WT/DS493/AB/R  
 
12 September 2019 
(19-5862) Page: 1/55 
    
 
 
UKRAINE – ANTI -DUMPI NG MEASURES ON AMMON IUM NITRATE  
AB-2018-5 
Report of the Appellate Body  
 WT/DS493/AB/R  
 
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 Table of Contents  
 
1   INTRODUCTION  ................................ ................................ ................................ .........  8 
2   ARGUMENTS OF THE  PARTICIPANTS  ................................ ................................ ........  11 
3   ARGUMENTS OF THE  THIRD PARTICIPANTS  ................................ .............................  11 
4   ISSUES RAISED IN  THIS APPEAL  ................................ ................................ .............  11 
5   RELEVANT BACKGRO UND INFORMATION  ................................ ................................ . 12 
6   ANALYSIS OF THE APPELLATE  BODY  ................................ ................................ ........  13 
6.1   Claims under Articles 6.2, 7.1, and 11 of the DSU relating to the original investigation 
phase  ................................ ................................ ................................ .............................  13 
6.1.1    Introduction  ................................ ................................ ................................ ..........  13 
6.1.2    The Panel's findings  ................................ ................................ ...............................  14 
6.1.2.1    The Panel's findings under Article  6.2 of the DSU  ................................ ....................  14 
6.1.2.2    The Panel's findings under Article  5.8 of the Anti -Dumping Agreement  ......................  15 
6.1.3    Whether the Panel erred in its analysis under Article  6.2 of the DSU in finding that the 
2008 amended decision and the 2010 amendment were identified as specific measures at issue in 
Russia's panel request  ................................ ................................ ................................ ...... 18 
6.1.4    Whether the Panel erred under Articles 7.1 and 11 of the DSU by ruling on Russ ia's claim 
under Article  5.8 of the Anti -Dumping Agreement with respect to the 2008 amended decision and 
the 2010 amendment  ................................ ................................ ................................ ....... 23 
6.1.5    Whether the Panel erred under Article  11 of the DSU by failing to examine properly the 
arguments and evidence presented by Ukraine regarding the authority of Ukrainian courts and 
investigating authorities to calculate dumping margins under Ukrainian law  ............................  24 
6.1.6    Conclusion  ................................ ................................ ................................ ............  31 
6.2   Claims under Articles 2.2, 2.2.1, and 2.2.1.1 of the Anti -Dumping Agreement relating to 
MEDT's determinations of dumping in the interim and expiry reviews  ................................ ..... 31 
6.2.1    Introduction  ................................ ................................ ................................ ..........  31 
6.2.2    The Panel's findings  ................................ ................................ ...............................  32 
6.2.2.1    The Panel's findings under Article  2.2.1.1 of the  Anti-Dumping Agreement  .................  32 
6.2.2.2    The Panel's findings under Article  2.2 of the Anti -Dumping Agreement  ......................  34 
6.2.2.3    The Panel's findings under Article  2.2.1 of the Anti -Dumping Agreement  ....................  35 
6.2.3    Overview of relevant aspects of the legal standard in Articles 2.2, 2.2.1, and 2.2.1.1 of the 
Anti-Dumping  Agreement  ................................ ................................ ................................ .. 36 
6.2.4    Whether the Panel erred in its interpretation and application of the second condition in the 
first sentence of Article  2.2.1.1 of the Anti -Dumping Agreement  in finding that MEDT did not 
provide an adequate basis for rejecting the reported gas cost under that condition  ..................  39 
6.2.5    Whether the Panel erred in its interpretation and application of Article  2.2 of the Anti -
Dumping  Agreement in finding that, when constructing normal value, MEDT failed to calculate the 
cost of production "in the country of origin"  ................................ ................................ .........  45 
6.2.6    Conclusion  ................................ ................................ ................................ ............  50 
7   FINDINGS AND CON CLUSIONS  ................................ ................................ .................  52 
7.1   Claims under Articles 6.2, 7.1, and 11 of the DSU relating to the original investigation 
phase  ................................ ................................ ................................ .............................  52 
7.2   Claims under Articles 2.2,  2.2.1, and 2.2.1.1 of the Anti -Dumping Agreement relating to 
MEDT's determinations of dumping in the interim and expiry reviews  ................................ ..... 53 
7.3   Recommendation  ................................ ................................ ................................ ...... 54 WT/DS493/AB/R  
 
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 ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
Anti-Dumping Agreement  Agreement on Implementation of Article VI of the General Agreement on 
Tariffs and Trade 1994  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
EuroChem  JSC MCC EuroChem  
GAAP  generally accepted accounting principles  
GATT 1994  General  Agreement on Tariffs and Trade 1994  
Gazprom  JSC Gazprom  
ICIT Intergovernmental Commission on International Trade  
MEDT  Ministry of Economic Development and Trade of Ukraine  
reported gas cost  price of gas that the Russian producers under investigation paid and reported 
in their records  
SCM Agreement  Agreement on Subsidies and Countervailing Measures  
surrogate price of gas  price of gas exported from Russia at the German border, adjusted for 
transportation expenses  
Working Procedures  Working Procedures for Appellate Review  
WTO World Trade Organization  
PANEL EXHIBITS CITED  IN THIS REPORT  
Panel 
Exhibit No.  Short title (if applicable)  Description  
RUS-2b 2008 original decision  ICIT, Decision on the application of definitive anti -dumping 
measures on imports of ammonium nitrate originating in 
Russia No.  АD-176/2008/143 -47 (21 May 2008)  
RUS-3b  ICIT, Notice on the initiation and conduct of the interim 
review of the anti -dumping measures on imports of 
ammonium nitrate originating in Russia 
No. AD-296/2013/4423 -06 (4 July 2013)  
RUS-4b 2014 extension decision  ICIT, Notice on the changes and extension of anti -dumping 
measures on imports of ammonium nitrate originating in 
Russia (8 July 2014)  
RUS-5b Judgment of the Appellate 
Court  Judgm ent No. 2 -а-8850/08 by the Kiev Appellate 
Administrative Court (26 August 2009)  
RUS-6b Judgment of the District Court  Judgment No. 5/411 by the District Administrative Court of 
Kiev (6 February 2009)  
RUS-7b Judgment of the Higher Court  Judgment No. К-42562/09 by the Higher Administrative 
Court of Ukraine (20 May 2010)  
RUS-8b 2010 amendment  ICIT, Decision implementing court orders regarding 
EuroChem (25 October 2010)  
RUS-10b Investigation Report  MEDT, Materials on interim and expiry reviews of the 
anti-dumping measures on imports of ammonium nitrate 
originating in Russia (25 June 2014)  
RUS-12b 2008 amended decision  ICIT, Consolidated version of the Decision on the application 
of definitive anti -dumping measures on imports of 
ammonium nitrate or iginating in Russia 
No. АD-176/2008/143 -47 (21 May 2008 , as amended on 25 
October 2010 ) WT/DS493/AB/R  
 
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 Panel 
Exhibit No.  Short title (if applicable)  Description  
RUS-27b  ICIT, Notice on the initiation and conduct of the expiry review 
of the anti -dumping measures on imports of ammonium 
nitrate originating in Russia No.  АD-294/2013/4423 -06 
(24 May 2013)  
UKR-9  Law of Ukraine "On Protection of the National Producer 
Against Dumped Import s" (22 December 1998)  
UKR-10  Extracts from the Code of Administrative Procedure of 
Ukraine  
UKR-12  Resolution of the Plenum of the High Co mmercial Court of 
Ukraine No. 15 (26 December 2011)  
UKR-13  Resolution of the District Administrative Court of Kiev in case 
No. 826/11526/14 (23 September 2014)  
UKR-14  Ruling of Kiev Administrative Court of Appeal in case 
No. 826/11526/14 (3 December 2014)  
UKR-15 
(BCI)   Application of EuroChem to the Supreme Court of Ukraine in 
case No. 826/11526/14 (12 February 2015)  
UKR-16  Resolution of the Supreme Court of Ukraine No. 21 -122a15 
(21 April 2015)  
UKR-42b 
(BCI)   ICIT, Decision on application of definitive anti -dumping 
measures on imports into Ukraine of glass containers used 
for medical purposes up to 0.15 litres originating from Russia 
No. АD -293/2013/4423 -06 (24 May 2013)  
UKR-43  Code of Administrative Procedure of Ukraine, Extracts  
UKR-44  Law of Ukraine "On Enforcement Proceedings", Extracts  
UKR-53b 
(BCI)   Letter dated 8 October 2010 from MEDT to ICIT regarding the 
agenda for the ICIT meeting on 15 October 2010  
UKR-54b 
(BCI)   ICIT, Meeting a genda of 25 October 2 010 
UKR-55b 
(BCI)   Letter dated 21 October 2010 from MEDT to ICIT  regarding 
the agenda for the ICIT meeting on 25  October 2010  
UKR-56b 
(BCI)   MEDT, Information on appeal of ICIT Decision on the 
application of definitive anti -dumping measures on imports of 
ammonium nitrate originating in Russia  
No. АD-176/2008/143 -47 
  WT/DS493/AB/R  
 
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 CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Footwear (EC)  Panel Report, Argentina – Safeguard Measures on Imports of Footwear , 
WT/DS121/R , adopted 12 January 2000, as modified by Appellate Body Report 
WT/DS121/AB/R, DSR 2000:II, p. 575  
Australia – Salmon  Appellate Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R , adopted 6 November 1998, DSR 1998:VI II, p. 3327  
Brazil – Desiccated Coconut  Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS22/AB/R , adopted 20 March 1997, DSR 1997:I, p. 167  
Brazil – Retreaded Tyres  Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded 
Tyres , WT/DS332/AB/R , adopted 17 December 2007, DSR 2007:IV, p. 1527  
Canada – Continued 
Suspension  Appellate Body Report, Canada – Continued Suspension of Obligations in the 
EC – Hormones Dispute , WT/DS321/AB/R , adopted 14 November 20 08, DSR 
2008:XIV, p. 5373  
Canada – Wheat Exports and 
Grain Imports  Panel Report, Canada – Measures Relating to Exports of Wheat and Treatment 
of Imported Grain , WT/DS276/R , adopted 27 September 2004, upheld by 
Appellate Body Report WT/DS276/AB/R, DSR 2004 :VI, p. 2817  
Chile – Price Band System  Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R , adopted 23 October 
2002, DSR 2002:VIII, p. 3045 (Corr.1, DSR 2006:XII, p. 5473)  
China – HP-SSST (Japan) / 
China – HP-SSST (EU)  Appellate Body Reports, China – Measures Imposing Anti -Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP -SSST") from Japan / 
China – Measures Imposing Anti -Dumping Duties on High -Performan ce 
Stainless Steel Seamless Tubes ("HP -SSST") from the European Union , 
WT/DS454/AB/R  and Add.1 / WT/DS460/AB/R  and Add.1, adopted 28 October 
2015, DSR 2015:IX, p. 4573  
China – Rare Earths  Appellate  Body Reports, China – Measures Related to the Exportation of Rare 
Earths, Tungsten, and Molybdenum , WT/DS431/AB/R  / WT/DS432/AB/R  / 
WT/DS433/AB/R , adopted 29  August  2014, DSR 2014:III, p.  805 
China – Raw Materials  Appellate Body Reports, China – Measures Related to the Exportation of 
Various Raw Mate rials, WT/DS394/AB/R  / WT/DS395/AB/R  / WT/DS398/AB/R , 
adopted 22 February 2012, DSR 2012:VII, p. 3295  
Colombia – Textiles  Appellate Body Report, Colombia – Measures Relating to the Importation of 
Textiles, Apparel and Footwear , WT/DS461/AB/R  and Add.1, ad opted 22 June 
2016, DSR 2016:III, p. 1131  
Dominican Republic – Import 
and Sale of Cigarettes  Appellate Body Report, Dominican Republic – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/AB/R , adopted 19 May 
2005, DSR 2005:XV, p. 7367  
EC – Bananas III  Appellate Body Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas , WT/DS27/AB/R , adopted 25 September 
1997, DSR 1997:II, p. 591  
EC – Fasteners (China)  Appellate Body Report, European Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China , WT/DS397/AB/R , 
adopted 28 July 2011, DSR 2011:VII, p. 3995  
EC – Fasteners (China) 
(Article 21.5 – China)  Appellate Body Report, European Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China – Recourse to Article 
21.5 of the DSU by China , WT/DS397/AB/RW  and Add.1 , adopted 12 February 
2016, DSR 2016:I, p. 7  
EC – Hormones  Appellate Body Report, European Communities – Measures Concerning Meat 
and Meat Products (Hormones) , WT/DS26/AB/R , WT/DS48/AB/R , adopted 13 
February 1998, DSR 1998:I, p. 135  
EC – Poultry  Appellate Body Report, European Communities – Measures Affecting the  
Importation of Certain Poultry Products , WT/DS69/AB/R , adopted 23 July 1998, 
DSR 1998:V, p. 2031  
EC – Salmon (Norway)  Panel Report, European Communities – Anti-Dumping Measure on Farmed 
Salmon from Norway , WT/DS337/R , adopted 15 January 2008, and Corr.1,  
DSR 2008:I, p. 3  WT/DS493/AB/R  
 
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 Short Title  Full Case Title and Citation  
EC and certain member 
States – Large Civil Aircraft  Appellate Body Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R , adopted 1 
June 2011, DSR 2011:I, p. 7  
EU – Biodiesel (Argentina)  Appellate Body Report, European Union – Anti-Dumping Measures on Biodiesel 
from Argentina , WT/DS473/AB/R  and Add.1, adopted 26 October 2016, DSR 
2016:VI, p. 2871  
EU – Biodiesel (Argentina)  Panel Report, European Union – Anti-Dumping Measures on Biodiesel from 
Argentina , WT/DS473/R  and Add.1, adopted 26 October 2016, as modified by 
Appellate Body Report WT/DS473/AB/R, DSR 2016:VI, p. 3077  
EU – Fatty Alcohols 
(Indonesia)  Appellate Body Report, European Union – Anti-Dumping Measures on Imports 
of Certain Fatty Alcohols from Indonesia , WT/DS442/AB/R  and Add.1, adopted 
29 September 2017, DSR 2017:VI, p. 2613  
EU – PET (Pakistan)  Appellate Body Report, European Union – Countervailing Measures on Certain 
Polyethylene Terephthalate from Pakis tan, WT/DS486/AB/R  and Add.1, 
adopted 28 May 2018  
Guatemala – Cement I  Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R , adopted 25 November 1998, 
DSR 1998:IX, p. 3767  
Indonesia – Import Licensing 
Regimes  Panel Report, Indonesia – Importation of Horticultural Products, Animals and 
Animal Products , WT/DS477/R , WT/DS478/R , Add.1 and Corr.1, adopted 22 
November 2017, as modified by Appellate Body Report WT/DS477/AB/R, 
WT/DS478/AB/R, DS R 2017:VII, p. 3131  
Indonesia – Iron or Steel 
Products  Appellate Body Report, Indonesia – Safeguard on Certain Iron or Steel 
Products , WT/DS490/AB/R , WT/DS496/AB/R , and Add.1, adopted 27 August 
2018 
Korea – Alcoholic Beverages  Appellate Body Report, Korea – Taxes on Alcoholic Beverages , WT/DS75/AB/R , 
WT/DS84/AB/R , adopted 17 February 1999, DSR 1999:I, p. 3  
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R , adopted 12 January 2000, DSR 
2000:I, p. 3  
Mexico – Anti-Dumping 
Measures on Rice  Appellate Body Report, Mexico – Definitive Anti -Dumping Measures on Beef 
and Rice, Complaint with Respect to Rice , WT/DS295/AB/R , adopted 20 
December 2005, DSR 2005:XXII, p. 10853  
Mexico – Anti-Dumping 
Measures on Rice  Panel Report, Mexico – Definitive Anti -Dumping Measures on Beef and Rice, 
Complaint with Respect to Rice , WT/DS295/R , adopted 20 December 2005, as 
modified by Appellate Body Report WT/DS295/AB/R, DSR 2005:XXIII, p. 
11007  
Peru – Agricultural Products  Appellate Body Report, Peru – Additional Duty on Imports of Certain 
Agricultural Products , WT/DS457/AB/R  and Add.1, adopted 31 July 2015, DSR 
2015:VI, p. 3403  
Thailand  – H-Beams  Panel R eport, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections 
of Iron or Non -Alloy Steel and H -Beams from Poland , WT/DS122/R , adopted 5 
April 2001, as modified by Appellate Body Report WT/DS122/AB/R, DSR 
2001:VII, p. 2741  
Ukraine – Anti-Dumping 
Measures on Ammonium 
Nitrate  Panel Report, Ukraine – Anti-Dumping Measures on Ammonium Nitrate , 
WT/DS493/R , Add.1 and Corr.1, circulated to WTO Members 20 July 2018  
US – Anti-Dumping and 
Countervailing Duties (China)  Appellate  Body Report, United States – Definitive Anti -Dumping and 
Countervailing Duties on Certain Products from China , WT/DS379/AB/R , 
adopted 25  March  2011, DSR 2011:V, p.  2869 
US – Anti-Dumping 
Methodologies (China)  Panel Report, United States – Certain Methodologies and Their Application to 
Anti-Dumping Proceedings Involving China , WT/DS471/R  and Add.1, adopted 
22 May 2017, as modified by Appellate Body Report WT/DS471/AB/R, DSR 
2017:IV, p. 1589  WT/DS493/AB/R  
 
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 Short Title  Full Case Title and Citation  
US – Carbon Steel  Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion -Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/AB/R  and Corr.1, adopted 19 December 2002, DSR 2002:IX, p. 
3779 
US – Carbon Steel (India)  Appellate  Body Report, United  States – Countervailing Measures on Certain 
Hot-Rolled Carbon Steel Flat Products from India , WT/DS436/AB/R , adopted 
19 December  2014, DSR 2014:V, p.  1727 
US – Clove Cigarettes  Appellate  Body Report, United  States – Measures Affecting the Production and 
Sale of Cl ove Cigarettes , WT/DS406/AB/R , adopted 24  April 2012, 
DSR 2012:XI, p.  5751 
US – Continued Suspension  Appellate Body Report, United States – Continued Suspension of Obligations in 
the EC – Hormones Dispute , WT/DS320/AB/R , adopted 14 November 2008, 
DSR 2008 :X, p. 3507  
US – Continued Zeroing  Appellate Body Report, United States – Continued Existence and Application of 
Zeroing Methodology , WT/DS350/AB/R , adopted 19 February 2009, DSR 
2009:III, p. 1291  
US – COOL  Appellate Body Reports, United States – Certain Country of Origin Labelling 
(COOL) Requirements , WT/DS384/AB/R  / WT/DS386/AB/R , adopted 23 July 
2012, DSR 2012:V, p. 2449  
US – Countervailing and 
Anti-Dumping Measures 
(China)  Appellate Body Report, United States – Countervailing and Anti -Dumping 
Measures on Certain Products from China , WT/DS449/AB/R  and Corr.1, 
adopted 22 July 2014, DSR 2014:VIII, p. 3027  
US – Countervailing 
Measures (China) (Article 
21.5 – China)  Appellate Bo dy Report, United States – Countervailing Duty Measures on 
Certain Products from China – Recourse to Article 21.5 of the DSU by China,  
WT/DS437/AB/RW  and Add.1, circulated to WTO Members 16 July 2019  
US – Hot-Rolled Steel  Appellate Body Report, United Sta tes – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R , adopted 23 August 
2001, DSR 2001:X, p. 4697  
US – OCTG (Korea)  Panel Report, United States – Anti-Dumping Measures on Certain Oil Country 
Tubular Goods from Korea , WT/DS488/R  and Add.1, adopted 12 January 2018  
US – Softwood Lumber IV  Appellate Body Report, United States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from Canada , 
WT/DS257/AB/R , adopted 17 February 2004, DSR 2004:II, p. 571  
US – Softwood Lumber IV 
(Article 21.5 – Canada)  Appellate Body Report, United States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from Canada – 
Recourse by Canada to Article 21.5 of the DSU , WT/DS257/AB/RW , adopted 
20 December 2005, DSR 2005:XXIII, p. 11357  
US – Softwood Lumber V  Panel Report, United States – Final Dumping Determination on Softwood 
Lumber from Canada , WT/DS264/R , adopted 31 August 2004, as modified by 
Appellate Body Report WT /DS264/AB/R, DSR 2004:V, p. 1937  
US – Upland Cotton 
(Article  21.5 – Brazil)  Appellate Body Report, United States – Subsidies on Upland Cotton – Recourse 
to Article 21.5 of the DSU by Brazil , WT/DS267/AB/RW , adopted 20 June 
2008, DSR 2008:III, p. 809  
US – Wheat Gluten  Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Wheat Gluten from the European Communities , WT/DS166/AB/R , 
adopted 19 January 2001, DSR 2001:II, p. 717  
US – Zeroing (Japan) (Article 
21.5 – Japan)  Appellate  Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan , 
WT/DS322/AB/RW , adopted 31 August 2009, DSR 2009:VIII, p. 3441  
 
  WT/DS493/AB/R  
 
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 WORLD TRADE ORGANIZATION  
APPELLATE BODY 
 
 
Ukraine – Anti-Dumping Measures on 
Ammonium Nitrate  
 
Ukraine , Appellan t 
Russia n Federation , Appellee  
 
Argentina , Third Participant  
Australia , Third Participant  
Brazil , Third Participant  
Canada , Third Participant  
China , Third Participant  
Colombia, Third Participant  
European Union, Third Participant  
Japan, Third Participant  
Mexico, Third Participant  
Norway, Third Participant  
United States, Third Participant  
 AB-2018-5 
 
Appellate Body Division :  
 
Zhao, Presiding Member  
Bhatia , Member  
Servansing , Member  
 
 
 
1  INTRODUCTION  
1.1.  Ukraine  appeals certain issues of law and legal interpretations developed in the Panel Report,  
Ukraine – Anti-Dumping Measures on Ammonium Nitrate1 (Panel Report). The Panel was established 
on 22 April 20162 to consider a complaint by the Russ ian Federation3 (Russia) with respect to certain 
measures taken by Ukraine regarding the imposition of anti-dumping duties on imports of 
ammonium nitrate from Russia.  
1.2.  Duties were originally imposed  on ammonium nitrate from Russia  by Ukraine's  
Intergovernmental Commission on International Trade (ICIT) through its decision of 21 May 2008 
(2008 original decision).4 Russian producer JSC MCC  EuroChem (EuroChem) successfully challenged 
the 2008 original d ecision before domestic courts in Ukraine,  following which ICIT issued an 
amendment  (2010 amendment)  to the 2008 original decision ( as amended, 2008 amended 
decision ).5 Subsequently, following  interim and expiry review s conducted by  the Ministry of Economi c 
Development and Trade of Ukraine (MEDT) , ICIT issued a decision  (2014 extension decision), which 
imposed  anti-dumping duties at modified rates , including with respect to EuroChem .6 The factual 
aspects of this dispute are set forth in greater detail in the Panel Report  and in section 5 of this 
Report . 
                                                
1 WT/DS 493/R, 20 July 2018 . 
2 Minutes of the Dispute Settlement Body (DSB) Meeting held on 22 April 2016, WT/DSB/M/377, 
para. 6.4. 
3 Request for the Establishment of a Panel by  the Russian Federation,  WT/DS 493/2 (Russia's panel 
request) . 
4 Panel Report, para. 2.1 (referring to I CIT, Decision on the application of definitive anti -dumping 
measures on imports of ammonium nitrate originating in Russia No.  АD-176/2008/143 -47 (21 May 2008) 
(2008 original decision) ( Panel Exhibit RUS -2b)). In this  Report, Panel exhibit numbers that are followed by the 
letter "b" refer to the English version of the relevant document.  
5 Panel Report, para. 2.1 (referring to ICIT, Decision implementing court orders regarding EuroChem 
(25 October 2010) (2010  amendment)  (Panel Exhibit RUS -8b)); ICIT, C onsolidated version of the Decision on 
the application of definitive anti -dumping measures on imports of ammonium nitrate originating in Russia 
No. АD-176/2008/143 -47 (21 May 2008 , as amended on 25 October 2010 ) (2008  amend ed decision)  
(Panel  Exhibit RUS -12b). See also ibid., paras. 7.18 -7.19. 
6 Panel Report, para. 2.2 (referring to ICIT, Notice on the changes and extension of anti -dumping 
measures on import s of ammonium nitrate origin ating in Russia  (8 July 2014)  (2014 exte nsion decision)  
(Panel  Exhibit RUS -4b)). WT/DS493/AB/R  
 
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 1.3.  Before the Panel, Russia challenged Ukraine's  measures under various provisions of the 
Agreement on Implementation of Article VI of th e General Agreement on Tariffs and Trade 1994 
(Anti-Dumping Agreement) .7 The Panel made the following findings in its Report.  
1.4.  With respect to the Panel's  terms of reference, the Panel found that:  (i) measures consisting 
of the 2008 amended decision and the  2010 amendment were within its terms of reference8; 
(ii) certain claims under Article s 5.8 and 11.1-11.3 of the Anti -Dumping Agreement , as well as 
certain claims under Article  6.8 and paragraphs 3, 5, and 6 of Annex II , were within its terms of 
reference9; and (iii) certain claims under  Articles 12.2 and 12.2.2 of the Anti -Dumping Agreement  
fell outside its terms of reference.10 
1.5.  With respect to Russia's  claims concerning dumping and likelihood -of-dumping determinations 
in the interim and  expiry  reviews, the Panel found that:  
a. Ukrain e acted inconsistently with Article  2.2.1.1 of the Anti -Dumping Agreement because 
Ukrainian  investigating authorities11 rejected the price of gas that the investigated Russian 
producers paid and reported in their records (reported gas cost)  without providing an 
adequate basis under the second condition of Article  2.2.1.112; 
b. Ukrain e acted inconsistently with Article  2.2 of the Anti -Dumping Agreement because, 
when constructing normal value, Ukrainian investigati ng authorities  used a cost for gas 
that did not reflect the cost of production "in the country of origin", i.e. Russia13; 
c. Ukrain e acted inconsistently with Article  2.2.1 of the Anti -Dumping Agreement because, 
in conducting their ordinary -course -of-trade tes t, Ukrainian investigating authorities  relied 
on costs that were calculated inconsistently with Article  2.2.1.1 of the Anti -Dumping 
Agreement14; and 
d. Ukrain e acted inconsistently with Articles  11.2 and 11.3 of the Anti -Dumping Agreement 
because Ukrainian  investigating authorities  relied on dumping margins calculated 
inconsistently with Articles  2.2, 2.2.1, and 2.2.1.1 of the Anti -Dumping Agreement to 
make their likelihood -of-dumping determinations .15 
1.6.  With respect to Russia's  claims concerning the non -termin ation of the investigation against 
EuroChem, the Panel found that Ukrain e acted inconsistently with Article  5.8 of the Anti -Dumping 
Agreement because Ukrainian investigating authorities : 
a. failed to exclude EuroChem from the scope of the original anti -dumpin g measures, 
specifically the 2008 amended decision ; 
b. imposed a 0% anti -dumping duty on EuroChem through the 2010 amendment instead of 
excluding it from the scope of the anti -dumping duty order; and  
                                                
7 Panel Report, para. 3.1. Russia also raised one consequential claim under Article VI of the 
General  Agreement on Tariffs and Trade 1994 ( GATT 1994). (Ibid., para. 3.1.g)  
8 Panel Report, para. 8.1.a.  
9 Panel Report, para. 8.1.b.  
10 Panel Report, para. 8.1.c. The Panel also considered moot Ukraine's request for a ruling that certain 
claims under Articles 3.1 and 3.4 of the Anti -Dumping Agreement fall outside its terms of refer ence. 
(Ibid.,  para. 8.1.d)  
11 We use the term s "Ukrainian  investigating authorities"  and "investigating authorities" interchangeably 
to refer  to both ICIT and MEDT.  
12 Panel Report, para. 8.2.a.  
13 Panel Report, para. 8.2.b.  
14 Panel Report, para. 8.2.c.  
15 Panel Report, para. 8.2.d. The Panel further found that Russia failed to establish that Ukraine acted 
inconsistently with Article  2.1 of the Anti -Dumping Agreement, and exercised judicial economy with regard to 
certain additional claims under Articles 2.2, 2. 2.1.1, 2.4, and 11.1 of the Anti -Dumping Agreement. 
(Ibid.,  para. 8.2.e -i) WT/DS493/AB/R  
 
