry is "established" is a 
threshold question. If the industry is not established, the authority may conduct its in jury analysis 
on the basis of whether there was "material retardation". If, on the contrary, the industry is already 
established, there is nothing to retard anymore and the relevant analysis would be whether there 
was material injury or threat thereof. The  third parties agree with this approach116 as did the MDCCE 
itself in the challenged determinations.117 
 
5.12.   The MDCCE found that the domestic industry was "unestabl ished" for purposes of Footnote  9 
to Article 3 of the Anti -Dumping Agreement, and Article VI :6(a) of the Anti -Dumping Agreement, 
based on a five -tiered legal test it borrowed from the practice of the United States' authorities. 
However, the MDCCE failed to conduct an objective examination of each of the elements of that legal 
test.  
 
5.13.   First, the MDCCE incorrectly stated that a period greater than three years was required to 
conduct a traditional analysis of material or threat of material injury.118 The Recommendations 
Concerning the Periods of Data Collection for Anti -Dumping Investigations (C ommittee Guidelines) 
indicate that injury periods may cover a period shorter than three years, especially in those cases 
in which the domestic industry, or a part thereof, "has existed for a lesser period".119 Turkey is not 
asking the Panel to apply the Comm ittee Guidelines as binding law. Rather, Turkey refers to these 
Committee Guidelines as evidence of the recognition by a WTO body, composed of all WTO  Members, 
that injury periods may effectively be shorter than three years. Moreover, the practice of 
investigating authorities of several WTO Members further attests to the fact that injury periods may 
cover less than three years.  
                                                
114 See, for instance, Appellate Body Report, EC – Selected Customs Matters , para. 153.  
115 Morocco' s second written submission, para. 133. 
116 See EU's answer to Panel Question No. 1.1 , para s. 1-2; Japan's answer to Panel Question No. 1.1, 
paras 1 -3; and US' answer to Panel Question No. 1.1, paras. 1 -3. 
117 See Final Determination,  Exhibit TUR -11, para. 80. 
118 Preliminary Determination, Exhibit TUR -6, para. 76.  
119 Turkey's first written submission,  paras. 8.38 -8.46. WT/DS513 /R/Add.1  
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5.14.   Morocco contends that the Committee Guidelines allow collect ion of data for less than 
three  years from "parties" rather tha n the "domestic industry" as a whole.120 An injury analysis must 
be conducted with respect to the totality of the domestic industry (as defined in Article 4.1 of the 
Anti-Dumping Agreement) and not with respect to a few companies within the domestic industry . 
Thus, the domestic industry as a whole is an interested party in an anti -dumping investigation. But 
more importantly, Morocco's argument fails because, in this dispute, there is only one producer of 
hot-rolled steel in Morocco: Maghreb Steel. Therefore, whether the Committee Guidelines refer to a 
party and not to the domestic industry as a whole is irrelevant. In this dispute, there is only one 
company that constitutes the domestic industry. Accordingly, the Committee Guidelines provide a 
useful understan ding that, contrary to the MDCCE's assertion, the injury period may be shorter than 
three years if "a party from whom data is being gathered has existed for a lesser period".121 This is 
confirmed by the practice of several investigating authorities around th e world, which have relied on 
injury periods shorter than three years.122 Thus, the MDCCE's statement that an injury analysis 
requires a period of three years at a minimum123 is incorrect as a matter of law and practice.  
 
5.15.   Second , the MDCCE dismissed the  significance of the high market share levels that Maghreb 
Steel secured during the injury period on the grounds that sales in 2012 were made at a loss. I t is 
undisputed between the parties that Maghreb Steel supplied almost 70% of the total hot -rolled ste el 
consumed in Morocco (both captive and merchant markets). Moreover, Maghreb Steel supplied 40% 
of all hot -rolled steel sold in the merchant market. These figures show that the domestic production 
of hot -rolled steel was well established in the Moroccan m arket. Indeed, Maghreb Steel had been 
producing cold -rolled steel for several years before it decided in 2009 to produce the upstream 
product (i.e. hot -rolled steel). Its position as the dominant producer of cold -rolled steel explains why 
it was able, in o nly 2.5 years to secure over 40% of the merchant market.  
 
5.16.   Morocco argues that the MDCCE correctly dismissed the significance of the 40% market share 
secured by Maghreb Steel in 2012 because sales were made at a loss. It bears recalling that the 
MDCCE found that sales were made at a loss in 2012 only – and not during the full injury period.124 
In rejecting the high market share as relevant to the analysis of "establishment", the MDCCE 
erroneously extrapolated its finding for 2012 to the full period of investigation125 without allowing 
for the possibility that a further analysis of the cost/price levels in 2010 and 2011 compelled a 
different conclusion. In fact, evidence on the record suggests that prices for hot -rolled steel in 2011 
were significantly hig her than in 2012.126 Thus, the MDCCE's finding that Maghreb Steel made sales 
at a loss during the injury period was based on 2012 data only, and is therefore not a finding that 
"an unbiased and objective investigating authority could have concluded".127 
 
5.17.   Third, the MDCCE erroneously concluded that Maghreb Steel had not reached the break -even 
threshold in 2012 and that this was an indication that the company was not "established". the MDCCE 
calculated the break -even threshold as the difference between two  variables: the "totality of the 
revenues" and the "totality of the costs".128 However, the "totality of the revenues" represented the 
proceeds obtained from the merchant sales only – 50% of production. The "totality of the costs" was 
the totality of the cos ts incurred for the entire production – that is, both the merchant and the 
captive production. This is an incomplete or inaccurate calculation. The MDCCE could not reasonably 
determine a break -even threshold on the basis of a calculation that reflects the costs of all sales but 
the revenues from only a portion of those sales.  
 
5.18.   Morocco refers to only one sentence of Maghreb Steel's questionnaire responses to argue that 
the MDCCE took the captive market into consideration in calculating the break -even threshold. That 
sentence states, in French, that "the break -even point in tonnes in 2012 amounts to [[ ]] T against 
                                                
120 Morocco 's second  written submission, para s. 143 -145. 
121 Recommendation Concerning the Periods of Data Collection for Anti -Dumping Investigations, 
G/ADP/6, 16 May 2000 , para. 1(c) . 
122 Turkey 's second written submission, para. 6.30. 
123 Preliminary Determination, Exhibit TUR -6, para. 76. 
124 Preliminary Determination, Exhibit TUR -6, para. 109; and Final Determination, Exhibit TUR -11, 
para. 176. 
125 Final Determination, Exhibit TUR -11, para. 95.  
126 Maghreb Steel Mise à Jour du dossier relatif à  l'exercice 2012 , Exhibit TUR -51.   
127 Panel Report, EU – Biodiesel (Argentina) , para. 7.504.  
128 Preliminary Determination, Exhibit TUR -6, para. 83. See also Morocco's first written submission, 
para. 229.  WT/DS513/ R/Add.1  
BCI deleted, as indicated [[***]]  
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  real sales (including captive sales) for an additional necessary tonnage of [[ ]] T".129 This sentence, 
however, is contained in Maghreb Stee l's questionnaire responses, not in the MDCCE's published 
report. One cannot lightly assume that the MDCCE took into account something just because it was 
stated in one of the parties' questionnaire responses.  
 
5.19.   But more importantly, the sentence in  Maghreb Steel's questionnaire responses on which 
Morocco relies actually contradicts the MDCCE's findings. That sentence assumes that there were 
"ventes intersites " (captive sales). However, both the MDCCE's determinations and Morocco's first 
written submission confirmed that, with respect to the captive production, there were " no sale[s]  as 
there were no invoices".130 Therefore, Morocco cannot rely on the domestic industry's assertion that 
there were captive sales because, as the MDCCE admitted, there w ere no such sales.  
 
5.20.   Furthermore, it is perplexing that Morocco refers in its first written submission to the existence 
of a "hypothetical price" for the captive production.131 In fact, in another part of its submission, 
Morocco quotes the MDCCE's det ermination that Maghreb Steel "physically transferred, without any 
sales transactions or price , the hot -rolled steel for the captive market".132 Thus, there is no basis on 
the record to argue that Maghreb Steel assigned a hypothetical price to the captive pr oduction.  At 
any rate, Morocco's assertion that the break -even threshold took captive production into account is 
ex post rationalization and is not supported by positive evidence.  
 
5.21.   Accordingly, by not ensuring that the break -even threshold included  the captive production, 
the MDCCE's finding that Maghreb Steel did not reach that threshold in 2012 is not a finding that 
"an unbiased and objective investigating authority could have concluded".133 
 
5.22.   Fourth , the MDCCE stated that there were abrupt ch anges in production during the period of 
investigation, and that this was an indication that Maghreb Steel was not established. Morocco dwells 
upon the variations between months to argue that production "fluctuated significantly".134 However, 
the ranges with in which Maghreb Steel produced  from February 2011 to December  2012, with the 
exception of two months, were reasonable in view of the nature of the product under consideration. 
Hot-rolled steel is mostly used for large infrastructure projects and the deman d for this product is a 
function of the number and size of the specific projects at a given point in time.135 For this reason, 
some monthly variations in the production of hot -rolled steel are expected. This is further confirmed 
by the variations in the leve ls of imports of the same product, which increased from 2010 to 2011 
by 9.5% and then decreased from 2011 to 2012 by 21%. These variations show that hot -rolled steel 
is subject to certain fluctuations regardless of whether it is imported or produced domest ically.  The 
MDCCE could not assume that these variations in production levels were a function of the industry 
not being established, especially since relevant record evidence showed that in 2012, both local and 
international demand, prices and imports into  Morocco declined significantly.136  
 
5.23.   Fifth, Turkey challenged the MDCCE's finding that the production of hot -rolled steel 
constituted a new industry in itself.137 Morocco responded that large investments were required by 
Maghreb Steel.138 But investments are required every time a company adds a new production line. 
That a company invests to produce a different product line should not automatically lead to the 
conclusion that this company is creating "a new industry". As the dominant produc er of cold -rolled 
steel, Maghreb Steel decided to start producing the upstream product in 2010 – i.e. hot -rolled steel. 
As such, Maghreb Steel was able to use its knowledge of the distribution channels, as well as the 
buyers and consumers of hot -rolled ste el in the Moroccan market, to secure over 40% of the 
merchant market in only 2.5 years. It is therefore inaccurate to assert that Maghreb Steel sought to 
                                                
129 Maghreb Steel's questionnaire response, Exhibit MOR -8, p. 9.  
130 Morocco's first written submission, para. 191. (underlining added) See also Final Determination, 
Exhibit TUR -11, para. 138.  
131 Morocco's first written submission, para. 191. 
132 Morocco 's first written submission, para. 186, quoting also Final Det ermination, Exhibit TUR -11, 
para. 138 . (underlining added)  
133 Panel Report, EU – Biodiesel (Argentina) , para. 7.504.  
134 Morocco 's first written submission, para. 200. 
135 Turkey's first written submission, para. 8.48. 
136 Maghreb Steel Mise à Jour du dossier relatif à l'exercice 2012 , Exhibit TUR -51.   
137 Turkey's first written submission, paras. 8.77 -8.80. 
138 Morocco 's first written submission, para.  206. WT/DS513 /R/Add.1  
BCI deleted, as indicated [[***]]  
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  establish a new industry. Rather, by embarking on the production of the upstream product, Maghreb 
Steel incorporated "a new product line of an established firm" instead of "a new industry".139  
 
5.24.   Morocco argues that the hot -rolled steel production is a new industry because the MDCCE 
defined the product under consideration as "hot -rolled steel".140 The qu estion, however, is not 
whether it is a new domestic industry under Article 4.1 of the Anti -Dumping Agreement. This 
proposition would create the anomalous result that, every time an industry produces a variation of 
a product that changes its tariff classif ication, the domestic industry could request an analysis of 
"material retardation" in a trade remedies investigation. Instead, the relevant question is whether 
the domestic industry faced barriers typical of a start -up business entering the domestic market .141 
In this dispute, had the MDCCE undertaken this analysis, it would have found that, as the 
predominant steel supplier in Morocco, Maghreb Steel was fully familiar with, and benefitted from, 
the distribution chains and users of hot -rolled steel within Mor occo.  
 
5.25.   Accordingly, it is clear that a domestic industry that has operated for over 2.5 years, that has 
secured over 40% of the merchant market, and supplies almost 70% of the total consumption of 
hot-rolled steel in Morocco can hardly be said to b e "unestablished". Moreover, the MDCCE's analysis 
of the break -even point, the stabilization of production and the entry barriers for Maghreb Steel's 
hot-rolled steel production line are fraught with deficiencies. For these reasons, the MDCCE's finding 
that the domestic industry was "unestablished" is not one that "an unbiased and objective 
investigating authority could have concluded"142 and is ther efore inconsistent with Article  VI:6(a) of 
the GATT 1994, and Article 3.1 and Footnote 9 to the Anti -Dumping Ag reement.  
 
5.3  The MDCCE 's analysis of "retardation " of the establishment of a domestic industry is 
inconsistent with Articles 3.1 and 3.4 of the Anti -Dumping Agreement  
 
5.3.1   The MDCCE failed to analyze all 15 factors listed in Article 3.4  
 
5.26.   Turkey  argues that the MDCCE failed to analyse six of the 15 factors listed in Article 3.4. 
Morocco agrees that an investigating authority is required to assess all of these factors in cases of 
material retardation.143 However, Morocco argues that the MDCCE did an alyze all such factors. This 
is incorrect.  
 
5.27.   For certain factors, (i.e. return on investments, negative effects on cash flow, and ability to 
raise capital or investments), Morocco provides ex post  explanations of what the MDCCE "meant".144 
Turkey reca lls in this regard that a  panel may not accept ex post rationalizations, that is, 
explanations not contained in the investigating authority's explanation in the published report.145  
 
5.28.   For other factors, Morocco seeks to piece together certain assertions scattered throughout 
the challenged determinations to assert that the MDCCE did analyse the missing factors. In the case 
of wages, for example, Morocco relies on a statement in another part of the MDCCE's final 
determination to assert that there  was a "massive layoff" that had a downward effect on wages.146 
Article 3.4, however, lists employment and wages separately. A decrease in employment levels does 
not necessarily entail that wages declined. For instance, government -set minimum wages or agreed  
minimum wages with the labour unions may prevent a company from decreasing wages even in dire 
economic conditions. Therefore, Morocco cannot assume that because the MDCCE addressed 
employment it implicitly provided an analysis of wage s within the meaning of Article  3.4.  
 
5.29.   Moreover, in the case of factors affecting domestic prices, Morocco relies on statements made 
in different sections of the MDCCE's determination to assert that the MDCCE did address these 
factors. For instance, Morocco relies on a statement made in the price  effects analysis under 
                                                
139 Judith Czako et al., A Handbook on Anti -Dumping Investigations , (Cambridge University Press: 
Cambridge, 2 002), at 276. Exhibit TUR -38. 
140 Morocco 's second written submission, para. 170. 
141 See Dong Woo Seo, Material Retardation Standard in the U.S. Antidumping Law , 24 LAW & POL'Y 
INT'L Bus. 835 (1993), Exhibit TUR -52, p. 100.  
142 Panel Report, EU – Biodiesel (Argentina) , para. 7.504.  
143 Morocco 's first written submission, para. 221 . 
144 Morocco 's first written submission, paras. 229 -233. 
145 Appellate Body Report, EC – Fasteners (China) (Article 21.5 – China ), paras. 5.53 and 5.59. See also 
Appellate Body Report, US – Tyres (China), para. 329.  
146 Morocco's first written submission, para. 234.  WT/DS513/ R/Add.1  
BCI deleted, as indicated [[***]]  
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  Article  3.2 of the Anti -Dumping Agreement that imports had a "non -negligible effect on the price 
undercutting".147 Morocco also relies on a statement made in the c ausation analysis under Article  3.5 
regardin g the prices of raw materials. These statements were made in different parts of the 
challenged determinations and in different contexts. The fact remains that the MDCCE did not 
address factors affecting domestic prices in its analysis under Article 3.4 of the Anti -Dumping 
Agreement, which requires an analytical inquiry different from that required in Articles 3.2 and 3.5 
of the Anti -Dumping Agreement.148 Morocco cannot argue that the authority assessed certain factors 
based on statements made in separate, unr elated sections.  
 
5.30.   In the case of growth, Morocco relies on the panel report in Egypt – Steel Rebar  to suggest 
that an investigating authority is not required to assess growth in its injury determination since 
growth can be derived from "sales volum e and market share".149 Turkey agrees that growth may 
potentially be a function of other factors, some of which are listed in Article 3.4.150 However, this 
does not free an investigating authority from the obligation to addres s growth as part of its 
Article  3.4 analysis. As the Appellate Body and several panels have recently held, Article 3.4 lists 
certain factors that "are deemed to be relevant in every investigation and which must always be 
evaluated by the investigating authorities".151 If some of them are irr elevant to the analysis, the 
authority must explain the reasons why.152 
 
5.3.2   The MDCCE failed to assess the captive production in its "retardation" analysis  
 
5.31.   The MDCCE decided to exclude the captive production from its analysis of the impact of 
imports on the domestic industry. In particular, the MDCCE noted that this exclusion was "perfectly 
justified to the extent that the relevant market is characterized by a clear separation between the 
'captive market' and the 'merchant market' and by the fa ct that the Maghreb Steel's captive sales 
are not in direct competition with imports".153 The MDCCE's injury analysis was selective, one -sided 
and therefore lacked objectivity – inconsistently with Articles 3.1 and 3.4 of the Anti -Dumping 
Agreement – because : (1) the MDCCE failed to provide data concerning the performance of the 
captive market, and more importantly, failed to conduct an " analysis  of the significance of the data 
for the captive market"154 which the Appellate Body has considered to be "highly per tinent"; and (2) 
the MDCCE failed to provide a "sufficient explanation as to why it [wa]s not necessary to examine 
directly or specifically the other parts of the domestic industry".155  
 
5.32.   With respect to Turkey's argument that the MDCCE ignored the ca ptive production in its 
analysis of the relevant factors, Morocco responds that the MDCCE "did also take the captive market 
into consideration".156 Morocco's position belies the very words of the challenged determinations 
that state that the exclusion of the  captive market from the assessment of the economic factors was 
"perfectly justified".157 Thus, it is clear that the captive production was not taken into consideration 
by the MDCCE when assessing the economic factors listed in Article 3.4.  
 
5.33.   Morocco further argues that the MDCCE provided a "satisfactory explanation" for excluding 
the captive production from its injury analysis: i.e. that the "captive market does not function 
according to the market conditions".158 The MDCCE's "explanation", however, has  been explicitly 
rejected in at least two analogous disputes. As the Appellate Body stated in US – Hot-Rolled Steel , 
it is "highly pertinent" in an injury analysis that "a significant proportion of the domestic production 
… [be] shielded from direct compet ition with imports", because imports may be affecting only the 
                                                
147 Morocco 's first written submission, para. 235, quoting Final Determination, Exhibit TUR -11, 
para. 145. 
148 Appellate Body Report, China – GOES , para.  149. 
149 Morocco's first written submission, para. 236.  
150 Appellate Body Report, EC – Tube or Pipe Fittings , para. 162.  
151 Appellate Body Reports, China – HP-SSST , para. 5.203; US – Hot-Rolled Steel , para. 194; and 
Thailand – H-Beams , para. 125. See also Panel Repo rts, Russia – Commercial Vehicles , para. 7.111 
(unadopted);  China – Cellulose Pulp , para. 7.117; EU – Biodiesel (Argentina) , para. 7.396; China – X-Ray 
Equipment , para. 7.180; and EC – Bed Linen (Article 21.5 – India) , para. 6.162 . 
152 Panel Report, China – X-Ray Equipment , para. 7.180.  
153 Final Determinati on, Exhibit TUR -11, para. 137.  
154 Appellate Body Report, US – Hot-Rolled Steel , para. 213.  
155 Appellate Body Report, US – Hot-Rolled Steel , para. 204.  
156 Morocco 's first written submission, para. 245.  
157 Final Determination, Exhibit TUR -11, para. 137.  
158 Morocco 's second written submission, para. 189. WT/DS513 /R/Add.1  
BCI deleted, as indicated [[***]]  
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  part of the domestic industry destined for the merchant market .159 Thus, the statement that the 
captive production was excluded because it was not "in competition" with imports is not a 
"satisfac tory explanation".  
 
5.3.3   The MDCCE used the McLellan Report despite fundamental errors  
 
5.34.   The MDCCE unduly relied on the MCLELLAN report, which contained at least three critical 
errors: the miscalculation of the domestic demand/consumption; the sales of downstream products; 
and the prices of key raw materials.160 It is clear that the miscalculations that the MDCCE found in 
the MCLELLAN report have potential significant consequences for the analysis of most, if not all, of 
the injury factors. At a m inimum, the MDCCE should have sought to update the projections provided 
by the MCLELLAN report/Business Plan by, for instance, verifying projected trends in world market 
prices against actual developments. However, the MDCCE did not do so. Rather, the MDCC E 
dismissed the significance of these miscalculations by providing explanations that are not "reasoned 
and adequate", that is, explanations that could not be provided "by an unbiased and objective 
investigating authority in light of the facts and arguments  before it".161 Since the MDCCE failed 
properly to assess the relevance and consequences of these miscalculations, the MDCCE's reliance 
on the MCLELLAN report was incorrect and therefore its overall injury analysis, which was largely 
based on that study, is inconsistent with Articles 3.1 and 3.4 of the Anti -Dumping Agreement.  
 
5.4  Conclusion  
 
5.35.   In the light of the foregoing, Turkey requests the Panel to find that the MDCCE's conclusion 
that the Moroccan domestic industry was "unestablished" is inconsis tent with Article 3.1 and 
Footnote 9 of the Anti -Dumping Agreement and Article VI:6(a) of the GATT 1994. As a consequence, 
Turkey requests the Panel to find that the WTO -inconsistent finding that the industry was 
"unestablished" rendered the MDCCE's overal l analysis of injury inconsistent with Articles 3.1 and 
3.4 of the Anti -Dumping Agreement.  
 
5.36.   In addition, Turkey requests the Panel to find that, even under the assumption that the 
domestic industry was unestablished, the MDCCE's assessment of the r elevant injury factors is 
inconsistent with Article 3.4 because the MDCCE only assessed nine of the 15 factors listed in Article 
3.4; the MDCCE did not provide data concerning the performance of the captive market, and more 
critically, failed to conduct an  "analysis  of the significance of the data for the captive market"; and 
the MDCCE's reliance on the MCLELLAN report was inappropriate in the light of the important 
miscalculations that the MDCCE itself found. For all those reasons, the MDCCE's injury analy sis is 
inconsistent with Articles 3.1 and 3.4 of the Anti -Dumping Agreement.  
 
6  MOROCCO ACTED INC ONSISTENTLY WITH ART ICLES 6.5, 6.5.1 AND  6.9 OF THE ANTI -
DUMPING AGREEMENT  
 
6.1.  Morocco acted inconsistently with its obligations under Articles 6.5, 6.5.1 and 6.9 of the Anti -
Dumping Agreement by failing to disclose the break -even threshold.  
 
6.2.  Article 6.5 allows investigating authorities to treat certain information as confidential. However, 
this requirement is subject to several conditions. First, the labelling of information as confidential 
must be preceded by a showing of good cause —that is, "a reason sufficient to justify withholding 
information from both the public and the other parties  to the investigation" (Article  6.5).162 The 
"good cause" obligati on requires investigating authorities to "assess those reasons and determine, 
objectively, whether the submitting party has shown 'good cause'".163 Second, the authority must 
require the party submitting the information to "furnish non -confidential summaries  thereof", which 
"shall be in sufficient detail to permit a reasonable understanding of the substance of the information 
submitted in confidence" (Article 6.5.1). Alternatively, in "exceptional circumstances", the party may 
indicate that summarization is n ot possible in which case it will be required to provide "a statement 
of the reasons why summarization is not possible" (Article 6.5.1).164  
                                                
159 Appellate Body Report, US – Hot-Rolled Steel , para. 198; see also Appellate Body Report, US – 
Cotton Yarn , para. 102.  
160 Turkey' s first written submission, para s. 9.30-9.38. 
161 Panel Report, China – Cellulose Pulp , para. 7.142.  
162 Appellate Body Report, EC – Fasteners (China) (Article 21.5 – China) , para. 5.37.  
163 Appellate Body Report, EC – Fasteners (China) (Article 21.5 – China) , para. 5.39.  
164 Turkey's first written submission, para. 10.3.  WT/DS513/ R/Add.1  
BCI deleted, as indicated [[***]]  
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6.3.  The MDCCE did not discuss in its Preliminary Determination, the Disclosure or its Final 
Determination the "goo d cause" that warranted treating the break -even threshold as confidential. 
Moreover, the MDCCE did not appear to have required a summary of the information treated as 
confidential or alternatively the statement of the reasons why summarization was not poss ible. 
Accordingly, the MDCCE had no basis to treat the break -even threshold as confidential and thereby 
acted inconsistently with Articles 6.5 and 6.5.1 of the Anti -Dumping Agreement by redacting that 
information in  its Preliminary Determination.165 
 
6.4.  In addition, Article 6.9 of the Anti -Dumping Agreement states: "The authorities shall, before a 
final determination is made, inform all interested parties of the essential facts under consideration 
which form the basis for the decision whether to apply defi nitive measures". Turkey has explained 
that Article 6.9 is a due process provision that enables interested parties "to comment on the 
completeness and correctness of the facts being considered by the investigating authority, provide 
additional information or correct perceived errors, and comment on or make arguments as to the 
proper interpretation of those facts".166 The essential facts that must be disclosed are "those facts 
that are significant in the process of reaching a decision as to whether or not to a pply definitive 
measures."167, 168 
 
6.5.  The break -even threshold was an "essential" or "significant" fact in the process of reaching the 
decision that the domestic industry was "unestablished". In fact, the MDCCE explicitly recognized in 
both its preliminary and final determinations that t his criterion is "no doubt the criterion that is most 
commonly used in international practice in ascertaining whether an enterprise is established under 
Article 3 of the Anti -Dumping Agreement".169 However, in its Disclosure (which Turkey understands 
is the document where the MDCCE disclosed the essential facts) it did not include information on the 
break -even threshold. Although the Disclosure made a reference to the preliminary determination, 
the latter unduly redacted the information concerning the break -even threshold. It follows, therefore, 
that the Disclosure did not provide information that was essential or significant to the MDCCE's 
finding that the domestic industry was "unestablished".170 
 
6.6.  In response, Morocco argues that Turkey's claims under Ar ticles 6.5, 6.5.1, and 6.9 fall outside 
the terms of reference of this Panel. Turkey refers to section 5.1 above where Turkey explains why 
this argument is misplaced.  
 
6.7.  Morocco argues that, in any event, the fact that the MDCCE redacted and replaced t he 
confidential information by "XXXX" in its Preliminary Determination clearly meant that the 
information was not provided because it was confidential.171 However, simply to redact information 
does not amount to showing a good cause for treating that informa tion as confidential, as required 
under Article 6.5. Morocco also argues that the information was business confidential information172 
and that since it is by nature confidential, it was not necessary for the MDCCE to show "good cause" 
for treating it as con fidential.173 However, the Appellate Body explained that such ex post  
explanations cannot be put forward by the defendant to show good cause within the meaning of 
Article 6.5.174 Moreover, the Appellate Body also explained that good cause must be shown whether  
the information is by nature confidential or provided on a confidential basis.175, 176 
 
                                                
165 Turkey's first written submission, para. 10.4.  
166 Appellate Body Report, China – GOES , footnote 390 (quoting Panel Report, EC – Salmon (Norway) , 
para. 7.805).  
167 Appellate Body Report, China – GOES , para. 241 . 
168 Turkey's first written submission, para. 10.5.  
169 Preliminary Determination, Exhibit TUR -6, para. 82. This was confirmed in the Final Determination, 
Exhibit TUR -11, para. 97.  
170 Turkey's first written submission, para. 10.6.  
171 Morocco 's second  written su bmission, para s. 198 -199. 
172 Morocco 's first written submission, para. 296; Morocco 's opening statement at the first meeting of 
the Panel, para. 75.  
173 Morocco 's first written submission, para. 268.  
174 Appellate Body Report, EC – Fasteners (Article 21.5 - China), para. 5.53.  
175 Appellate Body Report, China – HP-SSST  (Japan) / China – HP-SSST (EU) , para. 5.95, citing 
Appellate Body Report, EC – Fasteners (China) , paras. 536 -537. 
176 Turkey 's secon d written submission, paras. 8.7 -8.9; Turkey 's opening statement at  the 
second  meeting with the Panel, para. 4.23.  WT/DS513 /R/Add.1  
BCI deleted, as indicated [[***]]  
- 40 - 
 
  6.8.  Moreover, Morocco submits that the information in Maghreb Steel's questionnaire responses, 
the Preliminary Determination, the Disclosure and the Final Determination about the break -even 
threshold is sufficient to satisfy the requirements under Articles 6.5.1, and 6.9.177 With respect to 
Maghreb Steel's questionnaire responses, Turkey explained that critical information is redacted on 
pages 8 and 9.178 For instance, the br eak-even threshold was redacted for 2012, as well as the detail 
of the calculation for the break -even threshold for the 2010 -2012 period, and the actual data in the 
explanation on page 9. With respect to the Preliminary Determination, Morocco explains that  in its 
view, it was sufficient for the MDCCE to indicate that the break -even threshold related to volume of 
production, and that Maghreb Steel's production had reached 63% of its break -even threshold in 
2012.179 With respect to the Disclosure and the Final Determination, Morocco explains that they 
include arguments made about the profitability threshold, with the exception of the precise figure.180 
However, none of these documents contains the actual break -even threshold or an indication of how 
it was calculat ed. Moreover, the MDCCE failed to request Maghreb Steel to provide either a non -
confidential summary (such as indexed data) or an explanation why summarization was not possible 
within the meaning of Article 6.5.1. This cannot be considered as "sufficient d etail to permit a 
reasonable understanding of the substance of the information" within the meaning of Article 6.5.1, 
or a disclosure of the essential facts forming the basis of the investigating authority's decision, within 
the meaning of Article 6.9.181 
 
6.9.  Morocco also argues that the MDCCE could not have been required to disclose confidential 
information to the interested parties under Article 6.9, because it would contradict the prohibition in 
Article 6.5 to disclose such information.182 This argument ca nnot stand, because the MDCCE could 
have easily complied with both provisions. The MDCCE could have required Maghreb Steel to provide 
a non -confidential summary of the information at issue, e.g. by submitting indexed data. This would 
have satisfied the req uirement under Article 6.9 to provide interested parties with the essential facts 
under consideration, so as to enable them to defend their interests. At the same time, this would 
also have satisfied the requirements under Article 6.5.1 to request a non -confidential summary 
where information is confidential.183, 184 
 
6.10.   Finally, Morocco argues that the Turkish exporters "never objected" to the treatment of the 
break -even threshold as confidential185, and "never requested"186 access to the information that was, 
according to Turkey, "accessible"187 to them because it was "on the administrative record" of the 
investigation.188 Under Article 6.9, the investigating authority must inform the interested parties of 
the essential facts un der consideration. The fact that the interested parties did not object to the 
treatment of certain information as confidential and did not request it is irrelevant to determining 
whether the MDCCE informed  the interested parties of the essential facts, in accordance with 
Article  6.9. The burden was on the MDCCE to inform the interested parties, not on the interested 
parties to request the information at issue.189, 190 
 
6.11.   In light of the foregoing, Morocco acted inconsistently with Article 6.5, 6.5.1, and 6 .9 with 
respect to the non -disclosure of the break -even threshold.  
 