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 c. included EuroChem within the scope of the review determinations and imposed 
anti-dumping duties on it through the 2014 extension decision .16 
1.7.  The Panel further  found that , with respect to  Russia's  claims challenging the investigating 
authorities ' conduct in the inter im and expiry reviews, Ukrain e acted inconsistently with Article 6.9 
of the Anti -Dumping Agreement because Ukrainian  investigating authorities failed to  disclose  certain  
essential facts and to give interested parties sufficient time to comment on MEDT's disclosure.17 
1.8.  Pursuant to Article  19.1 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  (DSU), the Panel  recommend ed that Ukraine bring its measures into 
conformity with its obligations under the Anti -Dumping Agreemen t.18 
1.9.  On 23 August 2018 , Ukraine  notified the Dispute Settlement Body ( DSB), pursuant to 
Articles  16.4 and 17 of the DSU, of its intention to appeal certain issues of law covered in the Panel 
Report and certain legal interpretations developed by the Panel , and filed a Notice of Appeal19 and 
an appellant's submission pursuant to Rule  20 and Rule 21, respectively, of the Working Procedures 
for Appellate Review20 (Working Procedures).  On 10 September 2018 , Russia  filed an appellee's 
submission .21 On 13 September 2018, Argentina, Australia, Brazil, the European Union, Japan, and 
the United States  each filed a third participant's submission .22 On the same day, Canada, China, 
Colombia, Mexico, and Norway  each notified its intention to appear at the oral hearing as a third 
participant .23 
1.10.   By letter dated 28 September 2018, the participants and third participants were informed 
that, in accordance with Rule 15 of the Working Procedures, the Chair of the Appellate  Body had 
notified the Chair of the DSB of the Appellate  Body's decision to authorize Appellate  Body Member 
Mr Shree Baboo Chekitan Servansing to complete the disposition of this appeal, even though his 
term of office was due to expire before the completion of the app ellate proceedings.  
1.11.   By letter dated 22 October 2018, the Chair of the Appellate  Body notified the Chair of the DSB 
that the Appellate  Body would not be able to circulate its Report in this appeal within the 60 -day 
period pursuant to Article  17.5 of the DSU , or within the 90 -day period pursuant to the same 
provision , for the reasons mentioned therein.24 For the reasons explained in the letter, work on this 
appeal could gather pace only in March 2019.  By letter dated 31 July 2019 , the Chair of the 
Appellate  Body informed the Chair of the DSB that the Report in these proceedings would be 
circulated on 12 September 2019 .25 
                                                
16 Panel Report, para. 8.3.a. The Panel then exercised judicial economy with regard to certain related 
claims under Articles 11.1 -11.3 of the Anti -Dumping Agreement concerning the no n-termination of the 
investigation against EuroChem. (Ibid., para. 8.3.b) Moreover, the Panel found that Russia failed to establish 
certain violations under Articles 11.1 -11.3 in connection with the investigating authorities'  alleged 
determination of and r eliance on injury not established in accordance with Articles 3.1 and 3.4 in making their 
likelihood -of-injury determination. (Ibid., para. 8.4)  
17 Panel Report, para. 8.5.a -b. The Panel further found that Russia failed to establish certain violations 
under  Articles 6.2, 6.8, and 6.9 and paragraphs 3, 5, and 6 of Annex II to the Anti -Dumping Agreement, and 
exercised judicial economy with regard to additional claims under Article 6.2. (Ibid., para. 8.5.c -f) Moreover, 
regarding Russia's claims of consequential  violations, the Panel found that Russia failed to establish that 
Ukraine acted inconsistently with Article  VI of the GATT 1994 as a consequence of alleged violations under the 
Anti-Dumping Agreement, and exercised judicial economy with respect to Russia's  claims under Articles  1 and 
18.1 of the Anti -Dumping Agreement . (Ibid., para. 8.6)  
18 Panel Report, para. 8.8.  
19 WT/DS 493/6 (contained in Annex A-1 of the Addendum to this Report , WT/DS493/AB/R/Add.1 ). 
20 WT/AB/WP/6 , 16 August 2010.  
21 Pursuant to Rule 22 of the Working Procedures.  
22 Pursuant to Rule 24(1) of the Working Procedures.  
23 Pursuant to Rule 24(2) of the Working Procedures.  Kazakhstan and Qatar, which were third parties 
before the Panel, are not third participants in these appellate proceedings as they did not file a written 
submission pursuant to Rule 24(1) of the Working Procedures or appear at the oral hearing.  
24 The Chair of the Appellate Body referred to the size of the Panel record and the complex issues 
appealed, and further no ted that, in view of the backlog of appeals pending with the Appellate Body, and the 
overlap in the composition of all divisions resulting in part from the reduced number of Appellate Body 
Members, it would not be possible for the Division to focus on the consideration of this appeal and for it to be 
fully staffed for some time. (WT/DS493/7)  
25 WT/DS493/8.  WT/DS493/AB/R  
 
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 1.12.   The oral hearing in this appeal was held on 20 -21 May 2019. The participants and seven  third 
participants (Argen tina, Australia, Brazil, the European Union, Mexico, Norway, and 
the United  States) made oral statements. The participants and third participants also responded to 
questions posed by the Members of the Appellate  Body Division hearing the appeal.  
2  ARGUMENTS OF THE PARTICIPANTS  
2.1.  The claims and arguments of the participants are reflected in the executive summaries of their 
written submissions  provided to the Appellate  Body.26 The Notice of Appeal and the executive 
summaries of the participants' claims and argumen ts are contained in Annexes A and B of the 
Addendum to this Report, WT/DS493/AB/R/Add.1.  
3  ARGUMENTS OF THE THI RD PARTICIPANTS  
3.1.  The arguments of those third participants that filed a written submission are reflected in the 
executive summaries  of their written  submissions provided to the Appellate  Body27, which are 
contained in Annex C of the Addendum to this Report, WT/DS493/AB/R/Add.1.  
4  ISSUES RAISED IN THIS APPEAL  
4.1.  The following issues are raised in this appeal of the Panel Report:  
a. with respect to the claims under Article s 6.2, 7.1, and  11 of the DSU  relating to  the original 
investigation phase:  
i. whether the Panel erred  in its analysis  under Article 6.2 of the DSU in finding that the 
2008 amended decision and the 2010 amendment were i dentified as specific measures 
at issue in Russia's panel request;  
ii. whether the Panel erred under Articles 7.1 and 11 of the DSU by ruling on Russia's 
claim under Article 5.8 of the Anti -Dumping Agreement as it relates to the 
2008 amended decision and the 2 010 amendment; and  
iii. whether the Panel erred under Article 11 of the DSU by failing to examine properly the 
arguments and evidence presented by Ukraine regarding the authority of Ukrainian 
courts and investigating authorities to calculate dumping margins und er Ukrainian law; 
and 
b. with respect  to the claims under Articles 2.2, 2.2.1, and 2.2.1.1 of the Anti -Dumping 
Agreement relating  to MEDT 's determinations of dumping in the interim and expiry 
reviews:  
i. whether the Panel erred in its interpretation and applicat ion of the second condition in 
the first sentence of Article  2.2.1.1 of the Anti -Dumping Agreement in finding that 
MEDT did not provide an adequate basis for rejecting the reported gas cost under that 
condition;  
ii. whether the Panel consequently erred in find ing that Ukraine acted inconsistently with 
Article  2.2.1 of the Anti -Dumping Agreement because, in conducting its 
ordinary -course -of-trade test, MEDT relied on costs calculated inconsistently with 
Article  2.2.1.1 of the Anti -Dumping Agreement; and  
                                                
26 Pursuant to the Appellate  Body's communication on "Executive Summaries of Written Submissions in 
Appellate Proceedings" and "Guidelines in Respect of Ex ecutive Summaries of Written Submissions in 
Appellate  Proceedings" . (WT/AB/23, 11  March  2015)  
27 Pursuant to the Appellate  Body's communication on "Executive Summaries of Written Submissions in 
Appellate Proceedings" and "Guidelines in Respect of Executive Summaries of Written Submissions in 
Appellate  Proceedings" . (WT/AB/23, 11  March  2015)  WT/DS493/AB/R  
 
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 iii. whether the Panel erred in its interpretation and application of Article  2.2 of the 
Anti-Dumping Agreement in finding that, when constructing normal value, MEDT failed 
to calculate the cost of production "in the country of origin".  
5  RELEVANT BACKGROUND INFORMATION  
5.1.  We first provide an overview of relevant background information concerning Ukraine's 
anti-dumping proceedings regarding imports of ammonium nitrate from Russia.  
5.2.  ICIT is responsible for  initiat ing anti-dumping investigations, as well as for  terminat ing, 
extend ing, or chang ing anti-dumping measures.28 For its part, MEDT is responsible for conducting 
anti-dumping investigations and reviews, as well as for preparing final reports containing its 
conclusions and recommendations that serve as the b asis for ICIT decisions.29 
5.3.  Following an anti -dumping investigation on imports of ammonium nitrate from Russia into 
Ukraine, ICIT imposed anti -dumping duties on such imports through the 2008 original decision.30 In 
doing  so, ICIT accepted the recommendation s and dumping margins proposed by MEDT31, which 
resulted in the imposition of an anti -dumping duty of 10.78% on EuroChem.32 
5.4.  EuroChem successfully challenged the 2008 original decision before Ukraine's domestic 
courts.33 The District Administrative Court of Kiev  (District Court) held that MEDT had erroneously 
applied discounts in calculating dumping margins for EuroChe m where no discount had actually been 
provided.34 The Panel noted that the District Court "concluded that there was 'absence of dumping' 
by EuroChem  in the original investigation" and that the District Court  "found that the case files 
reaffirmed the calculations presented by EuroChem showing that its dumping margin had a 'negative 
value/rate'" .35 The District Court judgment was upheld by the Kiev Appel late Administrative Court 
(Appellate Court) and the Higher Administrative Court of Ukraine (Higher Court).36 
5.5.  Following the  Ukrainian  courts ' judgments , ICIT issued the 2010 amendment, which amended 
the 2008 original decision , resulting in the 2008 amended decision.37 In the 2010 amendment, ICIT 
imposed a 0% duty on EuroChem "in pursuance of" the judgments of Ukraine's domestic courts, 
including the District Court.38 
5.6.  Subsequently, interim and expiry reviews were initiated, and M EDT issued "[m]aterials" in 
connection with these reviews (Investigation Report)39, which contained findings and 
recommendations on the continued imposition of anti -dumping duties at modified rates on imports 
of ammonium nitrate originating in Russia.40 On the basis of the Investigation Report, ICIT then 
issued the 2014 extension decision, thereby imposi ng anti-dumping duties at modified rates41, 
                                                
28 Panel Report, fn 11 to para. 2.1 (referring to Ukraine's response to Panel question No. 1, paras. 1 -2). 
29 Panel Report, fn 11 to para. 2.1 (referring to Ukraine's response to Panel question No. 1, para. 3).  
30 Panel Report, para. 2.1 (referring to 2008 original decision  (Panel Exhibit RUS -2b)). 
31 Panel Report, para. 7.136.  
32 Panel Report, para. 7.136 (referring to Ukraine's response to Panel question No.19( a), para. 75; 
Russia's response to Panel question No. 19(a), para. 38).  
33 Panel Report, paras. 2.1, 7.18 and fn 59 thereto, 7.134, and 7.137.  
34 Panel Report, fn 238 to para. 7.136  (referring to Judgment No. 5/411 by the District Administrative 
Court of Kie v (6 February 2009 ) (Judgment of the District Court)  (Panel Exhibit RUS -6b)). 
35 Panel Report, para. 7.147 (referring to ibid., para. 7.136).  
36 Panel Report, para s. 7.18 and fn 59 thereto, and 7.137 and fn 259 thereto  (referring to Judgment 
No. 2-а-8850/08 by the Kiev Appellate Administrative Court (26 August 2009 ) (Judgment of the 
Appellate  Court)  (Panel Exhibit RUS -5b); Judgment No. К -42562/09 by the Higher Administrative Court of 
Ukraine  (20 May 2010 ) (Judgment of the Higher Court) (Panel Exhibit RUS -7b)). The Panel quoted the Higher 
Court, which found that "no discounts were granted by [EuroChem] in the ordinary course of trade operations." 
(Ibid.,  fn 239 t o para.  7.137  (quoting  Judgment of the Higher  Court ( Panel Exhibit RUS -7b))) 
37 Panel Report, paras. 2.1 and 7.137 (referring to 2010 amendment  (Panel Exhibit  RUS-8b)); 
2008 amended decision  (Panel Exhibit RUS -12b).  
38 Panel Report, para s. 7.19, 7.137 , and 7.147 (quoting 2010 amendment (Panel Exhibit  RUS-8b)). 
39 MEDT, Materials on interim and expiry reviews  of the anti -dumping measures on imports of 
ammonium nitrate originating in Russia (25  June 2014)  (Investigation Report) (Panel Exhibit RUS -10b).  
40 Panel Report, para. 2.2  (referring to Investigation Report (Panel Exhibit RUS -10b)) . 
41 Panel Report, para. 2.2  (referring to 2014 extension decision (Panel Exhibit RUS -4b)). WT/DS493/AB/R  
 
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 including a duty of 36.03% on EuroChem .42 For the purpose of its dumping margin calculations in 
the interim and expi ry reviews, MEDT constructed the normal value of ammonium nitrate for two 
investigated Russian producers on the basis of their cost of production.43 In doing  so, MEDT rejected 
the reported gas cost44, and replaced it with the price of gas exported from Russi a at the German 
border, adjusted for transportation expenses (surrogate price of gas).45 MEDT also used the 
surrogate price of gas in its ordinary -course -of-trade test, that is, when considering that the 
domestic sales of these investigated Russian producer s were not in the ordinary course of trade by 
reason of price and thus could be disregarded in calculating normal value. In that regard, MEDT 
stated that the domestic selling prices of the investigated Russian producers were "lower than [the] 
reasonable pe r unit costs for its production (taking into account the natural gas value adjustment)".46 
5.7.  In the Investigation Report, MEDT stated that it was rejecting the reported gas cost because 
the records did "not completely reflect the costs associated with product ion and sale of the [product 
under consideration], in particular, the gas expenses".47 This conclusion was based on the following 
grounds : (i) the gas price in Russia was not a market price, as the State controlled th is price48; 
(ii) due to the existence of State control, the price of gas for the investigated Russian producers was 
much lower than the selling price of gas exported from Russia and the prices for producers in other 
countries, as well as the market price in certain countries such as Canada, the E uropean Union, 
Japan, or the United  States49; and (iii)  calculations showed that JSC Gazprom (Gazprom), a Russian 
supplier of gas, was selling below its cost of production and that its profitability was due to export 
sales.50 MEDT further considered that the export price of gas from Russia at the German border was 
representative and could thus be used to calculate the investigated Russian producers' cost of 
production , subject to an adjustment for transportation expenses.51 In that regard, MEDT noted that 
Germany was the biggest consumer of Russian natural gas and that the export price of gas from 
Russia at the German border had been revised to reflect market conditions in 2012.52 
6  ANALYSIS OF THE APPE LLATE  BODY  
6.1  Claims under Artic les 6.2, 7.1, and 11 of the DSU relating to the original investigation 
phase  
6.1.1   Introduction  
6.1.  In this section, we address Ukraine's three claims on appeal that relate to the Panel's analysis 
regarding the 2008 amended decision and the 2010 amendment, which are  brought under 
Articles  6.2, 7.1, and 11 of the DSU. First, Ukraine claims that the Panel erred in its analysis under 
Article  6.2 of the DSU in finding that the 2008 amended decision and the 2010 amendment were 
identified as measures at issue in Russia's p anel request.53 Second, Ukraine claims that the Panel 
erred under Articles 7.1 and 11 of the DSU by ruling on Russia's claim under Article  5.8 of the 
Anti-Dumping Agreement as it relates to the 2008 amended decision and the 2010 amendment.54 
Ukraine argues t hat Russia's claim under Article 5.8 of the Anti -Dumping Agreement, as identified 
in Russia's panel request, was not made  with respect to these measures but only with respect to the 
2014 extension decision.55 Third, Ukraine claims that the Panel erred under  Article  11 of the DSU by 
failing to examine properly the arguments and evidence presented by Ukraine regarding the 
2010 amendment and the Ukrainian court judgments that ICIT implemented in concluding that 
                                                
42 Panel Report, para s. 7.134 and  7.138  (referring to Investigation Report (Panel Exhibit RUS -10b), 
p. 28; 2014 extension decision  (Panel Exhibit RUS -4b)). 
43 Panel Report, para. 7.72.  
44 Before the Panel, the parties did not dispute the fact that the reported gas cost was the price actually 
paid by the investigated Russian producers. ( Panel Report, para. 7.73 ) 
45 Panel Report, para.  7.72, 7.94, and 7.99  (referring to Investigation Report (Panel Exhibit RUS -10b), 
p. 23). See also ibid., para. 7.114  (referring to Ukraine's response to Panel question  No. 50, para s. 17-18). 
46 Panel Report, para . 7.113 (quoting Investigation Report (Panel Exhibit RUS -10b), pp. 25 -26). 
(emphasis added by the Panel omitted)  
47 Panel Report, para. 7.73  (quoting Investigation Report (Panel Exhibit RUS -10b), p. 23) . 
48 Panel R eport, para. 7.73 .a (referring to Investigation Report (Panel Exhibit RUS -10b), pp. 21 -22). 
49 Panel Report, para. 7.73 .b (referring to Investigation Report (Panel Exhibit RUS -10b), p. 22) . 
50 Panel Report, para. 7.73 .c (referring to Investigation Report (Pa nel Exhibit RUS -10b), pp. 22 -23). 
51 Panel Report, para. 7.99 (referring to Investigation Report (Panel Exhibit RUS -10b), p. 23).  
52 Panel Report, para. 7.99  (referring to Investigation Report (Panel Exhibit RUS -10b), p. 23) . 
53 Ukraine's appellant's submissi on, paras.  5-26; Notice of Appeal, para.  a. 
54 Ukraine's appellant's submission, paras.  27-36; Notice of Appeal, para.  b. 
55 Ukraine's appellant's submission, para. 34.  WT/DS493/AB/R  
 
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 Ukraine had acted inconsistently with Article  5.8 of the Anti -Dumping Agreement in relation to the 
2008 amended decision, the 2010 amendment, and the 2014 extension decision.56 Russia requests 
that we reject these claims.57 
6.2.  We begin by summarizing the relevant Panel findings before addressing each of these three 
claims in turn.  
6.1.2   The Panel's findings  
6.1.2.1   The Panel's findings under Article  6.2 of the DSU  
6.3.  Before the Panel, Ukraine argued that the 2008 amended decision and the 2010 amendment 
fell outside the Panel's terms of reference because , in its  panel request , Russia challenged only the 
determinations made by Ukrainian investigating authorities in the interim and expiry reviews .58 
6.4.  The Panel recalled the factual background to this dispute, namely: (i) following an investigation, 
Ukrainian investigating authorities imposed the original anti -dumping measures on EuroChem in 
2008; (ii)  EuroChem successfully challenged these measures before Ukrainian courts; (iii)  Ukrainian 
investigating authorities issued the 2010 amendment to implement these court judgments by 
reducing  the anti -dumping duty rate for EuroChem from 10.78% to 0%; (iv) Ukrainian investigating 
authorities initiated interim and expiry reviews of the original anti -dumping measures; and 
(v) Ukrainian investigating authorities issued the 2014 extension decision imposing anti -dumping 
duties at modified rates, revising EuroChem's anti-dumping duty rate from 0% to 36.03%.59 
6.5.  Turning to the requirements of Article  6.2 of the DSU, the Panel noted that the panel request 
must identify the specific measures at issue, and t hat measures not properly identified fall outside 
a panel's terms of reference and cannot be the subject of panel findings or recommendations.60 
Further, measures at issue must be "identified with sufficient precision so that what is referred to 
adjudicatio n may be discerned from the panel request".61 The Panel added that this will be the case 
if a measure is identified with "sufficient particularity so as to indicate the nature of the measure 
and the gist of what is at issue".62 Accordingly, the Panel framed the issue as "whether the panel 
request, read as a whole , identified the 2008 amended decision and the 2010 amendment with 
sufficient precision, in a manner consistent with Article  6.2 of the DSU".63 
6.6.  Subsequently, the Panel analysed the language in Russia's panel request. It noted that: 
(i) footnote 2 to the opening paragraph of Russia's panel request refers to the 2008 amended 
decision; (ii) item number 1 alleges violations under Articles 5.8  and 11.1-11.3 of the Anti -Dumping 
Agreement because of the failure by Ukrainian investigating authorities to exclude a certain Russian 
exporter from the "anti-dumping measures"; and (iii) the term "anti -dumping measures" in item 
number 1 is followed by footnote 3, which refers to the 2010 amendment and notes tha t it amended 
the 2008 original decision.64 The Panel considered that the references to the 2008 amended decision 
and the 2010 amendment showed that Russia took issue in its panel request with the alleged failure 
to exclude a Russian exporter from the 2008 a mended decision. Therefore, in the Panel's view, 
Russia's panel request was "sufficiently precise to identify" the 2008 amended decision and the 2010 
amendment as measures at issue.65 
                                                
56 Ukraine's appellant's submission, paras.  100-152; Notice of Appeal, para.  f. 
57 Russia's appellee's submission, paras. 56, 80, and 371 -372. 
58 Panel Report, para.  7.11. The Panel noted that Russia did not challenge the 2008 original decision. 
(Ibid., para. 7.20)  
59 Panel Report, paras.  2.1-2.2 (referring to 2008 original decision (Pane l Exhibit RUS -2b); 
2010 amendment (Panel Exhibit RUS -8b); 2014 extension decision (Panel  Exhibit RUS -4b)), 7.18 -7.19 
(referring to J udgment of the District Court (Panel Exhibit RUS -6b); Judgment of the Appellate Court 
(Panel  Exhibit RUS -5b); Judgment of th e Higher Court (Panel Exhibit RUS -7b); 2010 amendment (Panel Exhibit 
RUS-8b)), and 7.134 (referring to 2014 extension decision (Panel Exhibit RUS -4b)). 
60 Panel Report, para.  7.21 (referring to Appellate  Body Reports, Dominican Republic – Import and Sale 
of Cigarettes , para.  120; EC and certain member States – Large Civil Aircraft , para.  790). 
61 Panel Report, para.  7.21 (referring to Appellate  Body Report, US – Continued Zeroing , para.  168).  
62 Panel Report, para.  7.21 (referring to Appellate  Body Report, US – Continued Zeroing , para.  169).  
63 Panel Report, para.  7.21. 
64 Panel Report, para. 7.24.  
65 Panel Report, para.  7.24. WT/DS493/AB/R  
 
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 6.7.  The Panel then addressed two arguments made by Ukraine.66 First, the Panel  disagreed with 
Ukraine that the phrase "in connection with the expiry and interim reviews" in the opening paragraph 
of the panel request restricted Russia's challenge to the interim and expiry reviews.67 The Panel 
reasoned that the opening paragraph of a p anel request cannot be read in isolation from the 
remainder of that panel request and recalled that both footnote 2 and item number 1  covered  the 
2008 amended decision and the 2010 amendment.68 Next, the Panel rejected Ukraine's argument 
that footnotes cann ot determine a panel's terms of reference. It considered that nothing in Article  6.2 
of the DSU prohibits identifying measures in footnotes in panel requests, and that the Appellate  Body 
has found that footnotes are part of the text of a panel request and therefore may be relevant to 
identifying measures at issue.69 
6.8.  The Panel therefore concluded that the 2008 amended decision and the 2010 amendment were 
identified as specific measures at issue in the panel request and fell within its terms of reference.70 
6.9.  Subsequently, the Panel considered whether item number 1 of Russia's panel request satisfied 
the second requirement of Article  6.2 to provide a brief summary of the claim sufficient to present 
the problem clearly.71 The Panel articulated that this requirement is met where the panel request 
explains how or why a measure at issue is considered to violate the World Trade Organization ( WTO) 
obligation in question, and that a panel request must plainly connect challenged measures with the 
provisions of the covered a greements claimed to have been infringed.72 
6.10.   The Panel then analysed item number 1 of the panel request and found that Russia's use of 
the word "because" twice suggested that Russia challenged two aspects of the measures at issue, 
namely: (i) Ukraine fail ed to exclude a Russian exporter whose dumping margin was de minimis  
from the "anti -dumping measures"; and (ii) Ukraine subject ed that exporter to interim and expiry 
reviews.73 The Panel considered that footnote 3 explains "anti -dumping measures" by referring to 
the 2008 amended decision, the 2010 amendment, and the Ukrainian court judgments that the 2010 
amendment implemented.74 The Panel also referred to the language and nature of the obligations 
under Articles 5.8  and 11.1-11.3 of the Anti -Dumping Agreement.75 For the Panel, these elements 
together made it sufficiently clear that Russia intended to challenge the failure by Ukrainian 
investigating authorities  to exclude EuroChem from the original investigation phase , and the decision 
to subject EuroChem to interim and expiry reviews when it should have terminated the investigation 
against it.76 On that basis, the Panel considered that Russia's panel request provided a brief summary 
of the legal basis sufficient to pres ent the problem clearly in accordance with Article  6.2 of the DSU.77 
The Panel thus found that the claims presented in item number 1 of Russia's panel request were 
within its terms of reference.78 
6.1.2.2   The Panel's findings under Article  5.8 of the Anti -Dumping Ag reement  
6.11.   Before the Panel, Ukraine argued that there was no determination of a de minimis  dumping 
margin within the meaning of the second sentence of Article  5.8 of the Anti -Dumping Agreement 
because Ukrainian courts did not have the legal competence to cal culate a dumping margin , and 
Ukrainian investigating authorities never recalculated a de minimis  dumping margin in the original 
investigation.79 Accordingly, Ukrainian courts could not have recalculated EuroChem's dumping 
margin under domestic law, and ICIT  in implementing these court judgments imposed a 0% duty 
                                                
66 Panel Report, paras.  7.25-7.27. 
67 Panel Report, paras. 7.25.a -7.26 (referring to Ukraine's opening statement at the first Panel meeting, 
para. 12).  
68 Panel Report, para. 7.26. 
69 Panel Report, para s. 7.25.b ( referring to Ukraine's opening statement at the first Panel meeting , 
para. 19) and 7.27 ( quoting  Appellate  Body Report, US – Countervailing and Anti -Dumping Measures (China) , 
para. 4.39; referring to Panel Report, Indonesia – Import Licensing Regimes , preliminary ruling of the panel, 
para. 3.15).  
70 Panel Report, para s. 7.28 and 8.1.a . 
71 Panel Report, paras.  7.30-7.35. 
72 Panel Report, para.  7.30. 
73 Panel Report, paras.  7.31-7.34. 
74 Panel Report, para.  7.33. 
75 Panel Report, paras.  7.33-7.34. 
76 Panel Report, para. 7.34.  
77 Panel Report, para s. 7.35. 
78 Panel Report, paras.  7.35 and 8.1.b.i.  
79 Panel Report, para s. 7.144 -7.146 . WT/DS493/AB/R  
 
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 without itself recalculating a dumping margin.80 Therefore, Ukraine argued that there was no 
dumping determination that could trigger the obligations under the second sentence of Article  5.8 
of the An ti-Dumping Agreement.81 
6.12.   The Panel observed that the parties did not disagree on the legal interpretation of the second 
sentence of Article  5.8 of the Anti -Dumping Agreement, which requires "immediate termination in 
cases where the authorities determine that  the margin of dumping is de minimis ".82 Rather, they 
disagreed as to whether the obligation to terminate had been triggered in the circumstances of this 
case. Specifically, the Panel understood Ukraine's argument as being that the obligations were not 
triggered as there was no legally valid de minimis  dumping margin determined for EuroChem in the 
original investigation phase.83 Consequently, the Panel inquired whether a de minimis  dumping 
margin was determined for EuroChem in the original investigation phase .84 
6.13.   The Panel noted the following elements: (i) the District Court had concluded that there was 
an "absence of dumping" by EuroChem in the original investigation and  that the case files reaffirmed 
the calculations presented by EuroChem, showing that the dumping margin had a "negative 
value/rate"85; (ii) the District Court's judgment had been upheld by higher courts, which found that 
the District Court had correctly establis hed the circumstances of the case, and thoroughly 
investigated the existing evidence86; (iii) ICIT had itself implemented the 2010 amendment  in 
"pursuance" of these judgments, which made the anti -dumping duty on EuroChem 0%87; 
(iv) nothing in the 2010 amendm ent or other evidence on the record suggested that ICIT disputed 
the Ukrainian court findings that EuroChem had a negative value/rate of dumping88; and (v) Ukraine 
does not challenge the legal validity of the se Ukrainian court judgments .89 On that basis, the  Panel 
concluded that the "combined effect" of the court judgments and their implementation by the 
2010 amendment was that the dumping margin for EuroChem in the original investigation phase 
was de minimis .90 
6.14.   The Panel then noted Ukraine's arguments as to why no "legally valid" dumping margin had 
been "calculated" for EuroChem: (i) the Ukrainian court findings were based on calculations provided 
by EuroChem alone, because , according to ICIT's policy, ICIT could not provide evidence of 
confid ential information in public court proceedings ; (ii) only ICIT and MEDT have authority under 
Ukrainian law to calculate dumping margins, and Ukrainian courts do not; (iii)  the 2010 amendment 
enforced the Ukrainian court rulings but did not recalculate a du mping margin for EuroChem; and 
(iv) ICIT could not recalculate EuroChem's dumping margin without specific instructions from 
Ukrainian courts to reopen the investigation and apply a particular methodology, and thus had to 
reduce the duty to 0%.91 
6.15.   The Panel c onsidered that these arguments comprised matters of Ukrainian domestic law.92 
The Panel recalled that , while  it is for each WTO Member to decide how to implement the decisions 
of its courts , such arrangements , however , are not determinative of issues raised  in WTO dispute 
                                                