                                                
177 Morocco 's first written submission, paras. 264 -268; Morocco 's first written submission, paras. 272 -
273; Morocco 's response to Panel question No. 6.5, para. 160.  
178 Maghreb Steel 's questionnaire responses, Ex hibit MOR -8, pp. 8 and 9. See Turkey 's response to 
Panel question 6.1.  
179 Morocco 's first written submission, paras. 264 -265; Morocco 's response to Panel question No. 6.5, 
para. 160.  
180 Morocco 's first written submission, paras. 266 -268. 
181 Turkey 's second wr itten submission, para. 8.6; Turkey 's opening statement at the second mee ting 
with the Panel, para. 4.24.  
182 Morocco 's first written submission, para. 276; Morocco 's opening statement at the first meeting of 
the Panel, para. 77.  
183 See Panel Report,  China – GOES , para. 7.410.  
184 Turkey 's second written submission, para . 8.10. 
185 Morocco 's first written submission, para. 274.  
186 Morocco 's first written submission, para. 279.  
187 Morocco 's first written submission, para. 263.  
188 Morocco 's response to the Pan el's question No. 6.5., para. 159.  
189 Panel Report, EU – Fatty Alcohols (Indonesia) , para. 7.229. The Appellate Body did not address this 
particular argument but upheld the Panel 's finding under Article 6.7. Appellate Body Report, EU – Fatty 
Alcohols (Indon esia), paras. 5.116 - 5.165.  
190 Turkey 's second written submission, paras . 8.11-8.12. WT/DS513/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 41 - 
 
  7  REQUEST FOR FINDI NGS AND A SUGGESTION  
 
7.1.  Turkey requests the Panel to find that:  
 
• The MDCCE acted inconsistently with Article 5.10 of the Anti -Dumping Agreement, because 
the duratio n of the investigation at issue exceeded the maximum time limit envisaged in this 
provision;  
• The MDCCE used facts available to determine dumping margins for Erdemir Group and 
Colakoglu in a manner inconsistent with Article 6.8 and paragraphs 1, 3, 5, 6, an d 7 of Annex 
II to the Anti -Dumping Agreement;    
• The MDCCE acted inconsistently with Article 6.9 of the Anti -Dumping Agreement by failing 
to disclose all "essential facts" with respect to its decision to use facts available to determine 
dumping margins fo r Erdemir Group and Colakoglu in a timely manner;  
• The MDCCE's determination that the domestic industry (Maghreb Steel) was "unestablished" 
is inconsistent with Footnote 9 to Article 3 and Articles 3.1 and 3.4 of the Anti -Dumping 
Agreement;  
• The MDCCE's dete rmination that the domestic industry (Maghreb Steel) suffered injury in 
the form of material retardation is inconsistent with Articles 3.1 and 3.4 of the Anti -Dumping 
Agreement; and  
• The MDCCE acted inconsistently with Articles 6.5, 6.5.1 and 6.9 of the Ant i-Dumping 
Agreement by failing to disclose information concerning the break -even threshold in its 
analysis of whether the domestic industry was "established".191 
 
7.2.  Turkey also requests the Panel to exercise the discretion accorded to it by Article 19.1 of the 
DSU and to suggest that Morocco bring its measures into conformity with its WTO obligations by 
immediately revoking the anti -dumping measure at issue. In several anti -dumping disputes where 
the violations at issue were of a "fundamental and pervasiv e"192 nature, or the extent and nature of 
the violation were such that the only appropriate and effective way of implementation was to repeal 
it193, panels made such a suggestion. In this dispute, the measures at issue contain multiple 
inconsistencies with Morocco's obligations under the WTO Anti -Dumping Agreement. Turkey 
considers that these inconsistencies are of a fundamental and pervasive nature. Therefore, Turkey 
considers that the only appropriate and effective way for Morocco to bring its measure into  
conformity is by revoking the measure forthwith.194  
 
7.3.  Furthermore, the MDCCE's finding of dumping rests entirely on its WTO -inconsistent application 
of facts available. Had the MDCCE conducted its investigation consistently with the Anti -Dumping 
Agree ment, it would have found no or only a de minimis  dumping margin for the Turkish 
exporters.195 Turkey has also demonstrated that the MDCCE's determination of injury by relying on 
the finding of material retardation was misplaced and lacked any factual suppor t. Finally, Turkey 
notes that next year, Morocco will have to decide whether to initiate a sunset review of this measure. 
Should the Panel uphold Turkey's claims, it would not appear to be appropriate for Morocco to try to 
implement findings relating to th e original investigation and, at the same time, conduct a sunset 
review with a view to continuing a measure that would have been found to be WTO -inconsistent.196 
 
7.4.  Therefore, if the Panel were to uphold Turkey's claims, the only appropriate way for Moro cco 
to comply with the Panel's findings of inconsistency would be by repealing the measure at issue.  
                                                
191 Turkey's first written submission, para. 11.1.   
192 Panel Report, Mexico – Steel Pipes and Tubes , para. 8.12.  
193 Panel Report, Guatemala — Cement I , para. 8.6; Panel Report, Guatemala  – Cement II , paras. 9.5 -
9.6; Panel Report, US — Offset Act (Byrd Amendment) , para. 8.6; Panel Report, Argentina — Poultry Anti -
Dumping Duties , para. 8.7.  
194 Turkey's first written submission, paras. 11.2 -11.4. 
195 Preliminary Determination,  Exhibit  TUR-6, para. 50. 
196 Turkey 's opening statement at the seco nd meeting with the Panel, para. 5.2 ; Turkey 's closing 
statement at the second meeting with the Panel, para. 1.17. WT/DS513/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 42 - 
 
  ANNEX B -2 
INTEGRATED EXECUTIVE SUMMARY OF THE  
ARGUMENTS OF MOROCCO  
I. INTRODUCTION  
 
1. Morocco 's investigating authority conducted the investigation and applied the anti -dumping 
duties in full conformity with Morocco 's obligations under the Agreement on Implementation of 
Article VI of the General Agreement on Tariffs and Trade 1994 ( "Anti-Dumping Agreement ") and the 
General Agreement on Tariffs and Trade 1994 ( "GATT 1994 "). Turkey 's claims therefore have not 
merit and should be reje cted. 
 
II. FACTUAL BACKGROUND  
 
2. On 21 January 2013, the Ministry of Industry, Commerce, Investment and Digital Economy in 
charge of External Trade ( "MDCCE ") of Morocco initiated an investigation on imports of certain hot -
rolled steel from the European Un ion and Turkey, falling under HS codes 72 08 (except  7208.10 and 
7208.40), 7211.13, 7211.14, and 7211.19.  
 
3. The investigation was initiated following  receipt of a p etition from Maghreb Steel on 
20 November 2012. The MDCCE reviewed the consistency and adequ acy of the information contained 
in the application, and concluded that the evidence presented in the application regarding  the 
existence of dumping of imports of hot -rolled steel pla tes originating in the European  Union and 
Turkey and the injury caused to  Maghreb Steel  by these dumped imports was  sufficient to justify 
the initiation of an anti -dumping investigation.  
 
4. The MDCCE notified the interested parties of the opening of the investigation and gave them 
an opportunity to participate in the proceedin gs. The MDCCE also sent questionnaires to the 
interested parties. Colakoglu and Erdemir Group, both of which are Turkish producers of hot -rolled 
steel exporting to Morocco, participated as interested parties and submitted questionnaire 
responses.  The MDCCE  accepted all requests from interested parties for the extension of time for 
the questionnaire responses.1 
 
5. The period of investigation for the dumping analysis was determined to be 1 January 2012 to 
31 December 2012. The period of investigation for the injury analysis was determined to be 
1 January 2009 to 31 December 2012.2 Maghreb Steel, the petitioner, is th e sole producer of hot -
rolled steel plates in Morocco. Thus, for the purposes of the investigation, the MDCCE considered 
Maghreb Steel  to constitute the domestic industry.3 
 
6. On 29 October 2013, the MDCCE issued a Preliminary Determination on the existen ce of 
dumping, injury, and causal link, and imposed provisional anti -dumping duties on the products at 
issue. On 20 June 2014, the MDCCE sent the Draft Final Determination on the existence of dumping, 
injury and causal link to the interested parties.4 
 
7. The MDCCE organized a meeting on 15 July 2014 at the request of the Turkish exporters.5 On 
12 August 2014, the MDCCE published the Final Determination on the existence of dumping, injury, 
and causal link, recommending the imposition of definitive anti -dump ing duties on imports of certain 
hot-rolled steel from Turkey and the European Union . The anti -dumping duties went into effect on 
26 September 2014 for a duration of five years.6 
                                                
1 Preliminary Determination, Exhibit TUR -6, para. 7.  
2 Preliminary Determina tion, Exhibit TUR -6, para. 9.  
3 Preliminary Determination, Exhibit TUR -6, para. 22.  
4 See Emails from the MDCCE to the interested parties regarding the Draft Final Determi nation, 
Exhibit  MAR-3. 
5 See Final Determination, Exhibit TUR -11, para. 17. 
6 Arrêté conjoint de ministre de l 'industrie, du commerce, de l 'investissement et de l 'économie 
numérique et du ministre de l 'économie et des finances n° 3024 -14 du 30 chaoual 1435 (27 août 2014) WT/DS513 /R/Add.1  
BCI deleted, as indicated [[***]]  
- 43 - 
 
  III. STANDARD OF REVIEW  
 
8. The standard of review set out in Articles 11 and  17.6 of the DSU requires a panel to determine 
whether the investigating authority 's evaluation of the facts was unbiased and objective . A panel, in 
making its determinations, must not assume the role of the initial trier of fact7, and may not conduct 
a de novo review.8 This means that a  panel may not substitute its own conclusion for those of the 
investigating authority9, but must focus on whether the conclusions reached by the investigating 
authority are "reasoned and adequate ".10 The Appellate Body has in dicated that a panel may not 
reject an investigating authority 's conclusions simply because the panel would have arrived at a 
different outcome if it were making the determination itself.11 
 
9. Thus, the investigating authority has discretion in weighing an d considering conflicting 
arguments and factual evidence. As long as the investigating authority 's establishment of the facts 
was unbiased and objective, the panel may not substitute its own judgment for that of the 
investigating authority, even if the pan el disagrees with the investigating authority 's 
determinations.12 
 
10. Article 17.6(ii) provides that  where the panel finds that a relevant provision of the Agreement 
admits of more than one permissible interpretation, the panel must find the authorities ' measure to 
be in conformity with the Agreement if it rests upon one of those permissible interpretations.  Thus, 
if the panel reviewing an anti -dumping measure finds  more than one permissible interpretation of a 
provision of the Anti -Dumping Agreement, the  panel may uphold a  measure that rests on one of 
those interpretations.13 
 
IV. BURDEN OF PROOF  
 
11. The burden of proof rests upon the party, whether complaining or defending, who asserts the 
affirmative of a particular claim or defence.14 The complaining pa rty in any given case must establish 
a prima facie  case of inconsistency of a measure with a provision of the WTO covered agreements, 
before the burden of showing consistency with that provision shifts to the defending party.15 The 
Appellate Body has explai ned that, to make a prima facie  case of breach of a WTO Agreement, the 
complaining party must provide both adequate evidence and legal argument tying the alleged facts 
to a legal claim.16 
 
12. Accordingly, Turkey, as the complaining party, bears the burden of demonstrating the claimed 
inconsistencies with the Anti -Dumping Agreement and the GATT 1994.  Failure of Turkey to make 
out a prima facie  case must lead to the dismissal of its claims.  
 
V. ARGUMENTS  
 
A. Turkey 's claims under Articles 3.1, 3.4, 6.5, 6.5.1 , 6.9 (in relation to the break -even 
threshold), and Footnote 9 of the Ant i-Dumping Agreement and Article  VI:6(a) of 
the GATT1994 are not within the Panel 's terms of reference  
 
13. Article 4.4 provides that consultations must be requested in writing and "shall give the reasons 
for the request, including identification of the measures at issue and an indication of the legal basis 
for the complaint ". Although Article 4.4 does not require a "summary sufficient to present the 
problem clearly ", it does require t he complaining party to indicate the legal basis for the complaint . 
                                                
portant application du droit antidumping définitif sur les importatio ns de tôles en acier laminées à chaud 
originaires de l 'Union européenne et de la Turquie (Bulletin Officiel N° 6296, 2 octobre 2014), Exhibit TUR -13. 
7 Appellate Body Report, US – Countervailing Duty Investigation on DRAMs , para. 188.  
8 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada) , para. 93.  
9 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada) , para. 99.  
10 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada) , para. 93.  
11 Appellate Body Reports, US – Softwood Lumber VI (Article 21.5 – Canada) , para. 99; and US – 
Countervailing Duty Investigation on DRAMS , para. 187.  
12 Panel Report, EU – Footwear (China) , para. 7.7.  
13 Panel Report, EU – Footwear (China) , para.  7.9. 
14 Appellate Body Report, US – Wool Shirts and Blouses , at p. 14; see also  Panel Report, China – 
Autos  (US), para. 7.6.  
15 Appellate Body Report, EC – Hormones , para. 104.  
16 Appellate Body Report, US – Gambling , para. 140 (quoting Appellate Body Report, US – Wool Shirts 
and Blouses , at p. 16).  WT/DS513/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 44 - 
 
  Turkey 's claims challenging various aspects of the MDCCE 's injury analysis were not included in the 
request for consultations and thus fall outside of the Panel 's terms of reference.  
 
14. Turkey 's request provides an overly generic reference to the "injury/causation determination " 
(in the singular) followed by the overly general statement that the "Moroccan authorities failed to 
provide a reasoned and adequate explanation of their finding of injury and causation ". It then lists 
Articles 3.1, 3.2, 3.4, and 3.5 – four different provisions each of which includes multiple obligations 
– without providing any specification or basis for any inconsistencies . The generic reference to 
"injury " and th e listing of four different provisions of the Anti -Dumping Agreement is not sufficient 
to indicate the legal basis of the complaint.  
 
15. Turkey is also asserting that Footnote 9 of the Anti -Dumping Agreement  and Article VI:6(a) 
of the GATT 1994 "require t hat an investigating authority ascertain whether an industry is 
'unestablished ' before it analyzes whether the establishment of an industry has been materially 
retarded ".17 However, Footnote 9 and Article VI:6  are not  mentioned in the consultations request . 
Furthermore, Turkey failed to include a claim under Footnote 9 in its panel request . The 
Appellate  Body has stated that, in the context of a panel request, "[i]dentification of the treaty 
provisions claimed to have been violated … is a minimum prerequisit e if the legal basis of the 
complaint is to be presented at all ".18 Turkey should thus have referred to Footnote 9 explicitly . 
Thus, Turkey 's claims under Footnote 9 and Article VI:6(a) are not within the Panel 's terms of 
reference.  
 
16. Turkey 's claims  under Articles 3.1 and 3.4focus specifically on establishment and material 
retardation . However, the consultations request makes no mention of either establishment or 
retardation.  Neither Article 3.1 not Article 3.4 refers to material retardation or establish ment. A 
reference to Article 3.1, without more, in no way indicates a claim under Footnote 9 . The mere listing 
of these provisions without more is insufficient to give an indication of the legal basis of Turkey 's 
claims, particularly in this case where est ablishment and retardation are not even mentioned in the 
provisions .  
 
17. Furthermore, Turkey 's consultations request did not indicate that Turkey took issue with the 
alleged failure by the investigating authority to assess all relevant factors or to cond uct an 
appropriate examination of each factor under Article 3.4 . Again, a mere listing of the provision 
without more is insufficient to indicate the legal basis of Turkey 's complaint.  
 
18. The reference in the consultations request to the MDCCE 's failure t o provide a reasoned and 
adequate explanation refers to a panel 's standard of review, not to a specific obligation imposed on 
investigating authorities in the Anti -Dumping Agreement . It is too vague to comply with the 
requirement to indicate the legal basi s of the complaints subsequently raised in Turkey 's panel 
request and to have given any meaningful notice to Morocco of those claims for purposes of the 
consultations.  The claims put forward by Turkey in its panel request and first written submission are 
not limited to the alleged failure to provide a reasonable and adequate explanation.  
 
19. For these reasons, Turkey 's claims regarding establishment  and retardation under Articles  3.1, 
3.4, Footnote 9, and Article VI:6(a) are not within the scope of the Pan el's terms of reference.  
 
20. Turkey 's claims regarding the break -even threshold under Articles 6.9, 6.5, and 6.5.1 are not 
mentioned in the consultations request . Articles 6.5 and 6.5.1 are not mentioned in the request for 
consultations at all and Article  6.9 is only mentioned in connection with the use of facts available . 
Neither confidentiality nor the break -even threshold is mentioned in the consultations request.  
 
21. Articles 6.5, 6.5.1, and 6.9 are independent of the injury/causation obligations in t he Anti -
Dumping Agreement.19 There is therefore nothing in the reference to "Injury Determination " that 
anticipates claims under Articles 6.9, 6.5, or 6.5.1.20 The reference in the consultations request to 
Article 6.9 was expressly tied to the use of facts a vailable, and thus cannot indicate a claim under 
Article 6.9 with regard to the Ministry 's injury analysis . Furthermore, a reference to Article 3.1 does 
not indicate a claim under Articles 6.5 or 6.5.1, as the designation of information as confidential 
                                                
17 Turkey 's rebuttal submission, para. 6.8.  
18 Appellate Body Report, Korea – Dairy , para. 124. See also Appellate Body Report, US – Countervailing 
and Anti -Dumping Measures (China) , para. 4.17.  
19 See Morocco 's second writt en submission, para. 29.  
20 See Turkey 's rebuttal submission, para. 2.21.  WT/DS513 /R/Add.1  
BCI deleted, as indicated [[***]]  
- 45 - 
 
  does not make an examination unobjective . Nor does the mere fact that information is not 
designated confidential make the examination objective.  
 
22. Contrary to Turkey 's assertions, the  statement in the consultations request about the alleged 
failure  "to provide a reasoned and adequate explanation of [the]  finding of injury and causation " 
does not indicate a claim under Article 6.9 . The requirement to provide a reasoned and adequate 
explanation is a general obligation to set out the rationale for the decis ion in the determination .21 A 
claim under Article 6.9 is a claim that the investigating authority failed to disclose information "before 
a final determination is made ". Thus, an allegation about a failure to properly explain the findings in 
the final determ ination does not anticipate a claim of lack of disclosure "before [the] final 
determination [was] made ".  
 