80 Panel Report, para. 7.145 (referring to Ukraine's first written submission to the Panel, para. 253; 
response to Panel question No. 21, para. 83; opening statement at the first Panel meeting , para.  138).  
81 Panel Report, para.  7.145  (referring to Ukraine's first written submission to the Panel, para. 256) . 
82 Panel Report, para.  7.146. The Panel set out its interpretation in paragraphs  7.139 -7.140 of the Panel 
Report. In particular, the Panel recalled that the parties  agree that "immediate termination" is required where a 
"zero or de minimis  dumping margin" is determined in the original investigation, and that the imposition of a 
0% duty does not amount to termination. Instead, releva nt producers must be excluded from the scope of the 
anti-dumping order. (Ibid., para.  7.140 (referring to  Appellate  Body Report, Mexico – Anti-Dumping  Measures 
on Rice , paras.  217, 219, and 305 ; Panel Report, Mexico – Anti-Dumping  Measures on Rice , para. 7 .140)) . 
83 Panel Report, para.  7.146.  
84 Panel Report, para.  7.146.  
85 Panel Report, para s. 7.136 ( quoting Judgment of the District Court (Panel Exhibit RUS -6b)) and 
7.147 . 
86 Panel Report, para.  7.147 and fn  239 to para.  7.137  (referring to Judgment of the Appellate Court  
(Panel Exhibit RUS -5b); quoting Judgment of the Higher Court (Panel Exhibit RUS -7b)). 
87 Panel Report, para. 7.147.  
88 Panel Report, para. 7.146.  
89 Panel Report, para.  7.147 (referring to Ukraine's first written submission to the Panel, para.  253).  
90 Panel Report, para.  7.147.  
91 Panel Report, para.  7.148  (referring to Ukraine's response to Panel question No. 21, paras. 83 -85, 
and Panel question No. 22, paras. 92 -93; opening statement at the first Panel meeting, paras. 138 and 142; 
second writt en submission to the Panel, para. 97) . 
92 Panel Report, para.  7.149 . WT/DS493/AB/R  
 
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 settlement proceedings.93 On that basis, the Panel found that Ukraine's arguments did not show that 
no de minimis  dumping margin had been determined for EuroChem in the original investigation 
phase.94 The Panel further considered that even if  ICIT had been unable to present evidence before 
Ukrainian courts, the restraints on ICIT were matters of domestic law and did not affect the probative 
value  before the Panel  of the judgments as implemented by ICIT.95 The Panel noted that the court 
judgment s found that EuroChem had a negative rate of dumping, and ICIT implemented those 
judgments; there was accordingly no basis for Ukraine to argue that no negative or de minimis  
margin had been found in the original investigation phase.96 The Panel thus consid ered that Ukraine 
had failed to rebut Russia's arguments that evidence on the record showed the absence of dumping 
by EuroChem.97 
6.16.   On that basis, the Panel agreed that the obligation under the second sentence of Article  5.8 
of the Anti -Dumping Agreement was triggered because EuroChem had a de minimis  dumping margin 
in the original investigation phase. Therefore, Ukraine had to terminate immediately the 
investigation with regard to EuroChem and accordingly exclude it from the scope of the anti-dumping 
measures.98 Based on the foregoing, the Panel found that Ukraine acted inconsistently with 
Article  5.8 of the Anti -Dumping Agreement because it failed to exclude EuroChem from the scope of 
the original anti -dumping measures, specifically the 20 08 amended decision, and instead imposed 
a 0% anti -dumping duty on EuroChem through the 2010 amendment.99 
6.17.   The Panel then considered Russia's claim  under Article  5.8 of the Anti -Dumping Agreement 
with respect to the interim and expiry reviews.100 Ukraine conte nded that the obligation under the 
second sentence of Article  5.8 had not been triggered because there was no legally valid de minimis 
dumping determination, and that , in any event, a de minimis  dumping determination did not require 
investigating authoriti es to terminate a review.101 The Panel rejected Ukraine's first argument on the 
basis of its prior reasoning.102 As to Ukraine's second argument, the Panel reasoned that the relevant 
question did not concern whether a de minimis  standard applied to interim or expiry reviews, but 
instead concerned "the consequences of a finding that a producer had a de minimis  dumping margin 
in the original investigation phase" and the attendant obligation to terminate immediately that 
investigation with respect to that producer  "on the subsequent interim or expiry review".103 The 
Panel therefore considered that the question before it was "whether Article  5.8 permits investigating 
authorities to include in a review a producer found to have had a de minimis  dumping margin in the 
original investigation and impose anti -dumping duties on it pursuant to such review".104 
6.18.   The Panel found that once an investigation is terminated against a producer by  excluding  it 
from the original investigation, the producer cannot be subjected to administrat ive or changed 
circumstances reviews.105 Therefore, including such a producer in interim or expiry reviews would 
be inconsistent with the obligation under the second sentence of Article  5.8 of the Anti -Dumping 
Agreement to terminate immediately the original investigation.106 On that basis, the Panel found 
that Ukraine acted inconsistently with Article  5.8 because Ukrainian investigating authorities 
                                                
93 Panel Report, para.  7.149  (referring to  Appellate  Body Report, US – Softwood Lumber IV 
(Article  21.5 – Canada) , para.  82). 
94 Panel Report, para. 7.149.  
95 Panel Report, para.  7.150 (refer ring to Appellate  Body Report, US – Zeroing (Japan) (Article  21.5 – 
Japan) , fn 452 to para.  175) and fn  271 thereto.  
96 Panel Report, para. 7.150.  
97 Panel Report, para.  7.150.  The Panel also observed that Ukraine had changed its factual arguments 
during the course of the proceedings on whether, as a matter of Ukrainian law, Ukrainian investigating 
authorities can recalculate dumping margins in the course of a review, or only wh en instructed to do so by 
Ukrainian courts. (Panel Report, fn  272 to para.  7.150)  
98 Panel Report, para.  7.151.  
99 Panel Report, paras.  7.152 and 8.3.a.i -8.3.a.ii.  
100 Panel Report, paras.  7.153 -7.157. 
101 Panel Report, para.  7.153.  
102 Panel Report, para.  7.154 ( referring  to ibid., para. 7.151).  
103 Panel Report, para.  7.154 (referring to Russia's opening statement at the second Panel meeting , 
para. 160).  
104 Panel Report, para.  7.155.  (emphasis original)  
105 Panel Report, para.  7.156. See also ibid., para.  7.140 (refer ring to Appellate  Body Report,  
Mexico – Anti-Dumping  Measures on Rice , paras.  217, 219 , and 305 ; Panel Report, Mexico – Anti-Dumping  
Measures on Rice , para. 7.140) . 
106 Panel Report, para.  7.156.  WT/DS493/AB/R  
 
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 included EuroChem within the scope of the interim and expiry reviews and imposed anti -dumping 
duties on it through  the 2014 extension decision.107 
6.1.3   Whether the Panel erred in its analysis under Article  6.2 of the DSU in finding that 
the 2008 amended decision and the 2010 amendment were identified as specific measures 
at issue in Russia's panel request  
6.19.   Ukraine claims that  the Panel erred in its analysis under Article  6.2 of the DSU in finding that 
the 2008 amended decision and the 2010 amendment were identified as measures at issue in 
Russia's panel request.108 Ukraine therefore requests that we  reverse the Panel's findings under 
Article  6.2 of the DSU in paragraphs 7.24, 7.26 -7.28, and 8.1.a of the Panel Report.109 Russia 
requests that we  uphold the Panel's findings at issue.110 
6.20.   A panel request governs a panel's terms of reference and thereby " delimits the scope of [its] 
jurisdiction ".111 In doing so, it fulfils a due process objective by providing the respondent and third 
parties with notice regarding the nature of the complainant' s case and  to enabl e them to respond 
accordingly.112 Compliance with the requirements of Article 6.2 of the DSU must be determined on 
the face of the panel request113, in light of attendant circumstances114, and on a case -by-case 
basis.115 Panels must, on the basi s of an objective examination, "scrutinize carefully the panel 
request, read as a whole, and on the basis of the language used".116 In addition, the Appellate  Body 
has previously recognized that "footnotes are part of the text of a panel request, and may be relevant 
to the identification of the measure at issue or the presentation of the legal basis of the complaint."117 
6.21.   We recall that the requirement under Article  6.2 of the DSU to identify the "specific measures 
at issue" may be satisfied by reference to the name, number, date , and/or place of promulgation of 
a particular law or regulation.118 However, the fact that a panel request does not specify the relevant 
law, regulation, or other legal instrument to which a claim relates would not necessarily render a 
panel request inconsistent with Article  6.2 of the DSU, so long as the panel request contains 
"sufficient information that effectively identifies the precise measures at issue".119 We further recall 
that Article  6.2 of the DSU requires that measures at issue be  discernible from a panel request, 
reading the panel request as a whole.120 
                                                
107 Panel Report, para s. 7.157  and 8.3.a.iii . 
108 Ukraine's appellant's submission, para. 5.  
109 Ukraine's appellant's submission, para.  5; Notice of Appeal, para.  a. 
110 Russia's appellee's submission, para.  6. 
111 Appellate  Body Reports , China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.12. See also 
Appellate Body Reports, US – Countervailing and Anti -Dumping Measures  (China) , para.  4.6; US – Carbon 
Steel, para.  124. 
112 Appellate  Body Report, US – Countervailing and Anti -Dumping Measures  (China) , para.  4.7 (referring 
to Appellate  Body Reports, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, p.  186; US – Carbon Steel , 
para. 126; EC and certain member States – Large Civil Aircraft , para.  640; Chile – Price Band System , 
para. 164; US – Continued Zeroing , para.  161). 
113 Appell ate Body Reports, US – Carbon Steel , para.  127; China – HP-SSST (Japan) / China  – HP-SSST 
(EU), para.  5.13. Defects in a panel request cannot be cured by the parties' subsequent submissions made 
during panel proceedings, but such submissions or statements may be consulted to confirm the meaning of the 
words used in the panel request. (Appellate Body Report, US – Carbon Steel , para. 127 (referring to 
Appellate  Body Report, EC – Bananas III , paras. 142 -143))  
114 Appellate  Body Report s, Korea – Dairy , para s. 124-127; US – Carbon Steel , para.  127. 
115 Appellate  Body Reports, Korea – Dairy , para.  127; China – Raw Materia ls, para.  220. 
116 Appellate  Body Report s, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.13 (quoting 
Appellate  Body Report, EC – Fasteners (China) , para.  562 (fn omitted) ). 
117 Appellate  Body Report, US – Countervailing and Anti -Dumping Measures (Chi na), para. 4.39. 
118 See e.g. Panel Report, Argentina – Footwear (EC) , para.  8.40. 
119 Panel Report, Canada – Wheat Exports and Grain Imports , para.  6.10 (quoting  Panel Report,  
Canada  – Wheat Exports and Grain Imports , preliminary ruling of the panel, para. 36 ). 
120 Appellate  Body Report,  US – Continued Zeroing , paras. 161 and 168 . WT/DS493/AB/R  
 
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 6.22.   At the outset, we note that the participants do not take issue with the Panel's articulation of 
the legal standard under Article  6.2 of the DSU.121 For its part, although Ukraine accep ts that the 
elements of a panel request cannot be read in isolation, and that a panel request including its 
footnotes must be read as a whole122, Ukraine considers that the Panel erred by failing to demand 
sufficient precision in applying that standard to Ru ssia's panel request.123 
6.23.   In evaluating whether the 2008 amended decision and the 2010 amendment were within the 
Panel's terms of reference, the Panel relied on language in two portions of Russia's panel request.124 
First, the Panel pointed to the opening parag raph of the panel request.125 That paragraph indicates 
that Russia had requested consultations regarding the interim and expiry reviews, and then notes 
in footnote 2 that these "anti -dumping measures" were imposed through a number of instruments, 
including t he 2008 original decision, as it was amended by the 2010 amendment, resulting in the 
2008 amended decision. The Panel marked in bold the language in footnote 2, which refers to the:  
Decision of the Intergovernmental Commission on International Trade  
No. A D-176/2008/143 -47 of 21  May 2008 "On the Application of the Definitive 
Anti-Dumping Measures on Import into Ukraine of Ammonium Nitrate Originating in the 
Russian Federation", as amended by the Decision No. AD -245/2010/4403 -47 of 
25 October  2010.126 
6.24.   Second, the Panel observed that item number 1 of the panel request states that Russia claims 
violations under Articles 5.8  and 11.1-11.3 of the Anti -Dumping Agreement because of the alleged 
failure by Ukrainian authorities to exclude a certain Russian expo rter from the "anti -dumping 
measures".127 The Panel marked in bold the language in footnote 3 to that item, which refers to the:  
Decision of the Intergovernmental Commission on International Trade  
No. AD -245/2010/4403 -47 of 25  October  2010 "On reversal of D ecision of the 
Intergovernmental Commission on International Trade No. AD -176/2008/143 -47 of 
21 May 2008 'On the Application of the Definitive Anti -Dumping Measures on Import 
into Ukraine of Ammonium Nitrate Originating in the Russian Federation ' in respec t of 
JSC MHK EuroChem".128 
6.25.   According to the Panel, the reference to the "anti -dumping measures" in the text of item 
number 1 is followed by footnote 3, "which refers to the 2010 amendment, and notes that it amended 
the 2008 original decision".129 The Panel thu s considered that the references to the 2008 amended 
decision and the 2010 amendment in footnotes 2 and 3 "show that Russia took issue, in its panel 
request, with the alleged failure to exclude the Russian exporter from the 2008 amended 
decision".130 Accordi ngly, the Panel considered that Russia's panel request "was sufficiently precise 
to identify the measures, i.e. [the] 2008 amended decision [] and the 2010 amendment , which were 
being referred for adjudication".131 
6.26.   This matter relates to Russia's claim under Article  5.8 of the Anti -Dumping Agreement as to 
whether Ukrainian investigating authorities – following successful court challenges by EuroChem – 
were required to have excluded EuroChem from the anti -dumping proceedings instead of imposing 
a 0% anti -dumpin g duty. The process by which the dumping margin assigned to EuroChem in the 
                                                
121 At the oral hearing, Ukraine maintained that what is contained in a consultations request may be 
relevant under Article  6.2 of the DSU and that the 2008 amended decision and the 2010 amendment were not 
sufficiently identified in Russia's consultations request. (Ukraine's response to questioning at the oral hearing) 
Ukraine presented no claim regarding Russia's consultations request in its Notice of Appeal and made no 
reference  in its appellant's submission to this argument. In its third participant's submission, the United  States  
submits that the Panel erred by failing to compare the terms of Russia's panel request and its consultations 
request when conducting its analysis unde r Article  6.2 of the DSU. (United  States ' third participant's 
submission, paras.  35-39) 
122 Ukraine's appellant's submission, para.  15. 
123 Ukraine's appellant's submission, paras.  8 and 26.  
124 Panel Report, paras.  7.22-7.24. 
125 Panel Report, para.  7.22. 
126 Panel  Report, para. 7.22 (quoting Russia's panel request, fn 2). (emphasis omitted)  
127 Panel Report, para s. 7.23-7.24. 
128 Panel Report, para. 7.23 (quoting Russia's panel request, fn 3). (emphasis omitted)  
129 Panel Report, para.  7.24. 
130 Panel Report, para.  7.24. 
131 Panel Report, para.  7.24. WT/DS493/AB/R  
 
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 2008 original decision was invalidated and a 0% duty imposed was through the 2010 amendment, 
which amended the 2008 original decision, resulting in  the 2008 amended decision. Accor dingly, 
when the panel request refers in item number 1 to an allegation of inconsistency with Article  5.8 
with respect to the "anti -dumping measures" at issue, the only proper way to understand the legal 
question as to whether EuroChem should have been exc luded from the subsequent interim and 
expiry reviews is to assess the basis for its non -exclusion at the time that the 2008 amended decision 
and the 2010 amendment were issued. We therefore understand the Panel to have read the panel 
request as having esta blished a link – by virtue of the reference to "anti -dumping measures" and 
the footnote reference to the relevant decisions – between the challenged interim and expiry reviews 
and the underlying instruments that related to EuroChem's status, including the 2008 amended 
decision and the 2010 amendment.132 
6.27.   The Panel then addressed two specific contentions by Ukraine. First, the Panel responded to 
Ukraine's argument that the phrase "in connection with the expiry and interim reviews" in the 
opening paragraph of the panel request restricted the scope of Russia's challenge.133 The Panel 
considered that this phrase could not be read in isolation from other parts of the panel request, 
including the language in item number  1 and the corresponding footnotes.134 As the Panel noted, 
based on its reading of the panel request, "footnote  2 of the panel request and the reference to 
'anti-dumping measures' in item number  1 of the panel request covered both the 2008 amended 
decision, and the 2010 amendment ."135 
6.28.   The Panel also rejected Ukraine's contention that footnotes cannot determine a panel's terms 
of reference.136 As the Panel remarked, "nothing in Article  6.2 of the DSU specifically prohibits the 
identification of the specific measures in the footnotes of a panel request ."137 The Panel further found 
support for its analysis in a statement by the Appellate  Body in US – Countervailing and 
Anti-Dumping Measures (China)  that "footnotes are part of the text of a panel request, and may be 
relevant to the identification of the measur e at issue or the presentation of the legal basis of the 
complaint ."138 
6.29.   On the basis of the foregoing, we understand the Panel to have concluded that, although the 
2008 amended decision and the 2010 amendment are referenced only in footnotes of the panel 
request, the question whether EuroChem should have been excluded from the interim and expiry 
reviews was linked to  the decision by Ukrainian courts to invalidate the basis at that point for a 
dumping margin or an anti -dumping duty with respect to EuroChem, as  reflected in the 2008 
amended decision and the 2010 amendment. In this respect, we understand the Panel to have 
concluded that the references to these two instruments, including in the footnote detailing what the 
"anti-dumping measures" in item number 1 c onsisted of , were sufficiently precise  in order to "identify 
the specific measures at issue" within the meaning of Article  6.2 of the DSU.  
6.30.   Ukraine contends that the specific measures at issue should be listed clearly in the portion of 
the panel request sai d to identify the measures at issue.139 Ukraine quotes the opening paragraph 
of Russia's panel request and notes that only the 2014 extension decision is specifically identified.140 
Ukraine then suggests  that if footnotes are to be relied on, they must adopt e xplicit language that 
                                                
132 See Panel Report, paras.  7.22-7.24. We note that a footnote corresponding to footnote  2 in Russia's 
panel request is also contained in Russia's consultations request, and likewise refers to the 2008  original 
decision and its amendment by the 2010 amendment , resulting in the 2008 amended decision. Further, we 
note that item number  7 of Russ ia's consultations request, which corresponds to item number 1 in Russia's 
panel request , alleges an inconsistency with  Article  5.8 of the Anti -Dumping Agreement  "because Ukraine failed 
to completely exclude [EuroChem], for which a de minim is margin of dum ping was determined in the course of 
judicial review, from the scope of the decision establishing original anti -dumping duties, the interim and expiry 
reviews and newly imposed anti -dumping duties" . (Request for Consultations by the Russian Federation, 
WT/DS493/1)  (fn omitted) We therefore do not see that the reasoning of the Panel would have differed had it 
explicitly addressed  Russia 's consultations request.  
133 Panel Report, paras.  7.25.a and 7.26. 
134 Panel Report, para. 7.26.  
135 Panel Report, para.  7.26. 
136 Panel Report, paras. 7.25.b and 7.27.  
137 Panel Report, para. 7.27.  
138 Panel Report, para. 7.27 (quoting Appellate Body Report, US – Countervailing and Anti -Dumping  
Measures (China) , para.  4.39; referring to Panel Report, Indonesia – Import Licensing Regimes , preliminary 
ruling of the Panel, para. 3.15).  
139 Ukraine's appellant's submission, paras.  9-12 and 18.  
140 Ukraine's appellant's submission, paras.  11-12. WT/DS493/AB/R  
 
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 clarifies what measures and claims are being brought, and on what condition s.141 Although Ukraine 
accepts that footnote 2 mentions the 2008 amended decision and the 2010 amendment, it argues 
that they are not identified as measures at i ssue.142 
6.31.   Russia responds that Ukraine's analysis relies on particular portions of the panel request and 
is therefore incompatible with reading the panel request as a whole.143 For instance, Russia remarks 
that Ukraine relies on specific passages as limiting th e scope of the panel request, such as "in 
connection with expiry and interim reviews", and ignores the context and clarification provided by 
the opening paragraph, footnote 2, item number 1, and footnote 3.144 Russia notes that, in any 
event, the 2014 extens ion decision itself refers to the 2008 amended decision.145 Further, Russia 
argues that Article  6.2 of the DSU does not require Russia to list the 2008 amended decision, the 
2010 amendment, and the 2014 extension decision together as measures at issue or ref er to them 
expressly as measures at issue.146 
6.32.   We recall that Article  6.2 of the DSU requires that measures at issue must be identified with 
sufficient precision such that they are discernible from a panel request, reading the panel request 
as a whole.147 While  the location of certain information in a panel request – and, in particular, 
whether such information is in the body text or in a footnote – may have some relevance for 
understanding whether the measures at issue are discernible, it is unlikely to be disp ositive given 
the need to read the panel request as a whole.  
6.33.   Ukraine relies on language in footnote s of a panel request in Indonesia – Import Licensing 
Regimes  as an example of the degree of specificity required of a footnote, which Ukraine claims is 
not e xhibited by footnote 2 of Russia's panel request.148 In particular, Ukraine maintains that the 
footnote s in that panel request contained "explicit language clarifying what measures and claims 
were being brought and on what condition".149 Russia responds that the footnotes in that panel 
request are similar to footnotes 2 and 3 in Russia's panel request in this case.150 Given the inherent 
case-by-case approach to scrutinizing panel requests, we do not consider that a textual comparison 
of footnotes in different panel requests in different disputes is of much assistance in assessing 
whether the 2008 amended decision and the 2010 amendment are discernible measures at issue in 
Russia's panel request. We emphasize that whether the 2008 amended decision and the 2010 
amendment are identified as specific measures at issue turns on whether these measures are 
discernible in the pa nel request, read as a whole, and that footnotes 2 and 3 form part of the text 
of Russia's panel request and may be relevant to the identification of the measures at issue.151 We 
consider that, by this standard, footnotes need not necessarily contain the typ e of explicit language 
Ukraine points to in another dispute in order to be relevant to the identification of the specific 
measures at issue.  
6.34.   Ukraine further argues that, although footnotes 2 and 3  of Russia's panel request  – as distinct 
from the opening pa ragraph and item number 1 – mention the 2008 amended decision and the 2010 
amendment, these references amount to background information and should not have been taken 
into account by the Panel in examining whether the 2008 amended decision and the 2010 
amendment were identified as measures at issue.152 Ukraine argues that the language in footnote 2 
does not indicate that Russia took issue with the 2008 amended decision and the 2010 amendment; 
rather , it provides background information and does not identify th at they are specific measures at 
                                                
141 Ukraine's appellant's submission, fn  5 to para.  15 (referring to Indonesia – Import Licensing 
Regimes , Request for the Establishment of a Panel by New Zealand, WT/DS477/9, in particular fn 5).  
142 Ukraine's appellant's submission, para.  14. 
143 Russia's appell ee's submission, para.  24. 
144 Russia's appellee's submission, paras.  23-24. 
145 Russia's appellee's submission, paras.  26-27. 
146 Russia's appellee's submission, para.  45. 
147 Appellate  Body Report, US – Continued Zeroing , paras.  161 and 168 -169. 
148 Ukraine's appe llant's submission, fn 5 to para. 15 (referring to Indonesia – Import Licensing 
Regimes , Request for the Establishment of a Panel by New Zealand, WT/DS477/9, in particular fn 5).  
149 Ukraine's appellant's submission, paras.  15-16 and fn  5 to para. 15 (referr ing to Indonesia – Import 
Licensing Regimes , Request for the Establishment of a Panel by New Zealand, WT/DS477/9, in particular fn 5).  
150 Russia's appellee's submission, paras.  34-36. 
151 See Appellate  Body Reports, US – Continued Zeroing , paras.  161 and 168 -169; US – Countervailing 
and Anti -Dumping Measures (China) , para.  4.39. 
152 Ukraine's appellant's submission, paras.  17 and 23.  WT/DS493/AB/R  
 
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 issue.153 Russia responds that it specifically listed the 2008 amended decision and the 2010 
amendment to clarify the scope of "anti -dumping measures" in the opening paragraph  and item 
number 1 of the panel request, and disag rees that background information cannot be part of the 
identification of measures at issue.154 
6.35.   The participants  refer to the Appellate Body Report i n Indonesia – Iron or Steel Products  in 
support of their arguments regarding what information can be used from  a panel request in order to 
inform the scope of the measures at issue. In that dispute, the Appellate  Body was asked to consider 
whether the measure referred to by the language "specific dut y imposed as a safeguard measure" 
was limited to the specific dut y as a safeguard measure or comprised the specific duty itself, which 
the complainant alleged to have been discriminatory and inconsistent with Article  I:1 of the 
General  Agreement on Tariffs and Trade 1994 ( GATT  1994).155 The Appellate  Body considered that 
this language explained how the measure arose (as a safeguard measure) and could not be read to 
restrict the panel's understanding of the measure at issue.156 Contrary to Ukraine's submission, we 
do not understand the Appellate  Body to have decided in Indone sia – Iron or Steel Products  that 
background information is not capable of assisting with the identification of a specific measure at 
issue. Rather, we  understand the Appellate  Body's report  to illustrate that whether information is 
capable of contributing  to the identification of the specific measures at issue will depend on the 
circumstances and facts of each case.  
6.36.   Finally, we note that, while the opening  paragraph of the panel request refers to "Ukraine's 
measures imposing anti -dumping duties … set forth  in the [2014 extension decision]", the 2014 
extension decision itself sets out "to amend the antidumping measures applied by [the 2008 
amended decision]".157 Further, under item number 1 of Russia's panel request, Russia alleged an 
inconsistency with "Artic les 5.8, 11.1, 11.2, and 11.3 of the Anti -Dumping Agreement, because 
Ukraine failed to exclude a certain Russian exporter whose dumping margin was de minimis  from 
the anti -dumping measures and because Ukrain e subjected this exporter to expiry and interim 
reviews".158 The Panel noted that the use of the word "because" twice in this sentence suggested 
that Russia challenged two aspects of the measures at issue, namely , that Ukrainian investigating 
authorities: (i) failed to exclude EuroChem from the "anti -dumpi ng measures"; and (ii) subjected 
EuroChem to expiry and interim reviews.159 We note that the reference to "anti -dumping measures" 
is followed by footnote 3, which refers to the 2010 amendment, which amended the 2008 original 
decision, and that both determina tions were made in the original investigation phase. Footnote 3 
also identifies the Ukrainian court judgments, which the 2010 amendment implemented.160 We 
further recall that Article  5.8 of the Anti -Dumping Agreement requires that there shall be immediate 
termination of an investigation in cases where the authorities determine that the margin of dumping 
is de minimis . It therefore seems reasonable for the Panel to have concluded that the first aspect of 
item number 1 concerned the failure by Ukrainian investigating authorities to exclude EuroChem 
from the scope of the original anti -dumping investigation, and, in particular, the 2008 amended 
decision and the 2010 amendment, as is suggested in the accomp anying footnote 3. In this respect, 
                                                
153 Ukraine's appellant's submission, para.  17 (referring to Appellate Body Report, Indonesia – Iron or 
Steel P roducts , para. 5.92) . 
154 Russia's appellee's submission, paras.  39-44 (referring to Appellate  Body Report, Indonesia – Iron or 
Steel Products , paras. 5.85 -5.93).  
155 Appellate  Body Report, Indonesia – Iron or Steel Products , paras.  5.92-5.93. 
156 Appellate  Body Report, Indonesia – Iron or Steel Products , paras.  5.92-5.93. The Appellate  Body 
considered that the language "specific duty imposed as a safeguard measure" was "consonant with the factual 
background in the panel requests that precedes both the identifica tion of the specific measures at issue and 
the legal basis of the complaint", namely , that the "specific duty" was discriminatory and inconsistent with 
Article  I:1 of the GATT  1994. Next, the Appellate  Body considered the extent to which "imposed as a safe guard 
measure" could be read as "going beyond providing a factual background", and concluded that such language 
went to arguments about the proper legal characterization of the measure, not its identification.  
(Ibid.,  para. 5.92) 
157 2014 extension decision (Panel Exhibit RUS -4b), p. 2 . We also note that the underlying notices 
concerning the initiation of the interim and expiry  reviews refer to the 2008 amended decision and the 2010 
amendment ( ICIT, Notice on the initiation and conduct of the interim review of the anti -dumping measures on 
imports of ammonium nitrate originating in Russia  No. AD-296/2013/4423 -06 (4 July 2013 ) (Panel Exhibit  
RUS-3b); ICIT, Notice on the initiation and conduct of the expiry review of the anti -dumping measures on 
imports of ammonium nitrate originating in Russia  No. АD-294/2013/4423 -06 (24 May 2013)  (Panel  Exhibit 
RUS-27b)).  
158 Russia's panel request.  (fn omitted ) 
159 Panel Report, para.  7.32. 
160 Russia's panel request, fn 3.  WT/DS493/AB/R  
 
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 the narrative of the panel request does not have a limiting effect, as Ukraine contends ; rather , it 
highlights that the challenged interim and expiry reviews reflected in the 2014 extension decision 
are necessarily linke d to the decision to  impose a 0% duty on  EuroChem  and not to exclude 
EuroChem  from the anti -dumping proceeding, as reflected in the 2008 amended decision and the 
2010 amendment.  
6.37.   We underscore that, in accordance with Article  6.2 of the DSU, panel requests delimit a panel's 
terms of reference and play an important due process function for parties and third parties. Parties 
to disputes must not leave it to panels to divine the identity of measures at issue. Nevertheless, a 
panel request will satisfy the requi rement in Article  6.2 of the DSU to identify the specific measures 
at issue if such measures are discernible from the panel request.161 In assessing a panel request, 
panels must "scrutinize carefully the panel request, read as a whole"162, which includes footn otes.163 
For the reasons  outlined above , we consider  that the Panel properly reasoned that the 2008 amended 
decision and the 2010 amendment were discernible from the panel request. We therefore do not 
consider that Ukraine has established that the Panel erre d in its analysis under Article  6.2 of the 
DSU in finding that the 2008 amended decision and the 2010 amendment were identified as 
measures at issue in Russia's panel request.  
6.1.4   Whether the Panel erred under Articles 7.1 and 11 of the DSU by ruling on Russia's 
claim under Article  5.8 of the Anti -Dumping Agreement with respect to the 2008 amended 
decision and the 2010 amendment  
6.38.   Ukraine claims that the Panel erred under Articles 7.1 and 11 of the DSU by ruling on Russia's 
claim under Article  5.8 of the An ti-Dumping Agreement with respect to the 2008 amended decision 
and the 2010 amendment because such a claim was not made in Russia's panel request and 
therefore did not form part of the Panel's terms of reference.164 Ukraine considers that the Panel 
retroacti vely justified including this claim by referring to information provided by Russia subsequent 
to its panel request.165 Ukraine requests that we reverse the Panel's findings in paragraphs 7.147, 
7.149 -7.152, and 8.3.a.i -8.3.a.ii of the Panel Report.166 Russia r equests that we uphold these Panel 
findings.167 
6.39.   We recall that the measures and claims identified in a panel request in accordance with 
Article  6.2 of the DSU constitute the "matter referred to the DSB", which serves as a basis for the 
panel's terms of refer ence under Article  7.1 of the DSU.168 We note that we have found that Ukraine 
has not established that the Panel erred under Article  6.2 of the DSU in finding that the 
2008 amended decision and the 2010 amendment were identified as measures at issue in Russi a's 
panel request. Ukraine has not appealed the Panel's finding that Russia had provided, in accordance 
with Article  6.2 of the DSU, a brief summary of the legal basis for its claim under Article  5.8 of the 
Anti-Dumping Agreement as it relates to the 2008 amended decision and the 2010 amendment.169 
Further, Ukraine has not advanced any other grounds in support of its challenge under Articles 7.1 
and 11 of the DSU170, and confirmed at the oral hearing that if we were to uphold the Panel's finding 
                                                
161 Appellate  Body Report, US – Continued Zeroing , para.  170. 
162 Appellate  Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.13 (quoting 
Appellate  Body Report, EC – Fasteners (China) , para.  562 (fn omitted)).  
163 Appellate  Body Report, US – Countervailing  and Anti -Dumping Measures (China) , para.  4.39. 
164 Ukraine's appellant's submission, para s. 27-29 and 34 -36. 
165 Ukraine's appellant's submission, paras.  35-36. 
166 Ukraine's appellant's submission, para.  29; Notice of Appeal, para.  b. 
167 Russia's appellee's submission, paras.  57 and 80.  
168 Appellate  Body Reports, Guatemala – Cement I , paras.  72-73; US – Carbon Steel , para.  125;  
China – Raw Materials , para.  219. 
169 In paragraph b of its Notice of Appeal, Ukraine directs its challenge to the Panel's substantive 
analysis contained in section 7.5.3.1 of the  Panel Report , where the Panel concluded that Ukraine acted 
inconsistently with Article  5.8 of the Anti -Dumping Agreement,  because Ukrainian investigating authorities  
failed t o exclude EuroChem from the anti -dumping measures as reflected in the 2008 amended decision and 
the 2010 amendment . Ukraine does not refer in its Notice of Appeal to paragraphs 7.30 -7.35 of the Panel 
Report, which contain the Panel's findings in relation t o the requirement to provide a brief summary of the 
legal basis of the complaint under Article  6.2 of the DSU. At the oral hearing, Ukraine confirmed that it has not 
appealed this section of the Panel Report. (Ukraine's response to questioning at the oral hearing)  
170 Ukraine's appellant's submission, paras. 27 -36. While the Appellate Body has previously assessed 
allegations of breach under Article 7.1 of the DSU that did not relate to the requirements under Article 6.2 of 
the DSU, this is not the case in the  present dispute.  See Appellate  Body Reports, EU – PET (Pakistan) , 
paras.  5.28, 5.40, and 5.51; China – Raw Materials , para.  237. WT/DS493/AB/R  
 
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 that the 2008 a mended decision and the 2010 amendment formed part of the Panel's terms of 
reference, there would be no basis to entertain Ukraine's claims under Articles  7.1 and 11.171 
Accordingly, we find that Ukraine has not established that the Panel erred under Article s 7.1 and 11 
of the DSU by ruling on Russia's claim under Article  5.8 of the Anti -Dumping Agreement as it relates 
to the 2008 amended decision and the 2010 amendment.  
6.1.5   Whether the Panel erred under Article  11 of the DSU by failing to examine properly 
the ar guments and evidence presented by Ukraine regarding the authority of Ukrainian 
courts and investigating authorities to calculate dumping margins under Ukrainian law  
6.40.   Ukraine claims that the Panel acted inconsistently with Article  11 of the DSU by failing to  
examine properly the arguments and evidence presented by Ukraine regarding the authority of 
Ukrainian courts and investigating authorities to calculate dumping margins under Ukrainian law.172 
Ukraine's claim under Article 11 of the DSU concerns the Panel's analysis regarding the second 
sentence of Article 5.8 of the Anti -Dumping Agreement, which requires immediate termination of an 
anti-dumping investigation, and therefore exclusion of a producer or exporter from the scope of that 
investigation , where a de m inimis  dumping margin has been determined for that producer or 
exporter.173 Ukraine principally maintains that the Panel failed to consider that neither Ukrainian 
investigating authorities nor Ukrainian courts recalculated – or, in these circumstances, had t he 
competence to recalculate – the dumping margin for EuroChem.174 Ukraine therefore requests that 
we reverse the Panel's findings in paragraphs 7.147, 7.149 -7.152, 7.154, 7.157, and 8.3.a of the 
Panel Report.175 Russia requests that we  uphold the Panel's findings at issue.176 
6.41.   Article  11 of the DSU imposes on panels a comprehensive obligation to make an "objective 
assessment of the matter", which embraces "all aspects of a panel's examination of the 'matter', 
both factual and legal".177 Thus, panels are required to make an "objective assessment of the facts", 
of the "applicability" of the covered agreements, and of the "conformity" of the measure s at issue 
with the covered agreements.178 Moreover, the Appellate Body has stated that, in conducti ng an 
objective assessment of the matter, a panel must provide reasoned and adequate explanations and 
coherent reasoning.179 A claim that a panel has failed to conduct an objective assessment of the 
matter before it is "a very serious allegation".180 Participa nts must therefore identify specific errors 
regarding the objectivity of a panel's assessment181 and explain why the alleged error has a bearing 
on the objectivity of a panel's assessment.182 Not every error amounts to a failure by the panel to 
comply with its  duties under Article  11, only those which, taken together or singly, undermine the 
objectivity of the panel's assessment of the matter before it.183 
6.42.   Article  11 of the DSU requires a panel to consider all of the arguments and evidence presented 
before it, in  order to treat the parties' arguments and evidence in an even -handed manner, and to 
                                                
171 Ukraine's response to questioning at the oral hearing.  
172 Ukraine's appellant's submission, paras. 100 -152. 
173 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , paras. 217, 219, and 305. We note 
that the parties did not dispute the interpretation of the second sentence of Article 5.8 of the Anti -Dumping 
Agreement before the Panel. (Panel Report, paras. 7.140 and 7.14 6) 
174 Ukraine's appellant's submission, paras.  116-152. 
175 Ukraine's appellant's submission, para.  152; Notice of Appeal, para.  f. 
176 Russia's appellee's submission, paras.  313 and 371.  
177 Appellate  Body Report, US – Hot-Rolled Steel , para.  54. 
178 Appellate  Body Reports, US – Hot-Rolled Steel , para.  54; Indonesia – Iron or Steel  Products , 
para. 5.31. 
179 Appellate  Body Reports, Colombia – Textiles , para. 5.18; EC and certain member States  – Large Civil 
Aircraft , para.  1317 (quoting Appellate Body Report, US – Upland Cotton (Article  21.5 – Brazil) , fn 618 to 
para. 293); US – COOL , para.  299. 
180 Appellate  Body Report, Peru – Agricultural Products , para.  5.66 (quoting Appellate Body Reports, 
China – Rare Earths , para. 5.227 (fn  omitted)).  
181 Appellate  Body Report, Peru – Agricultural Products , para.  5.66 (referring to Appellate Body Report, 
EC – Fasteners (China) , para. 442) . 
182 See Appellate  Body Report, EC – Fasteners  (China) , para.  442. 
183 Appellate  Body Reports, Peru – Agricult ural Products , para.  5.66; EC and certain member States – 
Large Civil Aircraft , para.  1318; US – COOL , paras.  300 and 321.  WT/DS493/AB/R  
 
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 not disregard the arguments or evidence relevant to a party's case.184 Within these parameters, it 
is within the panel's discretion to decide which arguments or evidence it addresses or relies on in 
reaching its findings.185 An allegation that the panel did not expressly refer to particular arguments 
or evidence may not be sufficient to bring a successful claim under Article 11. Rather, the 
Appellate  Body must be satisfied that  the panel exceeded its authority as the trier of facts or failed 
to exercise that authority to conduct a proper analysis.186 In addition, the Appellate  Body has 
cautioned participants against recasting their arguments made before the Panel "under the guise of 
an Article  11 claim" on appeal.187 
6.43.   Moreover, in assessing the consistency of domestic measures with WTO law, a panel may be 
called upon to examine a Member's domestic law, and  must make an objective assessment of the 
matter before it in accordance with Ar ticle 11 of the DSU, including an objective assessment of the 
facts of the case and the applicability of and conformity with the covered agreements.188 In doing 
so, a panel should undertake "a holistic assessment of all relevant elements, starting with the t ext 
of the law and including, but not limited to, relevant practices of administering agencies".189 
6.44.   On the basis of the foregoing discussion, we now turn to examine the Panel's analysis. The 
Panel referred to Ukraine's contention that the judgments of its co urts did not amount to a legally 
valid determination of a de minimis dumping margin warranting the exclusion of EuroChem pursuant 
to the second sentence of Article 5.8 of the Anti -Dumping Agreement. Indeed, the Panel took note 
of Ukraine's contentions that  "the Ukrainian courts did not have the authority under domestic law to 
recalculate EuroChem's  dumping margin" and that "ICIT imposed an anti -dumping duty of 0% on 
EuroChem to implement the court orders, but never recalculated its dumping margin ."190 On that  
basis, the Panel inquired whether a de minimis dumping margin was determined for EuroChem in 
the original investigation phase, which would have required termination of the original investigation 
against EuroChem under Article 5.8.191 
6.45.   In its analysis, the Pa nel referenced three Ukrainian court judgments, as well as the 2010 
amendment.192 Regarding  the court judgments, the Panel noted that the District Court found that in 
the original investigation , MEDT had erroneously considered that EuroChem had provided a di scount 
on the domestic sales prices that were used to calculate the normal value, and thus incorrectly 
adjusted the normal value by adding the value of the discount to domestic sales prices when 
calculating the dumping margin.193 As the Panel explained, the District Court found that no such 
discount had been given by EuroChem, and thus the adjustment to the normal value was not 
correct.194 The Panel accordingly noted the District Court's conclusions  that there was an "absence 
                                                
184 See Appellate  Body Reports , EC and certain member States – Large Civil Aircraft , para.  1317;  
US – COOL , para.  299; Brazil – Retreaded Tyres , para.  185; Canada – Continued Suspension , paras. 553 and 
615; US – Continued Suspension , paras.  553 and 615 ; EC – Fasteners (China) , para.  441; US – Upland Cotton 
(Article  21.5 – Brazil) , para s. 292-293 (referring to Appellate Body Reports , Korea – Dairy; para. 137, Korea – 
Alcoholic Beverages , para. 164) . 
185 Appellate  Body Reports, EC and certain member States – Large Civil Aircraft , para.  1317 (quoting 
Appellate Body Report, EC – Hormones , para. 135) ; US – COOL , para. 299; EC – Poultry , para. 135. See also 
Appellate  Body Report, EC – Fasteners (China) , para.  511. 
186 Appellate  Body Reports, EC and certain member States – Large Civil Aircraft , para. 1317 (referring to 
Appellate Body Report, US – Wheat Gluten , para. 151); US – COOL , para.  300. 
187 Appel late Body Reports , US – COOL, para.  301 (quoting Appellate Body Reports, EC – Fasteners 
(China) , para.  442; US – Clove Cigarettes , para. 229).  
188 Appellate  Body Report, US – Countervailing and Anti -Dumping Measures (China) , para.  4.98. 
189 Appella te Body Report, US – Countervailing and Anti -Dumping Measures (China) , para.  4.101.  In 
addition, the Appellate Body has previously stated that a panel's examination of a Member's law may involve 
both legal and factual characterizations, depending on the ci rcumstances of the case. (Ibid., para. 4.101 
(referring to Appellate Body Report, US – Carbon Steel , para. 157))  
190 Panel Report, para.  7.145 (referring to  Ukraine's first written submission to the Panel, paras.  238 
and 253; response to Panel question No. 2 1, para. 83; opening statement at the first Panel meeting,  
para. 138). 
191 Panel Report, para.  7.146 . 
192 Panel Report, para.  7.147.  
193 Panel Report, fn  238 to para.  7.136 (referring to Judgment of the District Court (Panel Exhibit 
RUS-6b)). 
194 Panel Report, fn  238 to para.  7.136 (referring to Judgment of the District Court (Panel Exhibit 
RUS-6b)). WT/DS493/AB/R  
 
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 of dumping" by EuroChem and that th e case files reaffirmed that the calculations presented by 
EuroChem showed that its dumping margin had a "negative value/rate".195 
6.46.   The Panel then referred to the fact that the judgment of the District Court was upheld twice 
on appeal.196 The Panel recalled the Appellate Court's conclusion that the District Court had "correctly 
established the circumstances of the case" and that Ukrainian investigating authorities "did not prove 
the lawfulness of the [2008 original decision]".197 The Panel t hen recalled the Higher Court's 
conclusions that: it "follow[ed] from the case files that no discounts were granted by [EuroChem] in 
the ordinary course of trade operations"; Ukrainian investigating authorities "did not have any 
grounds for adjustment"; an d the District Court and the Appellate Court had correctly established 
the circumstances of the case and thoroughly investigated existing evidence.198 
6.47.   In addition, the Panel evaluated what transpired subsequent to the Ukrainian court 
judgments.199 First, the P anel noted that ICIT had itself implemented the judgments by issuing the 
2010 amendment in "pursuance" of these judgments.200 Second, the Panel considered that nothing 
in the 2010 amendment or other evidence on the record suggested that ICIT disputed the Ukr ainian 
court findings that EuroChem had a negative value/rate of dumping.201 Third, the Panel considered 
that Ukraine did not challenge the legal validity of these judgments.202 Fourth, the Panel 
acknowledged Ukraine's contention that a 0% duty does not equate  to a determination of a negative 
or de minimis  dumping margin.203 However, the Panel did not consider that Ukraine's allegations 
regarding ICIT's conduct indicated that it had not accepted the courts' findings that EuroChem had 
a negative rate of dumping. M oreover, the Panel considered that Ukraine had not explained how the 
exhibits it had advanced supported its position.204 
6.48.   On the basis of these considerations, the Panel concluded that the "combined effect" of the 
Ukrainian court judgments and their implement ation by the 2010 amendment was that the dumping 
margin for EuroChem in the original investigation phase was de minimis .205 Consequently, the Panel 
found that "the obligation under the second sentence of Article  5.8 applies in this case because 
EuroChem had a de minimis  dumping margin in the original investigation phase."206 The Panel further 
found that, although "the Ukrainian [investigating] authorities would have been required … to 
immediately terminate the investigation against EuroChem ", they "failed to ex clude EuroChem from 
the scope of the original anti -dumping measures, specifically the 2008 amended decision", and they 
"imposed a 0% anti -dumping duty on EuroChem  through the 2010 amendment".207 The Panel noted 
that Ukrainian investigating authorities also i ncluded EuroChem within the scope of the review 
determinations and imposed anti -dumping duties on EuroChem through the 2014 extension 
                                                
195 Panel Report, para s. 7.136 ( quoting J udgment of the District Court (Panel Exhibit RUS -6b)) and 
7.147 . 
196 Panel Report, para. 7.137 and fn  239 thereto (refe rring to Judgment of the Appellate Court 
(Panel  Exhibit RUS -5b); Judgment of the Higher Court (Panel Exhibit RUS -7b)). 
197 Panel Report, fn  239 to para.  7.137 (quoting Judgment of the Appellate Court (Panel Exhibit  
RUS-5b)). 
198 Panel Report, fn  239 to para.  7.137 (quoting Judgment of the Higher Court (Panel  Exhibit RUS -7b)), 
and para. 7.147 . 
199 Panel Report, para. 7.147.  
200 Panel Report, para.  7.147.  
201 Panel Report, para.  7.147 and fn  263 thereto . 
202 Panel Report, para.  7.147 (referring to Ukraine's first writte n submission to the Panel, para.  253).  
203 Panel Report, fn 263 to para. 7.147 (referring to Ukraine's response to Panel question No. 21, 
para. 82). 
204 Panel Report, fn  263 to para.  7.147  (referring to Letter dated 8 October 2010  from MEDT to ICIT 
regarding t he agenda for the ICIT meeting on 15 October 2010  (Panel Exhibit UKR -53b (BCI)); ICIT, Meeting 
agenda of 25 October 2010  (Panel Exhibit UKR -54b (BCI)); Letter dated 21 October 2010  from MEDT to ICIT  
regarding the agenda for the ICIT meeting on 25  October 2010 (Panel Exhibit UKR -55b (BCI)); MEDT, 
Information on appeal of ICIT Decision on the application of definitive anti -dumping measures on imports of 
ammonium nitrate originating in Russia No.  АD-176/2008/143 -47 (Panel Exhibit UKR -56b (BCI) )). 
205 Panel Report, para.  7.147.  
206 Panel Report, para. 7.151.  
207 Panel Report, para. 7.151.  The Panel noted that "the only way to terminate the investigation against 
a producer found to have a de minimis  dumping marg in in the original investigation is to exclude that producer 
from the scope of the anti -dumping measures, and not to impose any anti -dumping duty on it, even at a 0% 
rate." (Ibid., para. 7.151 (referring to ibid., para. 7.140))  WT/DS493/AB/R  
 
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 decision.208 The Panel considered that, for all of these reasons, Ukraine  acted inconsistently with 
Article  5.8 of the Anti -Dumping Agreement.209 
6.49.   Based on our review of the Panel's analysis, we understand the Panel to have considered that, 
irrespective of whether the relevant court judgments and the 2010 amendment refer to a specific 
dumping margin, the outcome of these decisions  was that there was, at that point, no basis for a 
dumping margin or an anti -dumping duty with respect to EuroChem, and that this therefore 
amounted to a determination  of a de minimis dumping margin. According to the Panel, the error 
that was identified by Ukrainian courts, which resulted in the Ukrainian court orders to reverse the 
2008 original decision with respect to EuroChem, related to the improper allocation of discounts by 
Ukrainian investigating authorities.210 The Panel further noted that this resulted in the District Court 
concluding that there was an "absence of dumping" by EuroChem and reaffirming that EuroChem's 
dumping margin had a "negative value/rate".211 Thus, the Panel app ears to have concluded that the 
Ukrainian court judgments and the 2010 amendment invalidated the basis at that point for a 
dumping margin or an anti -dumping duty with respect to EuroChem. It was on these grounds that 
the Panel found that "the combined effe ct of the Ukrainian court judgments, and their 
implementation by ICIT's 2010 amendment [,] was that the dumping margin for EuroChem in the 
original investigation phase was de minimis ."212 
6.50.   Ukraine argues that, because Ukrainian courts are not competent to calc ulate dumping 
margins, they could not have calculated a dumping margin for EuroChem.213 In particular, Ukraine 
argues that the Panel failed to consider adequately its submissions regarding Ukrainian law, 
including: (i) the division of competences between Ukr ainian courts, ICIT, and MEDT; (ii)  the role 
ICIT and MEDT have in anti -dumping investigations and ICIT's exclusive right to decide on the 
presence or absence of dumping and methods for calculating dumping margins; and (iii) that 
Ukrainian courts can only review the decisions of Ukrainian investigating authorities.214 
6.51.   Ukraine further argues that neither Ukrainian courts nor investigating authorities calculated a 
dumping margin for EuroChem. Regarding its courts, Ukraine contends that: (i) the Panel selectivel y 
quoted the District Court's judgment, obscuring the fact that the District Court itself did not make 
any calculations215; and (ii) the operative section of the District Court's judgment did not contain a 
dumping margin, but rather a finding of unlawfulness  and a decision to repeal partially the 
2008 original decision.216 As to its investigating authorities, Ukraine submits that they did not 
recalculate a dumping margin for EuroChem in the 2010 amendment, but instead imposed a 0% 
duty on EuroChem.217 In that reg ard, Ukraine argues that : (i) MEDT documentation underlying the 
2010 amendment issued by ICIT does not indicate which dumping margin would apply to EuroChem 
                                                
208 Panel Report, para. 7.157 . 
209 Panel Report, paras. 7.151 -7.152, 7.157, and 8.3.  
210 Panel Report, para. 7.136 and fn 238 thereto.  
211 Panel Report, paras. 7.136 and 7.147 . 
212 Panel Report, para. 7.147.  
213 Ukraine's appellant's submission, paras.  130 and 137.  
214 Ukraine's appellant's submis sion, paras. 130 -139. In support of these points, Ukraine relies on 
several provisions of Ukrainian law (ibid., para. 130 (referring to Ukraine's first written submission to the 
Panel, paras.  248-253, in turn referring to Law of Ukraine "On Protection of t he National Producer Against 
Dumped Import s" (22 December 1998)  (Panel Exhibit UKR -9); Extracts from the Code of Administrative 
Procedure of Ukraine  (Panel  Exhibit UKR -10))). See also Ukraine's second written submission to the Panel, 
para. 97 (referring to response to Panel question No. 22, paras. 92 -93, in turn referring to Law of Ukraine "On 
Enforcement Proceedings" (Panel Exhibit UKR -44)). Ukraine also relies on Ukrainian court judgments (ibid., 
paras. 131-135 (referring to Resolution of the  Plenum of the High Commercial Court  of Ukraine No. 15 
(26 December 2011 ) (Panel Exhibit UKR -12); Resolution of the District Administrative Court of Kiev in case 
No. 826/11526/14  (23 September 2014 ) (Panel Exhibit UKR -13); Ruling of Kiev Administrative  Court of Appeal 
in case No.  826/11526/14  (3 December  2014) (Panel Exhibit UKR -14); Application of EuroChem to the 
Supreme Court of Ukraine in case No. 826/11526/14  (12 February 2015) (Panel Exhibit UKR -15 (BCI)); 
Resolution  of the Supreme Court of Ukraine No.  21-122a15  (21 April 2015) (Panel Exhibit UKR -16))).  Panel 
Exhibits UKR -13, UKR -14, UKR -15 (BCI),  and UKR -16 relate to Ukrainian court proceedings instigated by 
EuroChem to challenge the 2014 extension decision.  
215 Ukraine's appellant's submission, paras.  122-129 and 136 (referring to Judgment of the District 
Court (Panel Exhibit RUS -6b)). Ukraine contends that the calculations, provided by EuroChem in its expert 
report conducted by a specialist of the Kiev Forensic Examination Research Institute, were flawe d as they did 
not apply an ordinary -course -of-trade test to determine the normal value. (Ibid., para. 128)  
216 Ukraine's appellant's submission, para.  129 (quoting Judgment of the District Court (Panel Exhibit 
RUS-6b)). 
217 Ukraine's appellant's submission, para.  116. WT/DS493/AB/R  
 
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 following the Ukrainian court judgments218; (ii) WTO  Members are constrained only by Article  9.3 of 
the Anti -Dumping Agreement, which caps an anti-dumping du ty at the margin of dumping, such that 
the 0% duty imposed on EuroChem did not actually indicate what the dumping margin was in the 
original investigation phase219; and (iii) the Panel erred because it failed to recognize Ukraine's 
administrative practice , reflected  in Panel Exhibit UKR -42b (BCI)220, of explicitly stating in a decision 
when a dumping margin is below de minimis  and to exclude the relevant producer from the scope 
of the anti-dumping measure.221 
6.52.   Russia responds that the Panel addressed Ukraine's arguments on competence and notes that 
the Panel considered that Ukraine's explanation of its domestic law provisions had varied throughout 
the proceed ings.222 Russia agrees with the Panel that Ukraine's arguments raise matters of Ukrainian 
law, and that  investigating authorities should not be able to circumvent their obligations under 
Article  5.8 by not re -establishing a dumping margin based on domestic l aw justifications.223 In 
addition , Russia contends that, if Ukraine's arguments on competence circumscribe when a 
de minimis  dumping margin may be determined, this would amount to treating the same transaction 
differently for the purpose of applying Article  5.8 of the Anti -Dumping Agreement .224 
6.53.   Moreover, Russia considers that Ukraine mischaracterizes the Panel's findings in asserting 
that the Panel concluded that Ukrainian courts had found that a dumping margin for EuroChem  had 
been incorrectly calculated .225 According to Russia, (i) EuroChem had argued before Ukrainian courts 
that Ukrainian investigating authorities had erred in their calculation of the dumping margin; 
(ii) Ukrainian courts found that there was an "absence of dumping"; (iii) the Panel concluded t hat 
Ukrainian courts found there was an "absence of dumping"; and (iv) the Panel addressed Ukraine's 
arguments about evidence before Ukrainian courts, and found that any constraint on Ukrainian 
investigating authorities in providing evidence arose as a mat ter of Ukrainian law and did not affect 
the probative value of the Ukrainian court judgments.226 Russia further argues that Ukrainian law 
constraints cannot be relied on to avoid complying with WTO  obligations.227 Russia also contends  
that the Panel addressed Ukraine's arguments concerning the 0% anti -dumping duty rate in the 
Panel Report, and that, in relation to Ukraine's administrative practice, the Panel had discretion to 
choose what evidence to rely on in making its findings, and to decide  on the meaning a nd weight of 
such evidence.228 
6.54.   We note that the Panel referred to Ukraine's submission that Ukrainian courts did not have 
authority to, and did not, recalculate a dumping margin. We recall that the Panel considered that 
Ukraine had "changed its factual argum ents" on whether, as a matter of Ukrainian law, Ukrainian 
courts or investigating authorities have the competence to make dumping determinations and 
                                                
218 Ukraine's appellant's submission, para.  117 (referring to Letter dated 8 October 2010  from MEDT to 
ICIT regarding the agenda for the ICIT meeting on 15 October 2010  (Panel Exhibit UKR -53b (BCI)); ICIT, 
Meeting a genda of 25 October 2010 (Panel Exhibit UKR -54b (BCI)); Letter dated 21 October 2010  from MEDT 
to ICIT  regarding the agenda for the ICIT meeting on 25  October 2010 (Panel Exhibit UKR -55b (BCI)); MEDT, 
Information on appeal of ICIT Decision on the application of definitive ant i-dumping measures on imports of 
ammonium nitrate originating in Russia No.  АD-176/2008/143 -47 (Panel Exhibit 56b (BCI))).  
219 Ukraine's appellant's submission, paras.  118-119. 
220 ICIT, Decision on application of definitive anti-dumping measures on imports into Ukraine of glass 
containers used for medical purposes up to 0.15 litres originating from Russia  No. А D-293/2013/4423 -06 
(24 May 2013 ) (Panel Exhibit UKR -42b (BCI)).  Panel Exhibit UKR -42b (BCI)  is an ICIT decision concerning an 
anti-dumping investigation on imports of glass containers used for medical purposes. ICIT made a "negative 
determination on the existence of dumped imports" for OstrivJuice LLC and decided to "terminate an 
anti-dumping in vestigation, to the extent related to OstrivJuice LLC  … and to impose no anti -dumping 
measures".  (Ibid.)  
221 Ukraine's appellant's submission, para s. 120-122 (referring to Ukraine's response to Panel question  
No. 20 , para.  81; ICIT, Decision on application o f definitive anti-dumping measures on imports into Ukraine of 
glass containers used for medical purposes up to 0.15 litres originating from Russia  No. АD-293/2013/4423 -06 
(24 May 2013 ) (Panel  Exhibit UKR -42b (BCI) )). 
222 Russia's appellee's submission, para.  357 (referring to Panel Report, para. 7.148.b; Annex E -1 to the 
Panel Report (Interim Review), paras. 36 -37 and fn 40 to para. 38).  
223 Russia's appellee's submission, paras.  344-348 and 358 -359. 
224 Russia's appellee's s ubmission, paras.  344-348. 
225 Russia's appellee's submission, para.  336 (referring to Ukraine's appellant's submission, para. 102).  
226 Russia's appellee's submission, paras. 336 -337 and 350 -352. 
227 Russia's appellee's submission, paras. 35 4-355 (referring to Appellate  Body Report, US – Zeroing 
(Japan) (Article  21.5 – Japan) , fn 452 to para.  175). 
228 Russia's appellee's submission, para.  343 (referring to Appellate Body Reports, EC – Hormones , 
para. 135; Australia – Salmon , para. 267).  WT/DS493/AB/R  
 