23. Furthermore, there is no basis for Turkey to say that it learned new information during the 
consultations and that it added the new claims on thi s basis as Turkey already had the Final 
Determination it in its possession when it requested consultations.  
 
24. For these reasons, Turkey 's claims under Articles 6.5, 6.5.1, and 6.9 (regarding the break -
even threshold) are not within the Panel 's terms of reference.  
 
25. Lastly, Turkey 's claim regarding "good cause " was not included in the panel request and, 
therefore, it is not within the Panel 's terms of reference.  By its plain terms, the claim in Turkey 's 
panel request concerns the alleged failure to req uire a non -confidential summary of the profitability 
threshold or an explanation of why it could not be summarized . There is nothing in the panel request 
that anticipates a claim regarding the alleged failure to assess good cause.  
 
26. There are at least t wo separate obligations in Article 6.5 irrespective of its relationship with 
Article 6.5.1 . The first obligation concerns the requirements that must be fulfilled for the information 
in question to be treated as confidential, including the assessment of goo d cause . As the Appellate 
Body has noted, under this first obligation, "the authority must objectively assess the 'good cause ' 
alleged for confidential treatment, and scrutinize the party 's showing in order to determine whether 
the submitting party has sufficiently substantiated its request ".22 The second  sentence provides that 
the investigating authority cannot disclose such information without permission .  
 
27. Turkey 's theory of a "balance " between Articles 6.5 and 6.5.1 is equally unconvincing and, in  
fact, is inconsistent with the approach Turkey has taken in its written submissions . Turkey is not 
making a challenge regarding the MDCCE 's acts with regard to the "balance " between the 
two provisions, but is making two separate claims under the two provi sions. In any event, many 
provisions of the WTO agreement seek to establish a balance between various interests.23 Indeed, 
each WTO agreement can be said to reflect a balance . Thus, under Turkey 's theory, mere mention 
in the panel request of one provision o f an agreement would allow the complaining party to raise 
claims under any other provision of the same agreement since such provisions establish a balance 
between various interests . This is not consistent with Article 6.2 of the DSU.  
 
28. In sum, Turkey 's panel request does not include a claim rega rding good cause under 
Article  6.5.24 The mere reference to Article 6.5 is insufficient in this case to present the problem 
clearly, and thus does not satisfy the requirements of Article 6.2 of the DSU . For this re ason, Morocco 
requests that the Panel find that Turkey 's claim regarding "good cause " is not within the Panel 's 
terms of reference.  
 
                                                
21 Appellate Body Report, China – HP-SSST (Japan) , para. 5.255.  
22 Appellate Body Report, EC – Fasteners , para. 539.  
23 See, for example, Appellate Body Report, EC – Fasteners (China) , paras. 611 -612; and Panel Report, 
Guatemala – Cement I , para. 7.52.  
24 Appellate Body Report, EC – Selected Customs Matters , para. 130; and Panel Report, US – OCTG 
(Korea) , para. 7.82. WT/DS513/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 46 - 
 
  B. The MDCCE 's use of facts available was consistent with Article 6.8 and Annex II to 
the Anti -Dumping Agreement  
 
29. The M DCCE 's reliance on facts available was fully consistent with Article 6.8 and Annex II to 
the Anti -Dumping Agreement . The Turkish producers reported 19,000 metric tonnes of sales to 
Morocco.25 However, the MDCCE found a discrepancy of about 10,000 metric ton nes between the 
disclosed sales from Turkey and Morocco 's official import statistics.26 This was a significant 
discrepancy, as the unreported sales constituted 50% of those reported and 30% of total sales. This 
discrepancy had to belong to Erdemir Group and  Colakoglu because they were the only Turkish 
producers exporting to Morocco during the period of investigation.27 
 
30. The Turkish producers were fully aware of all the information they were required to submit to 
the MDCCE, which included all the export sales of products produced by them, as  this information 
had already been specified in the questionnaire.28 Furthermore, the MDCCE requested information 
regarding the discrepancy from Erdermir Group in an email sent in December 201329, and the matter 
was disc ussed in the public hearing in February 2014.30 The hearing was attended also by 
Colakoglu.31 
 
31. Although the Turkish producers argued that the documents provided by the MDCCE 
corresponded to sales already disclosed32, it was not possible for the MDCCE to c onfirm this assertion 
on the basis of the information provided by the Turkish exporters . Both producers provided different 
movement certificates  and different invoices from different traders that they claimed showed that 
the unreported sales were included within the reported sales.33 Even if the weight in the documents  
submitted by the producers is the same as in the documents obtained by the MDCCE from the 
Customs, this does not prove that the transactions were the same, as a company can make two 
different export transactions for the same amount of product at an identical price.  
 
32. The movement certificates from the unreported sales  obtained from the Customs showed that 
the shipments were destined to Morocco and were signed by the producer/exporter, Erdemi r Group 
or Colakoglu . This shows that the Turkish producers were aware of the transactions and of the fact 
that Morocco was the final destination of  the exports . The movement certificates were all 
accompanied by a commercial invoice from a non -reported tra der.34 This further suggest ed that the 
transactions did not correspond to the reported sales that were accompanied by a different invoice . 
The Turkish producers did not provide an explanation as to the existence of two valid movement 
certificates, neither o f which indicated that it was an amendment of the other . Nor did the Turkish 
producers provide evidence that one of the movement certificates had been cancelled . This 
undermined the Turkish exporters ' allegation that the documents referred to the same sale s that 
had been reported . 
 
33. Thus, the MDCCE considered that the information provided by the Turkish exporters did not 
establish that these unreported  transactions indeed corresponded to those reported by the Turkish 
                                                
25 Final Determination, Exhibit TUR -11, para. 54.  
26 Final Determination, Exhibit TUR -11, para. 53; See also Preliminary Determination, Exhibit TUR -6, 
Tableau n°4 : Volume (en tonnes) des importations de tôles d 'acier laminées à chaud originaires de l 'Union 
Européenne et de la Turquie au cours de la période 2009 à 2012.  
27 Final Determination, Exhibit TUR -11, para. 54; Letter by Turkish Steel, 6 March 2014, Exhibit TUR -28 
(BCI).  
28 Questionnaire d 'enquête pour la mise en œuvre des mesures antidump ing, questionnaire destine aux 
producteurs / exportateurs vers le Maroc, Exhibit MAR -7. 
29 Final Determination, Exhibit TUR -11, para. 55.  
30 Final Determination, Exhibit TUR -11, para. 54.  
31 Final Determination, Exhibit TUR -11, paras. 18 -19, and 54.  
32 See Email from Erdemir Group to the MDCCE, 24 June 2014; email response from the MDCCE to 
Erdemir Group, 7 July 2014, Exhibit TUR -29 (BCI); Erdemir Group 's comments on the Draft Final 
Determination, 10 July 2014, Exhibit TUR -19 (BCI); Movement certificate, Exhibit MAR -12 (BCI); Colakoglu 's 
comments on the Draft Final Determination, 11 July 2014, E xhibit TUR -20 (BCI); Email from Colakoglu to the 
MDCCE, 24 June 2014; and email response from the MDCCE to Colakoglu, 7 July 2014, Exhibit TUR -30 (BCI).  
33 Erdemir Group 's comments on the Draft Final Determination, 10 July 2014, Exhibit TUR -19 (BCI); and 
Colakoglu 's comments on the Draft Final Determination, 11 July 2014, Exhibit TUR -20 (BCI); and Email from 
Colakoglu to the MDCCE, 24 June 2014 and email response from the MDCCE to Colakoglu, 7 July 2014, 
Exhibit  TUR-30 (BCI).  
34 See MDCCE 's emails to Erdemir Group and Colakoglu, 7 July 2014, E xhibit TUR -29 (BCI) and 
Exhibit  TUR-30 (BCI).  WT/DS513 /R/Add.1  
BCI deleted, as indicated [[***]]  
- 47 - 
 
  exporters or whether they were export  operations to Morocco distinct from those reported in their 
questionnaire responses.35 
 
34. Under such circumstances, it was reasonable for the MDCCE to conclude that the Turkish 
producers had not cooperated and decide to resort to facts available in calcu lating the dumping 
margin.36 In resorting to facts available, the MDCCE acted consistently with Article 6.8 of the Anti -
Dumping Agreement.  
 
35. The MDCCE 's reliance on facts available was also fully consistent with Annex II to the Anti -
Dumping Agreement . Pursuant to Annex II:1, the use of facts available is subject to the investigating 
authority having "specif[ied] in detail the information required ".37 In its questionnaire, the MDCCE 
requested the exporters to disclose all their sales to Morocco.38 The MDCCE also requested 
information regarding the unreported transactions and the non -reported traders from Erdemir Group 
during the investigation39, and the matter was discussed in a public hearing.40 Thus, the MDCCE 
acted consistently with Annex II:1.  
 
36. Contrary  to Turkey 's allegations, the MDCCE acted consistently with Annex II:3, 5, and 6 as 
it properly addressed the comments provided by Erdermir Group and Colakoglu to the Draft Final 
Determination.41 In the Final Determination, the MDCCE first explained the pos ition of the 
producers42, and explained that the additional information provided by the Turkish producers after 
the Draft Final Determination did not  establish that the unreported sales were included within the 
reported sales.43 Thus, the MDCCE sufficiently addressed the Turkish producers ' comments in the 
Final Determination, and gave reasons for the rejection of the information provided, consistently 
with Annex II.  
 
37. The obligation under Annex II:5 to make active efforts to use the information provided by  the 
interested parties does not establish an obligation on the investigating authority to accept 
information that does not fulfill the requirements under Annex II:3.44 Furthermore, the panel in US – 
Steel Plate recognized that flaws or gaps in parts of a da taset may taint other parts of it or make 
them unreliable or unusable, and that in such cases, the other parts can be discarded as well.45 If a 
significant amount of data is missing, this brings into question the reliability of the data that has 
been submit ted.46 The unreported sales constituted 50% of those reported and 30% of total sales, 
and therefore the distortion in the data set was substantial . The significant insufficiencies in the 
Turkish producers ' reported data called into question the integrity of  the entirety of the data 
submitted by these parties.47 Thus, the information rejected by the MDCCE was unreliable, contained 
serious flaws, did not fulfill the requirements under Annex II:3, and was far from "ideal". 
 
38. The period of time afforded to the  interested parties to provide comments under Annex II:6 
must be evaluated in the light of the circumstances of the case . The comment period was at the 
very end of the investigation . Furthermore, the interested parties never requested an extension or 
compl ained about the time limit provided for them . What is more, the interested parties were able 
to provide comments and documentation, which undermines the claim that the time period was 
insufficient.48 
 
39. Turkey has also failed to establish that the MDCCE a cted inconsistently with Annex II:7 
because it failed to explain in a reasoned and adequate manner how it calculated the non -cooperation 
                                                
35 Final Determination, TUR -11, para. 60.  
36 Final Determination, Exhibit TUR -11, paras. 58 and 61.  
37 Panel Report, Canada – Welded Pipe , para. 7.170.  
38 Questionnaire d 'enquête pour la mise en œuvre des mesures antidumping, questionnaire destine aux 
producteurs / exportateurs vers le Maroc, Exhibit MAR -7, pp. 13 -14. 
39 Email correspondence between the MDCCE and Erdemir Gro up, from 31 December 2013 to 
10 January 2014, Exhibit TUR -25. 
40 Final Determination, Exhibit TUR -11, para. 54.  
41 Turkey 's oral statement at the first substantive meeting of the Panel, paras. 3.16 and 3.18.  
42 Final Determination, Exhibit TUR -11, para. 59.  
43 Final Determination, Exhibit TUR -11, para. 60.  
44 Panel Rep ort, US – Steel Plate , para. 7.65.  
45 Panel Report, US – Steel Plate , paras. 7.60 -7.62. 
46 Morocco 's responses to the Panel 's questions after the first substantive meeting, para. 90.  
47 See Morocco 's responses to the Panel 's questions after the second substan tive meeting, paras. 21 -22. 
48 See Morocco 's first written submission, paras. 87 -88. WT/DS513/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 48 - 
 
  rate of 11%.49 In the Final Determination, the MDCCE stated that it relied on the information 
provided in the petition i n determining the non -cooperation rate as there were no other Turkish 
producers that could have served as a point of reference for the determination of the dumping 
margin for Erdemir Group and Colakoglu.50 Paragraph 7 expressly recognizes that the petition is a 
legitimate source of information where an investigating authority relies on facts available . The 
MDCCE had already verified the information provided by the domestic industry and considered that 
the allegations were sufficiently documented.51 In sum, th e MDCCE explained in a reasoned and 
adequate manner how it derived the 11% non -cooperation rate.  
 
40. Based on the foregoing, it is clear that there were no procedural deficiencies in the MDCCE 's 
decision to rely on facts available . Morocco therefore reque sts the Panel to reject Turkey 's claims 
under Article 6.8 and Annex II.  
 
C. The MDCCE informed the interested parties of the essential facts consistently with 
Article 6.9 of the Anti -Dumping Agreement  
 
41. When applying Article 6.9 in the context of Articl e 6.8, the essential facts that the investigating 
authority is expected to disclose are: (i) the precise basis for its decision to resort to facts available, 
such as the failure by an interested party to provide the information that was requested; (ii) the  
information which was requested from an interested party; and (iii) the facts which it used to replace 
the missing information.52 The MDCCE disclosed this information to the interested parties.53 
 
42. First, the MDCCE disclosed that it resorted to facts ava ilable because there was a significant 
discrepancy in the sales of about 10,000 metric tonnes originating from the Turkish producers, 
conducted by traders not reported by the producers in their questionnaire responses54 that the 
Turkish producers were not able to sufficiently explain.55 Second, the information which was 
requested from the Turkish producers consisted of all of their export sales to Morocco.56 This was 
specified in the questionnaire sent to the exporters.57 The MDCCE found that this information was 
not provided by the Turkish producers as they had not disclosed all their sales to Morocco.58 Both 
Erdemir Group and Colakoglu were made aware of the fact that there was a significant discrepancy 
between the official  import statistics and their disclosed sales at the latest in February 2014 after 
the public hearing.59 The MDCCE had already sent an email about the matter to Erdemir Group in 
December 2013.60 Third, the facts used to replace the missing information consist ed of information  
provided by the petitioner.61 
 
43. The requirement to disclose the "essential facts under consideration " may be met by disclosing 
a document summarizing the essential facts under consideration by the investigating authority or 
through the inclusion in the record of documents – such as verification reports,  a preliminary 
determination, or correspondence.62 An investigating authority is not required to disclose the record 
documents if it provides a document summarizing the information . The MDC CE fulfilled this 
obligation as it provided a summary of the unreported transactions in the Draft Final 
                                                
49 Turkey 's oral statement at the first substantive meeting of the Panel, para. 3.19.  
50 Final Determination, Exhibit TUR -11, para. 63.  
51 Report on the initiation of an investigation, Exhibit TUR -2, pp. 4 -5. 
52 Panel Report, China – Broiler Products , para. 7.317.  
53 See Morocco 's first written submission, paras. 137 -142. 
54 Draft Final Determination, Exhibit TUR -10, paras. 51 and 55 -56. 
55 Final Determination, Exhibit TUR -11, paras. 60-61. 
56 Questionnaire d 'enquête pour la mise en œuvre des mesures antidumping, questionnaire destine aux 
producteurs / exportateurs vers le Maroc, Exhibit MAR -7, and Draft Final Determination, Exhibit TUR -10, 
para.56.  
57 Questionnaire d 'enquête pou r la mise en oeuvre des mesures antidumping, questionnaire destine aux 
producteurs / exportateurs vers le Maroc, Exhibit MAR -7, pp. 13 -14. 
58 Draft Final Determination, Exhibit TUR -10, para. 56.  
59 Draft Final Determination, Exhibit TUR -10, para. 52.  
60 Email  correspondence between the MDCCE and Erdemir Gro up, from 31 December 2013 to 
10 January 2014, Exhibit TUR -25. 
61 Draft Final Determination, Exhibit TUR -10, para. 58. 
62 Panel Report, Argentina – Ceramic Tiles , para. 6.125.  WT/DS513 /R/Add.1  
BCI deleted, as indicated [[***]]  
- 49 - 
 
  Determination.63 What is more, the MDCCE disclosed to the Turkish producers the part of the sales 
and missing documentation it was allowed to  disclose un der Morocco 's Customs Code.64 
 
44. As to the essential facts regarding the anti -dumping duty rate, the MDCCE disclosed to the 
parties that it was imposing on the Turkish exporters the dumping margin contained in the domestic 
industry 's application and which  included information that it had already verified against official 
import statistics in the initial phase before opening the investigation.65 The MDCCE explained that 
the allegations in the petition were sufficiently documented.66 The Report on the initiati on of an 
investigation discloses the specialized trade publication from which the information was derived 
from67, and the MDCCE also provided a table with all of the information used in the dumping 
calculation.68 The MDCCE thus provided the "methodology empl oyed to arrive at the [anti -dumping] 
rate".69 
 
45. Thus, the MDCCE disclosed the essential facts regarding the anti -dumping rate imposed on 
Turkish producers, including the data used in the calculation, the sources of data, and the method 
used to calculate the margin of dumping.  
 