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 concluded that these arguments did not support Ukraine's position.229 However, we do not regard 
the Panel as having sought to determine whether Ukrainian courts have the competence to, or in 
fact did, calculate dumping margins, and we do not see that the Panel made any such findings. 
Rather, the Panel understood that, by rejecting MEDT's application of discounts in calculating 
dumping margins for EuroChem in the 2008 original decision, the Ukrainian court rulings invalidated 
the basis at that point for a dumping margin or an anti -dumping duty with respect to EuroChem. We 
therefore do not see that the Panel took is sue with Ukraine's submissions before it concerning  the 
respective competence or actions of Ukrainian investigating authorities and courts regarding the 
calculation of dumping margins. Rather, the Panel concluded that, by virtue of the Ukrainian court 
judgments and the 2010 amendment, there was at that point no basis under Ukrainian law for a 
dumping margin or an anti -dumping duty with respect to EuroChem , and that this amounted to a 
de minimis dumping determination under WTO law. Accordingly, the Panel found that this triggered 
Ukraine's obligation under the second sentence of Article 5.8 of the Anti -Dumping Agreement to 
exclude EuroChem from the scope of the investigation, and that such an obli gation could not be 
satisfied by the imposition of a 0% duty.230 
6.55.   Furthermore, in relation to Ukraine's contention that the imposition of a 0% duty is not the 
same as a determination of a zero dumping margin231, we do not see how the fact that ICIT does 
not ref er in the 2010 amendment  to a specific dumping margin was relevant to, or would have 
altered, the Panel's analysis. The reasoning of the Panel did not turn on whether a specific dumping 
margin was set by Ukrainian courts and/or Ukrainian investigating auth orities, but rather focused 
on the fact that the "combined effect" of the Ukrainian court judgments and the ensuing decision by 
ICIT invalidated the basis at that point for the imposition of an anti -dumping duty on EuroChem.232 
Ukraine is correct in noting t hat the Panel did not expressly refer to Panel Exhibit UKR -42b (BCI)233, 
which Ukraine considers is indicative of its administrative practice of explicitly stating in a decision 
when a dumping margin is below de minimis and to exclude the relevant producer f rom the scope 
of the anti-dumping measure. However, we do not see how this exhibit is relevant to this appeal, 
given that, in this exhibit, ICIT is not implementing a court judgment  following a successful challenge 
before domestic courts to original anti -dumping measures. As a result, we do not consider that 
express treatment of Panel Exhibit UKR -42b (BCI)  in the Panel Report would have had any bearing 
on the Panel's analysis or its findings.  
6.56.   Finally, we turn to Ukraine's challenge to the Panel's reasoning that certain arguments Ukraine 
raised before it are irrelevant because they would enable Ukraine to rely on features of its domestic 
                                                
229 Panel Report, fn  272 to para.  7.150.  The Panel referred to Ukraine's submissions : that (i) Ukrainian  
investigating  authorities can only recalculate dumping margins in the course of a review; (ii) Ukrainian courts 
must specifically instruct ICIT to reopen an investigation and adopt a particular methodology; and 
(iii) Ukrain ian law requires that the District Court would have had to instruct ICIT to reopen the investigation 
and adopt a particular methodology to recalculate EuroChem's dumping margin in the ope rative part of its 
judgment. The Panel considered these to be contradictory arguments because, on one view, they suggest 
Ukrainian investigating authorities can only recalculate dumping margins in a review (and therefore not 
pursuant to a court judgment), whereas alternatively, they suggest  that Ukrainian courts can order ICIT to 
recalculate dumping margins in the absence of a review.  (Ibid. (referring to Ukraine's first written submission 
to the Panel, fn 85 to para. 245; response to Panel question No. 22,  para. 94); second written submission  to 
the Panel , para.  97; response to Panel question No. 22, para.  92, in turn referring to  Code of Administrative 
Procedure of Ukraine, Extracts (Panel Exhibit UKR -43); Law of Ukraine "On Enforcement Proceedings", Extra cts 
(Panel  Exhibit UKR -44)) 
230 As the Panel noted,  "immediate termination" is required where a "zero or de minimis  dumping 
margin" is determined in the original investigation, and the imposition of a 0% duty does not amount to 
termination. Instead, relevant  producers must be excluded from the scope of the anti -dumping order. 
(Panel  Report, para.  7.140 (referring to  Appellate  Body Report, Mexico – Anti-Dumping  Measures on Rice , 
paras.  217, 219, and 305 ; Panel Report, Mexico – Anti-Dumping  Measures on Rice , para. 7.140)) As we noted, 
the parties did not dispute the interpretation of the second sentence of Article 5.8 of the Anti -Dumping 
Agreement before the Panel. (Ibid., paras. 7.140 and 7.146)  
231 Ukraine's appellant's submission, paras. 116 -119. 
232 Panel Report, para.  7.147.  
233 We note that Ukraine referred to Panel Exhibit UKR -42b (BCI) in its response to Panel question 
No. 20, para.  81. See footnote 22 0 above . WT/DS493/AB/R  
 
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 law as a means of avoiding its WTO obligations.234 Ukraine maintains that it is not relying on domestic 
law to avoid its WTO obligations, but as evidence of the "fact" that Ukrainian courts did not 
recalculate a dumping margin with respect to EuroChem.235 Russia considers that a number of 
Ukraine's arguments derive from "restraints" on the competence of Ukrainian courts and 
invest igating authorities under Ukrainian law.236 Russia submits that a Member's domestic law 
arrangements are not determinative of issues in WTO dispute settlement proceedings, and cannot 
be used to justify Ukraine's conduct in the present case with respect to Ar ticle 5.8 of the 
Anti-Dumping Agreement.237 
6.57.   We consider that the Panel's reasoning is consistent with its understanding that the "combined 
effect" of the court judgments and the 2010 amendment was that the dumping margin for EuroChem 
in the original investig ation phase was de minimis . We recall that, as an example, the Panel stated 
that the fact that, in implementing the court judgments, ICIT did not, or could not, recalculate the 
dumping margin itself is a matter of domestic law, and did not, in the Panel's view, diminish the 
probative value of these court judgments or ICIT's  order implementing them.238 Accordingly, we 
understand that Ukraine's arguments concerning ICIT's authority to recalculate a dumping margin 
for EuroChem following the court judgments were not germane to the Panel's reasoning that the 
"combined effect" of the Ukrainian court judgments and the 2010 amendment was that there was 
no basis at that point for a dumping margin or an anti -dumping duty with respect to EuroChem. 
In light of the argumen ts and evidence of the parties, and the manner in which the Panel reasoned 
its conclusion, we consider that the Panel was objective in rejecting Ukraine's contentions that the 
obligation under Article  5.8 of the Anti -Dumping Agreement had not been triggere d, because its 
domestic law prevented the recalculation of EuroChem's dumping margin once it had been 
invalidated by Ukrainian courts.  
6.58.   On the basis of our examination of the Panel's explanations and reasoning, we do not consider 
that the Panel acted incons istently with Article  11 of the DSU. Having considered that the Ukrainian 
court rulings invalidated the basis at that point for a dumping margin or an anti -dumping duty with 
respect to EuroChem, the Panel provided a reasoned and coherent explanation in rea ching the 
conclusion that "the combined effect of the Ukrainian court judgments, and their implementation by 
ICIT's  2010 amendment [,] was that the dumping margin for EuroChem in the original investigation 
phase was de minimis ."239 Although Ukraine cites cert ain arguments and evidence that it claims the 
Panel overlooked, we consider that the Panel, consistent with its duty under Article  11 of the DSU, 
conducted an objective assessment of the arguments and evidence necessary to resolve the claim 
under Article  5.8 of the Anti -Dumping Agreement as it relates to the 2008 amended decision and 
the 2010 amendment. For these reasons, we also see no reason to consider that the Panel did not 
conduct an objective assessment to resolve Russia's claim under Article 5.8 as i t relates to the 2014 
extension decision. Accordingly, we find that Ukraine has not established that the Panel acted 
inconsistently with Article  11 of the DSU in examining the arguments and evidence presented by 
Ukraine regarding the authority of Ukrainian  courts and investigating authorities to calculate 
dumping margins under Ukrainian law.  
                                                
234 Ukraine's appellant's submission, paras. 140 -141. See also Panel Report, paras.  7.148 -7.150 and 
fn 265 to para.  7.147. On appeal, in response to the Panel's reasoning in footnote 265 to paragraph 7.147 of 
the Panel Report, Ukraine argues that EuroChem could have petitioned Ukrainian courts for an order requiring 
Ukrainian investigating autho rities to recalculate its dumping margin. Ukraine considers the fact that no 
de minimis dumping margin was determined was therefore a result of EuroChem's own conduct. (Ukraine's 
appellant's submission, paras. 142 -147 (referring to Panel Report, fn 265 to para. 7.147)) We do not consider 
that the possibility of making such a petition was relevant to the Panel's reasoning or affects the Panel's 
conclusion that the "combined effect" of the court judgments and the 2010 amendment was that the dumping 
margin for  EuroChem in the original investigation phase was de minimis . Given that there was no basis at that 
point for a dumping margin or an anti -dumping duty for EuroChem, we do not see that the reason there was 
no recalculation of EuroChem's dumping margin was r elevant to the Panel's assessment.  
235 Ukraine's appellant's submission , para.  141. 
236 Russia's appellee's submission, para. 355.  
237 Russia's appellee's submission, paras. 355 and 359.  
238 Panel Report, para.  7.150. As noted by the Panel, Ukraine submitted befor e the Panel that ICIT is 
able to recalculate dumping margins only in the course of a review of anti -dumping duties, or when asked by 
Ukrainian courts to reopen an investigation and apply a particular methodology to calculate a dumping margin.  
(Panel Report , fn 272 to para. 7.150 (referring to Ukraine's first written submission to the Panel, fn 85 to 
para. 245; response to Panel question No. 22, para. 94))  
239 Panel Report, para.  7.147.  WT/DS493/AB/R  
 
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 6.1.6   Conclusion  
6.59.   In sum, the language in Russia's panel request, including express references in footnotes, 
refers to the 2008 amended decision and the 2010 amendment and suf ficiently links these measures 
to Russia's claim under Article 5.8 of the Anti -Dumping Agreement. We therefore agree with the 
Panel's assessment that the 2008 amended decision and the 2010 amendment were discernible and 
accordingly identified as specific measures at issue in Russia's panel request.  
6.60.   Therefore , we find that the Panel did not err under Article  6.2 of the DSU in finding that the 
2008 amended decision and the 2010 amendment were identified as specific measures at issue in 
Russia's pane l request. Consequently, we uphold  the Panel's finding, in paragraphs  7.28 and 8.1.a 
of the Panel Report, that the 2008 amended decision and the 2010 amendment were identified as 
specific measures at issue in Russia's panel request, and thus fell within th e Panel's terms of 
reference.  
6.61.   We recall that the measures and claims identified in a panel request in accordance with 
Article  6.2 of the DSU constitute the "matter referred to the DSB", which serves as a basis for the 
panel's terms of reference under Artic le 7.1 of the DSU. We have upheld the Panel's finding that the 
2008 amended decision and the 2010 amendment were identified as specific measures at issue in 
Russia's panel request, and Ukraine has not appealed the Panel's finding that Russia had provided a  
brief summary of the legal basis for its claim under Article  5.8 of the Anti -Dumping Agreement as it 
relates to these measures. Moreover, Ukraine has not advanced any other grounds in support of its 
challenge under Articles 7.1 and 11 of the DSU. Therefor e, we find that the Panel did not err under 
Articles 7.1 and 11 of the DSU by ruling on Russia's claim under Article  5.8 of the Anti -Dumping 
Agreement as it relate s to the 2008 amended decision and the 2010 amendment.  
6.62.   We consider that the Panel provided a reasoned and coherent explanation in reaching the 
conclusion that the combined effect of the Ukrainian court judgments and the implementation by 
the 2010 amendment was that the dumping margin for EuroChem in the original investigation phase 
was de minimis , triggering Ukraine's obligation under Article 5.8 of the Anti -Dumping Agreement to 
exclude EuroChem from the scope of the anti -dumping investigation. We further consider that the 
Panel, consistent with its duty under Article  11 of the DSU, conducted an ob jective assessment of 
the arguments and evidence necessary to resolve the claim under Article  5.8 of the Anti -Dumping 
Agreement as it relates to the 2008 amended decision, the 2010 amendment, and the 2014 
extension decision.  
6.63.   Therefore , we find that the Panel did not act in a manner inconsistent with Article  11 of the 
DSU, in concluding that the combined effect of the Ukrainian court judgments and their 
implementation by the 2010 amendment was that the dumping margin for EuroChem in the original  
investigation phase was de minimis . 
6.64.   For the reasons above, we uphold  the Panel's findings, in paragraphs  7.152, 7.157, and 8.3.a 
of the Panel Report, that Ukraine acted inconsistently with Article 5.8 of the Anti -Dumping 
Agreement in relation to the 2008 amended decision, the 2010 amendment, and the 2014 extension 
decision.  
6.2  Claims under Articles 2.2, 2.2.1, and 2.2.1.1 of the Anti -Dumping Agreement relating 
to MEDT's determinations of dumping in the interim and expiry reviews  
6.2.1   Introduction  
6.65.   In this section, we address three closely related claims of error raised by Ukraine under 
Articles  2.2, 2.2.1, and 2.2.1.1 of the Anti -Dumping  Agreement , with respect to MEDT's 
determinations of dumping in the interim and expiry reviews. First, Ukraine claims that the Pane l 
erred in its interpretation and application of the second condition in the first sentence of 
Article  2.2.1.1 in finding that MEDT did not provide an adequate basis for rejecting the reported gas 
cost under that condition.240 Second, Ukraine claims that the se same errors also led the Panel to err 
in finding that Ukraine acted inconsistently with Article  2.2.1 because, in conducting its  
                                                
240 Ukraine's appellant's submission, para. 37; Notice of Appeal, para.  c. WT/DS493/AB/R  
 
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 ordinary -course -of-trade test, MEDT relied on costs calculated inconsistently with Article  2.2.1.1.241 
Third, Ukraine claims t hat the Panel erred in its interpretation and application of Article  2.2 in finding 
that, when constructing normal value, MEDT failed to calculate the cost of production "in the country 
of origin".242 Russia requests that we  reject these claims.243 
6.66.   We begin by summarizing the Panel's findings at issue. We then provide an overview of 
relevant aspects of the legal standard in Articles 2.2, 2.2.1, and 2.2.1.1 of the Anti -Dumping 
Agreement. Next, we consider whether the Panel erred in its interpretation and  application of the 
second condition in the first sentence of Article  2.2.1.1, namely, the condition that the records kept 
by the exporter or producer under investigation "reasonably reflect the costs associated with the 
production and sale of the product under consideration", and thus erred in finding that Ukraine acted 
inconsistently with Article  2.2.1.1 and , consequently, with Article  2.2.1. Finally, we consider whether 
the Panel erred in its interpretation and application of the phrase "cost of producti on in the country 
of origin" in Article  2.2, which relates to the construction of normal value when it cannot be 
determined on the basis of domestic sales.  
6.2.2   The Panel's  findings  
6.67.   Before the Panel, Russia contended that Ukraine acted inconsistently with Artic les 2.2 and 
2.2.1.1 of the Anti -Dumping Agreement because,  in calculating the cost of production of the 
investigated Russian producers as part of its dumping determinations: (i) MEDT rejected the 
reported gas cost244; and (ii)  MEDT replaced it with the surro gate price of gas.245 Russia also 
contended that Ukraine acted inconsistently with Article  2.2.1 of the Anti -Dumping Agreement 
because, in conducting its ordinary -course -of-trade test, MEDT used a cost of production that was 
calculated inconsistently with Ar ticle 2.2.1.1.246 
6.2.2.1   The Panel's findings under Article  2.2.1.1 of the  Anti-Dumping Agreement  
6.68.   The Panel first addressed Russia's claim under Article  2.2.1.1 of the Anti -Dumping Agreement 
pertaining to the rejection  of the reported gas cost. The Panel considered  whether MEDT provided 
an adequate basis to reject the reported gas cost because the records of the investigated Russian 
producers did not reasonably reflect the costs associated with the production and sale of ammonium 
nitrate under the second condition i n the first sentence of Article  2.2.1.1.247 
6.69.   The Panel observed that Ukraine relied heavily on the panel's observations in EU – Biodiesel 
(Argentina)  that, under the second condition in the first sentence of Article  2.2.1.1, investigating 
authorities are free  to "examine non -arms-length transactions or other practices which may affect 
the reliability of the reported costs".248 Having recalled the context in which these observations were 
made, the Panel considered them to reflect that panel's  view that, in certai n cases, the records of 
an exporter or producer under investigation, while otherwise consistent with the first condition in 
the first sentence of Article  2.2.1.1, may not reasonably reflect the costs associated with the 
production and sale of the product u nder consideration.249 For its part, the Panel recognized that 
investigating authorities are free to examine the reliability and accuracy of the costs in the records 
of the investigated exporter or producer.250 The Panel, however, did not consider that "either  the 
panel or the Appellate  Body in EU – Biodiesel (Argentina)  'carved out' an open -ended 'exception' for 
                                                
241 Ukraine's appellant's submission, paras.  96 and 98; Notice of Appeal, para.  e. 
242 Ukraine's appellant's submission, para. 71; Notice of Appeal, para.  d. 
243 Russia's appellee's submission, paras. 81, 239, 305, and 312.  
244 Panel Report, para.  7.64.a and 7.82.  
245 Panel Report, para.  7.64.b and 7.93.  
246 Panel Report, para.  7.104.  
247 Panel Report, para.  7.81. Relying on the use of the word "normally" in the first sentence of 
Article  2.2.1.1 of the Anti -Dumping Agreement, Ukraine had also asserted that MEDT was permitted to depart 
from the obligation  to calculate the cost of production of the product under consideration on the basis of the 
exporter's or producer's records , because the gas price in the domestic Russian market was fixed by the State, 
not of a comme rcial nature,  and below the cost of production of gas. (Ibid., para.  7.78 (referring to Ukraine's 
first written submission to the Panel, para.  162)) The Panel considered Ukraine's arguments in that regard to 
be ex post facto rationalizations, which it coul d not consider. The Panel therefore limited its review to the 
parties' arguments with respect to the second condition in the first sentence of Article  2.2.1.1, which the Panel 
found had been invoked by MEDT to reject the reported gas cost. (Ibid., para.  7.80 and fn  164 to  para. 7.92)  
248 Panel Report, para. 7.84 (quoting Panel Report, EU – Biodiesel (Argentina) , fn 400 to para.  7.242) . 
249 Panel Report, para.  7.85. 
250 Panel Report, para.  7.85. WT/DS493/AB/R  
 
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 'non-arm's -length transactions or other practices' as Ukraine appear[ed] to suggest ."251 The Panel 
therefore did not find it necessary to assess, in the  abstract, whether the conditions in the domestic 
Russian market and the conditions of sale of gas met the definition of "non -arm's -length 
transactions" proposed by Ukraine, or its interpretation of what Ukraine referred to as an 
"other -practices" "excepti on".252 Instead, the Panel understood the pertinent question to be whether 
the records of the exporters or producers reasonably reflect the costs associated with the production 
and sale of the product under consideration. The Panel added that this question n eeded to be 
assessed on a case -by-case basis, in light of the evidence before the investigating authority and its 
determination.253 The Panel thus considered that it was called upon to examine "whether MEDT of 
Ukraine provided an adequate basis in the Invest igation Report to find that the records of the 
investigated Russian producers, insofar as the reported gas cost was concerned, did not reasonably 
reflect the costs associated with the production and sale of ammonium nitrate".254 
6.70.   The Panel recalled that MEDT had found, in its Investigation Report, that the gas price in the 
domestic Russian market was not a market price as the State controlled this price, it was artificially 
lower than the export price of gas from Russia as well as the price of gas in other cou ntries, and 
Gazprom's gas prices were below  its cost of production.255 The Panel first considered that MEDT had 
examined whether, due to government regulation of gas prices in Russia, the costs incurred by these 
producers were lower than prices in other coun tries or export prices of gas from Russia. To the Panel, 
this showed that MEDT's inquiry was "focused on whether the cost of gas incurred by these producers 
in the production and sale of ammonium nitrate was reasonable, or was the cost they would incur 
under what it considered to be normal circumstances, i.e. in the absence of the alleged distortions 
in the domestic Russian market for gas".256 The Panel considered that this was not the purpose of 
the inquiry under the second condition in the first sentence of  Article  2.2.1.1.257 
6.71.   Turning to MEDT's view that Gazprom sells gas in the domestic Russian market below cost, 
the Panel found nothing in the Investigation Report showing that this affected the reliability of the 
records of the investigated Russian producers.258 In particular, the Panel noted that MEDT had not 
found that Gazprom was affiliated with the investigated producers or even considered who supplied 
these producers with gas.259 The Panel also noted Ukraine's acknowledgement that EuroChem had 
other  gas suppliers and that there was no reference to EuroChem's suppliers in the Investigation 
Report.260 Moreover,  there was no  determination by MEDT that the records of the investigated 
producers, insofar as they reflected the prices paid to these suppliers, were unreliable. In addition, 
though Ukraine argued that prices of other gas suppliers were affected by Gazprom's prices, the 
Panel found nothing in MEDT's determinations to support that view.261 The Panel characterized 
Ukraine's arguments in that respect as  ex post facto  rationalizations and concluded that there was 
no correlation in MEDT's determinations between alleged below -cost sales by Gazprom and the 
reliability of the records of the investigated Russian producers.262 Moreover, considering that 
Article  2 of the Anti -Dumping Agreement deals with the pricing behaviour of individual exporters and 
producers, the Panel stated that the prices paid by a producer to unrelated suppliers would form 
part of the costs that it incurs to produce the product under consi deration.263 The Panel did not 
consider that the investigated producers' own records could be said to be "unreliable", or not to 
reasonably reflect the costs associated with the production and sale of the product under 
investigation, because its unrelated su ppliers' prices are government  regulated, lower than the prices 
prevailing in other countries, or allegedly priced below their cost of production.264 
                                                
251 Panel Report, fn  152 to para.  7.85 (referring to Ukraine's  opening statement at the first Panel 
meeting, para.  91). 
252 Panel Report, para. 7.85. 
253 Panel Report, para. 7.85. 
254 Panel Report, para. 7.86. 
255 Panel Report, paras.  7.73 and 7.88 (referring to Investigation Report (Panel Exhibit RUS -10b),  
pp. 21-23; Ukraine's secon d written submission to the Panel, para. 31). 
256 Panel Report, para. 7.89. 
257 Panel Report, para. 7.89. See also ibid., para. 7.69 and fn  111 thereto.  
258 Panel Report, para. 7.90.  
259 Panel Report, para. 7.90. 
260 Panel Report, fn 159 to para. 7.90 (referring to Ukraine's response to Panel question No. 8, fn 10).  
261 Panel Report, fn  159 to para. 7.90. 
262 Panel Report, fn  159 to para. 7.90. See also ibid., para. 7.74. 
263 Panel Report, para. 7.90.  
264 Panel Report, para. 7.90. WT/DS493/AB/R  
 
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 6.72.   In these circumstances, the Panel concluded that the findings relied on by MEDT in the 
Investigation Report did not provide a sufficient basis to conclude that the records of the investigated 
producers did not reasonably reflect the costs associated with the production and sale of ammonium 
nitrate.265 Consequently, the Panel found that Ukraine acted inconsistently  with Article  2.2.1.1 of 
the Anti -Dumping Agreement because MEDT did not provide an adequate basis under the second 
condition in the first sentence of that provision to reject the reported gas cost.266 
6.2.2.2   The Panel's findings under Article  2.2 of the Anti -Dumpi ng Agreement  
6.73.   The Panel next turned to Russia's claim under Article  2.2 of the Anti -Dumping Agreement 
pertaining to MEDT's replacement of the reported gas cost with the surrogate price of gas in 
calculating the cost of production of the investigated Russian  producers. The Panel considered 
whether the surrogate price of gas was the cost in the "country of origin", i.e. Russia.267 
6.74.   The Panel observed that the panel and the Appellate  Body in EU – Biodiesel (Argentina)  had 
addressed a similar claim under Article  2.2.268 As the Panel recalled, in that case, having found that 
the domestic price of soybeans used in the production of biodiesel was artificially lower than 
international soybean prices due to distortions created by Argentina's export tax system, 
the EU autho rities had used the price they considered Argentinian producers would have paid in the 
absence of distortions created by this tax system.269 Specifically, the EU authorities had used the 
average reference price of soybeans published by Argentina's Ministry o f Agriculture for export, free  
on board, minus fobbing cost s.270 Given that this price had been selected to remove the perceived 
distortions and precisely because it was not the price used in Argentina, the panel in that dispute 
concluded that the European  Union acted inconsistently with Article  2.2 because the average 
reference price did not constitute the cost in the "country of origin".271 The Appellate  Body in that 
dispute likewise  found that the EU authorities had specifically selected a surrogate price to  remove 
the perceived distortions in the cost of soybeans in Argentina.272 
6.75.   Having recalled these panel and Appellate Body findings in EU – Biodiesel (Argentina) , the 
Panel in the present dispute observed that, in the interim and expiry reviews, MEDT had conc luded 
that the export price of gas from Russia at the German border was representative and could be used 
in calculating the cost of production of ammonium nitrate , because Germany was the biggest 
consumer of Russian natural gas and this price had been revi sed according to market conditions in 
2012.273 The Panel recognized that "investigating authorities may use out -of-country evidence to 
calculate the cost of production in the country of origin provided they adapt this evidence to reflect 
the cost in the country of origin."274 However, the Panel found th at, except for an adjustment for 
transportation expenses, the record did not show how MEDT adapted the export price to reflect the 
prices in Russia.275 The Panel did not see "any explanations in the Investigation Report as to why 
adjustments for such transpo rtation expenses were adequate to adapt the out -of-country evidence, 
i.e. export price from Russia at the German border, to reflect the cost of the investigated Russian 
producers in the country of origin".276 To the contrary, the Panel considered MEDT's expl anation to 
suggest that it selected the export price of gas because it was an out -of-country benchmark and 
that it did not adapt this price to reflect costs in Russia.277 In these circumstances, the Panel did not 
                                                
265 Panel Report, para. 7.90. The Panel considered its conclusions to be consistent with the legal findings 
and interpretation developed by the panel and the Appellate  Body in EU – Biodiesel (Argentina) . 
(Ibid. , para. 7.91) 
266 Panel Report, paras.  7.92 and 8.2.a.  In light of this finding under Article  2.2.1.1 of the 
Anti-Dumping  Agreement, the Panel exercised judicial economy with respect to Russia's claim under Article  2.2 
of the Anti -Dumping Agreement pertaining to MEDT's rejection  of the reported gas cost. (Ibid., para.  7.92)  
267 Panel  Report,  para. 7.95. See also ibid., paras.  7.71 and 7.93. 
268 Panel  Report,  para. 7.95. 
269 Panel  Report,  para. 7.96 (referring  to Panel  Report,  EU – Biodiesel  (Argentina) , para. 7.257).  
270 Panel  Report,  para. 7.96 (referring  to Panel  Report,  EU – Biodiesel  (Argentina) , para. 7.257).  
271 Panel  Report,  para. 7.97 (referring  to Panel  Report,  EU – Biodiesel  (Argentina) , paras.  7.258 -7.259 ). 
272 Panel  Report,  para. 7.98 (referring  to Appellate  Body Report,  EU – Biodiesel  (Argentina) , para. 6.81).  
273 Panel  Report,  para. 7.99 (referring  to Investigation  Report  (Panel  Exhibit  RUS-10b),  p. 23). 
274 Panel  Report,  para. 7.99. 
275 Panel  Report,  para. 7.99. 
276 Panel  Report,  para. 7.99. 
277 Panel  Report,  para. 7.99. WT/DS493/AB/R  
 
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 consider the adjustment for transportation ex penses to have been sufficient to adapt the export 
price to reflect the cost of gas in Russia.278 
6.76.   The Panel also addressed Ukraine's argument that MEDT could not use the gas price in the 
domestic market in Russia to calculate the cost of production of the in vestigated Russian producers 
because there was no undistorted domestic market for gas in Russia.279 In this context, Ukraine had 
relied on the Appellate  Body's finding under Article  14(d) of the Agreement on Subsidies and 
Countervailing Measures (SCM  Agreeme nt) in US – Softwood Lumber IV that investigating 
authorities may use out -of-country benchmarks when private prices in a country are distorted due 
to the government's predominant role in the market.280 Disagreeing with Ukraine's argument, the 
Panel recalled its earlier finding that MEDT did not provide a proper basis to reject the reported gas 
cost.281 The Panel also considered the Appellate  Body's finding in US – Softwood Lumber  IV not to 
be relevant to its interpretation of Article  2.2.282 In the Panel's view, the Appellate  Body in that 
dispute recognized that, where the entire domestic market is distorted because of a government's 
role, comparing prices at which the government provides goods with prices of private suppliers in 
the domestic market could indicate  an artificially low benefit, meaning that the full extent of the 
subsidy would not be captured.283 The Panel took the view that the purpose of cost calculation under 
Article  2.2 of the Anti -Dumping Agreement and that of the calculation of benefit under Arti cle 14(d) 
of the SCM  Agreement are different and should not be conflated.284 The Panel added that the interim 
and expiry reviews concern a determination in an anti -dumping proceeding and that the question of 
ascertaining the benefit granted to a producer thr ough the governmental provision of goods and 
services does not arise.285 
6.77.   Based on the foregoing, the Panel found that Ukraine acted inconsistently with Article  2.2 of 
the Anti -Dumping Agreement because, when constructing normal value, MEDT failed to calculat e the 
cost of production "in the country of origin".286 
6.2.2.3   The Panel's findings under Article  2.2.1 of the Anti -Dumping Agreement  
6.78.   With respect to Article 2.2.1 of the Anti -Dumping Agreement, the Panel stated that this 
provision describes a methodology for deter mining whether below -cost sales may be treated as not 
being made in the ordinary course of trade.287 The Panel added that the first sentence of Article  2.2.1 
requires investigating authorities to: (i)  identify sales that are made at prices below "per unit (f ixed 
and variable) costs of production plus administrative, selling and general costs"; and (ii)  determine 
whether such below -cost sales are made within an extended period of time, in substantial quantities, 
and at prices which do not provide for the recov ery of all costs within a reasonable period of time.288 
6.79.   The Panel noted that, in the interim and expiry reviews, MEDT had used the surrogate price 
of gas, rather than the reported gas cost, to identify below -cost sales and assess whether they could 
be treate d as not being made in the ordinary course of trade within the meaning of Article  2.2.1.289 
Recalling its finding that MEDT's rejection of the reported gas cost was inconsistent with 
Article  2.2.1.1 of the Anti -Dumping Agreement, the Panel took the view that  "the use of costs that 
                                                