46. Lastly, The MDCCE informed the interested parties of the essential facts in sufficient time . The 
MDCCE circulated the Draft Final Determination on 20 June 2014, and requested comments by  11 
July 2014.70 There were thus 15 working  days from the disclosure of the essential facts to the 
deadline to submit comments. This constituted sufficient time within the meaning of Article 6.9 of 
the Anti -Dumping Agreement . The Turkish producers submitted comments and additional 
documentation wit hin the timeframe provided . Furthermore, the interested parties did not request 
an extension for the deadline, which again confirms that the Turkish producers considered the time 
provided sufficient to defend their interests . Thus, Turkey has failed to est ablish, based on the 
particular circumstances of the investigation, that the MDCCE acted inconsistently with Article 6.9 .  
 
47. For these reasons, Morocco respectfully requests that the Panel dismiss Turkey 's claims under 
Article 6.9 of the Anti -Dumping Ag reement.  
 
D. The MDCCE 's finding of material retardation of the establishment of the industry was 
fully consistent with Footnote 9 and Articles 3.1 and 3.4 of the Anti -Dumping 
Agreement, and Article VI:6(a) of the GATT 1994  
 
1. The MDCCE 's finding of "establishment " was consis tent with Article 3.1, Footnote  9, 
and Article VI:6(a)  
 
48. Turkey makes its claims regarding "establishment " under Footnote 9 to the Anti -Dumping 
Agreement and Article VI:6(a) of the GATT 1994 . However, there is no requirement und er Footnote 
9 or Article VI:6(a) that an investigating authority must determine that the industry in question is 
unestablished . Footnote 9 is a definitional provision and does not provide any obligations as to the 
application of the three forms of injury . Even if Footnote 9 did establish obligations, there is 
nevertheless no obligation under the Footnote or under Article VI:6(a) that an investigating authority 
must determine that the industry in question is unestablished .  
 
49. The operative part of Footnot e 9 and Article VI:6(a) is material retardation . Morocco does not 
see either provision as setting out establishment as a involving a binary state (established or 
unestablished) and requiring the investigating authority to determine whether the domestic ind ustry 
                                                
63 Draft Final Determination, Exhibit TUR -10, paras. 51 and 55; and Final Determination, Exhibit TUR -
11, para. 60.  
64 Email from Erdemir Group to the MDCCE, 24 June 2014 and email response from the MDCCE to 
Erdemir Group, 7 July 2014, Exhibit TUR -29 (BCI);  Article 45 ter 3° of Chapter V  of Morocco 's Customs Code, 
Exhibit MAR -13; and Morocco 's responses to the Panel 's questions after the fi rst substantive meeting, 
paras.  54-55. 
65 Draft Final Determination, Exhibit TUR -10, para. 58 and Report on the initiation of an investigation, 
Exhibit TUR-2, p. 5.  
66 Draft Final Determination, Exhibit TUR -10, para. 58; and Report on the initiation of an investigation, 
Exhibit TUR -2, p. 5.  
67 Report on the initiation of an investigation, Exhibit TUR -2, pp. 4 -5. 
68 Report on the initiation of an investigation, Exhibit TUR -2, p. 5.  
69 Turkey 's responses to the Panel 's questions after the first substantive meeting, para. 59.  
70 Emails from the MDCCE to the interested parties regarding the Draft Final Determination 
(20 June 2013), Exhibit MAR -3. WT/DS513/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 50 - 
 
  is in state 1 (established) or state 2 (unestablished) . Instead, establishment seems to be a process 
without a clear dividing line between two states and the relevant question would be whether the 
process has been slowed down, delayed, or held back . Thus, the test for material retardation looks 
into the progression of the domestic industry, and does not require the investigating authority to 
assess as a threshold matter whether the domestic industry has failed to reach a specific point 
(establishment) .  
 
50. According to Turkey, the obligations in Article 3.1 also apply to the determination of 
establishment.71 Turkey 's argument under Article 3.1 is necessarily predicted on the existence of an 
obligation to determine establishment flowing from a separate  provision . Turkey seems to 
acknowledge that Article 3.1, by itself, does not create that obligation.72 
 
51. Morocco therefore submits that the MDCCE was not under an obligation to assess whether the 
domestic industry was established in the investigation at  issue. For this reason, Turkey 's claims 
under Footnote 9, Article 3.1, and Article VI:6(a) should be dismissed.  
 
52. Even if the Panel finds that an investigating authority is required to make a determination that 
the domestic industry is not "established " before assessing retardation, the MDCCE conducted this 
analysis in accordance with Article VI:6(a) of the GATT 1994, and Article 3.1 and Footnote 9 to the 
Anti-Dumping Agreement.  
 
53. In assessing whether the domestic industry was estab lished, the MDCCE analyzed five  factors 
derived from U.S. anti -dumping practice: (1) when domestic industry began production; (2) whether 
the production has been steady or start -and-stop; (3) the size of domestic production compared to 
the size of the domestic market as a w hole; (4) whether the domestic industry has reached a 
reasonable "break -even" point; and (5) whether the activities are truly a new industry or merely a 
new product line of an established industry.73 Based on both an individual assessment of each factor 
and an analysis of the factors as a whole, the MDCCE considered that Maghreb Steel was not an 
established industry.74 
 
54. First, the MDCCE considered that data from a time period of at least three years was required 
for an analysis of material injury based on  international practice and the nature of the industry in 
question, including the significant start -up costs and the size of the investment.75 Such data did not 
exist for the domestic industry, which had existed for less than three years.76 
 
55. The Guidelines from the WTO Committee on Anti -Dumping Practices ( "Committee Guidelines ") 
referred to by Turkey support the MDCCE 's analysis in the challenged investigation. The Committee 
Guidelines  specifically recognize that, as a general rule, the period of data collection for injury 
investigations normally should be at least three years .77 The Committee Guidelines therefore 
recognize an exception for when a party  from whom data is being gathered ha s existed for a lesser 
period.78 This situation involving a single party among several parties that constitute the domestic 
industry must be distinguished from the situation where the domestic industry as a whole has existed 
for a shorter period.  Additional ly, the Committee itself recognized that the "guidelines do not 
preclude investigating authorities from taking account of the particular circumstances of a given 
investigation in setting the periods of data collection for both dumping and injury, to ensure  that 
they are appropriate in each case ". In its analysis, the MDCCE specifically referred to the nature of 
the hot -rolled steel industry, and therefore made an  objective an unbiased determination that there 
was not sufficient data from Maghreb Steel to co nduct an analysis of material injury.79 
                                                
71 Turkey's responses to the Panel 's questions after the first substantive meeting, para. 99.  
72 Furthermore, it has already been determined that Article 3.1 does not establish independent 
obligations which can be judged in the abstract, or in isolation and separa tely from the substantive 
requirements set out in the remainder of Article 3. (Panel Report, China – Cellulose Pulp , para. 7.13)  
73 Final Determination, Exhibit TUR -11, paras. 81 -110. 
74 Final Determination, Exhibit TUR -11, para. 111.  
75 Final Determination, Exhibit TUR -11, paras. 87 and 90; and Report on the Initiation of the 
Investigation, Exhibit TUR -2, pp. 5 and 11.  
76 Preliminary Determination, Exhibit TUR -6, paras. 74 -76. 
77 Recommendation Concerning the Periods of Data Collection for Anti -Dumping Investig ations, 
16 May 2000, G/ADP/6, para. 1(c).  
78 Recommendation Concerning the Periods of Data Collection for Anti -Dumping Investigations, 
16 May 2000, G/ADP/6, para. 1(c).  
79 Final Determination, Exhibit TUR -11, para. 91; and Report on the Initiation of the Inv estigation, 
Exhibit TUR -2, pp. 5 and 11.  WT/DS513 /R/Add.1  
BCI deleted, as indicated [[***]]  
- 51 - 
 
   
56. Second, the MDCCE noted that Maghreb Steel 's market share in the merchant market had 
been obtained due to its sales at a loss, and therefore was not reflective of the industry being 
"established ".80 The MDCCE then  observed that Maghreb Steel was far from reaching its break -even 
threshold81, which demonstrates that its sales were made at a loss all three years.82 In order for an 
industry to be considered to be "set up on a permanent or secure basis " and to be "stable ", it must 
have achieved production and sales sufficient to produce a profit . Any market share initially achieved 
with losses necessarily reveals only a temporary state and not sustainability . Those sales will 
necessarily cease unless they can be made at a profit.  
 
57. Third, the MDCCE observed that Maghreb Steel was far from reaching its break -even 
threshold.83 Turkey 's claim that the MDCCE determined the break -even threshold on the basis of a 
calculation that reflects the costs of all sales but the revenues  from only a portion of the sales is 
incorrect.84 The break -even threshold took into consideration both the captive transfers and 
merchant market sales.85 In calculating the break -even threshold, account was taken of the 
quantities to be sold on the merchant  market (based on market price) and of the quantities intended 
for Maghreb Steel 's own consumption (based on a hypothetical price that was equivalent to the 
market price) . Thus, the break -even threshold did consider the "revenues " from the entire output of  
Maghreb Steel, even if in commercial terms there were no "sales" between the hot -rolled and cold -
rolled steel units in Maghreb Steel.86 For these reasons, the MDCCE appropriately relied on the break -
even threshold in analyzing whether the domestic industry  was established.  
 
58. Fourth, the MDCCE considered that Maghreb Steel had experienced abrupt and significant 
changes in its production volumes, which suggested that its production had not been stabilized.87 
The MDCCE presented the indexed data on the basis  of which the determination was made in the 
Preliminary Determination88, and further analyzed the data in the Final Determination.89 In the Final 
Determination, the MDCCE considered, based on the monthly data, that there were abrupt and 
significant changes i n the production volumes from one month to the next, and a sudden interruption 
of production in February 2012.90 The MDCCE 's determination of the stability of Maghreb Steel 's 
production was based on its unbiased and objective analysis of the monthly production volumes . 
The Panel should decline Turkey 's attempt to have it substitute its own judgment for that of the 
investigating authority in this matter.  
 
59. Turkey 's claims regarding the  possible reasons behind the rise and decline in Maghreb Steel 's 
production are to be assessed in the context of causation under Article 3.5 as such a requirement is 
not found in the claims actually raised by Turkey in these proceedings.91 Turkey 's arguments 
regarding the effects of the "economic crisis and the drop in t he world prices " and "trends in the 
volume of imports " concern non -attribution factors, that is, alleged known factors other than the 
dumped imports that may be contributing to injury . In fact, the MDCCE analyzed both issues as part 
of its causation analys is.92 In the same vein, the relationship between domestic demand and the 
fluctuations in the domestic industry 's production is an issue to be considered in the context of 
causation under Article 3.5, and is not a requirement under "establishment ". Indeed, t he MDCCE 
considered the effects of domestic demand in the context of its causation analysis93, and found that 
there was no correlation between domestic demand and the retardation suffered by Maghreb Steel.94 
Turkey has not raised a claim under Article 3.5 . 
                                                
80 Final Determination, Exhibit TUR -11, para. 95.  
81 Final Determination, Exhibit TUR -11, para. 100.  
82 See Morocco 's responses to the Panel 's questions after the second substantive meeting, paras. 48 -49. 
83 Final Deter mination, Exhibit TUR -11, para. 100.  
84 Turkey 's oral statement at the first substantive meeting of the Panel, para. 4.5. 
85 MAGHREB STEEL's Questionnaire Response, Section G, Exhibit MAR -8, p. 9; and Preliminary 
Determination, Exhibit TUR -6, Tableau n°2:  Seuil de rentabilité de l'activité LAC de MAGHREB STEEL.  
86 Final Determination, Exhibit TUR -11, para. 138.  
87 Final Determination, Exhibit TUR -11, para. 103.  
88 Preliminary Determination, Exhibit TUR -6, Tableau n°3: Production mensuelle de MAGHREB STEEL en 
LAC entre 2010 et 2012 (en milliers de tonnes).  
89 Final Determination, Exhibit TUR -11, para. 103.  
90 Final Determination, Exhibit TUR -11, para. 103.  
91 See Moroc co's responses to the Panel 's questions after the second substantive meeting, paras. 42 -44. 
92 Preliminary Determination, Exhibit TUR -6, paras. 168 -177 and 190 -194; and Final Determination, 
Exhibit TUR -11, paras. 203, 207, and 209.  
93 Preliminary Determinati on, Exhibit TUR -6, para. 175; Final Determination, Exhibit TUR -11, para. 206.  
94 Final Determination, Exhibit TUR -11, paras. 203 and 209.  WT/DS513/ R/Add.1  
BCI deleted, as indicated [[***]]  
- 52 - 
 
   
60. Fifth, the MDCCE 's finding that the domestic industry  constituted a new industry was based 
on a collective assessment of various factors . The MDCCE noted that there was no prior production 
of hot -rolled steel in Morocco . The MDCCE also noted the physic al separation of production facilities, 
the size of the investment undertaken, and different customer networks and distribution channels 
between Maghreb Steel 's hot -rolled and cold -rolled steel production.95 After considering these 
factors, the MDCCE conclu ded that the starting of hot -rolled steel production constituted a new 
industry.96 
 
61. The terms "domestic industry " and "such industry " must be understood to refer to the 
domestic industry as defined by the investigating authority pursuant to Article 4.1 . If Turkey 
disagrees with the manner in which the MDCCE defined the domestic industry in the underlying 
investigation, it should have raised a claim under Article 4 of the Anti -Dumping Agreement . However, 
Turkey has not raised such a claim and thus it woul d be inappropriate for the Panel to second -guess 
the MDCCE 's definition of the domestic industry .  
 
62. For the reasons addressed above, Morocco respectfully requests the Panel to find that the 
MDCCE 's establishment of the facts was proper and their evalua tion was unbiased and objective . 
Consequently, the Panel should dismiss Turkey 's claims under Footnote 9 and Article 3.1 of the Anti -
Dumping Agreement, and Article VI:6(a) of the GATT 1994.  
 
2. The MDCCE 's determination of retardation  was fully c onsistent with Articles 3.1 
and 3.4 of the Anti -Dumping Agreement  
 
63. Turkey 's allegation that the MDCCE failed to analyze 6 of the 15 factors listed in Article 3.4 is 
unfounded.97 In fact, the MDCCE analyzed each of the 15 factors listed in Article 3.4 of the Anti -
Dumping Agreement, including return on investments,  factors affecting domestic prices, actual and 
potential negative effects on cash flow, wages,  growth, and the ability to raise capital or investments.  
 