278 Panel  Report,  para. 7.99. The Panel  noted  that the panel  and the Appellate  Body in 
EU – Biodiesel  (Argentina)  had reached  a similar  conclusion  under  Article  2.2 of the Anti -Dumping Agreement . 
(Ibid., para. 7.99)  
279 Panel  Report,  para. 7.100  (referring  to Ukraine's  opening  statement  at the first Panel meeting,  
para. 105).  
280 Panel  Report,  para. 7.100  (referring  to Ukraine's  first written  submission  to the Panel,  para. 179).  
281 Panel  Report,  para. 7.101. 
282 Panel  Report,  para. 7.102. 
283 Panel  Report,  para. 7.101  (referring  to Appellate  Body Report,  US – Softwood  Lumber  IV, para. 100).  
284 Panel  Report,  para. 7.102. 
285 Panel  Report,  para. 7.102. 
286 Panel  Report,  paras.  7.103  and 8.2.b.  In light of this finding under Article  2.2 of the 
Anti-Dumping  Agreement, the Panel exercised judicial economy with respect to Russia's claim under 
Article  2.2.1.1 of the Anti -Dumping Agreement pertaining to MEDT's replacement  of the reported gas cost wit h 
the surrogate price of gas.  
287 Panel Report, para. 7.109 (referring to Panel Report, EC – Salmon (Norway) , para.  7.231).  
288 Panel Report, para. 7.110 (referring to Panel Report, EC – Salmon (Norway) , para.  7.233).  
289 Panel Report, para. 7.114.  As the Panel observed, MEDT had found that the domestic selling prices of 
the investigated Russian producers were "lower than [the] reasonable per unit costs for its production (taking 
into account the natural gas value adjustment) ". (Ibid., para. 7.113 (quoting Invest igation Report 
(Panel  Exhibit RUS -10b), pp.  25-26) (emphasis added by the Panel))  WT/DS493/AB/R  
 
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 were calculated inconsistently with Article  2.2.1.1 tainted MEDT of Ukraine's ordinary -course -of-
trade test."290 
6.80.   Before the Panel, Ukraine contended that a finding that MEDT calculated costs inconsistently 
with Article  2.2.1.1 of the Anti-Dumping Agreement cannot lead to a violation of Article  2.2.1 of that 
Agreement.291 The Panel noted that Ukraine had put f orward  two arguments in this respect, namely, 
that: (i)  cost calculations under Article  2.2.1.1 and the ordinary -course -of-trade te st under 
Article  2.2.1 are separate and sequential obligations; and (ii)  Russia had not made a prima facie  
case that if costs had not been calculated on the basis of the methodology adopted by MEDT, the 
results of the ordinary -course -of-trade test under Ar ticle 2.2.1 would have been different.292 With 
respect to Ukraine's first argument, the Panel observed that Article  2.2.1.1 applies to 
"[p]aragraph  2", which covers Article  2.2.1.293 The Panel thus took the view that costs used in the 
ordinary -course -of-trade test under Article  2.2.1 must be consistent with Article  2.2.1.1.294 With 
respect to Ukraine's second argument, the Panel considered that it was not permitted to examine 
whether the results of MEDT's ordinary -course -of-trade test would have been different ha d it 
calculated the costs consistently with Article  2.2.1.1 , as such an examination would have required a 
de novo  review of the evidence  on the record .295 Furthermore, while Ukraine argued that the 
outcome of the ordinary -course -of-trade test would not have changed had MEDT calculated the costs 
of the investigated producers consistently with Article  2.2.1.1, the Panel did not consider "such an 
argument of h armless error to be relevant to [its] analysis".296 
6.81.   Based on the foregoing, the Panel found that Ukraine acted inconsistently with Article  2.2.1 
of the Anti -Dumping Agreement because, in conducting its ordinary -course -of-trade test, MEDT 
relied on costs that  had been calculated inconsistently with Article  2.2.1.1 of the Anti -Dumping 
Agreement.297 
6.2.3   Overview of relevant aspects of the legal standard in Articles 2.2, 2.2.1, and 2.2.1.1 
of the Anti -Dumping  Agreement  
6.82.   Articles 2.2, 2.2.1, and 2.2.1.1 of the Anti-Dumping Agreement form part of the disciplines 
concerning the determination of dumping in Article  2 of that Agreement. Article  2.1 provides that a 
product is being dumped when it is "introduced into the commerce of another country" at an export 
price that is "less than its normal value". Pursuant to Article  2.1, the normal value of the product 
refers to "the comparable price, in the ordinary course of trade, for the like product when destined 
for consumption in the exporting country". The other provisi ons of Article  2 set out the rules 
regarding the determination of normal value and export price, and the comparison to be made 
between the two for the purpose of determining the margin of dumping.  
6.83.   While normal value will typically be based on domestic sale s prices pursuant to Article  2.1298, 
Article  2.2 of the Anti -Dumping Agreement identifies circumstances in which an investigating 
authority need not determine normal value on the basis of such domestic sales.299 One such 
circumstance is "[w]hen there are no sa les of the like product in the ordinary course of trade in the 
domestic market of the exporting country". The other circumstance outlined in Article  2.2 is when 
domestic sales do not permit a proper comparison, either because of "the particular market situ ation 
or the low volume of the sales in the domestic market of the exporting country".300 When one of 
these circumstances exists, the margin of dumping shall be determined by comparing the export 
                                                
290 Panel Report, para. 7.114.  
291 Panel Report, para. 7.115 . 
292 Panel Report, para. 7.115 (referring to Ukraine's response to Panel question No. 15, paras.  67-72). 
293 Panel Report, para. 7.116.  
294 Panel Report, para. 7.116.  The Panel considered that there is nothing in the text of Article  2.2.1 or 
Article  2.2.1.1 of the Anti -Dumping Agreeme nt to support the view that an investigating authority is free to 
disregard the specific rules under Article  2.2.1.1 when calculating the cost of production used for the purpose 
of the ordinary -course -of-trade test under Article  2.2.1. (Ibid.)  
295 Panel Repo rt, para. 7.117.  
296 Panel Report, para. 7.117 (referring to Panel Reports, EC – Salmon (Norway) , fn 763 to para. 7.624; 
US – Anti-Dumping  Methodologies (China) , para. 7.92).  
297 Panel Report, paras.  7.118 and 8.2.c.  
298 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 569.  
299 Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.13. 
300 Fn omitted. As explained in footnote 375  below , Ukraine's appeal does not require us to address 
these aspects of Article 2.2 of the Anti-Dumping Agreement and, in particular, the notion of "particular market 
situation" in that provision.  WT/DS493/AB/R  
 
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 price with: (i)  "a comparable price of the like product when e xported to an appropriate third  country, 
provided that this price is representative "; or (ii)  "the cost of production in the country of origin plus 
a reasonable amount for administrative, selling and general costs and for profits". With regard to 
the const ruction of normal value, the fact that "the cost of production " is that "in the country of 
origin" defines the parameters of that inquiry. This phrase indicates that whatever information or 
evidence is used to determine the "cost of production", it must be  apt to yield or capable of yielding 
a cost of production "in the country of origin".301 Therefore, an investigating authority must ensure 
that the information it collects is used to arrive at the "cost of production in the country of origin", 
and compliance  with this obligation may require the investigating authority to adapt that 
information.302 
6.84.   Articles  2.2.1, 2.2.1.1, and 2.2.2 of the Anti -Dumping  Agreement elaborate on various 
aspects of Article  2.2. Article  2.2.1 sets out when sales of the like product in  the domestic market 
or to a third country may be treated as not being in the ordinary course of trade and disregarded in 
determining normal value.  For its part, Article  2.2.1.1 deals with "costs" while Article  2.2.2 concerns 
the determination of the amoun ts for administrative, selling and general costs and for profits.  
6.85.   The first sentence of Article 2.2.1  refers to "[s]ales of the like product in the domestic market 
of the exporting country or sales to a third country at prices below per unit (fixed and var iable) costs 
of production plus administrative, selling and general costs". Such below -cost sales may be treated 
as not being in the ordinary course of trade by reason of price and disregarded in determining normal 
value "only if" the authorities determine  that they are  made : (i) within an extended period of time; 
(ii) in substantial quantities; and (iii)  at prices which  do not provide for the recovery of all costs 
within a reasonable period of time. The second sentence of Article  2.2.1 specifies that "[i]f  prices 
which are below per unit costs at the time of sale are above weighted average per unit costs for the 
period of investigation, such prices shall be considered to provide for recovery of costs within a 
reasonable period of time."  
6.86.   The first sentence o f Article 2.2.1.1 begins with the phrase "[f]or the purpose of paragraph  2". 
This indicates that, when normal value is being constructed because it cannot be determined on the 
basis of domestic sales, the calculation of "the cost of production in the count ry of origin" is subject 
to Article 2.2.1.1 of the Anti -Dumping Agreement.303 The first sentence of Article  2.2.1.1 directs the 
investigating authority normally to base its calculations of costs on the records of the exporter or 
producer under investigation , provided that such records are in accordance with the generally 
accepted accounting principles (GAAP) of the exporting country, and that they "reasonably reflect 
the costs associated with the production and sale of the product under consideration". The fi rst 
                                                
301 Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.70. 
302 The Appellate Body has s tated:  
In circumstances where the obligation in the first sentence of Article  2.2.1.1 to calculate the 
costs on the basis of the records kept by the exporter or producer under investigation does not 
apply, or where relevant information from the exporter or producer under investigation is not 
available, an i nvestigating authority may have recourse to alternative bases to calculate some or 
all such costs. Yet, Article  2.2 does not specify precisely to what evidence an authority may 
resort. This suggests that, in such circumstances, the authority is not prohibi ted from relying on 
information other than that contained in the records kept by the exporter or producer, including 
in-country and out -of-country evidence.  This, however, does not mean that an investigating 
authority may simply substitute the costs from o utside the country of origin for the "cost of 
production in the country of origin". Indeed, Article  2.2 of the Anti -Dumping  Agreement and 
Article  VI:1(b)(ii) of the GATT  1994 make clear that the determination is of the "cost of 
production […] in the countr y of origin". Thus, whatever the information that it uses, an 
investigating authority has to ensure that such information is used to arrive at the "cost of 
production in the country of origin". Compliance with this obligation may require the investigating 
authority to adapt the information that it collects.  
(Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.73) (fns omitted)  
303 Appellate  Body Report, EU – Biodiesel (Argentina) , paras.  6.24 and 6.44. In EU – Biodiesel 
(Argentina) , the Appellate Body stated that the reference to the records kept by the exporter or producer 
under investigation indicates that the first sentence of Article  2.2.1.1 "is concerned with establishing the cost 
for the specific exporter or producer  under investigation ". (Ibid.,  para. 6.17)  (emphasis original)  The 
Appellate  Body, however, also clarified that the second condition in the first sentence of Article  2.2.1.1 does 
not allow an investigating authority to evaluate the costs reported in the records kept by the exporter or 
producer pursuant to a benchmark unrelated to the cost of production in the  country of origin . (Ibid., 
para. 6.23) In making these statements, the Appellate Body recogni zed that  production  cost calculations 
pursuant to Article 2.2.1.1 assist in determining the cost of production in the country of origin pursuant to 
Article 2.2.  WT/DS493/AB/R  
 
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 condition relates to whether the records of a specific exporter or producer conform to the accounting 
principles,  standards , and procedures that are generally accepted and apply to such records in the 
relevant jurisdiction – i.e. the exporting country.  This condition concerns the general accounting and 
reporting practices of the exporter or producer.304 The second condition in the first sentence of 
Article  2.2.1.1 in turn concerns whether the records reasonably reflect  the costs associated with the 
production and sale of the product under consideration in a specific anti -dumping proceeding.305 The 
second and third sentences of Article  2.2.1.1 then provide rules concerning the allocation of costs.  
6.87.   We observe  that the first  sentence of Article 2.2.1.1 requires that costs "normally" be 
calculated on the basis of records kept by the exporter or producer under investigation , provided 
that the two conditions set out in that sentence are met. In other words, when these two condit ions 
are met, investigating authorities are "normally" to use the records of the exporter or producer under 
investigation.  The word "normally" may be defined as "under normal or ordinary conditions; as a 
rule".306 Read in conjunction with the words "provided  that", which introduce the two conditions of 
the first sentence of Article  2.2.1.1, the word "normally" indicates that when these two conditions 
are met, "under normal or ordinary conditions" or "as a rule", records shall be used. The 
Appellate  Body has h eld that "the qualification of an obligation with the adverb 'normally' does not, 
necessarily, alter the characterization of that obligation as constituting a 'rule'  … [r]ather, … the use 
of the term 'normally' … indicates that the rule … admits of derogat ion under certain 
circumstances. "307 Given the reference to "normally" in the first sentence of Article  2.2.1.1, we do 
not exclude that there might be circumstances other than those in the two conditions set  out in that 
sentence, in which the obligation to b ase the calculation of costs on the records kept by the exporter 
or producer under investigation does not apply.308 
6.88.   We further observe that, under the second condition in the first sentence of Article 2.2.1.1, it 
is the "records" of the individual exporter o r producer under investigation that are subject to the 
condition to "reasonably reflect" the "costs associated with the production and sale of the product 
under consideration". We thus consider that there is no standard of reasonableness under that 
conditi on that governs the meaning of "costs" itself, which would allow investigating authorities to 
disregard domestic input prices when such prices are lower than other prices internationally.309 The 
phrase  "reasonably reflect" may be understood as meaning to mir ror, reproduce, or correspond to 
something suitably and sufficiently.310 In addition, we recall that the word "costs" in the second 
condition in the first sentence of Article  2.2.1.1, which can be understood as referring to the price 
paid or to be paid to acquire or produce something311, is followed by the phrase "associated with the 
production and sale of the produ ct under consideration". The phrase "associated with" may be 
defined as "join[ed], unite[d]", "combine[d]", and "[c]onnect[ed] as an idea".312 This definition 
suggest s a genuine relationship between the costs reasonably reflected in the records of the export er 
or producer under investigation and the production and sale of the specific product under 
consideration. The second condition in the first sentence of Article 2.2.1.1 can thus be understood 
to refer to whether the records kept by the exporter or produce r suitably and sufficiently correspond 
                                                
304 Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.21. 
305 Appellate Body Report, EU – Biodiesel (Argentin a), para.  6.21. 
306 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 2, p. 1945 . 
307 Appellate Body Report, US – Clove Cigarettes , para. 273 . 
308 We observe that t he Panel rejected Ukraine's arguments based on the use of the word "normally" in 
the first sentence of Article  2.2.1.1 of the Anti -Dumping Agreement because the Panel considered that they 
constituted ex post facto rationalizations. (Panel Report, para.  7.80) Ukraine does not challenge this finding on 
appeal  and confirmed at the oral hearing that its claim of error on appeal is limited to the second condition in 
the first sentence of Article  2.2.1.1 of the Anti -Dumping Agreement. (Ukraine's response to questioning at the 
oral hearing) We thus do not cons ider it necessary in the context of this appeal to consider further whether , in 
light of the word "normally",  there are other circumstances in which the obligation in the first  sentence of 
Article  2.2.1.1 to base the calculation of costs on the records kep t by the exporter or producer under 
investigation would not apply  and what these circumstances might be in the context of the first sentence of 
Article  2.2.1.1 . 
309 Appellate  Body Report, EU – Biodiesel (Argentina) , paras.  6.37 and 6.56 . 
310 Appellate  Body Report, EU – Biodiesel (Argentina) , para. 6.20 (referring to Shorter Oxford English 
Dictionary , 6th edn (Oxford University Press, 2007), Vol.  2, pp. 2481 and 2506). 
311 Appellate  Body Report, EU – Biodiesel (Argentina) , para. 6.18 (referring t o Shorter Oxford English 
Dictionary , 6th edn (Oxford University Press, 2007), Vol.  1, p. 531). 
312 Appellate  Body Report, EU – Biodiesel (Argentina) , fn 122 to para. 6.19 (quoting Shorter Oxford 
English Dictionary , 6th edn (Oxford University Press, 2007), Vo l. 1, p. 137). WT/DS493/AB/R  
 
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 to or reproduce those costs incurred by the investigated exporter or producer that have a genuine 
relationship  with the production and sale of the specific product under consideration.313 
6.89.   We recognize that there may be different circumstances in which an investigating authority 
will be justified, under the first sentence of Article  2.2.1.1, in not calculating costs on the basis of 
the records kept by the exporter or producer under investigation. However, we recall that t he first 
sentence of Article 2.2.1.1 starts with the phrase "[f]or the purpose of paragraph 2". Article  2.2.1.1 
thus includes rules that also pertain to the calculation of the "cost of production" for the purpose of 
constructing normal value under Article  2.2. Thus, even where an investigating authority is justified 
in not calculating production costs on the basis of the exporter's or producer's records under the 
first sentence of Article  2.2.1.1, it remains subject to the disciplines set out in Article 2.2 , including 
its relevant subparagraphs, regarding the construction of normal value.314 
6.2.4   Whether  the Panel erred in its interpretation and application of the second condition 
in the first sentence of Article  2.2.1.1 of the Anti -Dumping Agreement in finding tha t MEDT 
did not provide an adequate basis for rejecting the reported gas cost under that condition  
6.90.   Ukraine's claim on appeal under Article  2.2.1.1 of the Anti -Dumping  Agreement focuses on 
the second condition in the first  sentence of that provision, namely,  the condition that the records 
kept by the exporter or producer under investigation "reasonably reflect the costs associated with 
the production and sale of the product under consideration".315 Ukraine contends that, in finding that 
MEDT did not provide an adequate basis for rejecting the reported gas cost under the second 
condition in the first sentence of Article  2.2.1.1, the Panel erred in its interpretation and application 
of that condition.316 Ukraine contends that these errors vitiate the Panel's finding s under 
Article  2.2.1.1 as well as those under Article  2.2.1 of the Anti -Dumping Agreement.317 Ukraine 
therefore requests that we  reverse the Panel's findings under Article  2.2.1.1 of the Anti -Dumping 
Agreement in paragraphs 7.89 -7.92 and 8.2.a of the Panel Report , and the Panel's findings under 
Article  2.2.1 of the Anti -Dumping Agreement in paragraphs 7.114, 7.116 -7.118, and 8.2.c of the 
Panel Report.318 Russia requests that we  uphold the Panel's  findings at issue.319 
6.91.   At the outset, we note that Ukraine challeng es both the Panel's interpretation and application 
of the second condition in the first sentence of Article  2.2.1.1.320 We further note that Ukraine has 
not identified separate arguments concerning the Panel's application of this condition , and we 
therefore address Ukraine's interpretation and application claims together.  
6.92.   Ukraine contends that the relevant inquiry under the second condition in the first sentence of 
Article  2.2.1.1 is one that pertains to "the reliability and accuracy  of the costs recorded in the records 
of the producers/exporters".321 Crucially, Ukraine understands the panel and the Appellate  Body in 
EU – Biodiesel (Argentina)  to have recognized "non -arm's  length transactions" and "other practices " 
"exceptions" under that second condition, as su ch transactions and practices may affect the 
"reliability" of the records.322 According to Ukraine, despite referring to the panel report in 
                                                
313 Appellate  Body Report, EU – Biodiesel (Argentina) , paras.  6.26 and 6.56. 
314 An investigating authority remains subject to those disciplines irrespective of the reason for which 
normal value cannot be determined on the basis of  domestic sale s under Article 2.2 of the Anti -Dumping 
Agreement.  
315 Ukraine's appellant's submission, para.  37. As explained above, g iven the reference to "normally" in 
the first sentence of Article  2.2.1.1, we do not exclude that there might be circumstances other than those  in 
the two conditions set  out in that sentence, in which the obligation to base the calculation of costs on the 
records kept by the exporter or producer under investigation does not apply.  However, for the purpose of 
resolving this dispute , we do not consider it necessary to consider further whether , in light of the word 
"normally",  there are other circumstances in which the obligation in the first  sentence of Article  2.2.1.1 to base 
the calculation of costs on the records kept by the expor ter or producer under investigation would not apply  
and what these circumstances might be in the context of the first sentence of Article  2.2.1.1 . (See paragraph 
6.87 and footnote 308  thereto  above)  
316 Ukraine's appellant's submission, para.  37. 
317 Ukraine's  appellant's submission, paras.  70 and 98.  
318 Ukraine's appellant's submission, paras.  70 and 99; Notice of Appeal, paras.  c and e.  
319 Russia's appellee's submission, paras.  81, 239, 306, and 312.  
320 Ukraine's appellant's submission, para.  37. 
321 Ukraine's app ellant's submission, para.  49 (quoting Appellate  Body Report, EU – Biodiesel 
(Argentina) , para.  6.41, in turn quoting Panel Report, EU – Biodiesel (Argentina) , fn 400 to para.  7.242). 
(emphasis added by Ukraine) See also ibid., para.  44. 
322 Ukraine's appell ant's submission, paras.  44-45, 49, and 66.  WT/DS493/AB/R  
 
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 EU – Biodiesel (Argentina) , "the Panel refused to consider whether the conditions in the domestic 
Russian market and the conditions of sales of gas met the definitions of 'non -arm's  length' and 'other 
practices'."323 Ukraine thus takes issue with the fact that "the Panel merely assessed whether the 
factual basis [relied on by MEDT] was adequate to find that the records of the Russian producers did 
not reasonably reflect the costs associated with the production of ammonium nitrate."324 
6.93.   Russia acknowledges that the panel in EU – Biodiesel (Argentina)  referred  to non -arm's -length 
transactions or other practices that m ay affect the reliability of the reported costs.325 However, 
Russia considers that non -arm's -length transactions and other practices cannot be qualified as 
exceptions.326 Russia also stresses that Article  2.2.1.1 does not contain the terms "non -arm's  length 
transactions" or "reliability".327 To Russia, the only inquiry envisaged under the second condition in 
the first sentence of Article  2.2.1.1 is whether the records of the investigated exporter or producer 
reasonably reflect the costs associated with the produc tion and sale of the product under 
consideration.328 
6.94.   We begin by observing that the terms "non -arm's -length transactions" and "other practices" 
are not found in Article  2.2.1.1 or elsewhere in the Anti -Dumping Agreement. The phrase 
"non-arms-length transacti ons or other practices which may affect the reliability of the reported 
costs", which is at the heart of Ukraine's appeal, appears in the panel report in EU – Biodiesel 
(Argentina) . Examining a claim under the second condition in the first sentence of Arti cle 2.2.1.1, 
the panel in that dispute stated:  
[W]e do not understand the phrase "reasonably reflect" to mean that whatever is 
recorded in the records of the producer or exporter must be automatically accepted. 
Nor does it mean, as argued by Argentina, tha t the words "reasonably reflect" are 
limited only to the "allocation" of costs. The investigating authorities are certainly free 
to examine the reliability and accuracy of the costs recorded in the records of the 
producers/exporters, and thus, whether thos e records "reasonably reflect" such costs. 
In particular, the investigating authorities are free to examine whether all costs incurred 
are captured and none has been left out; they can examine whether the actual costs 
incurred have been over or understated ; and they can examine if the allocations made, 
for example for depreciation or amortization, are appropriate and in accordance with 
proper accounting standards. They are also free to examine non -arms-length 
transactions or other practices which may affect  the reliability of the reported costs . 
But, in our view, the examination of the records that flows from the term "reasonably 
reflect" in Article 2.2.1.1 does not involve an examination of the "reasonableness" of 
the reported costs themselves, when the act ual costs recorded in the records of the 
producer or exporter are otherwise found, within acceptable limits, to be accurate and 
faithful .329 
6.95.   On appeal, the Appellate  Body in EU – Biodiesel (Argentina)  reproduced these observations 
in questioning the European  Union's reading of th at panel report.330 The Appellate  Body considered 
that, in light of these observations, th e panel's interpretation of Article  2.2.1.1 in that dispute 
appeared to be more nuanced than the European  Union's argument suggested.331 
                                                
323 Ukraine's appellant's submission, para.  44 (referring to Panel Report, para. 7.85). See also ibid., 
para. 50. At the oral hearing, Ukraine clarified that, in its view, the Panel erred by failing first to set ou t the 
proper interpretation of these terms and then to assess whether the transactions at issue qualified as either 
"non-arm's -length transactions" or as an "other practice". (Ukraine's  response to questioning at the oral 
hearing)  
324 Ukraine's appellant's s ubmission, para.  44 (referring to Panel Report, para.  7.89).  
325 See e.g. Russia's appellee's submission, paras.  138 and 207.  
326 Russia's appellee's submission, para.  120 and fn  102 thereto.  
327 Russia's appellee's submission, paras.  132, 160, 180, and 206.  
328 Russia's appellee's submission, para.  131. Moreover, according to Russia, in arguing that the Panel 
erred by refusing to examine whether the definitions of "non -arm's -length transactions" or  "other practices" 
were met in this case, Ukraine essentially alleges that the Panel denied Ukraine fairness in addressing its 
arguments and evidence and was not objective in its analysis of the facts. In this context, Russia submits that 
Ukraine has not m ade a claim under Article  11 of the DSU. (Russia's appellee's submission, paras.  138-139) 
329 Panel Report, EU – Biodiesel (Argentina) , fn 400 to para.  7.242. (emphasis added)  
330 Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.41. 
331 Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.41. See also Panel Report, fn  149 to 
para. 7.84 (referring to Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.41).  WT/DS493/AB/R  
 
- 41 - 
 
 6.96.   The panel in EU – Biodiesel (Argentina)  also stated that "while the costs in the records might 
be consistent with GAAP, they may still not accord with how they would need to be considered in 
the context of an anti -dumping investigation, such as in respect of the proper allocation of costs for 
depreciation or amortization or the relevant time periods."332 As "another example" of records that 
may not reasonably reflect the costs associated with the production and sale of the product under 
consideration, that panel referred to an investigated exporter or producer that is "part of a 
vertically -integrated group of companies in which the actual cost of production of particular inputs 
is spread across different companies' records, or in which transactions between suc h companies are 
not at arms -length or indicative of the actual costs involved in the production of the product under 
consideration" .333 The Appellate  Body agreed with the panel that records that are GAAP -consistent 
may nonetheless be found not to reasonably reflect the costs associated with the production and 
sale of the product under consideration.334 To the Appellate  Body, "[t]his may occur, for example, if 
certain costs relate to the production both of the product under consideration and of other products, 
or where the exporter or producer under investigation is part of a group of companies in which the 
costs of certain inputs associated with the production and sale of the product under consideration 
are spread across different companies' records, or where tr ansactions involving such inputs are not 
at arm's length."335 
6.97.   We do not subscribe to Ukraine's reading of the panel report or the Appellate  Body report in 
EU – Biodiesel (Argentina) . In our view, it is clear from the language used in these reports that the 
panel and the Appellate  Body provided only examples of circumstances in which records may be 
found, depending on the case at hand, not to reasonably reflect the costs associated with the 
production and sale of the product under consideration. We do not see that, in specifying these 
examples, the panel or the Appellate  Body read the second condition in the first sentence of 
Article  2.2.1.1 to prescribe exceptions to , or otherwise limit in the abstract , the circumstances 
allowing for the rejection of records u nder that condition. Therefore, while we note Ukraine's 
understanding of arm's -length  transactions336, like the Panel, we do not read the panel or 
Appellate  Body report s in EU – Biodiesel (Argentina)  as having understood the second condition in 
the first sen tence of Article  2.2.1.1 to contain open -ended "non -arm's -length transactions" or "other 
practices" "exceptions".337 Nor do we consider such exceptions to be embodied in that second 
condition. As set out above, the second condition in the first sentence of A rticle 2.2.1.1 relates to 
whether the records kept by the exporter or producer under investigation suitably and sufficiently 
correspond to or reproduce those costs incurred by the investigated exporter or producer that have 
a genuine relationship with the production and sale of the specific product under consideration.338 
We thus agree with the Panel that the question under the second condition in the first sentence of 
Article  2.2.1.1 is whether the records of the exporter or producer under investigation reas onably 
reflect the costs associated with the production and sale of the product under consideration and that 
this question  is to be assessed on a case -by-case basis, in light of the evidence before the 
investigating authority and its determination.339 Conseq uently, we do not consider that the Panel 
erred in examining "whether MEDT of Ukraine provided an adequate basis in the Investigation Report 
to find that the records of the investigated Russian producers, insofar as the reported gas cost was 
concerned, did  not reasonably reflect the costs associated with the production and sale of ammonium 
nitrate".340 
                                                
332 Panel Report, EU – Biodiesel (Argentina) , para.  7.232.  
333 Panel Report, EU – Biodiesel (Argentina) , para.  7.232.  
334 Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.33. 
335 Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.33 (referring to Panel Report,  
EU – Biodiesel (Argentina) , para.  7.232).  The Appellate Body thus referred to transactions that are not at 
arm's  length, but did not use the term "other practices" in the context of the second condition in the first 
sentence of Article  2.2.1.1  of the Anti -Dumping Agreement . 
336 Ukraine states that, f or a transaction to be considered at arm's length, it needs to be between two 
willing parties that are unrelated, acting independently from each other, and pursuing their own best interests. 
(Ukraine's appellant's submission, paras. 51 -52) 
337 Panel Report, fn 152 to para.  7.85 (referring to Ukraine's  opening statement at the first Panel 
meeting, para.  91). The Panel  did not find it necessary  to consider, in the abstract, whether the conditions in 
the domestic Russian market and the conditions of sale of gas met the definitions of "non -arm's -length 
transactions" proposed by Ukraine, or its interpretation of what Ukraine referred to as an "other -practices" 
"exception".  (Ibid., para.  7.85)  
338 Appellate  Body Report, EU – Biodiesel (Argentina) , paras.  6.26 and 6.56. 
339 Panel Report, para.  7.85. 
340 Panel Report, para.  7.86. WT/DS493/AB/R  
 
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 6.98.   Ukraine further contends that the Panel erred because "the Panel seem[s] to suggest that the 
records can only be deemed unreliable when the parties [to input t ransactions] are affiliated."341 In 
other words, according to Ukraine, the Panel appears to have drawn a distinction between affiliated 
and non -affiliated parties to input transactions for the purposes of the second condition in the first 
sentence of Article  2.2.1.1. To Ukraine, however, the rationale for determining whether records are 
"unreliable" under that condition is the dependent and uncommercial character of the relevant input 
transactions, and  any legal affiliation between transacting parties is only  an "indication that these 
practices may more easily occur".342 In support of its understanding of the second condition in the 
first sentence of Article  2.2.1.1, Ukraine refers to several WTO disputes in which a panel or the 
Appellate  Body allegedly assessed  whether transactions were at arm's length by considering 
"whether commercial principles had been respected or whether market prices were applied ", instead 
of focusing on whether the parties to such transactions were affiliated.343 Ukraine also refers to the  
second Ad Note to Article  VI of the  GATT  1994 and Article  2.2 of the Anti -Dumping Agreement as 
relevant context, which in its view confirms that the Anti -Dumping Agreement does not preclude the 
possibility that certain government practices may render prices "unreliable".344 
6.99.   Russia disagrees with Ukraine's reading of the Panel Report. To Russia, the Panel did not 
suggest that, under the second condition in the first sentence of Article 2.2.1.1, records can be 
deemed "unreliable" only when parties t o relevant input transactions are affiliated, but instead 
focused on addressing the facts at issue as well as Ukraine's arguments.345 Russia also disagrees 
with Ukraine's proposition that government regulation of input prices may result in a determination 
that transactions between investigated producers or exporters and their suppliers of input are not 
at arm's length, thereby allowing the investigating authority to reject recorded input costs under the 
second condition in the first sentence of Article  2.2.1. 1.346 Russia contends that this second condition 
deals with the quality of the records of the exporter or producer under investigation, and, as such, 
does not allow an investigating authority to reject recorded costs because it considers them to be 
"unreliab le" due to certain government intervention.347 
6.100.   The Panel addressed MEDT's reasons for rejecting the reported gas cost under the second 
condition in the first sentence of Article  2.2.1.1 of the Anti -Dumping  Agreement. The Panel recalled 
that MEDT had found th at the gas price in the domestic Russian market was not a market price as 
the State controlled this price, it was artificially lower than the export price of gas from Russia as 
well as the price of gas in other countries, and Gazprom's gas prices were belo w its cost of 
production.348 
6.101.   The Panel first examined MEDT's consideration that, due to government regulation of gas 
prices in Russia, the costs incurred by the investigated Russian producers were lower than prices in 
other countries or export prices of gas from Russia. To the Panel, in that respect, "MEDT of Ukraine's 
enquiry was focused on whether the cost of gas incurred by these producers in the production and 
sale of ammonium nitrate was reasonable, or was the cost they would incur under what it consider ed 
                                                
341 Ukraine's appellant's submission, paras.  45-46 (quoting Panel Report, para.  7.90). Ukraine states 
that " the Panel's suggestion that the fact that the gas prices were fixed by the Russian g overnment below the 
cost of production could have only made the records unreliable if MEDT of Ukraine had demonstrated that the 
gas suppliers and the exporters were legally affiliated, is flawed. " (Ibid., para.  59) 
342 Ukraine's appellant's submission, para.  58. 
343 Ukraine's appellant's submission, paras.  53-56 (referring to Panel Reports, EU – Biodiesel 
(Argentina) , para.  7.232; US – OCTG (Korea) , para.  7.197; Appellate  Body Report, US – Hot-Rolled Steel , 
para. 141). (emphasis original)  
344 Ukraine's appellant' s submission, paras.  62-65. Ukraine contends that the second Ad Note to 
Article  VI of the GATT  1994 suggests that "p rices may be rendered unreliable as a consequence of a complete 
or substantial monopoly of trade and/or state fixation of the domestic price s." (Ibid., para.  63) Turning to 
Article  2.2 of the Anti -Dumping Agreement, Ukraine contends that this provision enables an investigating 
authority to disregard domestic prices where such prices are affected by a particular market situation, which 
Ukraine understands to be "a market structure, where the interaction of supply and demand and free price 
determination, is interfered with by government intervention ". (Ibid., para.  64) 
345 Russia's appellee's submission, para.  151. 
346 Russia's appellee's submission,  paras.  181-182. 
347 See e.g. Russia's appellee's submission, paras.  86, 182, 199, and 236 -237. Moreover, Russia 
submits that Ukraine is essentially taking issue with factual findings made by the Panel in paragraph 7.90 and 
footnote 159 thereto regarding MED T's determinations in the interim and expiry reviews, which Ukraine should 
have challenged under Article  11 of the DSU. (Ibid., para.  153) 
348 Panel Report, paras.  7.73 and 7.88 (referring to Investigation Report ( Panel Exhibit RUS -10b), 
pp. 21-23; Ukraine 's second written submission  to the Panel , para. 31). WT/DS493/AB/R  
 
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 to be normal circumstances, i.e. in the absence of the alleged distortions in the domestic Russian 
market for gas."349 The Panel found that the examination under the second condition in the first 
sentence of Article  2.2.1.1 does not concern  whether the co sts contained in the records are not 
reasonable because, for instance, they are lower than those in other countries, which is what  MEDT 
examined in the interim and expiry reviews.350 
6.102.   As set out above, to the extent costs are genuinely related to the producti on and sale of the 
product under consideration, there is no additional or abstract standard of "reasonableness" that 
governs the meaning of "costs" in the second condition in the first sentence of Article  2.2.1.1.351 
Like the Panel, we consider that the exam ination under the second condition in the first sentence of 
Article  2.2.1.1 is not one that pertains to whether the costs contained in the records are not 
reasonable because, for instance, they are lower than those in other countries.352 Moreover, we see 
no reason to question the Panel's conclusion, in paragraph  7.89 of the Panel Report, that MEDT's 
examination of the gas costs incurred by the investigated Russian producers , as compared with 
prices in other countries or export prices of gas from Russia,  perta ined to whether the cost of gas 
incurred by these producers was reasonable, rather than to whether the records reasonably reflect 
the costs associated with the production and sale of ammonium nitrate. Ukraine has indeed not 
advanced arguments that take iss ue with that conclusion by the Panel. Ukraine merely reiterates on 
appeal that domestic gas prices were lower than the export price of the Russian gas suppliers.353 
Ukraine's arguments on appeal otherwise appear to focus on paragraph  7.90 of the Panel Report , 
which Ukraine reads as suggesting that, to the Panel, recorded costs may not be rejected under the 
second condition in the first sentence of Article  2.2.1.1 when domestic input prices are fixed by the 
State at a level below cost of production unless the parties to the relevant input transactions are 
related.354 
6.103.   Addressing MEDT's consideration that Gazprom sells gas in the domestic Russian market 
below cost, the Panel did not consider that this was sufficient for MEDT to conclude that the records 
of the inve stigated Russian producers did not reasonably reflect the costs associated with the 
production and sale of ammonium nitrate.355 The Panel made several factual findings concerning 
MEDT's determinations in the Investigation Report that were key to its reasonin g and conclusion in 
this respect. The Panel considered that "there is nothing in [the Investigation Report] that shows 
that [Gazprom's below -cost domestic sales] affected the reliability of the records of the investigated 
Russian producers, such that the r ecords did not reasonably reflect the costs associated with 
production and sale of ammonium nitrate."356 The Panel noted both the absence of a determination 
by MEDT that Gazprom was affiliated with the investigated Russian producers and the fact that MEDT 
did not even consider who supplied these producers with gas.357 The Panel further elaborated on the 
absence of a determination by MEDT that Gazprom was in fact the gas supplier of the two Russian 
producers of ammonium nitrate at issue. The Panel noted that, as  Ukraine acknowledged, "MEDT of 
Ukraine did not ask the investigated Russian producers the names of their gas suppliers" and that 
"EuroChem had … suppliers" other than Gazprom.358 Moreover, while Ukraine contended that prices 
of other gas suppliers were affe cted by the prices of Gazprom, the Panel found nothing in the 
Investigation Report to support this view.359 Crucially, the Panel considered that "[t]here is no 
reference to such suppliers of EuroChem in the Investigation Report ", nor is there " any finding [b y 
MEDT] that the records of the investigated Russian producers, insofar as they reflected the prices 
paid to these suppliers, were unreliable".360 The Panel added that "there is no correlation in MEDT 
of Ukraine's  findings [in the Investigation Report] betwe en alleged below -cost sales by Gazprom and 
the reliability of the records of the investigated Russian producers."361 These Panel statements show 
                                                
349 Panel Report, para.  7.89. 
350 Panel Report, para.  7.89. 
351 Appellate  Body Report, EU – Biodiesel (Argentina) , paras.  6.37 and 6.56. See also ibid., paras. 6.30 
and 6.55.  
352 Panel Report, para.  7.89. 
353 Ukraine's appellant's submission, para.  60. 
354 Ukraine's appellant's submission, paras.  42, 59, and 69.  
355 Panel Report, para.  7.90. 
356 Panel Report, para.  7.90. 
357 Panel Report, para.  7.90. 
358 Panel Report, fn  159 to para.  7.90 (referring to Ukraine's  response to Panel question No. 9, para.  31; 
response to Panel question No. 8, fn 10).  
359 Panel Report, fn  159 to para.  7.90 (referring to Ukraine's response to Panel question No. 10(a), 
para. 35). 
360 Panel Report, fn  159 to para.  7.90. 
361 Panel Report, fn  159 to para.  7.90. WT/DS493/AB/R  
 
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 that the Panel's analysis is tailored to the specific circumstances of this case, where no determination 
was made  by MEDT that Gazprom was the gas supplier of the investigated Russian producers or that 
Gazprom's prices affected other gas suppliers' prices.  
6.104.   The Panel went on to state that Article  2 of the Anti -Dumping Agreement is concerned with 
the pricing behaviour of individual exporters and producers.362 The Panel added that a producer may 
source inputs used to produce the product under consideration from multiple unrelated suppliers  
and that the prices paid by the producer to these unrelated suppliers would form part of the costs 
that it incurs to produce the product under consideration.363 The Panel did not consider that "the 
investigated Russian producers' own records could be said t o be unreliable, or not reasonably reflect 
the costs associated with the production and sale of the product under investigation, because its 
unrelated suppliers ' prices are government regulated, lower than the prices prevailing in other 
countries, or alleg edly priced below their cost of production."364 
6.105.   These references by the Panel to "unrelated suppliers", read in isolation, could arguably be 
read to suggest that, in the Panel's view, records may not be disregarded under the first sentence 
of Article 2.2.1.1 on the sole basis that input prices are set b y the government below cost of 
production when the producers or exporters of the product under investigation and the input 
suppliers are unrelated  (but might be when these entities are related). To the extent the Panel 
Report suggests as much, we have rese rvations regarding the relevance of drawing a distinction 
between related parties to input transactions, on the one hand, and unrelated parties to such 
transactions, on the other hand, for the inquiry under the first sentence of Article  2.2.1.1 as to 
wheth er cost calculations should be based on records kept by the exporter or producer under 
investigation.365 Simply because parties to input transactions are considered to be unrelated does 
not mean that cost calculations should necessarily be based on records k ept by the exporter or 
producer under the first sentence of Article  2.2.1.1. In particular, as explained above, given the 
reference to "normally" in the first sentence of Article  2.2.1.1, we do not exclude that there might 
be circumstances , other than thos e in the two conditions set  out in that sentence, in which the 
obligation to base the calculation of costs on the records kept by the exporter or producer under 
investigation does not apply.  However, to the extent the Panel's statements regarding unrelated  
suppliers can be understood to have been made in the limited context of the second condition in the 
first sentence of Article 2.2.1.1, we do not take issue with the Panel's proposition that the prices 
paid by the producer to unrelated suppliers would form  part of the costs that it incurs to produce 
the product under consideration.366 We recall in that regard that the second condition in the first 
sentence of Article 2.2.1.1 relates to whether the records kept by the exporter or producer under 
investigation s uitably and sufficiently correspond to or reproduce those costs incurred by the 
investigated exporter or producer that have a genuine relationship with the production and sale of 
the specific product under consideration.  
6.106.   In any event, the factual findings on which the Panel relied indicate to us that the Panel's 
analysis and conclusion with respect to MEDT's view that Gazprom sells gas below cost w ere tailored 
to the specific facts and arguments before it. The Panel's statement that the records could not be  
rejected under the second condition in the first sentence of Article  2.2.1.1 on the basis that unrelated 
suppliers' prices are " allegedly  priced below their cost of production"367 confirms our understanding. 
To us, this highlights a key element of the Panel 's analysis, namely, that while MEDT determined 
that Gazprom sells gas below cost, MEDT did not make such a determination with respect to the 
actual gas suppliers of the two investigated Russian producers at issue, as MEDT did not inquire who 
supplied thes e producers with gas. Given the Panel's case -specific approach and given that the 
Panel's conclusion relies on the absence of a determination by MEDT that Gazprom was the gas 
supplier of the investigated Russian producers or that Gazprom's prices affected these suppliers' 
prices, we see no reason to find error with the Panel's conclusion that Gazprom's below -cost pric es 
did not constitute  a sufficient factual basis for MEDT to conclude that the records did not reasonably 
reflect the costs associated with th e production and sale of ammonium nitrate.  
                                                
362 Panel Report, para.  7.90. 
363 Panel Report, para.  7.90. 
364 Panel Report, para.  7.90. (emphasis added)  
365 We note that there are various factors that may inform the degree to which pa rties are related.  
366 Panel Report, para. 7.90.  
367 Panel Report, para.  7.90. (emphasis added)  WT/DS493/AB/R  
 
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 6.107.   In light of the above, we do not consider that Ukraine has established that the Panel erred 
in its interpretation or application of the second condition in the first sentence of Article  2.2.1.1 of 
the Anti -Dumping  Agreement in finding that MEDT did not provide an adequate basis under that 
second condition to reject the reported gas cost.368 
6.108.   We recall that Ukraine also challenges the Panel's finding that Ukraine acted inconsistently 
with Article  2.2.1 of the Anti -Dump ing Agreement because, in conducting its ordinary -course -of-
trade test, MEDT relied on costs calculated inconsistently with Article  2.2.1.1 of the  Anti-Dumping 
Agreement.369 In that regard, Ukraine argues that the Panel's finding of inconsistency with 
Article 2.2.1 is vitiated by the Panel's errors of interpretation and application with respect to the 
second condition in the first sentence of Article  2.2.1.1.370 Noting that Ukraine's challenge under 
Article  2.2.1 is consequential to its challenge under the seco nd condition in the first sentence of 
Article  2.2.1.1, Russia responds that the Panel did not err in its analysis under Article  2.2.1.1.371 As 
summarized above, Article  2.2.1 sets out when sales of the like product in the domestic market or 
to a third countr y may be treated as not being in the ordinary course of trade and disregarded in 
determining normal value. In reaching its finding of inconsistency with Article  2.2.1 of the 
Anti-Dumping Agreement, the Panel relied on its earlier finding that MEDT's reject ion of the reported 
gas cost was inconsistent with Article  2.2.1.1 of that Agreement.372 Ukraine's arguments on appeal 
are limited to alleging that the Panel's errors with respect to the interpretation and application of 
the second condition in the first sen tence of Article  2.2.1.1 also vitiate the Panel's finding under 
Article  2.2.1.373 At the oral hearing, Ukraine confirmed that its claim of error under Article  2.2.1 is 
dependent on us reversing the Panel's findings under Article  2.2.1.1.374 Therefore, given ou r 
conclusion that the Panel did not err in its interpretation or application of the second condition in the 
first sentence of Article  2.2.1.1 of the Anti -Dumping Agreement, we see no reason to disturb the 
Panel's finding that Ukraine acted inconsistently w ith Article  2.2.1 of the Anti -Dumping  Agreement.  
6.2.5   Whether  the Panel erred in its interpretation and application of Article  2.2 of the 
Anti-Dumping  Agreement in finding that, when constructing normal value, MEDT failed to 
calculate the cost of production "in the country of origin"  
6.109.   We now turn to Ukraine's claim that the Panel erred in its interpretation and application of 
Article  2.2 of the Anti -Dumping  Agreement in finding that MEDT failed to calculate the cost of 
production "in the country of origin" when constructing normal value for two investigated Russian 
producers of ammonium nitrate.375 As a result, Ukraine requests that we  reverse the Panel's findings 
in paragraphs  7.99, 7.101 -7.103, and 8.2.b of the Panel Report.376 Russia requests that we  uphold 
the Panel's findings at issue.377 
6.110.   As set out above, in addressing Russia's claims concerning MEDT's gas cost calculations in 
constructing normal value in the interim and expiry reviews, the Panel first assessed whether MEDT 
provided an adequate basis to reject the reported gas cost under the second condition in the first 
sentence of Article  2.2.1.1 of the Anti -Dumping Agreement.378 The Panel subsequently assessed 
whether, having rejected the reported gas cost without providing an adequate basis to do so under 
                                                
368 Panel Report, paras.  7.92 and 8.2.a.  
369 Ukraine's appellant's submission, para.  96. 
370 Ukraine's appellant's submission, para.  98. 
371 Russia's appellee's submission,  paras.  310-311. 
372 In addressing Russia's claim under Article  2.2.1 of the Anti -Dumping Agreement, the Panel started 
by observing that, in the interim and expiry reviews, MEDT had used the surrogate price of gas to identify the 
below -cost sales and assess whether they could be treated as not being made in the ordinary course of trade. 
The Panel then recalled its earlier finding that MEDT's rejection of the reported gas cost was inconsistent with 
Article  2.2.1.1 of the Anti -Dumping Agreement. To the Panel, t he use of costs that had been calculated 
inconsistently with Article  2.2.1.1 tainted MEDT's ordinary -course -of-trade test. In addition, the Panel 
disagreed with Ukraine's view that a finding that MEDT calculated costs inconsistently with Article  2.2.1.1 
cannot lead to a violation of Article  2.2.1 of the Anti -Dumping Agreement. (Panel Report, paras.  7.114 -7.115)  
373 Ukraine's appellant's submission, paras.  96 and 98; Notice of Appeal, para.  e. 
374 Ukraine's response to questioning at the oral hearing.  
375 Ukraine' s claim on appeal concerns the phrase "cost of production in the country of origin" in 
Article  2.2 of the Anti -Dumping Agreement. This appeal does not raise the issue of the circumstances in which 
an investigating authority may construct normal value. In p articular, the resolution of this dispute does not 
require us to address the notion of "particular market situation" in Article  2.2 of the Anti -Dumping  Agreement.  
376 Ukraine's  appellant's  submission,  paras.  71 and 95; Notice of Appeal, para.  d. 
377 Russia's a ppellee's submission, paras.  240 and 3 05. 
378 Panel Report, paras. 7.81 -7.92. WT/DS493/AB/R  
 
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 that condition, MEDT failed to construct normal value on the basis of the cost of production in the 
country of origin within the meaning of Article  2.2 by using the surrogate price of gas.379 The Panel 
considered that Article  2.2 does not preclude the possibility that an investigating authority may have 
to use out -of-country evidence to construct normal value, provided that such evidence is apt to yield 
or capable of yielding the cost of production in the country of origin.380 The Panel did not see "any 
explanations in the Investigation Report as to why adjustments for … transportation expenses were 
adequate to adapt the … export price from Russia at the German border [] to reflect the cost of the 
investigated Russian producers in the country of origin".381 Rather, the Panel considered MEDT's 
explanation in the Investigation Report to suggest that it had selected this export price because "[it] 
was an out -of-country benchmark, and that it did not adapt this price to reflect costs in Russia ."382 
In these circumst ances, the Panel did not consider that the adjustment for transportation expenses 
was sufficient to adapt the export price of gas from Russia at the German border to reflect the cost 
in Russia.383 The Panel then dismissed Ukraine's argument that MEDT could n ot use domestic gas 
prices in Russia because there was no undistorted domestic market for gas in Russia, relying on its 
earlier finding that MEDT had not provided a proper basis to reject the reported gas cost.384 
6.111.   In challenging these Panel findings on appea l, Ukraine first argues that the Panel's 
interpretation and application of Article  2.2 of the Anti -Dumping Agreement rely on the Panel's 
erroneous finding that Ukraine acted inconsistently with Article  2.2.1.1.385 Ukraine submits that, for 
this reason alone,  we should reverse the Panel's finding under Article  2.2.386 Ukraine makes a series 
of additional arguments challenging the Panel's interpretation and application of Article  2.2 that are 
premised on finding error with the Panel's interpretation or applicatio n of the second condition in the 
first sentence of Article  2.2.1.1. In particular, Ukraine submits that it would be circular and void of 
economic logic to calculate the cost of production under Article  2.2 on the basis of costs rejected 
under Article  2.2.1.1 of the Anti -Dumping Agreement.387 In that regard, Ukraine relies on the 
Appellate  Body reports in EC – Fasteners (China) (Article  21.5 – China)  and US – Softwood  
Lumber  IV as standing for the proposition that "once a particular cost item is found to be unreliable 
or distorted, an investigating authority cannot be forced to make an adjustment to re -introduce the 
very same condition … that rendered the price unreliable in the  first place."388 According to Ukraine, 
"MEDT of Ukraine could not simply take the regulated gas price on the domestic market in Russia as 
the basis for the calculation of the cost of production in the country of origin, as this price was 
deemed to be unreli able."389 
6.112.   Russia responds that the Panel did not err in finding that Ukraine acted inconsistently with 
Article  2.2.1.1, and that, in any event, the Panel's findings under Article  2.2 are not dependent on 
its findings under Article  2.2.1.1.390 In that regard, R ussia argues that both the factual and legal 
bases for these Panel findings are different.391 Russia also challenges  Ukraine's reliance on the 
Appellate  Body reports in EC – Fasteners (China) (Article  21.5 – China) and US – Softwood 
                                                
379 Panel Report , para s. 7.93-7.103.  
380 Panel Report, paras.  7.71 (referring  to Appellate  Body Report,  EU – Biodiesel  (Argentina) , 
paras.  6.70 and 6.73)  and 7.99.  
381 Panel Report, para. 7.99. 
382 Panel  Report,  para. 7.99. 
383 Panel  Report,  para. 7.99. 
384 Panel  Report,  paras.  7.100 -7.102. 
385 Ukraine's  appellant's  submission,  paras.  75, 78, and 86. 
386 Ukraine's  appellant's  submission,  paras.  75, 78, and 86. 
387 Ukraine's  appellant's  submission,  para. 81. See also ibid., para. 84.  
388 Ukraine's  appellant's  submission,  paras.  87-88. 
389 Ukraine's  appellant's  submission,  para. 87. Ukraine argues that, having determined that the 
domestic gas prices in Russia could not be  used under the second condition in the first sentence of 
Article  2.2.1.1, it is unclear what adjustments MEDT  should have made, other than adjusting the export price 
of gas on account of transportation expenses.  (Ibid., paras. 86 -87) 
390 Russia's  appellee's  submission,  paras.  256-257, 263, 265, and 282.  
391 Russia  emphasizes  that the Panel's  finding  under  Article  2.2.1.1  of the Anti -Dumping Agreement 
concerns  the rejection  of the reported  gas cost and whether  there was an adequate  basis for MEDT  to conclude  
that the reported  gas cost did not reasonably  reflect  the costs associated  with the production  and sale of 
ammonium  nitrate  under  the second  condition  in the first sentence of that provision . By contrast,  Russia 
considers that the Panel's  finding  under  Article  2.2 of the Anti -Dumping Agreement concerns  the replacement  
of the reported  gas cost with the surrogate  price of gas and whether  this is in keeping  with the obligation  in 
Article  2.2 that the costs be those  "in the country  of origin".  (Russia's  appellee's  submission,  paras.  258-263) WT/DS493/AB/R  
 
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 Lumber  IV, arguing that, in these reports, the Appellate  Body did not address issues under 
Article  2.2 of the Anti-Dumping Agreement.392 
6.113.   We understand Ukraine's arguments under Article 2.2 in this regard  to be dependent on its 
claim that the Panel erred in its interpretation and app lication of the second condition in the first 
sentence of Article  2.2.1.1. In particular, Ukraine's argument, relying on the Appellate Body reports 
in EC – Fasteners (China) (Article  21.5 – China) and US – Softwood  Lumber  IV, that it would be 
circular and void of economic logic to calculate the cost of production under Article  2.2 on the basis 
of costs adequately rejected under the second condition in the first sentence of Article  2.2.1.1, 
assumes that there was an adequate basis to reject such costs under that condition. As we have 
found above, Ukraine has not established that the Panel erred  in its interpretation or application of 
Article  2.2.1.1 in finding that MEDT did not provide an adequate basis to reject the reported gas cost 
under the second conditi on in the first sentence of that provision. We therefore reject Ukraine's 
arguments on appeal challenging the Panel's findings under Article  2.2 of the Anti -Dumping 
Agreement insofar as such arguments are dependent on alleged errors by the Panel in its 
interpretation or application of the second condition in the first sentence of Article  2.2.1.1 of the 
Anti-Dumping Agreement . 
6.114.   Having reached this conclusion, we now address Ukraine's arguments on appeal concerning 
the Panel's interpretation and application of  Article  2.2 that Ukraine has identified as not being 
dependent on us finding error with the Panel's interpretation or application of the second condition 
in the first sentence of Article 2.2.1.1. Ukraine specified that, in its view, irrespective of whethe r the 
Panel erred in its interpretation or application of the second condition in the first sentence of 
Article  2.2.1.1, the Panel erred in: (i)  its interpretation of Article  2.2 in considering that certain 
Appellate  Body's findings under Article  14(d) of the SCM  Agreement in US – Softwood Lumber  IV 
were not relevant to that interpretation; and (ii)  its application of Article  2.2 in finding that the 
export price of gas was not properly adapted to reflect the cost "in the country of origin".393 
6.115.   Starting with Ukraine's interpretative arguments, we observe that Ukraine challenges the 
Panel's interpretation of Article  2.2 of the Anti -Dumping Agreement by relying on certain 
Appellate  Body findings with respect to Article  14(d) of the SCM  Agreement in  US – Softwood 
Lumber IV . Specifically, Ukraine submits that the Panel erred in considering that these 
Appellate  Body findings are not relevant by analogy to the interpretation of the phrase "cost of 
production in the country of origin" in Article  2.2 and that, consequently, recourse to an 
out-of-country benchmark is not justified under that provision.394 Russia disagrees and cautions that 
Article  14(d) of the SCM  Agreement should not be transposed into the framework of the 
Anti-Dumping Agreement.395 Russia hig hlights that the primary focus of determining the existence 
of a subsidy under the SCM  Agreement lies in the analysis of a government's actions, while the rules 
on determination of dumping focus on the investigated producer's or exporter's pricing behaviou r.396 
6.116.   The Panel noted that Article  14(d) of the SCM  Agreement is concerned with the assessment 
of the benefit granted to a subsidy recipient due to the governmental provision of goods and 
services.397 The Panel stressed that, unlike Article  14(d) of the SCM  Agreement, the purpose of 
Article  2.2 of the Anti -Dumping Agreement is not to ascertain the benefit conferred by the 
governmental provision of goods and services, and the extent of that benefit. The Panel concluded 
that the purpose of cost calculation under Article  2.2 of the Anti -Dumping Agreement and that of 
the calculation of benefit under Article  14(d) of the SCM  Agreement are different and should not be 
conflated.398 The Panel added that the interim and expiry reviews concern a determination in an 
anti-dumping proceeding, rather than an anti -subsidy proceeding, and that the question of 
ascertaining the benefit granted through the governmental provision of goods and services thus 
does not arise in the present case.399 The Panel therefore did not consider the 
                                                
392 Russia's  appellee's  submission,  paras.  268 and 284 -288. 
393 Ukraine's response to questioning at the oral  hearing. See also Ukraine's appellant's submission, 
paras. 76, 79 -80, and 89 -94. 
394 Ukraine's  appellant's  submission,  paras.  76-77. 
395 Russia's  appellee's  submission,  paras.  268-273. 
396 Russia's  appellee's  submis sion, para. 271. 
397 Panel Report, para. 7.101.  
398 Panel Report, para. 7.102.  
399 Panel Report, para.  7.102.  WT/DS493/AB/R  
 