64. The Appellate Body has clarified that Article 3 .4 does not regulate the manner in which the 
results of the analysis of each injury factor are to be set out in the published documents.98 In general, 
Article 3 does not provide a "prescribed template or format that an investigating authority must 
adhere to  in making its determination of injury ".99 A panel conducting an assessment of an anti -
dumping measure may find in the record sufficient evidence to satisfy itself that a factor has been 
evaluated, even in cases where a separate record of the evaluation of that factor has not been 
made.100  For example, the analysis of growth has been found to necessarily entail an analysis of 
certain other factors listed in Article 3.4 and, vice versa , the evaluation of those other factors could 
cover also the evaluation of t he factor growth.101 
 
65. The precise location of the analysis is also not determinative of the issue of whether a certain 
factor has been analyzed . For example, the panel in China – Cellulose Pulp  did not consider it 
problematic that certain parts of the ex amination of the impact of the dumped imports on the state 
of the domestic industry were included in the causation analysis.102 
 
66. Because the break -even threshold is the point where the totality of the company 's revenue 
equals the totality of its costs103, the discussion of the break -even threshold also addressed return 
on investment, actual and potential negative effects on cash flow, and the ability to raise capital or 
investments.104 Failure to meet the break -even threshold means that sales are made at a lo ss. Sales 
made at a loss mean negative cash flow during the same period . This is because the industry is 
spending more paying for its costs than it is receiving in sales revenues . Thus, the finding that the 
                                                
95 See Preliminary Determination, Exhibit TUR -6, paras. 120 -121. 
96 Final Determination, Exhibit TUR -11, paras. 108 -109. 
97 Turkey 's first written submission, para. 9.16.  
98 Appellate Body Report, EC – Tube or Pipe Fittings , para. 161.  
99 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.141.  
100 Appellate Body Report, EC – Tube or Pipe Fittings , para. 161.  
101 Appellate Body Report, EC – Tube or Pipe Fittings , para. 162.  
102 Panel Report, China – Cellulose Pulp , para. 7.136 (quoting Appellate Body Reports, China – HP-SSST 
(Japan) / China – HP-SSST (EU) , para. 5.141).  
103 Preliminary Determination, Exhibit TUR-6, para. 83.  
104 See Morocco 's first written submission, para. 229;  Morocco 's responses to the Panel 's questions after 
the first substantive meeting, para. 131; and Morocco 's second written submission, paras. 180 -183. WT/DS513 /R/Add.1  
BCI deleted, as indicated [[***]]  
- 53 - 
 
  domestic industry did not meet the break -even thr eshold also addresses the actual and potential 
negative effects on cash flow . It also means that the return on investments was negative . This is 
because the fact that production had not achieved the break -even threshold means that the gains 
from the invest ment were less than the cost of the investment . The ability to raise capital or 
investments depends on cash flow and return on investments . Negative cash flow and return on 
investment would make it exceedingly difficult for the domestic industry to attract  capital or 
investment . Thus, the assessment of the break -even threshold provides sufficient evidence that the 
return on investments, the effects on cash flow, and the ability to raise capital or investments were 
evaluated.105 
 
67. As to the factor "wages ", the MDCCE noted that Maghreb Steel announced a layoff of 400 
employees in 2012106 and a "massive layoff " of 300 employees in 2013.107 Even though the layoffs 
took place only in 2013, it was clear already after the 2012announcement that a significant number 
of employees would lose their jobs . The announcement of layoffs in 2012 would already exert 
downward pressure on wages or would have had, at the very least, a "chilling effect " on them . Thus, 
by addressing employment, the MDCCE also addressed wages.  
 
68. As to growth, in  EC – Tube or Pipe Fittings , the Appellate Body found that "growth " can be 
reflected in the performance of certain other injury factors listed in Article 3.4 and therefore the 
analysis of these other factors would satisfy the requirement to ana lyze growth.108 The panel in 
Egypt – Steel Rebar  also found that the investigating authority had addressed the "growth " factor 
by addressing sales volume and market share.109 
 
69. Given that it was undertaking a material retardation analysis, the MDCCE examine d certain 
factors in the light of reasonably anticipated levels . In particula r, the MDCCE noted that 
Maghreb  Steel's sales levels remained well below projections, recording differences of up to -74%, 
-71%, -67% for the years 2010, 2011, and 2012 respective ly.110 Additionally, it found that Maghreb 
Steel had not reached its projected level of market share, and in any case almost all its sales were 
made at a loss.111 Additionally, Maghreb Steel had experienced negative trends in all the other 
factors evaluated . The MDCCE concluded in the investigation that Maghreb Steel did not reach its 
reasonably anticipated production levels in 2010 -2012112; that its actual capacity utilization rates 
were significantly lower than those projected in the business plan and that the rates were much 
lower than those reasonably anticipated113; that it had already announced the layoff of 300 
employees114 and was anticipating having to lay off at least 400 employees115 and that it had 
experienced a sharp decline in productivity measured in annu al production per person employed116; 
that its stocks had increased between 2009 and 2011, and had a significant remaining stock still in 
2012117; and that it had experienced a deterioration in the profitability of its production activities.118 
The factor "growt h" is reflected in the performance of all these factors combined . That the MDCCE 
considered all of these factors and found that Maghreb Steel had not reached its reasonably 
anticipated levels with regard to any of them sufficiently establishes that the MDC CE considered 
"growth " under the standard set out by the Appellate Body in EC – Tube or Pipe Fittings  and the 
panel in Egypt – Steel Rebar . 
 
                                                
105 See Morocco 's first written submission, paras. 229 -233. 
106 Preliminary Determination, Exhibit TUR -6, para. 150.  
107 Final Determination, Exhibit TUR -11, para. 183.  
108 Appellate Body Report, EC – Tube or Pipe Fittings , para. 165.  
109 Panel Report, Egypt – Steel Rebar , para. 7.37.  
110 Final De termination, Exhibit TUR -11, para. 175.  
111 Preliminary Determination, Exhibit TUR -6, para. 148; and Final Determination, Exhibit TUR -11, 
paras. 178 -180. 
112 Preliminary Determination, Exhibit TUR -6, paras. 134 -136; and Final Determination, Exhibit TUR -11, 
para. 167.  
113 Preliminary Determination, Exhibit TUR -6, paras. 139 and 143; and Final Determination, Exhibit TUR -
11, paras. 168 and 172.  
114 Final Determination, Exhibit TUR -11, para. 182.  
115 Preliminary Determination, Exhibit TUR -6, para. 150.  
116 Preliminary Dete rmination, Exhibit TUR -6, para. 151.  
117 Preliminary Determination, Exhibit TUR -6, paras. 153 -154; and Final Determination, Exhibit TUR -11, 
para. 187.  
118 Preliminary Determination, Exhibit TUR -6, para. 157; and Final Deter mination, Exhibit TUR -11, 
para. 194. WT/DS513/ R/Add.1  
BCI deleted, as indicated [[***]]  
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  70. As to the factors affecting domestic prices, Morocco notes that the MDCCE explicitly assessed 
this factor.119 For example in its causation analysis, the MDCCE analyzed the alleged increase in the 
price of raw materials.120 Accordingly, the MDCCE did address the factors affecting domestic prices.  
As Morocco has noted, the precise location of the analysis is not determin ative of the issue of whether 
a certain factor has been analyzed.121 
 
71. The MDCCE thus did not fail to consider these factors in its assessment . As the MDCCE noted, 
the relevance of the factors listed in Article 3.4 will vary between an ordinary injury analysis and an 
analysis of material retardation . At the very least, the analysis of all of the Article 3.4 factors is made 
more difficult in a material retardation analysis given the absence of historical data.122 To require an 
investigating authority to ad dress the Article 3.4 factors with the same rigor in a material retardation 
analysis than in an ordinary injury analysis would blur the distinction between the two concepts and 
would ignore the practical limitations that confront an investigating authority  where it is analyzing 
material retardation.  
 
72. It is important to underscore that the respondents did not challenge the MDCCE 's analysis of 
these factors during the investigation . Nor did they ever submit evidence that trends in these factors 
undermined  the MDCCE 's conclusion of retardation . Turkey has also failed to demonstrate in these 
proceedings that respondents provided any evidence relating to these factors that would undermine 
the MDCCE 's conclusion.  For all these reasons, the MDCCE correctly anal yzed all 15  factors listed in 
Article 3.4.  
 
73. Turkey 's claim that the MDCCE acted inconsistently with Article 3.4 because it "failed to assess 
the relevance of the captive market in its injury determination "123 is also unfounded .  
 
74. The Appellate Body i n US – Hot-Rolled Steel  found it permissible for an investigating authority 
to take a fragmented approach to the domestic industry by looking at particular parts, sectors, or 
segments within a domestic industry . The Appellate Body said it is permissible fo r an investigating 
authority not to examine all of the other parts that make up the industry if it provides an explanation 
as to why it is not necessary to examine directly or specifically the other parts of the domestic 
industry.124 The MDCCE explained why it focused on the merchant market in its injury analysis.  
 
75. The domestic market is characterized by a clear separation between the "captive market " and 
the "merchant market ", and Maghreb Steel 's captive sales are not in direct competition with 
imports.125 Furthermore, the MDCCE clarified that there is no competition because, first, the 
domestic producer physically transfers, without creating an invoice, the hot -rolled for the captive 
market, i.e. for its own use. Secondly, the downstream industry has made virtually no purchases 
from independent suppliers as Maghreb Steel can produce hot -rolled steel by itself.126 For these 
reasons, the MDCCE considered that it was not relevant to consider the captive market in the 
retardation analysis . Thus, the MDCCE acted c onsistently with the approach outlined in US – Hot-
Rolled Steel  as it provided an explanation as to why it was not necessary to examine the captive 
market specifically.127 
 
76. The captive market does not function according to the market conditions . When tra nsferring 
hot-rolled steel to its cold -rolled steel production, Maghreb Steel does not decide between the use 
of its own hot -rolled steel and imported hot -rolled steel based on their prices . There is therefore no 
competition in the captive market.128 Intra-company transfers of hot -rolled steel are a function of 
cold-rolled steel production and sales . This is in no way an indication as to how Maghreb Steel is 
doing in its hot -rolled steel production.  
 
                                                
119 Final Determination, Exhibit TUR -11, para. 145; Final Determination, Exhibit TUR -11, paras 221 -225. 
120 Final Determination, Exhibit TUR -11, paras 221 -225. 
121 Panel Report, China – Cellulose Pulp , para. 7.136 (quoting Appellate Body Reports, China – HP-SSST  
(Japan) / China – HP-SSST (EU) , para. 5.141).  
122 Preliminary Determination, Exhibit TUR -6, para. 126.  
123 Turkey 's first written submission, heading 9.2.  
124 Appellate Body Report, US – Hot-Rolled Steel , para. 204.  
125 Final Determination, Exhibit TUR -11, para. 137. 
126 Final Determination, Exhibit TUR -11, para. 138.  
127 Appellate Body Report, US – Hot-Rolled Steel , para. 204.  
128 Final Determination, Exhibit TUR -11, para. 137.  WT/DS513 /R/Add.1  
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  77. Nonetheless, the captive market was not entirely ignore d in the retardation analysis. The 
MDCCE took the captive market into consideration in its analysis of the break -even threshold.129 
Therefore, the captive market was necessarily also taken into consideration in the analysis on the 
return on investment, actua l and potential negative effects on cash flow, and the ability to raise 
capital or investments.130 In addition, the MDCCE 's analysis of employment (and thereby also wages) 
or output  did not distinguish between the two markets.131 Accordingly, Morocco requests the Panel 
to dismiss Turkey 's claims regarding the MDCCE 's treatment of the captive market.  
 
78. Turkey errs in arguing that the MDCCE 's reliance on the McLellan report was inappropriate . 
The MDCCE properly recognized that there were certain shortcoming in  the McLellan report, but 
based on its assessment of the projections in the report in light of what actually happened, the 
MDCCE came to the conclusion that the McLellan report, and the business plan which was based on 
the report, were appropriate referenc e points for its assessment of retardation.132 The MDCCE thus 
did not simply accept the projections, but rather assessed them in light of what actually happened 
and analyzed their appropriateness based on the facts before it . Therefore, the MDCCE reached its  
conclusion on the appropriateness of the McLellan report based on an unbiased and objective 
assessment of the facts . For these reasons, Turkey 's claims regarding the MDCCE 's use of the 
McLellan report should be rejected.  
 
79. In sum, the MDCCE 's determina tion of material retardation was based on positive evidence 
and involved an objective examination consistently with Articles 3.1 and 3.4 of the Anti -Dumping 
Agreement . Thus, Morocco requests the Panel to reject Turkey 's claims under Articles 3.1 and 3.4.  
 
E. The MDCCE acted consistently with Articles 6.5, 6.5.1, and 6.9 of the Anti -Dumping 
Agreement  with respect to the disclosure of the break -even threshold  
 
80. Turkey 's claims under Articles 6.5, 6.5.1, and 6.9 are unfounded . Maghreb Steel provided the 
data regarding the break -even threshold as confidential information133 and on this basis the MDCCE 
treated the data, and the figure itself, as confidential.134 In the Preliminary Determination, the 
MDCCE provided information regarding the break -even threshold, bu t redacted the actual number . 
The redaction indicates that the figure was not provided because it was confidential information.135 
 
81. Article 6.5.1 requires interested parties that provide confidential information to furnish non -
confidential summaries that  are in sufficient detail to permit a reasonable understanding of the 
substance of the information submitted in confidence . Maghreb Steel 's confidential questionnaire 
response fulfills these requirements by indicating the factors that were taken into consi deration in 
the calculation of the break -even threshold.136 The questionnaire response also provides information 
on the more detailed variables behind these factors, and for example the components of the fixed 
costs.137 Maghreb Steel also explained that the br eak-even threshold corresponds to the local sales 
volume that is required to obtain a zero overall margin in the absence of significant export sales, as 
originally predicted in the investment plans.138 
 
82. The MDCCE based its calculations of the break -even threshold on the information obtained 
from Maghreb Steel.139 The MDCCE disclosed what it understood to be the break -even threshold, 
noting that "[u]ne enterprise attaint son seuil de rentabilité lorsque la totalité de ses recettes est 
égale à la totalité de ses coûts ",140 and also that the break -even threshold refers to a volume of 
                                                
129 Morocco 's first written submission, para. 191;  and Morocco 's oral statement at the first s ubstantive 
meeting of the Panel, para. 55.  
130 See Morocco 's first written submission, para. 229.  
131 Preliminary Determination, Exhibit TUR -6, para. 135. 
132 Final Determination, Exhibit TUR -11, paras. 159 -163. 
133 See MAGHREB STEEL's Questionnaire Response, Sect ion G, Exhibit MAR -8. 
134 Preliminary Determination, Exhibit TUR -6, Tableau n°2: Seuil de rentabilité de l'activité LAC de 
MAGHREB STEEL and para. 87. 
135 See, for example, Panel Reports, China – GOES , China – Autos (US) , and China – Broiler Products . 
136 MAGHRE B STEEL's Questionnaire Response, Section G, Exhibit MAR -8, p. 8.  
137 MAGHREB STEEL's Questionnaire Response, Section G, Exhibit MAR -8, p. 6.  
138 MAGHREB STEEL's Questionnaire Response, Section G, Exhibit MAR -8, pp. 8 -9. 
139 Preliminary Determination, Exhibit TUR -6, Tableau n°2:  Seuil de rentabilité de l 'activité LAC de 
MAGHREB STEEL.  
140 Preliminary Determination, Exhibit TUR -6, para. 83. WT/DS513/ R/Add.1  
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  production.141 The MDCCE also disclosed the percentage of the break -even level that had been 
achieved by Maghreb Steel, noting that "la production réalisée par MAGHREB STEEL au cours d e 
l'année 2012 représente à peine les 63% de son seuil de rentabilité dans une conjoncture normale 
de marché ".142 
 
83. Morocco recalls that the Turkish respondents never objected to the treatment of the break -
even threshold as confidential during the course of the investigation, nor did the Turkish respondents 
request the disclosure of additional information.143 In fact, the Turkish respondents did not even 
request access to the administrative record containing the non -confidential version of Maghreb 
Steel's questionnaire response.  
 
84. Thus, Maghreb Steel 's non -confidential questionnaire response provided a summary of the 
data pertaining to the break -even threshold in sufficient detail to permit a reasonable understanding 
of the substance of the information s ubmitted in confidence . Therefore, the MDCCE acted 
consistently with Articles 6.5 and 6.5.1.  
 
85. As to Turkey 's claim under 6.9, Morocco notes that Article 6.9 must be interpreted coherently 
with Article 6.5, which recognizes that confidential information  cannot be disclosed . To interpret the 
requirement under Article 6.9 to require a disclosure of confidential information would create a 
conflict between Articles 6.5 and 6.9 . Compelling an investigating authority to disclose confidential 
information as par t of the "essential facts " would contradict the clear prohibition in Article 6.5 against 
disclosure of confidential information.  Maghreb Steel provided a non -confidential summary of the 
break -even threshold, and thus the MDCCE acted consistently also with Article 6.9.  
 
86. Accordingly, Morocco respectfully requests the Panel to dismiss Turkey 's claims under Articles 
6.5, 6.5.1, and 6.9.  
 
F. The MDCCE conducted the investigation consistently with Article 5.10  of the Anti -
Dumping Agreement  
 
87. Morocco 's inve stigating authority conducted the anti -dumping investigation in an efficient, 
orderly and fair manner . Turkey has not identified any delays that were due to inaction by the 
investigating authority .  
 
88. The language of Article 5.10 is similar to the langu age used in Articles 12.8, 12.9, and 17.5 
of the DSU.144 The timeframes in these DSU provisions have not been interpreted as rigid deadlines 
that can never be exceed . Given the similarities in lan guage, the timeframe in Article  5.10 should 
be interpreted sim ilarly. This approach would also take into consideration the significant differences 
in resources between Members, especially in the case of developing and least -developed 
Members.145 DSU disputes, like anti -dumping investigations, involve competing interest s and are 
subject to similar due process considerations . The differences between the two  processes are 
artificial . Most WTO disputes are initiated to secure the rights of exporters . Thus, there is no 
convincing reason why the flexibility with whic h the tim eframes under Articles  12.8, 12.9, and 17.5 
of the DSU have been interpreted should not apply under Article 5.10 of the Anti -Dumping 
Agreement.  
 
89. Turkey 's approach under Article 5.10 is too rigid and may in fact harm the due process rights 
of interested  parties in cases where the investigating authority would otherwise not have time to 
properly investigate the matter due to, for example, late submission of documentation or comments . 
With regard to the challenged investigation, Morocco notes that Turkey h as argued in these 
proceedings that the MDCCE did not give sufficient time for the interested parties to respond to the 
Draft Final Determination . Had the MDCCE  finished the investigation within the 18 -month timeframe, 
it could have given even less time fo r the interested parties, in addition to which it would not have 
had sufficient time to review the comments provided by the Turkish producers . Thus, in the interest 
of ensuring the due process rights of interested parties, it may in some cases be necessary  to exceed 
the 18 -month timeframe . Such was the case in the challenged investigation.  
                                                
141 Preliminary Determination, Exhibit TUR -6, Tableau n°2:  Seuil de rentabilité de l 'activi té LAC de 
MAGHREB STEEL.  
142 Preliminary Determination, Exhibit TUR -6, para. 87.  
143 See Morocco 's first written submission, para. 274.  
144 See Morocco 's first written submission, paras. 44 -48. 
145 See Morocco 's first written submission, paras. 42 -49. WT/DS513 /R/Add.1  
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90. In the light of the above considerations, Morocco requests the Panel to find that the MDCCE 
did not act inconsistently with Article 5.10 of the Anti -Dumping Agreemen t. 
 
VI. THE PANEL SHOULD REJECT TURKEY 'S REQUEST FOR A RECOMMENDATION  
 
91. The Panel should reject Turkey 's request to make a suggestion under Article 19.1 of the 
DSU.146 It is a well -established principle that it is for the implementing Member to choose the  means 
of implementation.147 Furthermore, suggestions made pursuant to Article 19.1 are not binding on 
the implementing Member and do not determine compliance with the DSB 's recommendations and 
ruling . Given these well -established principles, it would be ina ppropriate for the Panel to make a 
suggestion in this case pursuant to Article 19.1 of the DSU even if it found that Morocco has acted 
inconsistently with its obligations under the Anti -Dumping Agreement.  
 
VII. CONCLUSION  
 
92. For these reasons, Morocco re spectfully requests that the Panel reject Turkey 's claims in their 
entirety.  
 
 
_______________  
 
 
                                                
146 Turkey 's first written submission, para. 11.2; and Turkey 's oral statement at the first substantive 
meeting of the Panel, para. 5.2.  
147 Appellate Body Report,  US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , 
para. 184.  WT/DS513/ R/Add.1  
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  ANNEX  C 
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of the European Union  59 
Annex  C-2 Integrated executive summary of the arguments of Japan  61 
Annex  C-3 Integrated executive summary of the arguments of the United States  64 
 
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  ANNEX C -1 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGU MENTS  
OF THE EUROPEAN UNIO N 
1. This executive summary integrates comments made by the European Union at the Third  Party 
Hearing on 30 November and its replies to the Panel's questions to Third Parties of 19 December 
2017. The European Union considers that the present case raises important systemic questions on 
the interpretation and application of the Agreement o n the  Implementation of Article  VI of the 
General Agreement on Tariffs and Trade 1994 ("Anti -Dumping Agreement", "ADA"). Its submissions 
focussed on those systemic questions, without taking a definitive position on the facts of the case.  
 
I. ARTICLE 5.10  OF THE  ANTI-DUMPING AGREEMENT  
 
2. The European Union considers that antidumping investigations cannot be prolonged, for any 
reason, beyond 18 months after their initiation. This flows from the clear wording of Article 5.10 of 
the ADA and was confirmed by the Panels in Mexico  — Olive Oil  and Ukraine - Definitive Safeguard 
Measures on Certain Passenger Cars .  
 
3. One can wonder what should be the consequences for implementation where a measure is 
defective exclusively because the investigation exceeded the time limit set in Article 5.10 ADA. In 
the present case, this question seems likely to remain hypothetical, as  the measure at issue seems 
to suffer also from defects on substance. Should the question arise, the European Union considers 
that the exceeding of the 18 months deadline to conclude the investigation vitiated the entire 
investigation. This is a fundamenta l and pervasive violation and it seems difficult to the 
European  Union to correct this effectively without revoking the measure.  
 
II. FACTS AVAILABLE PURSU ANT TO ARTICLE 6.8 AND ANNEX II TO THE ANTI-DUMPING AGREEMENT  
 
4. Annex II.6 to the ADA provides clea r guidance on the authorities' obligations in case of 
defective initial submissions. Whilst not obliging investigating authorities to tell interested parties 
how to cure defects in their initial submissions, this provision does, however, state a clear obli gation 
for investigating authorities to describe precisely the defects identified, and give interested parties 
an opportunity to provide further explanations within a reasonable period. In the present case, this 
involved the disclosure of all information i n MDCCE's possession that was necessary or helpful in 
identifying precisely the origin and trajectory of the missing sales, in particular the relevant 
certificates of origin, subject to Article 6.5 ADA.  
 
5. Furthermore, the Panel should consider very caref ully the issue of use of partial datasets. In 
this regard, the European Union points in particular to the findings of the Panel in US – Steel Plate  
which explain that flaws or gaps of part(s) of a dataset may taint other parts of it or make them 
unreliable  or unusable, and that in such cases, the other parts can be discarded as well. This is not 
a "punitive" use of facts available (which is rightly prohibited), but logical and coherent. Where only 
part of overall sales data is reported, the omission on the other part(s) may, and will often, cast 
legitimate doubts on the data that has been selectively submitted, or will simply make reconciliation 
impossible. Artificially separating "good" parts from "bad" or missing parts, and obliging authorities 
to use the former without regard to the overall impact of the flaws or omissions, would lead to 
absurd results and have as its only effect to give a prime to those who "game the system".  
 
III.  MATERIAL RETARDATION OF ESTABLISHMENT  
 
6. According to footnote 9 to Ar ticle 3 ADA, "material retardation" is simply one of the three 
possible forms of injury contemplated by the Anti -Dumping Agreement. Thus, whenever a 
determination of "injury", in whatever form, is made, the rules for determinations of injury in Article 
3 ADA must apply.  
  
7. Injury in the form of "material retardation of establishment" can by definition only occur when 
the industry in question is not yet established. This flows from the wording of footnote 9 to Article 3 
ADA itself.  
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  8. The subsequent ques tion is the question of when an industry should be considered as having 
completed its establishment: Already when it has taken up its production (i.e., is not embryonic any 
more), or only when it has stabilised its commercial production (i.e., has moved fr om being a nascent 
industry to a "normal" one). In any event, the ultimate end point for considering an industry as still 
being in the course of establishment must be when it has stabilised commercial production and has 
thereby ended the start -up phase. Th e question of whether or not this is the case, must be examined 
in a holistic assessment of all relevant factors, taking into account the specificities of the product, 
the market (in particular its structure and the conditions of competition), and the indu stry in 
question. Any finding in this regard must, pursuant to Article 3.1 ADA, be "based on positive 
evidence", i.e. evidence of an affirmative, objective and verifiable character, that is credible.  
 
9. The determination of the relevant domestic industry  for the injury test (i.e., in retardation 
cases, the retardation of establishment test) follows Article 4.1 ADA, namely, the producers of the 
like product, including future producers of products that will be considered "like" once they are 
established in the market. However, when looking at this industry, it can be relevant, for the test 
whether this industry is established, to look at the overall set -up and configuration of the firms in 
question. The fact that they had already been acting on the market, p roducing and supplying related 
products (even though not "like" pursuant to Article 4.1 ADA), can, depending on the circumstances 
of each case, be an indicator that establishment of the industry (i.e., relating to the production of 
the current and future " like product") might have been quicker than if the whole firm(s) had to be 
created from scratch.  
 
10. The rules applicable to the retardation test include the obligation to examine all mandatory 
injury factors listed in Article 3.4 ADA. In light of the sta ndards of "positive evidence" and "objective 
examination" set out in Article 3.1 ADA, investigating authorities must provide a persuasive 
explanation as to how the evaluation of relevant factors led to the determination of injury. Economic 
projections, suc h as feasibility studies, can – and will, most often in retardation cases – play an 
important role in the analysis of the injury factors. However, projections can only be relevant to the 
extent they are realistic and themselves grounded in positive evidenc e. Assumptions made in studies 
must undergo thorough "reality checks" if they are relied on in the injury test.  
 WT/DS513 /R/Add.1  
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  ANNEX C -2 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGU MENTS  
OF JAPAN  
I. INTRODUCTION  
The Government of Japan has joined as a Third Party in this dispute to address four issues: 
(i) whether the consultation process may shape a Panel's terms of reference; (ii) whether an 
investigating authority must consider all of the factors specified by A rticle 3.4 of the Anti -Dumping 
Agreement  in determining "material retardation" ; (iii) whether and how an investigating authority 
should assess the establishment of an industry in a determination of "material retardation" under 
Article 3 of the Anti -Dumping  Agreement; and (iv) how an investigating authority should apply "facts 
available" in determining dumping margins.  
 
II. THE CLAIMS SET OUT IN A CONSULTATION REQUEST MAY EVOLVE DURING THE 
CONSULTATIONS, WHICH IN TURN MAY INFLUENCE A PANEL'S TERMS OF 
REFEREN CE 
The claims that form the basis for consultations held under Article 4.4 of the DSU does not 
necessarily limit the scope of a request for the establishment of a Panel under Article 6.2. One of 
the functions of the consultation process is to define th e scope of the dispute through the parties' 
exchange of information, which necessarily means that claims set out in a consultation request may 
evolve during the consultations. The consultations therefore may influence a Panel's terms of 
reference.  
Appellate Body jurisprudence supports this conclusion. The Appellate Body has stated that 
"consultations provide the parties an opportunity to define and delimit the scope of the dispute 
between them" .1 Therefore the Appellate Body would "hesitate to impose t oo rigid a standard for 
the 'precise and exact identity' between the scope of consultations and the request for the 
establishment of a panel" .2 It follows then that " the claims set out in a panel request may thus be 
expected to be shaped by, and thereby co nstitute a natural evolution of, the consultation process" .3  
It is therefore inappropriate to treat the scope of the request for consultations as limiting the 
scope of the mandate for a Panel. The Panel should examine whether the scope of the panel re quest 
"constitute[d] a natural evolution" from the scope of the consultations request.4  
 
III. ALL OF THE FACTORS SPECIFIED BY ARTICLE 3.4 OF THE ANTI -DUMPING 
AGREEMENT MUST BE CONSIDERED WHEN MAKING A DETERMINATION OF 
"MATERIAL RETARDATION"  
The fiftee n factors specified in Article 3.4 are a mandatory minimum basis for an evaluation 
by investigating authorities of the impact of dumped imports on a domestic industry. Investigating 
authorities must therefore collect and analyse data relating to each of th ese fifteen enumerated 
factors, along with any others that are relevant, in making any determination under Article 3, 
including a determination of "material retardation".  
The Appellate Body has confirmed that "Article 3.4 lists certain factors which are deemed to 
be relevant in every investigation and which must always be evaluated by the investigating 
authorities" .5  
Furthermore, the investigating authorities must have in its record that they have examined 
and evaluated all of the fifteen factors  listed in Article 3.4. Although each factor need not be 
                                                
1 Appellate Body Report , Mexico – Corn Syrup (Article 21.5 US) , para. 54. 
2 Appellate Body Report, US – Upland Cotton , para . 293. 
3 Appellate Body Report, Mexico – Definitive Anti -dumping Measures on Beef and Rice , para . 138. 
4 Idem. 
5 Appellate Body Report, US – Hot Rolled Steel, para . 194. WT/DS513/ R/Add.1  
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  dispositive or relevant in every investigation, "[w]here an investigating authority concludes that a 
particular factor listed in Article 3.4 is not relevant, this conclusion must be explained" .6 
Article 3.4 of the Anti -Dumping Agreement is a core element for the determination of injury, 
whatever form that injury might take. That includes injury in the form of "the material retardation 
of the establishment of [a domestic] industry" as specified in footnote 9 to Article 3 of the Anti -
Dumping Agreement. This was confirmed by the Panel in Egypt – Steel Rebar , which stated: "[I]n 
short, the Article 3.4 factors must be examined in every investigation, no matter which particular 
manifestation or form of i njury is at issue in a given investigation" .7  
The Panel should therefore examine whether the investigating authority properly assessed all 
of the factors listed in Article 3.4 when determining the "material retardation of the establishment" 
of the dom estic industry.  
 
IV. IN ASSESSING MATERIAL RETARDATION, AN INVESTIGATING AUTHORITY IS 
OBLIGED TO DETERMINE WHETHER A DOMESTIC INDUSTRY IS ESTABLISHED  
In response to the Panel's questions, Japan offered its additional views on an authority's 
determinat ion of material retardation of establishment of industry.  
A determination of material retardation of establishment of a domestic industry can be made 
only in respect of a domestic industry that is not yet established. This conclusion follows from the 
plain meaning of the text s of Article VI.1 and VI.6 of the GATT 1994 and footnote 9 to Article 3 of 
the Anti -Dumping Agreement. There, a distinction is made between "an established industry" and 
"the establishment of a domestic industry". The circumstances  of material injury or threat of material 
injury are limited explicitly to "an established industry", and equally explicitly material retardation 
is limited to "the establishment of a domestic industry". In order for dumped imports to retard the 
establishm ent of an industry, logic dictates that establishment of the industry cannot already have 
occurred. Applying the standard of material retardation to an established industry would therefore 
be inconsistent with the covered agreements.  
An investigating authority is obliged to find that an industry is unestablished in the context of 
making a determination that the establishment of the industry is materially retarded. Although there 
is no express obligation in the covered agreements to make such a finding,  there is an implicit 
requirement to do so because the plain meaning of the covered agreements limits a determination 
of material retardation only to an unestablished industry. Therefore, an investigating authority 
cannot avoid making the threshold determi nation that an industry is unestablished before 
determining that the industry's establishment is materially retarded.  
The panel's conclusions on Article 3.1 of the Anti -Dumping Agreement in China – Cellulose 
Pulp have no bearing on "a determination th at the domestic industry is unestablished" . Article 3.1 
and Article 3 generally pertain to the determinations of injury, threat of injury, material retardation 
and causation.  
Footnote 9 to Article 3, Article 4.1 and Article 2.6 of the Anti -Dumping Ag reement are all linked 
and must be taken into account when making a determination of "material retardation of the 
establish ment of a domestic industry".  
 
V. "FACTS AVAILABLE" SHOULD BE LIMITED TO MISSING INFORMATION, AND 
SHOULD NOT PUNISH THE FAILURE TO P ROVIDE REQUESTED INFORMATION  
Article 6.8 and Annex II of the Anti -Dumping Agreement allow an investigating authority to 
make determinations on the basis of the "facts available" if information that has been requested 
from an "interested party" is not supplied within a reasonable time. These provisions do not sanction 
the intentional use of adverse facts or arbitrary data to punish a non -cooperating "interested party".  
Annex II is the basis for the application of Article 6.8. The title of Annex II makes it clear that 
the "Best Information Available" should be used by an investigating authority. Moreover, a Panel 
has concluded that Article 6.8 and Annex II are meant to ensure that "even where the investigating 
                                                
6 Panel Report, Russia – Commercial Vehicles , para . 7.111.  
7 Panel Report, Egypt – Steel Rebar , para . 7.93. WT/DS513 /R/Add.1  
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  authority is unable to obtain the 'first  best' information as the basis of its decision, it will nonetheless 
base its decision on facts, albeit perhaps 'second -best' facts" .8 
The Appellate Body has noted that Article 12.7 of the Agreement on Subsidies and 
Countervailing Measures "is almost identically worded to Article 6.8 of the Anti -Dumping Agreement" 
and that Annex II of the Anti -Dumping Agreement is "relevant context" for the interpretation of 
Article 12.7.9 The Appellate Body has stated that Article 12.7 "should not be used to punish no n-
cooperating parties by intentionally choosing adverse facts for that purpose" .10 Rather, this provision 
"permits the use of facts on record solely for the purpose of replacing information that may be 
missing, in order to arrive at an accurate subsidizatio n or injury determination" .11  
Paragraph 7 of Annex II of the Anti -Dumping Agreement acknowledges that secondary sources 
of information used by an investigating authority in the event of non -cooperation by an interested 
party "could lead to a result that is less favourable to the party than if the party did cooperate" . It 
does not, however, justify the arbitrary selection of the data to be used in place of the missing data. 
Nor does it permit the investigating authority to bring about an outcome that is punitive and does 
not reflect a determination that is based on the available facts of the case.  
The Panel should examine carefully whether the determination of the dumping margin by the 
investigating authority was properly based on the available fa cts, as required under Article 6.8 and 
Annex II.  
 
VI. CONCLUSION  
Japan respectfully requests the Panel to consider Japan's positions on the interpretive issues 
set out above.  
 