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 Appellate  Body's  findings under Article  14(d) of the SCM  Agreement in US – Softwood Lumber  IV to 
be relevant to its interpretation of Article  2.2 of the Anti -Dumping Agreement.400 
6.117.   We begin by recalling that Article  14(d) of the SCM  Agreement contains guidelin es for the 
calculation of the amount of a subsidy in terms of the benefit to the recipient. Article  14(d) provides, 
inter alia , that the provision of goods or services by a government shall not be considered as 
conferring a benefit unless such a provision is made for less than adequate remuneration, and that 
adequacy of remuneration "shall be determined in relation to prevailing market conditions for the 
good or service in question in the country of provision". As the Panel observed, in US – Softwood 
Lumber  IV, the Appellate  Body stated that a government's  role in providing a financial contribution, 
in terms of the provision of goods, may be so predominant that it effectively determines the price 
at which private suppliers sell the same or similar goods.401 In these circumstances, the comparison 
of the price at which the government provides goods with the price at which private suppliers sell 
these goods in the domestic market could indicate a benefit that is artificially low, or even zero, such 
that the full e xtent of the subsidy would not be captured, thereby undermining the rights of Members 
under the SCM  Agreement to countervail subsidies.402 
6.118.   We acknowledge that Article  2.2 of the Anti -Dumping Agreement and Article  14(d) of the 
SCM Agreement bear certain textu al similarities. Article  2.2 refers to the cost of production "in the 
country of origin" and Article  14(d) to the adequacy of remuneration to be determined in relation to  
prevailing market conditions  "in the country of provision". Article  14(d), however, a lso contains the 
phrase "in relation to prevailing market conditions", which is not found in Article  2.2.403 Importantly, 
these two provisions do not serve the same function. The function of Article  14(d) of the 
SCM Agreement is to ascertain the benefit conf erred on the recipient of a subsidy by, inter alia , the 
governmental provision of goods and services. By contrast, Article 2.2 of the 
Anti-Dumping  Agreement concerns the establishment of normal value when it cannot be determined 
on the basis of domestic sa les.404 In light of these differences, the Appellate  Body's findings with 
respect to Article  14(d) of the SCM  Agreement in US – Softwood Lumber  IV do not speak to the 
costs that may be used to construct normal value under Article  2.2 of the Anti -Dumping Agre ement. 
Therefore, in our view, the Panel did not err in its interpretation of Article  2.2 in considering that 
these Appellate  Body findings were not relevant to its interpretative exercise.405 In light of the 
foregoing, we reject Ukraine's claim challenging the Panel's interpretation of Article  2.2 of the 
Anti-Dumping Agreement . 
6.119.   We now turn to Ukraine's claim that the Panel erred in its application of Article  2.2 of the 
Anti-Dumping  Agreement in finding that, when constructing normal value, MEDT failed to cal culate 
the cost of production "in the country of origin". Ukraine claims that the Panel erred in considering 
that adjusting the export price of gas from Russia at the German border on account of transportation 
                                                
400 Panel Report , para.  7.102. 
401 Panel Report, para.  7.101 (referring to Appellate  Body Report, US – Softwood Lumber IV , paras.  93 
and 101) . 
402 Panel Repor t, para.  7.101 (referring to Appellate  Body Report, US – Softwood Lumber IV , para. 100). 
In US – Countervailing Measures (China) (Article 21.5 – China) , the Appellate Body clarified that "[c] entral to 
the inquiry under Article  14(d) of the SCM  Agreement in  identifying an appropriate benefit benchmark is the 
question of whether in -country prices are distorted  as a result of government intervention " and that "[w] hat 
would allow an investigating authority to reject in -country prices is a finding of price distortion resulting from 
government intervention in the market, not the presence of government intervention in the market itself. " The 
Appellate Body also recognized that d ifferent types of government interventions could lead to price distortion, 
such tha t recourse to out -of-country prices is warranted, beyond the situation in which the government's role 
is so predominant that it effectively determines the price of the goods in question. (Appellate Body Report, 
US – Countervailing Measures (China) (Article  21.5 – China) , para. 5.147)  
403 To the Appellate  Body, the phrase "in relation to" implies  a "broader  sense  of 'relation,  connection,  
reference '", suggesting that a benchmark other than private prices is not excluded under Article  14(d) of the 
SCM Agreement . (Appellate  Body Report,  US – Softwood  Lumber  IV, para. 89) As for the term "prevailing 
market conditions", it has been found to "consist of generally accepted characteristics of an area of economic 
activity in which the forces of supply and demand intera ct to determine market prices".  (Appellate  Body 
Report,  US – Carbon  Steel (India) , para. 4.150 ) In addition, in US – Softwood  Lumber  IV, the Appellate  Body 
found merit in the United  States' submission that the term "guidelines" in Article  14 of the SCM Agreement, 
which is equally not found in Article  2.2 of the Anti -Dumping Agreement, suggests that paragraphs (a) through 
(d) should not be interpreted as rigid rules that purport to contemplate every conceivable factual circumstance. 
(Appellate  Body Report, US – Softwood  Lumber  IV, para. 92) 
404 Appellate  Body Report,  EU – Biodiesel  (Argentina) , para. 6.24 (referring to Panel Reports, 
Thailand  – H-Beams , para.  7.112; US – Softwood Lumber V , para.  7.278 ). 
405 Panel Report, paras.  7.101 -7.102. WT/DS493/AB/R  
 
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 expenses was not sufficient to adapt this pric e to reflect prices in Russia.406 In that regard, Ukraine 
states that "other than apparently requesting domestic state -fixed prices to be used for the purpose 
of the calculation of the cost of production, none of the interested parties in the investigation p ointed 
to any differences in the market conditions in Russia (other than prices being fixed by the state) and 
market conditions relating to the export prices, which would necessitate further adjustments to the 
export gas prices."407 According to Ukraine, in these circumstances, "MEDT of Ukraine cannot be 
faulted for limiting the adaptation to the gas export price to an adjustment on account of 
transportation expenses."408 
6.120.   Russia responds that the Panel correctly found that the export price of gas from Russia at  
the German border was not properly adapted to reflect the cost of gas in the country of origin as 
required under Article  2.2.409 In that regard, Russia argues that the Panel correctly made the 
following factual findings: (i)  "the export price from Russia to  Germany was not the cost of gas for 
the investigated Russian producers in Russia"; (ii)  "the record does not show how MEDT of Ukraine 
adapted this export price to reflect the prices in Russia"; and (iii)  MEDT "selected this price because 
the export price was an out -of-country benchmark, and that it did not adapt this price to reflect 
costs in Russia".410 Russia further argues that the analysis under Article  2.2 does not relate to the 
market conditions for inputs in different countries, but to whether the surrogate price of gas reflects 
the domestic price of gas in Russia.411 According to Russia, the Panel c orrectly considered that it did 
not.412 Moreover, Russia argues that the obligation under Article  2.2 lies with  the investigating 
authority regardless of whether interested parties request adjustments to ensure that a price relied 
on to construct normal valu e reflects the cost in the country of origin.413 
6.121.   As set out above, the phrase "cost of production in the country of origin" indicates that 
whatever information or evidence is used to determine the "cost of production", it must be apt to 
yield or capable of y ielding a cost of production "in the country of origin".414 Therefore, an 
investigating authority has to ensure that the information it collects is used to arrive at the "cost of 
production in the country of origin" and compliance with this obligation may re quire the investigating 
authority to adapt that information.415 
6.122.   The Panel's analysis focuses on MEDT's explanations in the Investigation Report regarding 
whether the export price of gas from Russia at the German border was adapted to reflect the cost 
of prod uction in the country of origin. The Panel did not see any explanation by MEDT in the 
Investigation Report as to why adjustments for transportation expenses were adequate to adapt the 
export price from Russia at the German border to reflect the cost of the  investigated Russian 
producers in the country of origin.416 The Panel also recalled its earlier finding under the second 
                                                
406 Ukraine's appellant's submission, para s. 76 and 86 -87. 
407 Ukraine's  appellant's  submission,  para. 89. See also ibid., paras.  92-93. 
408 Ukraine's  appellant's  submission,  para. 94. 
409 Russia's  appellee's  submission,  paras. 2 94-295. 
410 Russia's  appellee's  submission,  paras.  294-295 (quoting  Panel  Report,  para. 7.99).  (emphasis added 
by Russia)  
411 Russia's  appellee's  submission, para.  296. 
412 Russia's appellee's  submission, para.  296. 
413 Russia's  appellee's  submission,  paras.  298 and 302. 
414 Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.70. 
415 Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.73. The phrase "cost of production in the 
country of origin" suggests that, in constructing normal value, an investigating authority will naturally look for 
information on the cost of production "in the country of origin" from sources inside the country . The first 
sentence of Article 2.2.1.1 directs the investigating authority normally to base its calculations of  costs on the 
records of the exporter or producer under investigation, provided that  the records are in accordance with the 
GAAP of the exporting country and that they reasonably reflect the costs associated with the production and 
sale of the product unde r consideration . In some circumstances,  however,  the information in the records kept 
by the exporter or producer under investigation may need to be analysed or verified using documents, 
information, or evidence from other sources.  This may , for example,  be so where the producer under 
investigation purchases inputs abroad  to produce the product under consideration. Moreover, i n circumstances 
where the obligation in the first sentence of Article  2.2.1.1 to calculate the costs on the basis of the records 
kept by the exporter or producer under investigation does not apply, or where relevant information from the 
exporter or produce r under investigation is not available, an investigating authority may have recourse to 
alternative bases to calculate some or all such costs. (See ibid., paras. 6.70 and 6.73, and fn 228 to 
para. 6.71) 
416 Panel Report, para.  7.99. WT/DS493/AB/R  
 
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 condition in the first sentence of Article  2.2.1.1417, a finding with which we agreed above.418 Other 
than pointing to the deduction of tran sportation expenses, Ukraine has not asserted, either before 
the Panel or before us, that MEDT otherwise adapted the export price of gas used in its calculation s 
in order to ensure that it reflected the cost of production in Russia. We therefore see no bas is to 
question the Panel's conclusion that the adjustment for transportation expenses made by MEDT was 
not sufficient to adapt the export price from Russia to reflect the cost of production in the country 
of origin, i.e. Russia . In reaching this conclusion , we are mindful of the fact that, in the particular 
circumstances of this case, given that MEDT did not provide an adequate basis to reject the reported 
gas cost under the second condition in the first sentence of Article  2.2.1.1, there may not have been 
a basis to rely on costs other than those reflected in the records of the investigated producers.419 
6.123.   In light of the foregoing, we reject Ukraine's claim challenging the Panel's application of 
Article  2.2 of the Anti -Dumping Agreement . Accordingly, we consid er that Ukraine has not 
demonstrated that the Panel erred in its interpretation or application of Article  2.2 of 
the Anti-Dumping Agreement in finding that, when constructing normal value, MEDT failed to 
calculate the cost of production "in the country of origin".  
6.2.6   Conclusion  
6.124.   In sum, we consider that the second condition in the first sentence of Article  2.2.1.1 of the 
Anti-Dumping Agreement relates to whether the records kept by the exporter or producer under 
investigation suitably and sufficiently correspon d to or reproduce those costs that have a genuine 
relationship with the production and sale of the specific product under consideration. Under the 
second condition in the first sentence of Article 2.2.1.1, it is the "records" of the individual exporter 
or producer under investigation that are subject to the condition to "reasonably reflect"  the "costs 
associated with the production and sale of the product under consideration" . We thus consider that 
there is no standard of reasonableness under that condition  that governs the meaning of "costs"  
itself, which would allow investigating authorities to disregard domestic input prices when such prices 
are lower than other prices internationally. Moreover, we observe that the first sentence of 
Article  2.2.1.1 direct s the investigating authority normally to base its calculations of costs on the 
records of the exporter or producer under investigation , provided that such records are in accordance 
with the GAAP of the exporting country and that they reasonably reflect th e costs associated with 
the production and sale of the product under consideration. Given the reference to "normally", we 
do not exclude that there might be circumstances other than those in the two conditions set out in 
that sentence, in which the obligat ion to base the calculation of costs on the records does not apply. 
The second condition in the first sentence of Article  2.2.1.1, however, does not contain open -ended 
"non-arm's -length transactions" or "other practices" "exceptions", as Ukraine seems to s uggest. 
Therefore, we consider that the Panel did not err in examining whether MEDT provided an adequate 
basis in the Investigation Report to find that the records of the investigated Russian producers, 
insofar as the reported gas cost was concerned, did n ot reasonably reflect the costs associated with 
the production and sale of ammonium nitrate.  
                                                
417 Panel Report, para. 7.1 01. 
418 See paragraphs 6.100 -6.108  above . 
419 Moreover, we observe that Article  2.2 provides that when the circumstances set out in the first part 
of that provision occur, the margin of dumping shall be determined by comparison with a comparable price of 
the like product when exported to an appropriate third country or with the cost of production in the country of 
origin. In our view, although interested parties may have a role to play in that regard, it is for the investigating 
authority to determine normal va lue consistently with Article  2.2 whe n domestic sales cannot be used . We are 
therefore not convinced by Ukraine's argument that "MEDT of Ukraine cannot be faulted for limiting the 
adaptation to the gas export price to an adjustment on account of transporta tion expenses" because none of 
the interested parties in the interim and expiry reviews pointed to necessary adjustments to ensure that the 
price of gas used reflected the cost of production in the country of origin.  (Ukraine's  appellant's  submission,  
para. 94) We are also not convinced by Ukraine's argument that any claim with respect to an adjustment on 
account of a 30% export tax on gas , which Russia argued MEDT should have considered in adapting the export 
price of gas to reflect the cost  of production  in the country of origin , should necessarily be dealt with under 
Article  2.4 of the Anti -Dumping Agreement. (Ibid., para s. 91 and 93 (quoting Russia's second written 
submission to the Panel, para.  344)) The obligation to conduct a fair comparison between t he export price and 
the normal value pursuant to Article  2.4 "presupposes that the component elements of the comparison  –  
i.e. the normal value and the export price – have already been established". (Appellate  Body Report,  EU – 
Fatty Alcohols (Indonesia) , para.  5.21) In this case, t he issue of the export tax arises  in the context of MEDT 's 
replacement of the reported gas cost with the surrogate price of gas when constructing normal value , and thus 
would precede any adjustments that are to be ma de in accordance with Article  2.4. WT/DS493/AB/R  
 
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 6.125.   We also consider that the Panel did not err in its assessment of MEDT's reasons for rejecting 
the reported gas cost under the second condition in the first sentenc e of Article 2.2.1.1. The Panel 
noted that, in the Investigation Report, MEDT examined whether , due to government regulation, the 
gas costs incurred by the investigated Russian producers were lower compared with prices in other 
countries or other export pr ices of gas from Russia. Ukraine has not advanced any reason for us to 
question the Panel's conclusion that MEDT's examination in that regard pertained to whether the 
cost of gas incurred by these producers was reasonable, and that this was thus not an ade quate 
basis to conclude that the producers' records did not reasonably reflect the costs associated with the 
production and sale of ammonium nitrate. The Panel also noted that, in the Investigation Report, 
MEDT took the view that Gazprom sells gas in the d omestic Russian market below cost. Given the 
Panel's factual finding that no determination was made by MEDT that Gazprom was the gas supplier 
of the investigated Russian producers or that Gazprom's prices affected these suppliers' prices, we 
see no reason to find error with the Panel's conclusion that Gazprom's below -cost prices did not 
constitute a sufficient factual basis for MEDT to conclude that the records of the investigated Russian 
producers did not reasonably reflect the costs associated with the pr oduction and sale of ammonium 
nitrate.  
6.126.   Therefore, we find that the Panel did not err in its interpretation and application of the second 
condition in the first sentence of Article  2.2.1.1 of the Anti -Dumping  Agreement. Consequently, we 
uphold  the Panel's finding, in paragraphs  7.92 and 8.2.a of the Panel Report, that Ukraine acted 
inconsistently with Article  2.2.1.1 of the Anti -Dumping Agreement because MEDT did not provide an 
adequate basis under the second condition in the first sentence of that provision to reject the 
reported gas cost.  
6.127.   We observe that Ukraine's claim on appeal under Article 2.2.1 of the Anti -Dumping 
Agreement is dependent on us reversing the Panel's finding of inconsistency with Art icle 2.2.1.1 of 
the Anti -Dumping Agreement. Given the consequential nature of Ukraine's claim on appeal, and 
having upheld the Panel's finding under Article  2.2.1.1 of the Anti -Dumping Agreement, we uphold  
the Panel's finding, in paragraphs  7.118 and 8.2.c  of the Panel Report, that Ukraine acted 
inconsistently with Article  2.2.1 of the Anti -Dumping Agreement because, in conducting its 
ordinary -course -of-trade test, MEDT relied on costs calculated inconsistently with Article  2.2.1.1 of 
the Anti -Dumping Agree ment.  
6.128.   Ukraine raises certain arguments under Article 2.2 of the Anti -Dumping Agreement that are 
dependent on us finding error with the Panel's findings under Article  2.2.1.1. Given our finding that 
the Panel did not err in its interpretation or application  of the second condition in the first sentence 
of Article 2.2.1.1, we reject these arguments by Ukraine. In light of the differences in text and 
function between Article 2.2 of the Anti -Dumping Agreement and Article 14(d) of the 
SCM Agreement, we also cons ider that the Panel did not err in its interpretation of Article  2.2 in 
considering that certain Appellate  Body interpretations with respect to Article  14(d) of the 
SCM Agreement were not relevant to its interpretative exercise under Article 2.2.  We also c onsider 
that the Panel did not err in its application of Article  2.2 in finding that the export price of gas was 
not properly adapted to reflect the cost "in the country of origin". An investigating authority has to 
ensure that the information it collects is used to arrive at the "cost of production in the country of 
origin" and compliance with this obligation may require the investigating authority to adapt that 
information. The Panel did not see any explanation by MEDT in the Investigation Report as to wh y 
adjustments for transportation expenses were adequate to adapt the export price from Russia at the 
German border to reflect the cost of the investigated Russian producers in the country of origin. The 
Panel also recalled its earlier finding under the sec ond condition in the first sentence of 
Article  2.2.1.1, a finding with which we agreed above. Other than pointing to the deduction of 
transportation expenses, Ukraine has not asserted, either before the Panel or before us, that MEDT 
otherwise adapted the e xport price of gas used in its calculation s in order to ensure that it reflected 
the cost of production in Russia. We therefore see no basis to question the Panel's conclusion that 
the adjustment for transportation expenses made by MEDT was not sufficient to adapt the export 
price from Russia to reflect the cost of production in the country of origin, i.e. Russia . In reaching 
this conclusion, we are mindful of the fact that, in the particular circumstances of this case, given 
that MEDT did not provide an ad equate basis to reject the reported gas cost under the second 
condition in the first sentence of Article  2.2.1.1, there may not have been a basis to rely on costs 
other than those reflected in the records of the investigated producers.  
6.129.   Therefore, we find that the Panel did not err in its interpretation and application of Article  2.2 
of the Anti -Dumping  Agreement. Consequently, we uphold  the Panel's finding, in paragraphs  7.103 WT/DS493/AB/R  
 
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 and 8.2.b of the Panel Report, that Ukraine acted inconsistently with that provis ion because MEDT 
failed to calculate the cost of production "in the country of origin".  
7  FINDINGS AND CONCLUS IONS  
7.1.  For the reasons  set out in this Report , the Appellate  Body makes the following findings and 
conclusions.  
7.1  Claims under Articles 6.2, 7.1, and 11 of the DSU relating to the original investigation 
phase  
7.2.  The language in Russia's panel request, including express references in footnotes, refers to the 
2008 amended deci sion and the 2010 amendment and sufficiently links these measures to Russia's 
claim under Article 5.8 of the Anti -Dumping Agreement. We therefore agree with the Panel's 
assessment that the 2008 amended decision and the 2010 amendment were discernible and 
accordingly identified as specific measures at issue in Russia's panel request.  
a. Therefore , we find that the Panel did not err under Article  6.2 of the DSU in finding that 
the 2008 amended decision and the 2010 amendment were identified as s pecific measures 
at issue in Russia's panel request.  
b. Consequently, we uphold  the Panel's finding, in paragraphs  7.28 and 8.1.a of the Panel 
Report, that the 2008 amended decision and the 2010 amendment were identified as 
specific measures at issue in Russi a's panel request, and thus fell within the Panel's terms 
of reference.  
7.3.  We recall that the measures and claims identified in a panel request in accordance with 
Article  6.2 of the DSU constitute the "matter referred to the DSB", which serves as a basis for the 
panel's terms of reference under Article 7.1 of the DSU. We have upheld the Panel's finding that 
the 2008 amended decision and the 2010 amendment were identified as specific measures at issue 
in Russia's panel request, and Ukraine has not appealed the Panel's finding that Russia had provided 
a brief summary of the legal basis for its claim under Article 5.8 of the Anti -Dumping Agreement as 
it relates to these measures. Moreover, Ukraine has not advanced any other grounds in support of 
its challenge unde r Articles 7.1 and 11 of the DSU.  
a. Therefore, we find that the Panel did not err under Articles 7.1 and 11 of the DSU by ruling 
on Russia's claim under Article 5.8 of the Anti -Dumping Agreement as it relates  to the 
2008 amended decision and the 2010 amendme nt. 
7.4.  We consider that the Panel provided a reasoned and coherent explanation in reaching the 
conclusion that the combined effect of the Ukrainian court judgments and the implementation by 
the 2010 amendment was that the dumping margin for EuroChem in the or iginal investigation phase 
was de minimis , triggering Ukraine's obligation under Article 5.8 of the Anti -Dumping Agreement to 
exclude EuroChem from the scope of the anti -dumping investigation. We further consider that the 
Panel, consistent with its duty un der Article  11 of the DSU, conducted an objective assessment of 
the arguments and evidence necessary to resolve the claim under Article  5.8 of the Anti -Dumping 
Agreement as it relates to the 2008 amended decision, the 2010 amendment, and 
the 2014 extension  decision.  
a. Therefore, we find that the Panel did not act in a manner inconsistent with Article  11 of 
the DSU, in concluding that the combined effect of the Ukrainian court judgments and 
their implementation by the 2010 amendment was that the dumping margin  for EuroChem 
in the original investigation phase was de minimis . 
b. For the reasons above, we uphold  the Panel's findings, in paragraphs  7.152, 7.157, and 
8.3.a of the Panel Report, that Ukraine acted inconsistently with Article 5.8 of the 
Anti-Dumping Agree ment in relation to the 2008 amended decision, the 2010 amendment, 
and the  2014 extension decision.  WT/DS493/AB/R  
 
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 7.2  Claims under Articles 2.2, 2.2.1, and 2.2.1.1 of the Anti -Dumping Agreement relating 
to MEDT's determinations of dumping in the interim and expiry reviews  
7.5.  We consider that the second condition in the first sentence of Article  2.2.1.1 of the 
Anti-Dumping Agreement relates to whether the records kept by the exporter or producer under 
investigation suitably and sufficiently correspond to or reproduce those costs  that have a genuine 
relationship with the production and sale of the specific product under consideration. Under the 
second condition in the first sentence of Article 2.2.1.1, it is the "records" of the individual exporter 
or producer under investigation that are subject to the condition to "reasonably reflect" the "costs 
associated with the production and sale of the product under consideration". We thus consider that 
there is no standard of reasonableness under that condition that governs the meaning of "costs" 
itself, which would allow investigating authorities to disregard domestic input prices when such prices 
are lower than other prices internationally. Moreover, we observe that the first sentence of 
Article  2.2.1.1 directs the investigating authority  normally to base its calculations of costs on the 
records of the exporter or producer under investigation , provided that such records are in accordance 
with the GAAP of the exporting country and that they reasonably reflect the costs associated with 
the p roduction and sale of the product under consideration. Given the reference to "normally", we 
do not exclude that there might be circumstances other than those in the two conditions set out in 
that sentence, in which the obligation to base the calculation o f costs on the records does not apply. 
The second condition in the first sentence of Article  2.2.1.1, however, does not contain open -ended 
"non-arm's -length transactions" or "other practices" "exceptions", as Ukraine seems to suggest. 
Therefore, we conside r that the Panel did not err in examining whether MEDT provided an adequate 
basis in the Investigation Report to find that the records of the investigated Russian producers, 
insofar as the reported gas cost was concerned, did not reasonably reflect the cos ts associated with 
the production and sale of ammonium nitrate.  
7.6.  We also consider that the Panel did not err in its assessment of MEDT's reasons for rejecting 
the reported gas cost under the second condition in the first sentence of Article 2.2.1.1. The Pan el 
noted that, in the Investigation Report, MEDT examined whether , due to government regulation, the 
gas costs incurred by the investigated Russian producers were lower compared with prices in other 
countries or other export prices of gas from Russia. Ukra ine has not advanced any reason for us to 
question the Panel's conclusion that MEDT's examination in that regard pertained to whether the 
cost of gas incurred by these producers was reasonable, and that this was thus not an adequate 
basis to conclude that the producers' records did not reasonably reflect the costs associated with the 
production and sale of ammonium nitrate. The Panel also noted that, in the Investigation Report, 
MEDT took the view that Gazprom sells gas in the domestic Russian market below cost. Given the 
Panel's factual finding that no determination was made by MEDT that Gazprom was the gas supplier 
of the investigated Russian producers or that Gazprom's prices affected these suppliers' prices, we 
see no reason to find error with the Panel' s conclusion that Gazprom's below -cost prices did not 
constitute a sufficient factual basis for MEDT to conclude that the records of the investigated Russian 
producers did not reasonably reflect the costs associated with the production and sale of ammonium  
nitrate.  
a. Therefore, we find that the Panel did not err in its interpretation and application of the 
second condition in the first sentence of Article  2.2.1.1 of the Anti -Dumping  Agreement.  
b. Consequently, we uphold  the Panel's finding, in paragraphs  7.92 an d 8.2.a of the Panel 
Report, that Ukraine acted inconsistently with Article  2.2.1.1 of the Anti -Dumping 
Agreement because MEDT did not provide an adequate basis under the second condition 
in the first sentence of that provision to reject the reported gas c ost. 
7.7.  We observe that Ukraine's claim on appeal under Article 2.2.1 of the Anti -Dumping Agreement 
is dependent on us reversing the Panel's finding of inconsistency with Article  2.2.1.1 of the 
Anti-Dumping Agreement.  
a. Given the consequential nature of Ukraine 's claim on appeal, and having upheld the Panel's 
finding under Article  2.2.1.1 of the Anti -Dumping Agreement, we uphold  the Panel's 
finding, in paragraphs  7.118 and 8.2.c of the Panel  Report, that Ukraine acted 
inconsistently with Article  2.2.1 of the Ant i-Dumping Agreement because, in conducting 
its ordinary -course -of-trade test, MEDT relied on costs calculated inconsistently with 
Article  2.2.1.1 of the Anti -Dumping Agreement.  WT/DS493/AB/R  
 
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 7.8.  Ukraine raises certain arguments under Article 2.2 of the Anti -Dumping Agreemen t that are 
dependent on us finding error with the Panel's findings under Article  2.2.1.1. Given our finding that 
the Panel did not err in its interpretation or application of the second condition in the first sentence 
of Article 2.2.1.1, we reject these ar guments by Ukraine. In light of the differences in text and 
function between Article 2.2 of the Anti -Dumping Agreement and Article 14(d) of the 
SCM Agreement, we also consider that the Panel did not err in its interpretation of Article  2.2 in 
considering t hat certain Appellate  Body interpretations with respect to Article  14(d) of the 
SCM Agreement were not relevant to its interpretative exercise under Article 2.2.  We also consider 
that the Panel did not err in its application of Article  2.2 in finding that the export price of gas was 
not properly adapted to reflect the cost "in the country of origin". An investigating authority has to 
ensure that the information it collects is used to arrive at the "cost of production in the country of 
origin" , and complianc e with this obligation may require the investigating authority to adapt that 
information. The Panel did not see any explanation by MEDT in the Investigation Report as to why 
adjustments for transportation expenses were adequate to adapt the export price fr om Russia at the 
German border to reflect the cost of the investigated Russian producers in the country of origin. The 
Panel also recalled its earlier finding under the second condition in the first sentence of 
Article  2.2.1.1, a finding with which we agre ed above. Other than pointing to the deduction of 
transportation expenses, Ukraine has not asserted, either before the Panel or before us, that MEDT 
otherwise adapted the export price of gas used in its calculation s in order to ensure that it reflected 
the cost of production in Russia. We therefore see no basis to question the Panel's conclusion that 
the adjustment for transportation expenses made by MEDT was not sufficient to adapt the export 
price from Russia to reflect the cost of production in the count ry of origin, i.e. Russia . In reaching 
this conclusion, we are mindful of the fact that, in the particular circumstances of this case, given 
that MEDT did not provide an adequate basis to reject the reported gas cost under the second 
condition in the first sentence of Article  2.2.1.1, there may not have been a basis to rely on costs 
other than those reflected in the records of the investigated producers.  
a. Therefore, we find that the Panel did not err in its interpretation and application of 
Article  2.2 of the Anti -Dumping  Agreement.  
b. Consequently, we uphold  the Panel's finding, in paragraphs  7.103 and 8.2.b of the Panel 
Report, that Ukraine acted inconsistently with that provision because MEDT failed to 
calculate the cost of production "in the country of origin".  
7.3  Recommendation  
7.9.  The Appellate  Body recommends  that the DSB request Ukraine to bring its measures found in 
this Report, and in the Panel  Report as upheld by this Report, to be inconsistent with 
the Anti-Dumping  Agreement, into conformity with its ob ligations under that Agreement.