                                                
8 Panel Report, US – Hot-Rolled Steel , para . 7.55. 
9 Appellate Body Report, US – Carbon Steel (India ), para . 4.423.  
10 Appellate Bo dy Report, US – Countervailing Measures (China ), fn. 738 to para . 4.179.  
11 Appellate Body Report, Mexico – Definitive Anti -Dumping Measures on Beef and Rice , para . 293. WT/DS513/ R/Add.1  
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  ANNEX C -3 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGU MENTS  
OF THE UNITED STATES  
I. CLAIMS REGARDING ARTICLE 4.4 AND ARTICLE 6.2 OF THE DSU   
 
1. Morocco claims that Turkey breached Articles 4.4 and 6.2 of the DSU because it improperly 
expanded the scope of the dispute when: (1) Turkey added certain claims to it s panel request that 
were not previously listed in the consultation request; and (2) T urkey added claims in its first  written 
submission that were not contained in its panel request.  
 
2. Articles 4.4 and 6.2 set out the requirements for a consultations request and a panel request, 
respectively, and contain different obligations with respect to the identification of the measures and 
the legal basis of the claims at issue. Article 4.4 requires "identification of the measures at issue" 
and "an indication of  the legal basis for the complaint," while Article 6.2 requires that a complainant 
"identify the specific measures at issue and provide a brief summary of the legal basis of the 
complaint sufficient to present the problem clearly" . The text of Articles  4.4 and 6.2 suggests that 
the claims set out in each of the consultation request and panel request may not be identical.  
 
3. There may be some circumstances in which the legal claims are so different as between the 
panel and consultations requests that quest ions could be raised whether the dispute has been 
subject to consultations (DSU Article 4.7). Here, it could be relevant to the Panel's consideration 
that consultations had been requested pursuant to the AD Agreement and claims under Articles 3 
and 6 had b een raised in the consultations request.  
 
4. With respect to Article 6.2, a deficient summary of the legal basis of the complaint means that 
a claim will not fall within a panel's terms of reference. Where an article in a covered agreement 
contains several distinct legal obligations, each capable of being breached, a cursory reference to 
such an article in a panel request does not reveal which one, or more, of those obligations is at 
issue. In that circumstance, a complaining party may not have provided the brief summary of the 
legal basis sufficient to present the problem clearly.  
 
5. However, Article 6.2 does not require a complaining party to explain in its panel request all 
the reasons why it considers the measure to have breached the legal provisions at issue. In this 
respect, the Appellate Body has distinguished between "claims" and "arguments" for purposes of 
reviewing a panel request in light of the terms of Article 6.2 of the DSU , and has found that Article  6.2 
requires claims, but not arguments, to be set forth in the pa nel request.  
 
6. Therefore, the Panel should examine whether Turkey 's consultation request is in accordance 
with Artic le 4.4 of the DSU, and whether Turkey's panel request is in accordance with Article 6.2 of 
the DSU.  
 
II. CLAIMS REGARDING FOOTNOTE 9 OF ARTICLE 3 OF THE AD AGREEMENT  
 
7. Turkey argues that the "establishment" of a domestic industry "alludes to an industry being 
brought into existence, rather than an already producing industry being stable or firm" . For Turkey, 
"material retardation of the e stablishment of an industry" could also occur in circumstances "where 
there has been some production of the like product, but such production has not reached a sufficient 
level to allow consideration of injury or threat of injury to an existing domestic in dustry" . 
 
8. Footnote 9 is appended to Article 3, and provides the definition of "injury" . Specifically, 
footnote 9 defines injury to encompass three situations: (1) material injury to a domestic industry; 
(2) threat of material injury to a domestic indust ry; or (3) material retardation of the establishment 
of such an industry.  
 
9. Article 4.1 of the AD Agreement generally defines a "domestic industry" as referring to "the 
domestic producers as a whole of the like products or to those of them whose collect ive output of 
the products constitute a major proportion of the total domest ic production of those products ". WT/DS513 /R/Add.1  
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  Article 4.1, however, does not indicate what level of production or other factors an industry must 
evince to have achieved "establishment" for pur poses of Article 3.  
 
10. Turning to the text of footnote 9, the ordinary meaning of the term "establishment" is "[t]he 
action of establishing; the fact of being established" . The verb to "establish" means to "set up on a 
permanent secure basis; bring into  being, found, (a government, institution, business, etc.)" or to 
"make stable or firm; strengthen ( lit &fig) ". Therefore, establishment refers to the point at which an 
industry is set up on a secure basis, brought into being, or made stable or firm.  
 
11. With respect to the phrase "material retardation" , the ordinary meaning of the verb to "retard" 
means "keep back, delay, hinder; make slow or late; delay the progress, development, or 
accomplishment of" , "defer, postpone, put off" , "be or become delayed; come, appear, or happen 
later; undergo retardation" . The ordinary meaning of "material" is "serious, important; of 
consequence" . Therefore, "material retardation" means a consequential or important delay or 
hindrance of the developm ent or accomplishment of something.  
 
12.  Read together, the ordinary meaning of the terms "material retardation of the establishment 
of … an industry" would suggest a [ material ] consequential or important [ retardation ] hindrance or 
delay of the accomplis hment of the [ establishment ] bringing into being, or setting up on a secure 
basis, of an industry. This reading is consistent with the findings of the panel in Mexico – Olive Oil , 
which considered the issue in the context of Article 16.1 of the SCM Agreeme nt.  
 
13. Therefore, the "establishment" of a domestic industry can occur either at the point an industry 
comes into being (for example, by commencing production), or at which it achieves stability. If an 
investigating authority determines that the domesti c industry has not been established, then it may 
consider whether the performance of the industry reflects normal start -up difficulties or whether the 
imports of the subject merchandise have materially retarded the establishment of the domestic 
industry. T he United States considers that each of the factors used by the Ministry of Industry, 
Commerce, Investment and Digital Economy in Charge of External Trade ("MDCCE") in the 
underlying investigation may be relevant to an investigating authority's analysis in  making findings 
regarding the "establishment" of a domestic industry.  
 
III. CLAIMS REGARDING ARTICLES 3.1 AND 3.4 OF THE AD AGREEMENT  
 
14. Turkey claims that the analysis of the MDCCE was inconsistent with Articles 3.1 and 3.4 of the 
AD Agreement because  MDCCE failed to assess all the factors listed in Article 3.4.  
 
15. Article 3.1 informs the obligations of Article 3.4. Article 3.1 of the AD Agreement sets forth 
two overarching obligations that apply to multiple aspects of an authority's injury determina tion. 
The first overarching obligation is that the injury determination be based on "positive evidence" . The 
second obligation is that the injury determination involves an "objective examination" of the volume 
of the dumped imports, their price effects, an d their impact on the domestic industry. Accordingly, 
any determinations or findings made in connection with Article 3.4 must be based on "positive 
evidence" and "involve an objective examination" , as require d by Article 3.1 of the AD  Agreement.  
 
16. Article 3.4 of the AD Agreement sets out an authority's obligation to ascertain the impact of 
dumped imports on the domestic industry. The United States observes that Article 3.4 imposes an 
obligation on the authority to conduct an "examination" of the imp act of the dumped imports on the 
domestic industry. And the text of Article 3.4 expressly requires investigating authorities to examine 
the "impact" of subject imports on a domestic industry, and not just the state of the industry.  
 
17. As recognized by A rticle 3.1 of the AD Agreement, subject imports can influence a domestic 
industry's performance through volume and price effects. Thus, to examine the impact of subject 
imports on a domestic industry, an authority would need to consider the relationship be tween subject 
imports – including subject import price undercutting, and the price depressing or suppressing 
effects of subject imports – and the domestic industry's performance during the period of 
investigation. The "examination" contemplated by Article 3.4 must be based on a "thorough 
evaluation of the state of the industry" and it must "contain a persuasive explanation as to how the 
evaluation of relevant factors led to the determination of injury" . 
 
18. Article 3.4 does not dictate the methodology that  should be employed by the authority, or the 
manner in which the results of this evaluation are to be set out. The United States observes that the WT/DS513/ R/Add.1  
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  Panel must be able to discern that the authority's examination of the impact on the domestic industry 
– an ex amination that necessarily includes an evaluation of relevant economic factors – is based on 
positive evidence and an objective examination. If the investigating authority's factual evaluation 
was one an unbiased and objective authority could have reached,  the Panel should find no breach 
under the standard of review articulat ed in Article 17.6(i) of the AD  Agreement.  
 
IV. TURKEY 'S CLAIMS REGARDING ARTICLES 6.5 AND 6.5.1  OF THE AD AGREEMENT  
 
19. Turkey claims that MDCCE acted inconsistently with Articles 6.5  and 6.5.1 of the 
AD Agreement when: (1) it treated the break -even threshold as confidential and failed to "discuss" 
the "good cause" that warranted treating such information confidential; and (2) it did not require 
the party to submit a non -confidential s ummary of the information, or to explain why such summary 
would not be possible.  
 
20. Articles 6.5 and 6.5.1 balance the protection of confidential information with the right of 
parties to be given a full and fair opportunity to see relevant information a nd defend their interests. 
The United States considers that Article 6.5 requires that investigating authorities ensure the 
confidential treatment of information. Article 6.5.1 then balances the need to protect confidential 
information against the disclosur e requirements of other Article 6 provisions by requiring that, if an 
investigating authority accepts confidential information, it shall require that confidential information 
is summarized in sufficient detail to permit a reasonable understanding of the su bstance of the 
information.  
 
21. The Panel should first determine if an interested party designated information as confidential. 
The Panel should then determine whether an investigating authority that accepted confidential 
information ensured that a summa ry of that confidential information was provided to other parties 
in sufficient detail to permit a reasonable understanding of the substance of the information and 
allow such parties the ability to adequately defend their interests.  
 
V. TURKEY 'S CLAIMS REGARDING ARTICLE 6.8 AND ANNEX II OF THE AD AGREEMENT  
 
22. Turkey claims that MDCCE breached Article 6.8 and paragraphs 1, 3, 5, 6, and 7 of Annex II 
of the AD Agreement by improperly resorting to facts available, rather than relying on the 
information prov ided pertaining to the exporters' sales information.  
 
23. Article 6.8 permits investigating authorities to apply facts otherwise available in cases where 
an interested party refuses access to, or otherwise does not provide, information that is necessary 
to the investigation within a reasonable period of time, or significantly impedes the investigation.  
 
24. The provisions of Annex  II of the AD Agreement are relevant to the proper interpretation of 
Article 6.8. Annex II has been interpreted to mean that "al l the information provided by the parties, 
even if not ideal in all respects, should to the extent possible be used by the authorities and in case 
secondary source information is to be used, the authorities should do so with special circumspection" . 
Moreov er, Article 6.8 applies exclusively to interested parties from whom information is required by 
competent authorities, and both Article 6.8 and Annex II establish the expectation that competent 
authorities will use that information to the extent that it can  be used. In this way, Annex II reflects 
that an investigating authority's ability to rely on facts potentially less favorable to the interests of 
a non -cooperating interested party is inherent in the authority's role in conducting an investigation 
in acco rdance with the AD Agreement, provided certain conditions are met.  
 
25. In the United States' view, it may be appropriate for an investigating authority to fill gaps in 
the record, if the record otherwise contains usable data and is incomplete with respect  to only a 
discrete category of information. Substitution with respect to all data from the non -cooperating party 
may be appropriate if, for instance, none of the reported data is reliable or usable because the data 
contains pervasive and persistent defici encies, or is unverifiable. This is a determination that will 
depend on the specific facts and circumstances of a case.  
 
26. With respect to all uses of facts available, the investigating authority must provide a sufficient 
basis for its application. To th e extent that Turkey is alleging that Morocco has insufficiently explained 
the basis for its application of the facts available, the sufficiency of an investigating authority's 
explanations is dealt with under the procedural obligations of Article 12 of th e AD Agreement, and 
not Article 6.8.  WT/DS513 /R/Add.1  
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VI. TURKEY 'S CLAIMS REGARDING ARTICLE 6.9 OF THE AD AGREEMENT  
 
27. Turkey alleges that MDCCE acted inconsistently with Article 6.9 of the AD Agreement by failing 
to disclose all "essential facts" , and with respect to the "essential facts" that were disclosed, by 
failing to provide "sufficient time" to the Turkish exporters to comment on the disclosures and defend 
their interests.  
 
28. The ability of interested parties to defend their interests lies  at the heart of the disclosure 
obligation of Article 6.9. Absent a full disclosure of the "essential facts" forming the basis for 
consideration of an underlying dumping determination, it might not be possible for an interested 
party to identify whether th e investigating authority properly considered the factual information 
before it. In short, failure to provide this information could result in an interested party being unable 
to defend its interests within the meaning of Article 6.9 because it would not b e able to sufficiently 
identify which issues, if any, are adverse to its interests.  
 
29. Thus, in considering whether the obligation in Article 6.9 has been breached, the analysis 
should turn on whether, under the specific facts of the dispute, the objecti ve set out in Article 6.9 
has been met. Specifically, whether interested parties were able to defend their interests.  
 
VII. TURKEY 'S REQUEST UNDER ARTICLE 19.1  OF THE DSU 
 
30. In the event that the Panel finds Morocco to have a cted inconsistently with the AD Agreement, 
Turkey argues that "the only appropriate and effective way for Morocco to bring its measure into 
conformity is by revoking the measure forthwith" . Turkey requests the Panel to exercise its authority 
under Article 19.1 of the DSU to this effect.   
 
31. Article 19.1 of the DSU provides that when a panel finds a measure to be inconsistent, it 
"shall" recommend that the Member bring the measure into con formity. A panel also has the 
authority, but not the obligation ("may"), to "suggest ways in which the Member could implement 
the recommendations."  
 
32. Panels have seldom chosen to make suggestions to Members regarding their implementation 
of recommendati ons of the DSB. Under the DSU, a Member retains flexibility with respect to how 
that Member implements the DSB recommendations. To the extent the Panel finds that any 
challenged measure by Morocco is inconsistent with the AD Agreement, however, the Panel m ust 
make the mandatory recommendation indicated in Article 19.1, i.e., that the Member concerned 
bring its measure into conformity with the relevant covered agreement.  
 
EXECUTIVE SUMMARY OF THE U.S.  RESPONSES TO PANEL QUESTIONS TO THIRD PARTIES  
 
33. Respo nse to Question 1.1 : With respect to the third form of injury, "material retardation of 
the establishment of such an industry," the text of footnote 9 of Article 3 links the "material 
retardation" finding to the "establishment" of a domestic industry. The ordinary meaning of the 
terms "material retardation of the establishment of … an industry" would suggest a [ material ] 
consequential or important [ retardation ] hindrance or delay of the accomplishment of the 
[establishment ] bringing into being, or setting u p on a secure basis, of an industry.  
 
34. Response to Question 1.2 : The text of footnote 9 of Article 3 links a "material retardation" 
finding with "establishment" of a domestic industry. Therefore, an investigating authority cannot 
make a material retard ation finding without first ascertaining whether the industry is already 
established. However, the "establishment" of a domestic industry can occur either at the point an 
industry comes into being (for example, by commencing production), or at which it ach ieves stability.  
 
35. Response to Question 1.3 : Article 3.1 sets forth overarching obligations that apply to multiple 
aspects of an investigating authority's injury determinations. However,  nothing in the text of 
Article  3.1 suggests that its obligations are only consequentially based on the breach of another 
provision of Article 3 because the term "shall" reflects a mandatory obligation. Thus, a panel may 
consider whether an investigating authority's determination was consistent with the obligations set 
forth under Article 3.1 independent of other provisions.  
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  36. Response to Question 1.4 : The United States agrees that the terms "such an industry" in 
footnote 9 of Article 3 are informed by Article 4.1 of the AD Agreement, which generally defines a 
"domest ic industry" as referring to "the domestic producers as a whole of the like products or to 
those of them whose collective output of the products constitute a major proportion of the total 
domestic production of those products" .  
 
37. Article 2.6 of the AD Agreement then defines the term "like product" "to mean a product which 
is identical, i.e., alike in all respects to the product under consideration, or in the absence of such a 
product, another product which, although not alike in all respects, has charac teristics closely 
resembling those of the product under consideration" . Therefore, pursuant to Article 2.6, the "like 
product" is defined based on the "product under consideration."  
 
38. In determining whether "such an industry" is established, an investigating authority may 
examine several or all of the following criteria: (1) when the domestic industry began production; 
(2) whether the production has been steady or start -and-stop; (3) the size of domestic production 
compared to the size of the dom estic market as a whole; (4) whether the industry has reached a 
reasonable "break -even point"; and (5) whether the activities are truly a new industry or merely a 
new product line of an established industry.  
 
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